California Legislation Pushing Evidentiary Privilege for Employee-Union Representative Communications
In 2003, the Second District Court of Appeal for California, in American Airlines, Inc. v. Superior Court, 114 Cal.App.4th 881 (2003), refused to recognize a privilege for communications between a union representative and bargaining unit employee under the California Labor Code, the Railway Labor Act, common law privacy or any other provision. In 2005, Illinois became the first state to enact a statute creating a privilege for such communications. Last year, the Alaska Supreme Court in Peterson v. State, 280 P.2d 559 (Alaska 2012), created a new Alaskan common law privilege for certain communications between an employee and his/her union representative.
The California Legislature is now attempting to overturn American Airlines, and follow Illinois by creating a statutory privilege for such communications through Assembly Bill 729. AB 729 amends the California Evidence Code to create a privilege for confidential communications between an employee or former employee and his/her union agent that is similar to the attorney-client privilege. AB 729 passed the full Assembly in May by almost a 2/3 majority. Last week, the Senate Judiciary Committee voted in support of the bill 4-2. AB 729 now moves to the Senate Appropriations Committee for consideration before being considered by the entire state Senate. Unionized employers should play close attention to this piece of legislation. We will continue to keep you advised on how this develops.