California Labor &
Employment Law Blog

Dec. 27 2010

Non-Union Employees Entitled to Opt-Out Notice Before Disclosure of Personal Information to Union

Topics: Class Actions, Court Decisions, Workplace Privacy

ByAlison Tsao

Employers and plaintiffs' attorneys in putative class action matters frequently disagree over whether and the type of notice that is required to be given to putative class members before their personal contact information is disclosed to Plaintiffs' counsel before a class is certified. In County of Los Angeles v. Los Angeles County Employee Relations Commission, Service Employees Int'l Union Local 721, the Second Appellate District held that non-union members are entitled to receive notice and be given an opportunity to object before their personal contact information is released to the union.

During the collective bargaining process, the union demanded that the employer provide the contact information (home addresses and telephone numbers) of county employees who chose not to join the union but otherwise pay their fair-share fee, an agency-shop fee, or pay the agency-shop fee to a charitable fund based on a claim of religious exemption. While part of the union's asserted need for this information was to more efficiently provide them with necessary annual notices about their fees and the reasons for the fees, the other reasons were to facilitate the union's communications with these non-union members about union activities, layoffs, job-related activities, and recruitment. The County employer objected to these requests based on the non-union members' constitutional privacy interests, and proposed that an opt-out form be used so the members can object to the provision of their contact information. The union rejected this proposal and filed an unfair employee-relations practice charge, arguing that under both the National Labor Relations Board and the state's Public Employee Relations Board have ruled that unions are entitled to personal information of non-members who are part of the bargaining unit. The administrative hearing officer agreed with the union and recommended to the Employee Relations Commission that the information be disclosed without notice to the non-union members, which was adopted by the Commission. The County then appealed this decision to the trial court under a writ of mandamus. While the trial court held that the Commission erroneously applied federal labor law to the issue and that it should have been decided under California's privacy laws, it nevertheless held that the union's right to communicate with all represented employees outweighed the employee's privacy interest. The County thereafter appealed this ruling to the Court of Appeal.

The Court of Appeal agreed that California law applied to this question, but reversed the trial court's ruling. In reviewing the text and history of the Privacy Initiative that led to the amendment to the California Constitution, the Court recognized that "the residential privacy interest includes the right not [to] be disturbed in one's home by unwanted advertising and solicitation by mail . . . [and] the disclosure of names, addresses, and telephone numbers of association members implicates the privacy interest in the sanctity of the home." Further, the Court reasoned that employees who give their home address and home telephone numbers as a condition of employment have a reasonable expectation of privacy that the information will remain confidential and will not be disseminated except as required by governmental agencies or benefit providers. The Court reviewed the California Supreme Court's decision in Pioneer Electronics v. Sup. Ct., 40 Cal.4th 360, 371-72 (2007) and its progeny in balancing individual privacy rights in the context of consumer and employment class actions against the need for disclosure of this information by developing procedural safeguards such as opt-out notices when these safeguards are warranted. The Court concluded that, unlike employment and consumer class actions where there could be a presumption that disclosure of contact information might lead to affirmative relief or vindication of statutory rights, that same presumption would not apply to non-union members because they would not necessarily perceive a benefit to having their information disclosed. As a result, the opt-out procedural safeguard used in Pioneer was appropriate and necessary to protect the privacy rights of these non-union members. 

This case is a positive development for employers who seek to assert the right to privacy of personal contact information of its employees and former employees. However, the Court was quick to point out that trial courts are granted discretion to consider whether procedural safeguards such as those used in Pioneer are always required in other class action contexts, and this issue therefore remains far from settled.

About CDF

For over 25 years, CDF has distinguished itself as one of the top employment, labor and immigration firms in California, representing employers in single-plaintiff and class action lawsuits and advising employers on related legal compliance and risk avoidance. We cover the state, with five locations from Sacramento to San Diego.

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About the Editor

Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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