AB 729: Would Establish “Union Agent-Represented Worker” Communication Privilege

AB 729 was introduced by Assemblymember Hernandez on March 4, 2013. This bill would establish a new evidentiary privilege for communications between a union agent and a represented worker. Current law provides that communications between an attorney-client and physician-patient, among others, are privileged. This bill would add communications between a union agent and represented worker to that list.

Comments:

No legislative analysis has been issued on this bill yet so we don’t know what prompted it. But I have a hunch. Last year there was an unpublished appellate decision involving a State Personnel Board case. The employee asserted a communication privilege with his union representative. The majority court opinion rejected the employee’s assertion of a privilege. However, one justice issued a lengthy dissenting opinion arguing that a union representative privilege should be recognized in SPB proceedings. The case is Rye v. State Personnel Board (2012) 2012 WL 3860809. I thought the dissent’s argument was pretty weak, although interesting. It’s possible that opinion spawned the idea for this bill.
The Sacramento Bee did a short article on this bill. (Click here.) It was interesting because it quoted Ron Yank, a long-time union attorney and the former director of the state personnel department, as stating that AB 729 needed to be “refined” because it “leaves the door open to ‘just any old job steward’ taking the privilege, even in criminal matters.” I agree wholeheartedly with Ron.
First, I have to admit that I am not inherently opposed to the idea of providing confidentiality to communications between a union representative and represented worker. Union representatives will argue that employees will be more open and honest with them if they can expect confidentiality in communications. That’s probably true. Also, having confidentiality may allow union representatives to be more direct and realistic with employees, which may be a good thing for employers. However, as Ron Yank stated, this bill as currently written needs to be refined.
There are two critical areas that I think must be changed. First, the bill contains no limitation on who can be a “union agent.” A union could conceivably designate everyone in the bargaining unit as a “union agent.” There has to be some limitation. I note that the Legislature has created similar privileges in the last few years. For example, there is now a Sexual Assault Counselor-Victim Privilege (Evid. Code, §1035 et. seq.), Domestic Violence Counselor-Victim Privilege (Evid. Code, §1037 et. seq.), and Human Trafficking Caseworker-Victim Privilege (Evid. Code, §1038 et. seq.). These three privileges all have strict requirements on who is covered. For example, a sexual assault counselor must be a licensed psychotherapist or be under the supervision of one and possess a minimum amount of training. I think similar requirements must be built into AB 729.
Second, there needs to be some mechanism for a court or administrative body to pierce the privilege in certain situations. For example, the Sexual Assault Counselor-Victim Privilege provides that a “court may compel disclosure of information received by the sexual assault counselor … if the court determines that the probative value outweighs the effect on the victim, the treatment relationship, and the treatment services if disclosure is compelled.” (Evid. Code §1035.4.) The Domestic Violence Counselor-Victim Privilege and Human Trafficking Caseworker-Victim Privilege both contain similar mechanisms for a court to order disclosure in certain situations. I think AB 729 has to be amended to include such language.
Even if these two changes are made, there still is a legitimate question as to whether this bill is really necessary given the availability of attorneys. The unions will probably argue that they can’t afford to exclusively hire attorneys as union representatives. That may be true; but neither can public employers. After all, this bill doesn’t provide a similar privilege to management employees in labor relations. So while I’m not inherently opposed to the idea of a union agent-represented worker privilege, I’m not sure I’m sold on the need for one.