PERB Docket at Lowest Level in Recent Memory

As of June 5, 2020, PERB's Docket (the number of cases awaiting decision by the Board itself) stood at 22. Significantly, for the first time in recent memory the Board's docket has no cases that have been at the Board level awaiting decision for longer than a year. As the Board notes, this is a tremendous improvement from only two years ago when the docket stood at 83 cases with 37 cases over a year old. The Board attributes the decrease in the docket to increased productivity by the Board members in addition to structural changes such as the addition…

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Governor Extends Factfinding Deadlines

On May 7, 2020, Governor Newsom issued Executive Order N-63-20 which extended the timelines of various statutes and regulations. With respect to PERB, the order "extended for a period of 60 days" the deadlines to request factfinding under the MMBA (Gov Code 3505.4(a)), EERA (Gov Code 3548.1) and HEERA (Gov Code 3591). The order also suspended any statute or regulation that requires administrative hearings to be held in person as long as: 1) each participant can hear the proceeding and view any exhibits; 2) members of the public can observe the hearing electronically; and 3) the requirements of the ADA…

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The Emergency Exception to Bargaining


General PERB Rule: The Calexico Emergency Exception

Given the coronavirus pandemic, I’ve gotten a lot of questions about whether there is an “emergency” exception to the duty to bargain over changes within the scope of representation. Yes, there is; it falls under the general “business necessity” defense. The Calexico emergency defense requires an employer to show an actual financial or other emergency that leaves no alternative to the action taken and allows no time for meaningful negotiations before taking action. (Calexico Unified School District (1983) PERB Decision No. 357, adopting proposed decision at p. 20 (“Calexico”); see also San Francisco Community College District (1979) PERB Decision No. 105; Compton Community College Dist. (1989) PERB Dec. No. 720; Oakland Unified School Dist. (1994) PERB Dec. No. 1045; County of San Bernardino (Office of the Public Defender) (2015) PERB Dec. No. 2423-M.) Notably, in all these cases PERB held that the employer did not meet the elements of the Calexico emergency defense. So while the language of the Calexico exception might appear broad, PERB has interpreted it very narrowly.

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Families First Coronavirus Response Act: Updates

Effective Date of FFCRA: The Families First Coronavirus Response Act (FFCRA) states that the law is effective no later than 15 days after enactment, which would be April 2, 2020. However, the Department of Labor (DOL) has apparently declared the law effective a day earlier, on April 1, 2020. (Click here.) Posting Notice of FFCRA to Employees: The FFCRA requires that employers post a notice prepared by, or approved by, the DOL. The DOL has just released a set of posters. (Click here.) I am not aware of what the process is to get a poster "approved" by the DOL.…

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New Paid Sick Leave: Is It In Addition to Existing Accruals?

Here is the biggest question in my mind about the newly enacted Families First Coronavirus Response Act. Can the required 2 weeks of paid sick leave be met with the employee's existing accruals or is the 2 weeks in addition to existing accruals? The House version of H.R. 6201 (Click here) contained Section 5102(d) which stated: (d) EMPLOYERS WITH EXISTING POLICIES.—With respect to an employer that provides paid leave on the day before the date of enactment of this Act— (1) the paid sick time under this Act shall be made available to employees of the employer in addition to…

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