Initial Thoughts On PERB's Proposed Regulations

Since my last post PERB has added two more regulatory packages for consideration at its June 13, 2019 meeting. There are now a total of five: 1) exceptions; 2) recusal; 3) subpoenas and motions; 4) e-filing; and 5) SMCS. The proposed regulations are substantial and I encourage practitioners to take some time to review them.

Overall, I think the regulations are well-written and will provide much needed guidance in these areas. Because I may not be able to attend the meeting on June 13, I prepared extensive written comments to the Board. My letter to the Board is available by clicking this link: 2019-06-04 (ltr)(TGY)(PERB) Comments on Reg Packages – Fnl

In short, there are only two proposed regulations to which I expressed objection:

32150(h) – Adverse Inference for Failing to Comply with Subpoenas

PERB is proposing a regulation that expressly allows the Board to draw an adverse inference from a party’s failure to comply with a subpoena as an alternative to PERB seeking compliance with the subpoena in court. But here’s my objection. A responding party, typically an employer, may have good faith objections to a subpoena. Currently, the employer will have the opportunity for court review of the subpoena because enforcement can only be obtained from a superior court. But under this new regulation, the party issuing the subpoena can forego court enforcement and just ask for an adverse inference. This places the employer in an untenable situation since the employer will have no readily available means to obtain court review yet risks an adverse inference if it fails to comply. I think an adverse inference would only be appropriate if a party fails to comply after a final court order has been issued.

32700 – Electronic Signatures

Next, PERB is proposing a regulation to allow for electronic signatures. This is presumably in response to the Board’s decision in Regents of the University of California (2018) PERB Order Ad-459-H. I’m not opposed to electronic signatures; I think they are the future. But PERB’s regulation merely requires electronic signatures using “generally accepted security protocols or their equivalent.” I think this is far too vague of a standard given the importance of this issue. There are already regulations elsewhere in California that allow for digital signatures and provide for robust security protocols. For example, the regulations from the Secretary of State (SOS) require the use of technologies that comport to Public Key Cryptography, Signature Dynamics, or some other technology approved by the SOS. (2 Cal. Code of Regs., §22000 et. seq.) I think PERB’s regulations should be much more specific as to the security protocols required for using electronic signatures.

Other than these two issues I only had a few additional comments on the regulations that I set forth in my letter.