Legislative Watch

Second Quarter 2012Articles California Update

Unemployed” May Soon Be A Protected Status

In the latest misguided foray into employment law, the California legislature is poised to send a bill to Gov. Brown that prohibits discrimination against a job applicant because he or she is unemployed. The legislation, AB 1450, is supported by unions and the organized plaintiffs’ bar. Employer groups have labeled the law a “job killer” and will urge a veto. If enacted, the law could prevent a company from conducting an internal-only search to fill an open position. It could also lead to a litigation nightmare, conferring standing on every unemployed applicant to argue they have been discriminated against.

Agricultural Labor Relations

In California, agricultural workers are covered by the California Agricultural Labor Act that established the Agricultural Labor Relations Board (ALRB). The ALRB was “created in 1975 to ensure peace in the fields of California by guaranteeing justice for all agricultural workers and stability in agricultural labor relations.”

The ALRB could previously uphold or set aside a union election, but it did not have the authority to impose sanctions on employers who engaged in misconduct over the election. California Senate Bill 126 , which was sponsored by the United Farm Workers Union, sought to remedy this problem. More than 5,000 farm workers, their families and supporters marched for 13 days over 167 miles from Madera in the Central Valley to Sacramento to urge the Governor to sign SB 126. SB 126 was signed into law by Gov. Brown on October 9, 2011.

Under this new law , if the ALRB refuses to certify an election because of employer misconduct that, “in addition to affecting the results of the election, would render slight the chances of a new election reflecting the free and fair choice of employees, the labor organization shall be certified as the exclusive bargaining representative for the bargaining unit.” Thus, the employer is compelled to negotiate with that labor organization. In addition to this change, the statute shortens the time frames for challenging election results (by 90 days in some instances), strengthens mandatory mediation requirements and prohibits courts from delaying the implementation through judicial “stays.”

In order to avoid making mistakes, employers must begin discussions with their supervisors. Some of the topics to discuss include:

  • The company’s position on unions
  • The definition and role of a supervisor
  • What a unionized operation means to management, supervisors and employees
  • Union dues, fees, fines, assessments, possible strikes and constitutional restrictions
  • Why employees want to join unions
  • How to see signs of union organizing
  • What a supervisor can and cannot say to employees
  • Why union authorization cards are significant
  • How to enforce no solicitation and no distribution rules
  • Maintaining discipline during organizing

The ALRB will be re-energized with the new legislative power granted to it. The unions will certainly take maximum advantage of the new statutory perks by bypassing losing election results and court enforced injunctive remedies. Prevention is the best cure now.