This post was authored by Heather R. Coffman.
A concept known as “lost time” in some negotiated Memoranda of Understanding is now State law. Effective January 1, 2019, public employers may be required to grant paid leaves of absence to employees so they can serve in leadership positions in their unions, if requested by the exclusive representative. The new law is codified as section 3558.8 of the California Government Code. As detailed below, the law requires unions to reimburse employers for the expenditures on behalf of the union employees on leave, but the parties must meet and confer to define the terms of the leaves and reimbursements.
What Does the Law Require?
Paid Leave of Absence for Union Leadership
Under the new law, an exclusive representative may request that the employer grant a leave of absence (with pay and without losing benefits) for an employee or employees, so that the employee(s) can serve as stewards or officers of the exclusive representative or its affiliated employee organization. The law requires the public employer to grant a “reasonable” leave of absence for the identified employee(s) – potentially on a full-time, part-time, periodic, or intermittent basis. The term “reasonable” is not defined by this law.
Right to Reinstatement and No Loss of Rank, Seniority, or Benefits
Upon return from this leave of absence, employees have a right to reinstatement to the same position and work location, if feasible, or to a substantially similar position if reinstatement to the exact position and location is not feasible. The employees will not suffer any loss of rank, seniority, or classification, and the employees will continue to accrue credit toward retirement while serving on the leave of absence for the exclusive representative. The employees must continue to pay their contributions if already required to do so under the current Memorandum of Understanding or other applicable rules.
Union Reimbursement for Employer’s Payments
In order to ensure the employees are compensated during the leave of absence, the employer is required to continue paying the employees’ salary, benefits, and any contributions to the employees’ retirement fund under the applicable labor agreement. The union must then reimburse the employer within 30 days of receiving certification of these expenses.
How Does this Law Affect Our Public Agency?
This new legislation raises a host of questions and challenges for public employers. How will a public employer determine whether a particular requested leave of absence is a “reasonable” one that must be granted under the new law? How can your agency’s departments plan to absorb the impact of these new leaves of absence? What procedures must the parties follow to process a request for a leave of absence under new Government Code section 3558.8?
We anticipate this will be a hot topic for the new season at the bargaining tables. The parties are required to negotiate the procedures for the exclusive representative to request the leave of absence, and the procedures for the employer to be reimbursed when the employer grants a leave of absence. Does the meet and confer fall under the same good faith obligation, and can it lead to impasse and factfinding if the parties cannot agree? What, if any, unilateral imposition authority does a public agency have following these procedures? If the parties’ negotiation fails and the impasse process does not produce an agreement, may the legislative body resolve the impasse by leaving everything status quo (meaning the employee stays on-the-job) instead of imposing its best offer for the union leave?
We hope your team will use this alert to develop an effective strategy to minimize the burden on public employers while honoring the unions’ and their members’ rights under this new law. Please reach out to any of our labor relations experts here at LCW to assist in developing proposals to meet these requirements (and your agency’s best interests) under this new law