BILL ANALYSIS Ó
AB 729
Page 1
ASSEMBLY THIRD READING
AB 729 (Roger Hernández)
As Amended May 6, 2013
Majority vote
JUDICIARY 7-3
-----------------------------------------------------------------
|Ayes:|Wieckowski, Alejo, Chau, | | |
| |Dickinson, Garcia, | | |
| |Muratsuchi, Stone | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Wagner, Gorell, | | |
| |Maienschein | | |
| | | | |
-----------------------------------------------------------------
SUMMARY : Creates a new evidentiary privilege relating to union
agents and represented employees. Specifically, this bill :
1)Provides that a union agent and a represented employee or former
employee have a privilege to refuse to disclose, in any court or
to any administrative board or agency, or in any arbitration or
other proceeding, whether civil or criminal, any confidential
communication between the employee or former employee and the
union agent while the union agent was acting in his or her
representative capacity. In addition, the employee or former
employee shall have a privilege to prevent others from
disclosing a confidential communication.
2)Permits a union agent to use or reveal a confidential
communication made during the course of fulfilling his or her
professional representative duties in any of the following
circumstances:
a) If it appears necessary to prevent the commission of a
crime that is likely to result in a clear, imminent risk of
serious injury or death of another person.
b) In actions, civil or criminal, against the union agent in
his or her personal or official representative capacity, or
against the local union or subordinate body thereof or
international union of affiliated or subordinate body thereof
or any agent thereof in their personal or official
AB 729
Page 2
representative capacities.
c) When required by court order.
d) When, after full disclosure has been provided, the written
or oral consent of the bargaining unit member has been
obtained, or, if the bargaining unit member is deceased or
has been adjudged incompetent by a court of competent
jurisdiction, the written or oral consent of the bargaining
unit member's estate or guardian or conservator.
3)Defines "union agent" for purposes of this bill to mean a person
employed, elected, or appointed by a labor organization and
whose duties include the representation of employees in a
bargaining unit in a grievance procedure or in negotiations for
a labor agreement and the labor organization. Specifies that an
appointed employee steward is not a union agent except to the
extent a represented employee or former employee communicates in
confidence to the steward regarding a grievance or potential
grievance.
EXISTING LAW :
1)Governs the admissibility of evidence in court proceedings and
generally provides a privilege to refuse to testify or otherwise
disclose confidential communications made in the course of
certain relations, including the following:
a) The attorney-client relation;
b) The spousal relation;
c) The physician-patient relation;
d) The psychotherapist-patient relation;
e) The clergy-penitent relation;
f) The sexual assault counselor-victim relation; and
g) The domestic violence counselor-victim relation.
AB 729
Page 3
1)Provides that a person's right to claim a privilege based on one
of the relations listed above is waived with respect to a
communication protected by the privilege if any holder of the
privilege, without coercion, has disclosed a significant part of
the communication or has consented to a disclosure made by
anyone.
2)Provides that if two or more persons are joint holders of a
privilege, a waiver of a right of a particular joint holder of
the privilege to claim the privilege does not affect the right
of another joint holder to claim the privilege. In the case of
the spousal privilege, the right of one spouse to claim the
privilege does not affect the right of the other spouse to claim
the privilege.
3)Provides that if a privilege is claimed on the ground that the
matter sought to be disclosed is a communication made in
confidence in the course of a recognized privileged relation,
the communication is presumed to have been made in confidence
and the opponent of the claim of privilege has the burden of
proof to establish that the communication was not confidential.
A communication does not lose its privileged character for the
sole reason that it was communicated by electronic means or
because persons involved in the delivery, facilitation, or
storage of electronic communication may have access to the
content of the communication.
FISCAL EFFECT : None
COMMENTS : This bill seeks to create a new evidentiary privilege
for confidential communications between union agents and
represented employees, similar to those traditionally granted to
other relations characterized by, or assuming, confidentiality,
including those between spouses, attorney and client, doctor and
patient, and a clergy person and a penitent. More recently the
privilege was extended to cover relations between a
psychotherapist and a patient, a domestic violence counselor and a
victim of domestic violence, and a sexual assault counselor and a
victim of sexual assault. The privilege is an exclusionary rule
of evidence that permits the holder of the privilege, or the
professional who may assert it on behalf of the holder, to refuse
to disclose the content of a confidential communication between
certain classes of persons.
AB 729
Page 4
Aside from the spousal privilege, most of the other evidentiary
privileges recognized in existing law involve a relationship
between a professional of some sort and a "client" who divulges
confidential information to that professional: for example,
attorney-client, doctor-patient, psychotherapist-patient, trained
domestic violence or sexual assault counselor-victim, and
clergy-penitent. Usually it is the "client" or the "patient" -
that is, the non-professional in the relationship - who is the
holder of the privilege. This means that it is the patient or
client who has the right to invoke, or waive, the privilege. Not
only can the patient or client invoke the privilege in order to
refuse to testify or otherwise disclose the contents of a
confidential communication, the patient or client can prevent
others, including the trained professional, from testifying about
or disclosing the content of the confidential communication. In
short, the privilege is primarily intended to protect the person
who discloses confidential information to a trusted person. This
assumption of a special trust is also, of course, at the core of
the spousal privilege.
However, in one of the privileged relations, both parties - to
varying degrees - are deemed the holder of the privilege. Under
the clergy-penitent privilege, both the clergy person and the
penitent are deemed to be holders of the privilege, even though
the privilege is greater for the penitent than it is for the
clergy person. The penitent may assert the privilege to refuse to
disclose, or to prevent another from disclosing, the content of
the confidential communication. The clergy person can assert the
privilege in order to refuse to disclose the confidential
communication, but he or she does not have the right to assert the
privilege to prevent another from disclosing the information.
This bill would create a similar distribution of the privilege:
both the union agent and the employee would have a privilege to
refuse to disclose, but only the employee would have a privilege
to prevent another person from disclosing a confidential
communication made to the union agent. Like any other evidentiary
privilege, the union agent-represented employee privilege is
subject to many exceptions. For example, like any other privilege
protecting confidential communications, it would only protect
communications that were made in confidence and only to the other
party. If a third party were present, or if the communication is
voluntarily shared with any third party, the privilege is waived.
Similarly, the bill makes standard exemptions for instances in
AB 729
Page 5
which disclosure is necessary to prevent the commission of crime
that would likely result in serious injury or death, or pursuant
to a court order.
According to the sponsor, the California Labor Federation (CLF),
when "a union member confides in a union representative, he or she
has every expectation that the conversation will remain private.
The ability to speak confidentially is essential to a union
representative's ability to provide effective representation. It
is also important to resolving workplace conflicts expeditiously,
fairly, and without litigation."
The California Chamber of Commerce and a coalition of business and
trade associations oppose this bill because, they contend, "it is
a one-sided proposed evidentiary privilege that can be misused by
labor union representatives to preclude employees who voluntarily
want to testify, from testifying regarding discussions with union
representatives."
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334
FN: 0000367