BILL ANALYSIS Ó
AB 729
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 729 (Roger Hernández)
As Amended August 21, 2013
Majority vote
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|ASSEMBLY: |48-27|(May 28, 2013) |SENATE: |23-10|(September 3, |
| | | | | |2013) |
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Original Committee Reference: JUD.
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 civil proceeding 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) In actions 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
representative capacities.
b) 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.
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3)Requires the union agent to use or reveal a confidential
communication made to the union agent while the union agent
was acting in his or her representative capacity if required
by court order.
4)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 and the appointed employee
steward was a steward at the time the communication was made.
5)Defines "confidential communication" to mean any written or
oral communication transmitted between a represented employee
or former employee and a union agent and in confidence by a
means which, so far as the employee or former employee or the
union agent is aware, discloses the information to no third
persons other than those who are present to further the
interest of the employee, former employee or union agent or
those to whom disclosure is reasonably necessary for the
transmission of the information or the accomplishment of the
purpose for which the communication was made, and includes
advice given by a union agent in the course of a
representational relationship.
6)Specifies that there is no privilege if the union agent
reasonably believes that the disclosure of a confidential
communication is necessary to prevent a criminal act that the
union agent reasonably believes is likely to result in the
death of, or substantial bodily harm to, an individual.
7)Specifies that there is no privilege with respect to the
confidential communication made to enable or aid anyone to
commit or plan a crime or a fraud.
The Senate amendments provide that the privilege created by this
bill does not apply to criminal proceedings and incorporate
provisions of AB 267 (Chau) of the current legislative session,
to take effect if both bills are chaptered and this bill is
chaptered last.
AB 729
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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.
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.
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.
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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,
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the privilege is waived. Similarly, the bill makes standard
exemptions for instances in which disclosure is necessary to
prevent the commission of a crime that would likely result in
serious injury or death, or pursuant to a court order.
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334
FN: 0001874