BILL ANALYSIS Ó AB 729 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 729 (Roger Hernández) As Amended August 21, 2013 Majority vote ----------------------------------------------------------------- |ASSEMBLY: |48-27|(May 28, 2013) |SENATE: |23-10|(September 3, | | | | | | |2013) | ----------------------------------------------------------------- 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. AB 729 Page 2 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 Page 3 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. 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, AB 729 Page 5 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