Governor Issues Executive Order Affecting Statutory Deadlines or Requirements for Collective Bargaining, Administrative Hearings, and POST in Response to COVID-19

05.14.2020

The coronavirus (“COVID-19”) pandemic has had an unprecedented impact on our modern-day world, including on the judicial system and administrative hearing process.  On May 8, 2020, Governor Newsom issued another Executive Order to modify statutory deadlines or requirements bearing on various statutory requirements or procedures, to account for the public health and safety concerns posed by COVID-19.  The Governor’s Executive Order N-63-20 (“the Order”) (found here) impacts Public Entity Employers (e.g. cities, counties, housing authorities, transit agencies, California administrative agencies, water districts, public healthcare districts, and other special districts) by suspending various statutes and regulations affecting collective bargaining, administrative hearings, and Peace Officer Safety and Training (“POST”) requirements, and which also extends a number of statutory timelines.

The particular provisions of the Order affecting Public Entity Employers are listed below.

Impact on Factfinding and Collective Bargaining under the MMBA

The Order impacts collective bargaining for Public Entity Employers in several important ways.  First, the Governor extended by 60 days “the deadline specified in . . . Government Code section 3505.4(a)… related to the period in which a party must request the parties’ differences be submitted to a factfinding panel” under the Meyers-Milias-Brown Act (“MMBA”).

The MMBA provides post-impasse procedures that differ from proceedings under other public labor statutes.  The parties may mutually agree to proceed to mediation, “after a reasonable period of time” upon failing to reach agreement.  If the parties agree to proceed to mediation but fail to resolve their dispute, an employee organization may request that the parties’ differences be submitted to a factfinding panel, no sooner than 30 days but no more than 45 days after the appointment or selection of a mediator.  The Governor’s Order would extend the period within which a union may request to proceed to factfinding following mediation, to no sooner than 90 days but no more than 105 days.

Alternatively, if the parties did not submit a collective bargaining dispute to mediation, an employee organization may request that the dispute be submitted to factfinding within 30 days after the date that either party provided written notice of a declaration of impasse.  The Governor’s Order would extend the deadline for a union to request factfinding to 90 days following the declaration of impasse.

This aspect of the Order could be utilized by employee organizations to delay initiation (and thus completion) of factfinding.  Accordingly, Public Entity Employers seeking to negotiate salary reductions and other cost-saving measures are advised to commence bargaining at the earliest possible opportunity, and to consult with legal counsel regarding strategies to avoid unnecessary delay in bargaining.

The Order also suspends any statute or regulation requiring a public employer to “post notice on ‘employee bulletin boards,’” provided the public entity provides such notice to employees through electronic means, including email, posting on the public employer’s website (if frequented by employees), or other electronic means customarily used to communicate with its employees.   The requirement of posting on employee bulletin boards most frequently arises in public sector labor relations statutes, including under the MMBA.  Because the Order suspends the physical posting requirement only if notice is provided electronically, the public employer may opt to continue physical posting of notices.  It must be noted, however, that the Public Employment Relations Board (“PERB”) has authority to direct electronic posting in any event. (See e.g. City of Sacramento (2013) PERB Dec. No. 2351-M.)

Remote Administrative Hearings

The Order suspends any statute or regulation permitting a party or witness to participate in a hearing in person; permitting a member of the public to be physically present for a hearing; or permitting a party to object to a presiding officer conducting all or part of a hearing by telephone, television, or other electronic means. 

This suspension is subject to the requirements that: (a) each participant in the hearing has an opportunity to participate in and hear the entire proceeding while it is taking place and to observe exhibits; (b) a member of the public who is entitled to observe the hearing may do so by electronic means; and (c) the presiding officer satisfies all requirements of the Americans with Disabilities Act and Unruh Civil Rights Act (relating to accommodations).

Subject to these requirements, the Order provides support to conduct a wide range of administrative hearings remotely.  For Public Entity Employers, these likely include hearings established through local policy and regulation, hearings provided by labor memoranda of understanding, and hearings administered by PERB, the Office of Administrative Hearing, and other administrative agencies.    

However, the Order does not eliminate constitutional due process requirements.  We recommend that Public Entity Employers review the Firm’s Alert on “Discipline During the Pandemic”, which considers due process issues raised by remote administrative hearings, and consult with legal counsel regarding the conduct of any particular hearing that would otherwise be held in person.

POST Requirements For Rehiring Retired/Separated Peace Officers and Providing Basic Academy Instruction

The Order authorizes the Executive Director of the Commission on POST to: (1) extend from 180 days to 1 year the period in which individual law enforcement agencies may employ retired peace officers, following the date of their retirement or separation in good standing, without subjecting them to the full employment application process; and (2) to grant individual technical and scheduling waivers or exceptions.

The Order also authorizes POST to temporarily allow lecture-based Basic Academy Instruction to be delivered online, but requires that instruction for testing and practical skills training be conducted in-person.  On March 20, 2020, the California Community College Chancellor’s Office released preliminary guidance on hard-to-convert courses, which recommends that colleges “work to sustain courses that directly support the essential infrastructure sectors.”  Community colleges seeking to reinstitute POST Basic Academy instruction — while providing some level of social distancing — now have the prospect of conducting lectures remotely (upon authorization from POST).

Please do not hesitate to contact AALRR for assistance in navigating these issues during these challenging times.

_{This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.} 

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