PERB: Employees Have Right to Union Representation at ADA Interactive Process Meetings

February 2015

Overturning established precedent, the Public Employment Relations Board ("PERB") has determined that the right to union representation extends to interactive process meetings convened to explore possible accommodations to enable a disabled employee to perform essential job functions.  (Sonoma County Superior Court (1/13/15) PERB Dec. No 2409-C.)

The decision stemmed from an unfair practice charge filed by the Service Employees International Union on behalf of an employee of the Sonoma County Superior Court, who had requested—and was denied—union representation at a meeting convened as part of the interactive process under the Americans with Disabilities Act ("ADA"). 

Initially, PERB's Office of the General Counsel dismissed the charge, relying on prior PERB precedent established in Trustees of California State University, in which PERB found that an employee was not entitled to union representation at a meeting to discuss a request for accommodations because the employee had no reason to believe the meeting could result in discipline against him.

 On review, PERB reversed the dismissal of the unfair practice charge by the Office of the General Counsel and overruled its decision in Trustees of California State University.  PERB concluded that meetings between employers and employees seeking accommodations pursuant to the ADA—or its California analog, the Fair Employment and Housing Act ("FEHA")—are not "investigatory" meetings within the meaning of Weingarten.  However, PERB observed that under California’s various collective bargaining statutes, including the Educational Employment Relations Act ("EERA"), "the right to representation is not limited only to the employer’s investigation of suspected employee misconduct." 

 PERB likened the interactive process under the ADA and FEHA to a grievance meeting, for which it had previously recognized the right to union representation.  It noted that "[b]oth the grievance procedure and the interactive process may involve terms and conditions of employment in which all parties have an interest.  For the employee, a successful interactive process may mean the difference between full employment or being unemployed.  He or she could benefit from union representation in the process. . . ."

 PERB rejected various arguments raised by the employer against including unions in the interactive process.  PERB disagreed with the employer's contention that union involvement in the process would result in "layers of delay," noting that all parties have an interest in the prompt resolution of a request for accommodations.  However, PERB acknowledged that in recognition of an employee’s right to privacy, a union’s right to represent an employee in the interactive process attaches only if the employee requests such representation.

 This decision is reflective of recent PERB rulings that have reversed established precedent.  Although PERB interpreted the case in the context of the Trial Court Act, it is reasonable to conclude that the decision will be expanded in the future to encompass other collective bargaining statutes, including the EERA.

 If you have any questions regarding this matter, please call one of our six offices.
F3 NewsFlash prepared by Kerrie E. McNally and John W. Norlin.
Kerrie is a Partner in the F3 Los Angeles and Inland Empire offices.
John is Special Counsel in the F3 San Diego office.

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