Under the Educational Employment Relations Act (“EERA”), school districts may now be held accountable for discussion of—and communications related to—the protected activities of former employees with new and/or prospective employers.
In a recent decision, the Public Employment Relations Board (“PERB”) concluded that a former employee has standing to file an unfair practice charge against a former employer due to claims that the former employer unlawfully interfered with his or her ability to secure and/or maintain new employment elsewhere. (Monterey Peninsula Unified School District (6/19/2017) PERB Decision No. 2530-E.) In this case, Eric Moberg, a former employee of the Monterey Peninsula Unified School District (“District”), filed an unfair practice charge against the District alleging that, due to his protected union activities while employed by the District (which included filing grievances), he was “blacklisted” from obtaining or retaining employment with other public school employers. In particular, Moberg claimed that the District transmitted information to other districts related to his union activities.
In its decision, PERB concluded that former employees were logically entitled to the same protections as current employees in their capacities as “applicants” for employment or reemployment, even where, as in Moberg's case, the former employee is not actually an “applicant” of the allegedly offending employer. Although PERB ultimately determined that, on the facts of this case, Moberg failed to establish unlawful retaliation, it left open the possibility for future "blacklisting" cases from former employees against public school districts.
This case serves as a warning to public school employers when discussing former and prospective employees amongst themselves. The scope of "protected activity" under the EERA is broadly defined as forming, joining, or participating in union activities. PERB has applied this definition to a wide range of conduct that public school employers may find relevant when speaking about former or prospective employees—from filing grievances to simply being critical of management. Both former and prospective employers, therefore, should be prudent in their communications with one another to avoid even a semblance of impropriety or any appearance that the former employer is attempting to block an applicant’s hire due to his/her past protected activities.
If you have any questions regarding this matter or to seek additional information on how your school district should communicate with prospective employers of former employees, please call one of our six offices.