PERB Extends Employee’s Right to Union Representation at ADA Interactive Process Meetings

The Public Employment Relations Board (“PERB”) recently ruled that an employee has, upon request, the right to union representation in an American with Disabilities Act (“ADA”) interactive-process meeting for a reasonable accommodation so that an employee can perform the essential function of his or her job.  In its ruling, PERB overturned prior law that held that an employee had no right to union representation at these meetings.

In SEIU Local 1021 v. Sonoma County Superior Court,(2015) PERB Decision No. 2409-C (Sonoma County Superior Court), the Union appealed a decision dismissing an unfair practice charge that alleged that an Employee requested the presence of a Union Representative at an ADA interactive-process meeting because the Employee reasonably feared that the meeting would impact the terms and conditions of her job, namely her wages.  However, PERB’s Office of the General Counsel initially dismissed the charge because a prior case, Trustees of the California State University, (2006) PERB Decision No. 1853-H (Trustees), held that an employee did not have the right to the presence of the Union at interactive-process meetings.

The Union appealed to PERB, and it unequivocally overturned Trustees and ruled that employees have the right to union representation at ADA interactive-process meetings.  PERB noted that the right to union representation is quite expansive under California’s public-sector labor statutes, illustrating the two scenarios in which public-sector employees have the right to union representation in their dealings with the boss:  (1) when the employer initiates an investigative interview that would lead the employee to reasonably fear disciplinary action (the Weingarten Right), and (2) on all other matters related to the employees’ terms and conditions of employment, such as informal or formal grievance meetings, discussions of leave entitlements, and prior to the placement of documents in an employee’s personnel file.

PERB found that an employee’s right to union representation at ADA interactive-process meetings did not come from Weingarten; rather, it derives from an employee’s right to union representation in all matters related to the terms and conditions of employment.  Thisis significant because it clearly establishes that an employee’s right to union representation reaches to all matters of employer–employee relations; not just those matters involving discipline.  Despite the expansiveness of this right to representation, PERB made clear that a union’s duty to fair representation is still limited to contract negotiation and contract administration.

The Union was represented by this firm, Weinberg, Roger & Rosenfeld.

By Anthony Tucci | January 16, 2015

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