HomeMy WebLinkAboutOpposition Letter - AB 340 (Ahrens)- 05.14.2025
May 14, 2025
The Honorable Patrick Ahrens
Member, California State Assembly
1021 O Street, Room # 6110
Sacramento, CA 95814
RE: AB 340 (Ahrens) Employer-Employee Relations Confidential Communications
Notice of OPPOSITION (As Amended March 5, 2025)
Dear Assemblymember Ahrens:
On behalf of the City of Cupertino, I am writing to express our opposition to your Assembly Bill
(AB) 340. This bill would restrict an employer’s ability to conduct internal investigations to the
detriment of employees’ and the public safety and well-being, adding new costs and liability for
public employers. Moreover, the substantive provisions of the bill create restrictions mirroring
a privilege.
Previous Legislation and Previous Veto
Our concerns with AB 340 are consistent with the issues raised in response to previously
introduced legislation, AB 2421 (Low, 2024), AB 729 (Hernandez, 2013), AB 3121 (Kalra,
2018) and AB 418 (Kalra, 2019). The issues are succinctly captured in the AB 729 veto
message from Governor Brown, which states: “I don't believe it is appropriate to put
communications with a union agent on equal footing with communications with one's
spouse, priest, physician or attorney. Moreover, this bill could compromise the ability of
employers to conduct investigations into workplace safety, harassment and other
allegations.”
New Costs and Added Liability for the State, Local Governments, and Schools
In order to conduct proper investigations that uphold the public’s trust, protect against the
misuse of public funds, and ensure the safety and well-being of both public
employees and the public at large, it is critical that a public employer has the ability to
interview all individuals with relevant information to ascertain the facts and understand
the matter fully. AB 340 would increase investigation and litigation costs for the state as
well as local governments and schools by creating incomplete investigations, since all
appropriate employees with relevant information cannot be questioned. Costs and risks
may also increase as conduct challenged as unlawful under the bill’s provisions is
adjudicated before the Public Employment Relations Board (PERB). For schools, this is a
drain of Proposition 98 funding.
Inconsistent with PERB Decision
AB 340 states that its prohibition on employer questioning is intended to be consistent
with, and not in conflict with, William S. Hart Union High School District (2018) PERB Dec.
No. 2595. This is problematic for two reasons. First, the bill is inconsistent with that PERB
decision. That decision engaged in a circumstantial analysis to determine whether
employer questioning was prohibited or not, while weighing the employee’s and the
employer’s interests. AB 340 goes far beyond that, forgoing any circumstantial analysis
or weighing of interests. It categorically prohibits questioning of confidential employee
representative communications, except for narrow, limited exceptions. Second, we are
not aware of evidence that PERB is denying the interests of employees on this issue,
raising the question of whether a legislative solution is warranted.
Expansion of New One-Sided Standard
AB 340 would create a de facto prohibition on employers requesting a court to
compel disclosure of purportedly confidential communications, which is the same
outcome as if communication was privileged in those circumstances. This will have
a significant impact on judicial and administrative proceedings.
Endangers Workplace Safety
AB 340 interferes with the ability to interview witnesses because it would prohibit public
agencies from questioning any employee or “representative of a recognized employee
organization, or an exclusive representative” about communications between an
employee and a “representative of a recognized employee organization, or an
exclusive representative.” While AB 340 includes a narrow exception for criminal
investigations, and provides that it does not supersede Gov. Code 3303, many
necessary investigations are still subject to the bill’s limitations, putting safety at risk.
This bill would hinder employees who wish to voluntarily report an incident or testify in
front of necessary misconduct investigations since an employer would be prohibited
from certain lines of questioning. It would also limit the ability of public employers to
carry out the requirements of the recently enacted law, Senate Bill 553 (Cortese, 2023),
which includes conducting investigations into workplace safety, harassment, and other
allegations. As of January 1, 2025, SB 553 allows collective bargaining representatives
standing to seek temporary restraining orders (TRO) in connection with workplace
violence. AB 340 will create a problematic scenario wherein a TRO may be obtained
but an employer could not fully investigate the underlying facts. AB 340 lacks guardrails
to prevent potential conflicts of interest that could arise during employee safety issues.
Making matters worse, employers may not even know they are acting contrary to AB
340’s restrictions by communicating with staff, because only the employee or the
representative would know or could decide when a communication was made “in
confidence.” This could affect day-to-day activities and critical government
operations.
For these reasons, the City of Cupertino opposes AB 340.
Sincerely,
Liang Chao
Mayor
City of Cupertino
cc. The Honorable Josh Becker
The Honorable Patrick Ahrens