Terminating the Employment Relationship

When functioning solely as a steward, the employee has leeway from most operational rules so long as: (1) his/her action substantially involves union business, e.g. investigating and processing grievances; and (2) his/her action does not violate the limits of proper conduct as judged by the application of a rule or reason. In this regard, militancy and zealousness are deemed within the reasonable limits of proper conduct. Generally speaking, arbitrators concur in their views regarding the bounds of union authority and the degree of a union representative’s behavioral freedom. They impose the same standard of just cause where disciplinary action is taken against a union steward for alleged misconduct. When anti-union discrimination is alleged, the union has the burden of proving this allegation. 6. W HISTLEBLOWER R ETALIATION Employers must also be aware of “whistleblower” statutes that prohibit retaliation for making certain complaints. There are several statutes that protect employees from discipline for filing complaints with or against their employers. The following is a non-exhaustive list. Any time an agency is aware of an employee complaint when deciding to terminate, we recommend consulting legal counsel. a. California Labor Code Section 1102.5 California Labor Code section 1102.5 prohibits an employer from making, adopting or enforcing any rule, regulation or policy that prevents an employee from disclosing information to a government or law enforcement agency, to a person with authority over the employee, or to another employee who has authority to investigate, discover, or correct the violation or noncompliance, or from providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, where the employee has reasonable cause to believe that the information discloses a violation of a state or federal statute, or violation or noncompliance with a local, state, or federal regulation. Labor Code section 1102.5 applies, regardless of whether disclosing the information is part of the employee’s job duties. However, it does not apply to general personnel matters. 54 In 2003, the Labor Code was amended to codify the holding in Gardenhire v. Housing Authority , 55 a case where the jury held the employee had been subjected to retaliation after reporting to her public agency employer her suspicion that a consulting contractor violated the law. Subdivision (e) of Labor Code section 1102.5 expressly provides:

“A report made by an employee of a government agency to his or her employer is a disclosure of information to a government or law enforcement agency pursuant to subdivisions (a) and (b).”

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 33