by:
Robert M. Wexler
Partner
Rains Lucia Stern St. Phalle & Silver
On September 28, 2018, Governor Jerry Brown signed into law the provisions of Senate Bill 1085 that requires public employers to grant reasonable leaves of absence without loss of compensation or other benefits for the purpose of enabling employees to serve as stewards or officers of the exclusively recognized employee organization, or of any statewide or national employee organization with which the exclusive representative is affiliated.
The new law adds to the Government Code section 3558.8 and becomes effective on January 1, 2019. It permits employees to utilize paid leave on a full-time, part-time, periodic, or intermittent basis, but the exclusive representative or employee organization must reimburse the employer within 30 days for all compensation paid to the employee on leave, unless otherwise agreed by the parties. Further, the law grants the steward or representative, at the conclusion or termination of the leave granted, the right of reinstatement to the same position and work location held before the leave, or, if not feasible, to a substantially similar position without loss of seniority, rank, or classification.
Under Section 3558.8, the procedures for requesting and granting leave must be determined by mutual agreement between the employer and exclusive representative. Moreover, compensation during a period of leave must include retirement fund contributions on behalf of an employee, the employee earns full service credit during the period of leave, and the employee must pay his or her membership contributions, unless the employer has agreed to pay the contributions on the employee’s behalf under a collective bargaining agreement.
The law makes clear that the leave provided under section 3558.8 is in addition to, and not in place of, any leave to which public employees may be entitled by other laws or through an existing collective bargaining agreement. It also permits an employee organization to reopen “negotiations to reach a mutual agreement concerning the grant of leave pursuant to [section 3558.8]”. Finally, the statute provides that a public employer is not liable for acts, omissions, or injuries suffered by employees that occur during the course and scope of the employee’s leave.
