California’s Department of Social Services currently maintains a registry of all home care aides in the state.
The registry exists for the purpose of allowing consumers to search for and locate a registered home care aide. The public registry includes only the name of the aide, along with their registration status.
In addition, governmental and non-profit institutions have access to the database, including personal contact information, so that they may provide information to aides about their education and training programs, in an effort to improve the quality of care. However, an aide may “opt out” of having their personal contact information provided to such institutions.
The bill, dubbed AB 1513, which is currently pending in the California legislature, would completely change the purpose and substance of this registry.
If the bill becomes law, the registry would allow consumers to determine if an aide has passed a background check. Significantly, the personal contact information (names and addresses) would no longer be provided to governmental and non-profit institutions focused on improving the quality of care, but instead would be provided to labor unions for the purpose of union organizing. Registered aides would still be able to “opt out” of having this information provided to labor unions.
This is a novel concept. Typically, the names and home addresses of citizens are treated as private and confidential. For example, mobile telephone companies must obtain the express written consent of a consumer before publishing their name and telephone number in a public directory. Financial institutions must also obtain express consent of a consumer before releasing any personal information to a third party. Cable and satellite TV companies are subject to the same restriction.
California law recognizes numerous other similar restrictions on the disclosure of private information of citizens of the state.
Assembly bill 1513 would treat home-care employees differently from virtually all other employees in the state. For example, employees working for other private entities, covered by the National Labor Relations Act (“NLRA”), may not have their names and addresses disclosed to a labor union until there has been a direction of a union election by the National Labor Relations Board.
Similarly, public employees in California may not have their names and addresses disclosed to a labor union until after a union election has been directed.
Agricultural employees in California may not have their names and addresses disclosed to a labor union until there has been a petition filed by a Union seeking to represent an identified group of employees at a specific employer. However, AB 1513 provides the name and home address of employees to a labor union before any employee has shown any interest in joining a union at any particular employer. This approach is unprecedented – under both California and US law.
Assembly bill 1513 seems similar to another California law, passed back in 2000, which prohibited employers from using California state funds to assist or deter union organizing.
The US Supreme Court, in Chamber of Commerce of the US v. Brown, 554 US 60 (2008), found that this law was unconstitutional, as it was preempted by the federal scheme of regulation of labor-management relations. The court held that the law imposed a targeted negative restriction on employer speech about unionization, an area which Congress had deemed should be left unregulated.
Similarly, AB 1513 attempts to address an area which already is addressed by federal law. The NLRA provides a comprehensive scheme under which labor unions may have access to the names and home addresses of employees. The bill discards this detailed process, and therefore may be “preempted” by the NLRA. As such, it could be found to violate the Supremacy Clause of the US Constitution, rendering the law unconstitutional.
This is only one of several bills currently working its way through the state legislature.
–Bruce Sarchet is an attorney with the firm of Littler Mendelson and represents employers in labor and employment law matters. You can contact him at [email protected]