California state attorneys union says RTO mandate could put bar licenses at risk

The union representing California state lawyers has filed about 15 Public Employment Relations Board charges since July, claiming state departments aren’t properly negotiating telework policies.

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Depending on the department and each lawyer’s role, the union says attorneys need different accommodations, including those to protect confidential information, and have the right to negotiate those terms.

“They’re (the state) putting our members in a position where they are putting their bar license at risk by committing unethical conduct of disclosing confidential client information to people that shouldn’t hear it,” said Patrick Whalen, the union’s general counsel.

These complaints stem from Gov. Gavin Newsom’s return-to-office mandate that went into effect July 1, requiring many state workers to return to the office four days a week. While many of California’s state lawyers work for the Attorney General’s Office, which isn’t part of the mandate, there are state agencies with lawyers of their own who are required to comply.

Some lawyers, according to the union, are being placed in cubicles where it’s hard to conceal confidential information, prompting the union to ask for a statewide telework policy similar to the Attorney General’s Office, where there isn’t a standard number of in-office days. It’s determined by division managers instead.

The union — California Attorneys, Administrative Law Judges and Hearing Officers in State Employment (CASE) — says these accommodations are possible, pointing to language in Newsom’s executive order that allows departments to “consider their individual operational needs in determining telework as an option.” That provision outlines employee telework requests are to be evaluated on a case-by-case basis.

When CASE first met with CalHR, union officials were told to negotiate with individual departments. Whalen said the union met with roughly 40 different agencies with little success.

“There were a few exceptions but almost all of them resulted in unfair labor practice charges,” Whalen said. “… There’s probably going to be more filed in the coming days and weeks.”

Union officials say CalHR directed departments to bargain in bad faith by refusing to provide information and implementing the RTO mandate at an impasse.

According to an amended PERB charge filed this week against CalHR, many departments “mouthed the same words and phrases,” including that specific requests had to be agreed to by CalHR. One of the common themes was the definition of operational needs — a crucial definition to the union’s RTO argument.

Angela Musallam, a spokesperson for CalHR, said the department doesn’t comment on pending litigation.

What are the confidentiality concerns?

As union officials ask the state for more accommodations, they say some departments have attorneys in cubicles, where they discuss confidential information on phone calls only feet away from a colleague.

“We actually have a number of attorneys in different departments where the attorney in one section will represent one side of a case, and an attorney in another section of that same department will be representing people on the other side of that case, and obviously those two attorneys need to be separated,” Whalen said.

Read more California state attorneys union says RTO mandate could put bar licenses at risk

These confidentiality concerns could affect private sector information, according to CASE Vice President Matthew Gauger, who said one of these agencies is the Department of Toxic Substances Control, where attorneys often work with organizations participating in cleanups.

A lawyer could discuss business practices with an organization where a staff member working on a separate project could overhear.

“Those two lawyers can’t know each other’s trade secrets or confidential information because those two plumes of pollution may be intersecting each other, and they’ve got to figure out which fund is paying to clean it up,” Gauger said.

The Department of Toxic Substances Control didn’t respond to The Sacramento Bee’s inquiry about spaces where attorneys could take confidential phone calls, and CalHR declined to comment on confidentiality concerns.

Is implementing RTO during an impasse illegal?

As Whalen says state lawyers could have their bar licenses at risk, the union wants CalHR to accept accountability for what it says are poor bargaining practices.

In the amended CalHR charge, union officials ask management to “read a public spoken notice they knowingly violated” state law and to pay mileage fees using “their own personal assets” for unnecessary commutes from implementing the RTO mandate while at an impasse.

The union calls the implementation of the mandate “unlawful” because there wasn’t an agreement on accommodations. However, the two parties met to bargain the four-day mandate in late April — more than two months before the mandate started.

Tim Yeung, a private lawyer who practices labor law, said when negotiations happened is a crucial detail, as the state can implement policies at an impasse if they bargained in good faith. These PERB cases could determine if that standard of negotiation was held.

“Once it (the state) completes bargaining good faith, it can implement basically whatever it wants,” Yeung said.

The union’s PERB filings question that requirement. Evidence provided in PERB filings to support these accusations include the alleged CalHR coordination with departments and not providing requested department telework plans.

Union leaders asked CalHR for department telework plan submissions and responses on April 28, according to email from the union to CalHR reviewed by The Bee. It asked to receive records in less than two weeks, which CalHR called “wholly impractical” in its response two hours later. The request was denied in two days.

These PERB filings aren’t the only attempt made by CASE to block Newsom’s RTO mandate. The union filed a lawsuit earlier this summer alleging state agencies violated the California Environmental Quality Act for not completing environmental impact reports before state workers returned to offices. An Alameda Superior Court judge denied the request in late June.

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