If you work for a public school district, university, city, county, or another California public agency, you may have legal protections that employees in the private sector do not have. One of the agencies responsible for enforcing those protections is the California Public Employment Relations Board (PERB).
PERB handles certain disputes involving public employers, employees, and labor unions, including retaliation for protected activities, interference with employee rights, and other unfair labor practices. Yet many public employees are unfamiliar with PERB or assume it only handles disputes between unions and employers. In reality, individual public employees can also bring unfair practice charges in appropriate circumstances, including when they believe their employer has retaliated against them for exercising legally protected rights.
What Types of Cases Does PERB Handle?
PERB has jurisdiction over many California public-sector employment relationships, including employees of school districts, community colleges, public universities, state agencies, and many city and county employers. Coverage depends on the applicable labor relations statute and the employee’s position. Examples of situations that may give rise to PERB claims include:
- Retaliation for filing a PERB charge or grievance: An employee is disciplined, threatened, or otherwise penalized for exercising rights protected by California public-sector labor laws.
- Retaliation for union activity: An employee faces adverse treatment for participating in union activities, assisting coworkers, or engaging in protected workplace advocacy.
- Disciplinary warnings and negative evaluations: An employer issues an unfavorable memorandum, reprimand, or evaluation because of the employee’s protected activity.
- Interference with employee rights: An employer threatens or pressures employees to discourage them from exercising protected rights.
- Denial of union representation: An employer improperly denies an employee requested representation during an investigatory interview that could lead to discipline.
- Union misconduct: A union acts arbitrarily, discriminatorily, or in bad faith when representing an employee, potentially violating its duty of fair representation.
Not every unfair employment decision violates a law enforced by PERB. The critical question is whether the employer’s or union’s conduct violates a specific right protected by the applicable public-sector labor relations law.
Retaliation for Filing A PERB Charge Is Unlawful
Filing and pursuing a PERB unfair practice charge is protected activity under the applicable public-sector labor relations statutes. An employer cannot lawfully punish an employee simply because that employee exercised the right to bring a PERB proceeding.
Consider an example – A school district employee files an unfair practice charge alleging that the district interfered with her workplace rights. Several months later, the employee receives a disciplinary memorandum criticizing her attendance or performance. The memorandum threatens further discipline and becomes part of her permanent personnel record.
Does the employee have a retaliation case? Possibly. Much depends on the surrounding circumstances. The employee would ordinarily need to establish that the employer knew about the protected activity, took adverse action, and was motivated at least in substantial part by the employee’s protected conduct. Evidence of retaliation may include suspicious timing, statements demonstrating hostility toward the earlier complaint, inconsistent explanations, unusually harsh discipline, or departures from the employer’s normal procedures.
The employer may argue that the memorandum was justified by legitimate performance or attendance concerns. The existence of a previous PERB charge does not immunize an employee from legitimate discipline. The question is whether the employee would have faced the same treatment even without engaging in protected activity.
Why Fight a Disciplinary Memorandum When You Haven’t Lost Any Money?
This is an important question because many PERB cases involve relatively minor disciplinary actions. Some employees receive a written warning or counseling memorandum without being suspended, demoted, or losing any wages. It might seem unnecessary to challenge such a document. However, a written disciplinary record can have consequences long after it is issued.
First, minor discipline can become the foundation for more serious discipline. An employer may later rely on earlier reprimands or corrective memoranda to justify suspensions, negative evaluations, or termination. What initially seems like an insignificant warning may become part of a progressive disciplinary record.
Second, disciplinary records can affect an employee’s professional reputation and opportunities. A memorandum accusing an employee of misconduct, poor performance, or insubordination may influence future employment decisions, depending on the employer’s policies and how the record is used.
Third, employees should not have to accept retaliation simply because the immediate consequences are relatively mild. California PERB decisions recognize that even written warnings and disciplinary memoranda may constitute adverse employment actions. In Alisal Union Elementary School District (1998), PERB Decision No. 1248-E, PERB found that placing a disciplinary memorandum in an employee’s personnel file constituted adverse action under the Educational Employment Relations Act. Similarly, in Mount San Jacinto Community College District (2018), PERB Decision No. 2605-E, PERB explained that a document placed in an employee’s personnel file may constitute adverse action when it damages the employee’s professional reputation or potentially interferes with advancement, even without an express threat of discipline. These decisions illustrate why challenging an apparently minor disciplinary record can have legitimate legal and practical value.
Can PERB Order an Employer to Remove a Disciplinary Memorandum?
Yes. When a memorandum or other disciplinary record is found to violate an applicable labor relations statute, PERB may order the employer to rescind it and remove it from the employee’s personnel records. For example, in Escondido Union Elementary School District (2009), PERB Decision No. 2019-E, PERB considered disciplinary actions issued after an employee had filed an earlier PERB charge. PERB found unlawful retaliation as to certain disciplinary actions and ordered expungement of the offending records. Depending on the circumstances, PERB remedies may include removal of disciplinary materials, cease-and-desist orders, reinstatement, backpay, and other appropriate corrective measures.
This does not mean that every negative evaluation or disciplinary warning can be removed simply because an employee believes it is inaccurate or unfair. The employee still must establish a violation of a law that PERB enforces.
How Long Do You Have to File a PERB Charge?
Generally, a PERB unfair practice charge must be filed within six months of the alleged unlawful conduct. The deadline generally begins running when the employee knew or reasonably should have known about the conduct giving rise to the charge. There are limited circumstances in which tolling may apply, including certain negotiated grievance procedures. Employees should not assume that pursuing an internal complaint, grievance, or appeal automatically extends the PERB filing deadline. Waiting until the employer imposes more serious discipline can result in losing the opportunity to challenge an earlier retaliatory act. If you suspect that your employer is retaliating against you for protected activity, it is important to evaluate your rights promptly.
What Happens After You File a PERB Charge?
Filing an unfair practice charge does not automatically result in a hearing or a finding against the employer. PERB initially reviews the allegations to determine whether they establish a sufficient basis to proceed. If the charge does not adequately allege an unfair practice, PERB may issue a warning letter identifying deficiencies. If those deficiencies are not corrected, the charge may be dismissed.
If PERB issues a formal complaint, the parties generally have an opportunity to resolve the matter through an informal settlement conference. If the dispute does not settle, it may proceed to an evidentiary hearing before a PERB administrative law judge. At the hearing, the parties may present documents, examine witnesses, and offer legal arguments. The judge then issues a proposed decision, which may be subject to further review. The process can involve substantial preparation, particularly when the employer disputes its knowledge of the protected activity or claims that discipline was independently justified.
Is Hiring a California PERB Lawyer Worth It?
That depends on the strength of your case, the consequences of the employer’s actions, and what you hope to accomplish. PERB litigation is not necessarily the best choice for every employee who receives an unfair warning or disagrees with management. Unlike many civil employment lawsuits, PERB proceedings mainly focus on correcting unfair labor practices and protecting statutory rights. They are generally not a tool for recovering substantial emotional distress or punitive damages. Attorney-fee awards are also unusual.
Nevertheless, legal representation may be especially valuable when an employee faces termination, suspension, retaliation for a prior PERB charge, or a disciplinary record that could jeopardize continued employment. An attorney can help evaluate whether the facts establish an unfair practice, identify important evidence, prepare and prosecute a charge, negotiate removal of disciplinary records, and represent the employee at a PERB hearing. Sometimes the most valuable outcome is not a monetary award. It is removing an unjustified disciplinary record, preventing the employer from relying on it in the future, and protecting the employee against further unlawful retaliation.
If you believe your public employer retaliated against you for filing a PERB charge, engaging in protected union activity, or asserting rights protected by California public-sector labor laws, you may have grounds to challenge that conduct. Contact us to evaluate your potential or ongoing PERB case.