An act to amend Sections 912 and 917 of, and to add Article 9.5 (commencing with Section 1048) to Chapter 4 of Division 8 of, the Evidence Code, relating to privilege.
AB 1109 would create a new evidentiary privilege for confidential communications between a union agent and a represented employee or former employee, similar in structure to existing privileges such as attorney-client or psychotherapist-patient privilege. The bill allows either the union agent or the worker to refuse disclosure of covered communications in court, before administrative agencies, in arbitration, or in other proceedings, and also lets the worker stop others from disclosing those communications. The privilege is defined to cover communications made while the union agent is acting in a representative capacity, including advice given in the course of representation.
The bill also amends existing Evidence Code provisions on waiver and confidentiality presumptions to expressly include the new union agent-represented worker privilege. It presumes such communications are confidential unless the opponent proves otherwise, and it clarifies that use of electronic communication does not by itself destroy confidentiality. The privilege is limited by several exceptions: it may be waived under existing waiver rules, it does not apply in criminal proceedings, and it does not protect communications made to facilitate crime or fraud or where disclosure is needed to prevent a likely death or substantial bodily harm.
AB 1109 would add a new Article 9.5 to the Evidence Code and amend Sections 912 and 917 to place union-represented worker communications within California’s formal privilege framework. In practice, this would give labor organizations and represented workers a statutory confidentiality protection for grievance-related and bargaining-related communications, affecting how those communications may be used in civil litigation, administrative hearings, and arbitration. The bill would not create a fiscal appropriation or local program mandate, but it would change evidentiary rules applicable to courts, agencies, unions, and represented employees or former employees.
The bill appears to have generally favorable support in the legislative process, reflected by unanimous or near-unanimous committee votes and a strong Assembly floor vote. It advanced 59-6 on Assembly Third Reading and later received a 9-0 do pass vote in committee, suggesting broad acceptance of the policy goal of protecting confidential labor-relations communications. At the same time, its later referral to Appropriations and placement on the suspense file indicate that fiscal or procedural concerns may still have been under review despite the positive policy reception.
The main policy question raised by AB 1109 is whether union representation communications should receive a privilege comparable to other confidential professional relationships, and how broadly that protection should extend. Potential points of contention include the scope of who qualifies as a “union agent,” whether appointed employee stewards should be covered only in limited circumstances, and how the privilege interacts with employer investigations, arbitration, and litigation. The bill’s exceptions for crime, fraud, court orders, and criminal proceedings narrow the privilege, but opponents could still be concerned that it may limit access to relevant evidence, while supporters are likely to view it as necessary to protect candid worker-union communications and effective representation.