Union Can Request And Receive Disaggregated Race/Ethnicity Data Of Employees

CATEGORY: Client Update for Public Agencies, Fire Watch, Public Education Matters
CLIENT TYPE: Public Education, Public Employers, Public Safety
DATE: Apr 05, 2024

SEIU filed a class action grievance claiming the City and County of San Francisco (City) discriminated against black employees by extending their probationary periods and/or releasing them from probation.  SEIU also submitted a request for information (RFI) to the City, seeking disaggregated race/ethnicity data for employees who the City released from probation or who had their probation extended.  The City refused to provide the data on privacy grounds.

After an administrative law judge issued a proposed decision in SEIU’s favor, the City excepted as to liability, while SEIU’s exceptions sought attorneys’ fees.  The Public Employment Relations Board (PERB) denied both parties’ exceptions.

Regarding the City’s exception, PERB held that while there was no PERB precedent regarding this information, the City did not prove that:  disclosing that information to SEIU would invade privacy in a manner that was serious in both its nature and scope; or those privacy concerns outweighed SEIU’s purpose in investigating potential discrimination.

PERB relied on PERB Decision No. 2483, in which a teachers’ union requested a list of teachers assigned to a program for district employees who were pending investigation for serious misconduct.  PERB decided in that case that the teachers’ privacy interests did not outweigh the union’s need to communicate with teachers, assist them, and investigate potential discrimination or contract violations.  Thus, PERB ordered that district to provide the union with the list.

PERB also relied on National Labor Relations Board (NLRB) precedent.  In The Bendix Corp. (1979) 242 NLRB 62, the NLRB found that employees have little, if any, confidentiality right in disaggregated data on their race and sex, and that any such privacy right did not outweigh the requesting union’s need for the data.

Similarly, PERB concluded that the City’s showing of privacy invasion was small enough that there was no need to balance the harms of disclosing the data against the union’s request.  The City’s privacy interest in their employees’ race/ethnicity was limited enough that it gave way to a union seeking to investigate, prevent, ameliorate, or remedy workplace discrimination.

PERB also directed SEIU to refrain from releasing disaggregated race/ethnicity information and to use such information only as needed to investigate and/or seek to prevent or remedy potential workplace discrimination, legal, or contractual violations.

Regarding the SEIU’s exceptions, PERB found no basis for attorneys’ fees.

City and County of San Francisco (2/27/2024) PERB Dec. No. 2891.

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