On September 22, 2024, Governor Newsom signed Assembly Bill 2561 ("AB 2561") into law. The new law, which took effect on January 1, 2025, amends the Meyers-Milias-Brown Act ("MMBA") by adding Government Code section 3502.3. The new code section creates a variety of obligations for public agencies to address the status of job vacancies. The Legislature's adoption of the bill was accompanied by a series of legislative findings and declarations, in which the Legislature noted that "[j]ob vacancies in local government are a widespread and significant problem for the public sector affecting occupations across wage levels and educational requirements." The Legislature further found and declared that "[h]igh job vacancies impact public service delivery and the workers who are forced to handle heavier workloads, with understaffing leading to burnout and increased turnover that further exacerbates staffing challenges." The Legislature concluded that "[t]here is statewide interest in ensuring that public agency operations are appropriately staffed and that high vacancy rates do not undermine public employee labor relations." On the basis of these findings and declarations, the Legislature imposed on local public agencies the requirements found in new section 3502.3.
Background
The MMBA authorizes local public employees to form, join, and participate in the activities of employee organizations of their choosing for representation on matters of labor relations. The act requires the governing body of a public agency to meet and confer in good faith regarding wages, hours, and other terms and conditions of employment with representatives of recognized employee organizations and to consider fully presentations that are made by the employee organization on behalf of its members before arriving at a determination of policy or course of action. To address ongoing job vacancy issues in local government throughout the state, AB 2561 makes various changes to the MMBA regarding efforts to curb the perceived job vacancy problem.
AB 2561 and New Government Code Section 3502.3
Changes to Public Meetings
AB 2561 requires public agencies to present the status of their vacancies and recruitment and retention efforts in a public hearing before their governing body at least once per fiscal year. The presentation must be made before the adoption of a final budget for the fiscal year. During this presentation, public agencies are required to identify any changes to policies, procedures, or recruitment activities that may lead to obstacles in the hiring process.
At the public meeting at which the aforementioned presentation is made, the recognized labor organization or labor organizations also are entitled to make a presentation. The new code section does not define, or establish parameters for, the nature of the presentations to be made at the public meeting. Thus, unanswered by the new law are such questions as whether the public agency must allow an oral presentation at the meeting, or whether it can restrict the concept of "presentation" to the submission of a written report; if an oral presentation is permitted or required, how much time must the public agency allow for such a presentation; can the public agency restrict who makes the presentation on behalf of the recognized labor organizations; can the public agency restrict the topics to be covered in such a presentation. This additional requirement of allowing labor organizations to present at the public meeting at which the subject of job vacancies will be covered means that public agencies must provide sufficient advance notice to the labor organization of when that meeting will take place. Questions unanswered by the new law include: Whether the statutory notice requirement otherwise applicable to public meetings is sufficient notice to the recognized labor organizations and whether the public agency must provide to the recognized labor organizations advance notice of the agency's presentation to allow the recognized labor organizations an opportunity to present a response.
Special Requirements for Significant Vacancies
In addition to the general requirement of an annual presentation on job vacancies, the new law places specific requirements on public agencies if vacancies in a particular bargaining unit meet or exceed 20 percent of the total number of authorized full-time positions within that single bargaining unit. In such a case, public agencies shall, upon request of the recognized employee organization, include all of the following information during the public hearing at which the presentation on job vacancies is conducted:
- The total number of job vacancies within the bargaining unit.
- The total number of applicants for vacant positions within the bargaining unit.
- The average number of days to complete the hiring process from when a position is posted.
- Opportunities to improve compensation and other working conditions.
California Public Records Act and Brown Act Implications
AB 2561 also includes a legislative finding and declaration that the new law "furthers the purposes" of the California Constitution, Article I, section 3, subdivision (b)(7), which is the constitutional requirement that public agencies meet the requirements of the California Public Records Act (Gov. Code § 7920.000, et seq.) and the Ralph M. Brown Act (Gov. Code § 54950, et seq.). This means that public agency documents regarding job vacancies likely will be considered public records and presentations on that topic are subject to the Brown Act's open meeting requirements.
Imposition of State Mandated Costs
The California Constitution requires the state to reimburse local agencies for certain costs mandated by the state. While the Legislature recognized that AB 2561 potentially imposed added costs on local public agencies, the new law provides that no reimbursement shall be made for those added costs but local agencies may pursue any remedies available under applicable statutory procedures for seeking reimbursement for these costs.
Takeaways for Public Agencies
At this juncture, there are a number of unanswered questions created by the enactment of AB 2561. What is certain at this point is that the new law imposes significant new requirements on public agencies when it comes to job vacancies. First, public agencies will face greater scrutiny of their hiring processes, especially from labor organizations, which may impact bargaining efforts. Second, AB 2561 will require public agencies to provide advance notice to labor organizations of presentations to be made to agency governing boards on the subject of job vacancies so that labor organizations have the information necessary to make their own presentations at public meetings where job vacancies are discussed. Lastly, AB 2561 places increased costs related to job vacancy analyses to allow public agencies to present the required information at public meetings. The burden is on public agencies to identify costs and seek reimbursement from the state.
Kronick will continue to follow developments on this new law and will update this legal alert as those developments warrant.
Originally published January 23, 2025
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