AB 1109 adds a new evidentiary privilege that lets a union agent and a represented employee or represented former employee refuse to disclose confidential communications made while the agent was acting in a representative capacity. The privilege covers disclosures in courts, administrative boards and agencies, arbitrations, and other proceedings; it also lets the employee stop others from disclosing privileged communications.
The bill defines who counts as a “union agent,” narrows the steward exception, and lists carve-outs: the union may disclose in lawsuits against the union or with the member’s consent; a court may order disclosure; communications intended to enable crime or fraud are not privileged; the union agent must disclose to prevent death or substantial bodily harm; and the privilege does not apply in criminal proceedings. The measure also folds this privilege into California’s existing waiver and confidentiality presumptions for other recognized privileges.
At a Glance
What It Does
Creates a statutory privilege for confidential communications between union agents and represented employees (including former employees) made while the agent acted in a representative capacity. It applies across courts, administrative agencies, and arbitration, and allows the employee to bar third-party disclosure.
Who It Affects
Labor organizations and their representatives, bargaining-unit members and former members, employers and their counsel, arbitrators, and administrative agencies that handle workplace disputes or investigatory subpoenas. Appointed stewards are only agents for confidential grievance communications made while they served as steward.
Why It Matters
It gives union representation communications protection similar to other recognized privileges, changing discovery dynamics in employment litigation and labor disputes. Parties and adjudicators will need new procedures to litigate privilege claims, and employers may find previously available testimonial or documentary evidence restricted.
More articles like this one.
A weekly email with all the latest developments on this topic.
What This Bill Actually Does
AB 1109 inserts Article 9.5 into the Evidence Code to create a union agent–represented worker privilege. Under the new law, a union agent and a represented employee or represented former employee may refuse to disclose confidential communications exchanged while the agent was acting in a representative capacity.
The privilege expressly covers disclosures in court, administrative boards or agencies, arbitrations, and “other proceedings,” and it also gives the represented person the right to prevent a third party from disclosing a privileged communication.
The bill supplies working definitions. A “confidential communication” is an oral or written transmission made in confidence and not knowingly disclosed to third parties except those present to further the parties’ interests or necessary for transmission. “Union agent” means a person employed, elected, or appointed by a labor organization whose duties include representing unit members in grievances or contract negotiations; appointed stewards are excluded from being union agents except for confidential grievance communications made while they were stewards.AB 1109 builds in several important limits.
The union agent may reveal communications in lawsuits brought against the agent or the union, or when the bargaining unit member gives written or oral consent (or the estate/guardian if the member is deceased or incompetent). A court order can compel disclosure.
The law eliminates privilege where the agent reasonably believes disclosure is necessary to prevent a criminal act likely to cause death or substantial bodily harm and excludes communications that enable or plan criminal or fraudulent conduct. Critically, the privilege does not apply in criminal proceedings.Finally, the bill amends related Evidence Code provisions.
It adds the new privilege to the waiver rules so existing waiver doctrines apply, and it treats communications as presumptively confidential (placing the burden on the party challenging the privilege). It also clarifies that using electronic means does not defeat the privilege, mirroring modern evidence rules about electronic transmission.
The Five Things You Need to Know
The privilege covers confidential communications made while the union agent was acting in a representative capacity and applies in courts, administrative boards and agencies, arbitrations, and other proceedings.
A represented employee or represented former employee can prevent a third party from disclosing a privileged communication.
Union agents may disclose communications in actions against the union or agent, with the bargaining unit member’s written or oral consent (or the estate/guardian if deceased or adjudged incompetent), or when ordered by a court.
There is no privilege if disclosure is necessary to prevent a criminal act likely to result in death or substantial bodily harm, and communications intended to enable or plan crime or fraud are excluded.
The privilege does not apply in criminal proceedings, and Section 917 places the burden on the opponent to prove a communications was not confidential (including electronic communications).
Section-by-Section Breakdown
Every bill we cover gets an analysis of its key sections.
Adds the union-agent privilege to existing waiver rules
Section 912 expands the list of privileges subject to California’s waiver doctrines to include the new union agent–represented worker privilege. That means ordinary waiver principles apply: a holder who discloses a significant part of a privileged communication or consents to disclosure may forfeit the privilege, but a waiver by one joint holder doesn’t automatically waive another holder’s right. The amendment preserves the preexisting rule that disclosures reasonably necessary to accomplish the privilege’s purpose do not waive it.
Presumption of confidentiality and electronic communications
Section 917 treats communications in the enumerated relationships — now including union agent–represented worker — as presumed confidential, shifting to the party opposing the privilege the burden to show a communication was not confidential. The section also clarifies that use of electronic means, or access by third parties involved in storing or transmitting electronic messages, does not by itself destroy privileged status.
Core privilege: who can refuse disclosure and where it applies
Section 1048 is the operative provision creating the privilege. It grants both the union agent and the represented employee (or former employee) the right to refuse disclosure of confidential communications in courts, administrative agencies, arbitration, or other proceedings and gives the employee the affirmative right to stop others from disclosing the communication. The section identifies the temporal scope—communications must have been made while the union agent acted in a representative capacity—and creates a gatekeeping framework for asserting the privilege in multiple fora.
Definitions and limits: agent, steward, and carve-outs
Section 1048.1 defines key terms: what counts as a confidential communication and who qualifies as a union agent (including labor organizations). The text narrows the steward rule: an appointed employee steward is not automatically a union agent except for confidential grievance communications made while serving as steward. Sections 1048.2–1048.4 list limits: mandatory disclosure when needed to prevent death or substantial bodily harm, exclusion for communications that enable crime or fraud, ability to disclose in suits against the union or with member consent, and a categorical nonapplication of the privilege in criminal proceedings. The combination lays out both operational and safety-related exceptions that will guide disputes over disclosure.
This bill is one of many.
Codify tracks hundreds of bills on Employment across all five countries.
Explore Employment in Codify Search →Who Benefits and Who Bears the Cost
Every bill creates winners and losers. Here's who stands to gain and who bears the cost.
Who Benefits
- Represented employees and former employees — gain statutory protection for candid communications with union representatives, encouraging frank grievance reporting and strategy discussions without immediate fear of disclosure in civil or administrative processes.
- Union agents and labor organizations — receive a clear evidentiary shield for internal advice and bargaining strategy, reducing the risk that internal communications will be used in employer litigation or administrative enforcement.
- Union legal counsel and grievance handlers — can advise members with greater assurance that strategy, legal advice, and investigatory interviews are protected, improving collective-bargaining posture and grievance advocacy.
Who Bears the Cost
- Employers and their counsel — may lose access to employee statements and union-collected information during discovery or administrative investigations, complicating defense strategies and fact-finding in workplace disputes.
- Administrative agencies and outside investigators (e.g., DLSE, civil service boards) — will face more contested privilege claims and may need to rely on subpoenas, court orders, or additional proof to obtain information previously obtained informally.
- Courts, arbitrators, and administrative adjudicators — will absorb increased litigation over privilege scope, confidentiality determinations, steward status, and whether communications fall within the crime/fraud or safety exceptions, adding docket and decision-writing burdens.
Key Issues
The Core Tension
The bill balances two legitimate aims—protecting candid communications between workers and their union representatives to enable effective advocacy, versus ensuring access to evidence needed to hold wrongdoers accountable and to allow employers and adjudicators to investigate and defend claims; strengthening confidentiality for labor representation risks shielding information that investigators or civil litigants view as critical, and the statute relies on exceptions and fact-intensive judicial gatekeeping to reconcile those goals.
The statute leaves several operational questions that will generate early litigation. The definition of “confidential communication” hinges on the parties’ awareness that no third person will receive the information; modern workplace communication—text threads, group messages, employer-monitored devices, and union reps using third‑party platforms—will test that standard.
Deciding whether a particular steward qualifies as a union agent is fact-specific under the bill and will produce many threshold disputes, especially where stewards perform varying functions across locals.
The carve-outs also create friction. The safety exception requires a union agent to reveal communications when the agent reasonably believes disclosure is necessary to prevent death or substantial bodily harm, but courts will need to assess the reasonableness and imminence of the perceived threat.
The crime/fraud exclusion invites challenges about whether an employee’s statements were taken to enable future wrongdoing. Separately, while the privilege does not apply in criminal proceedings, civil investigations that later trigger criminal referrals may lead to complex disputes about what was discoverable and when.
Finally, folding the privilege into Section 912’s waiver rules and Section 917’s presumptions means litigation will center as much on procedural waiver and confidentiality proof as on the substantive content of communications.
Try it yourself.
Ask a question in plain English, or pick a topic below. Results in seconds.