2002 - Confidential Designations

Category

Collective Bargaining

Audience List

• Employee Benefits Officers
• Human Resources Chiefs
• Labor Relations Officers
• Personnel Officers
• Personnel Transactions Staff
• Personnel Transactions Supervisors

Synopsis

This policy:

• Explains the purpose of the Confidential Employee designation
• Defines a “Confidential Employee”
• Identifies the duties related to the Confidential Employee designation
• Provides information on the allocation of Confidential Employees
• Provides the application process for designating Confidential Employee positions
• Provides information on removing Confidential Employee status when duties change

Introduction

The purpose of designating employees as confidential is to have individuals who can assist management in developing negotiating proposals and investigating and responding to employee grievances.

Confidential designated positions are determined based on the duties and responsibilities of an individual. The classifications and positions are normally represented by a Rank-and-File bargaining unit. However, the duties and responsibilities of the position require the position to be removed from the bargaining unit to prevent a fundamental conflict of interest that would undermine the employer-employee relationship with the unions in the collective bargaining process. The purpose of designating employees confidential is to have individuals who can assist in developing managements negotiations proposals and investigating and responding to employee grievances.

Statement

The following guidelines are to assist state agencies and Departments with identifying and requesting positions to be designated confidential.

Definition of Confidential Employee

The Confidential Designation exists only under the Ralph C. Dills Act (Dills Act) Section 3513 (f). In accordance with the Dills Act, a "Confidential Employee" means any employee who is required to develop or present management positions with respect to employer-employee relations or whose duties normally require access to confidential information contributing significantly to the development of management positions for negotiating with a represented labor organization.

The definition of “confidential” does not encompass work with information that must be kept confidential under privacy statutes, regulations, or departmental policies such as personnel records, investigative data, or other privileged information that may not be released to others or the public that are outside of employer-employee relations. These duties may be confidential in nature, but do not fall within the Dills Act definition of “Confidential Employee”.

Criteria

Public Employment Relations Board (PERB) case law interprets the criteria for designating positions or employees as “confidential.” Specifically:

1. PERB has determined that mere access to confidential information is not sufficient to confer confidential status. Access must occur as a part of the employee’s regular duties and must relate to employer-employee relations, a category that includes negotiations and grievance processing but not personnel records and evaluations.
2. PERB has determined that confidential information is not acquired as part of regular duties if:
   • the employee receives it from a personal acquaintance;
   • the employee has only tangential contact with such information; or
   • the employee’s involvement with confidential information is not part of his/her job duties.
3. PERB has determined that only a small number of employees are needed to assist management in the development of bargaining positions or will have access to confidential information, including:
   • Staff who gather data for negotiations proposals and have access to proposals and minutes of negotiating sessions.
   • Secretaries/assistants who type documentation related to employee grievances and who attend grievance meetings on behalf of the employer.
   • Secretaries/assistants who type and file correspondence or minutes that contain information about the employer’s bargaining positions, which if revealed, would place the employer at a disadvantage with the exclusive representative of employees. (Frequently, the secretary’s supervisor is a member of the negotiating team or has substantial input into negotiations strategy or proposals.)

Duties of Confidential Employees

It is a position’s responsibilities in the employer-employee relations discipline which determines whether a position is properly designated confidential. Such activities must constitute a significant portion of the employee’s job assignment to support the confidential designation. A position performing such responsibilities only occasionally or a small portion of the time cannot support confidential status.

The development of departmental policies and/or operating procedures does not constitute the development of management positions within the meaning of employer-employee relations. It is only when those policies and procedures must be negotiated with employee unions that the need for confidential status may arise.

Activities within state service that support confidential status may include any or all of the following:

• Participating on the management team in negotiations (state level or delegated meet and confers);
• Note taking at the bargaining table;
• Drafting proposals and contract language for negotiations;
• Participating in collective bargaining mediation and/or impasse resolution;
• Investigating and responding to grievances;
• Representing management in grievance meetings;
• Drafting and/or negotiating settlement agreements;
• Presenting management positions at arbitration hearings;
• Presenting management positions to the PERB at unfair labor practice, decertification, and/or unit modification hearings.

The following types of positions will typically support confidential status:

• Positions working in a labor relations office and not in a traditional labor relations classification.
• Positions performing “confidential” duties (as described above) as a frequent, routine, and significant portion of their regularly assigned duties.
• Executive Secretaries, Executive Assistants, and Administrative Assistants to Executive Office management (first or second organizational level) who provide substantial input into negotiations strategy or bargaining proposals.

The following functions fall outside the meaning of “confidential” in the Dills Act and do not support confidential status:

• Adverse actions, including Skelly hearings;
• Classification analysis and State Personnel Board item development, even when union input is necessary;
• Position allocation, including out-of-class determinations;
• Equal employment opportunity;
• Workers’ compensation;
• Examinations;
• Personnel investigations;
• Discrimination complaints;
• Civil rights investigations;
• Program budget analysis;
• Health and safety investigations; and
• Maintenance of executive manager calendars or other private information that is not related to state labor employer-employee relations.

On rare occasions, if performed a significant portion of the time, the following duties may support confidential status, particularly when combined with other duties which are clearly confidential:

• Developing costing or budget information for management proposals; and/or
• Analyzing or drafting labor related legislation.

Departmental Confidential Position Allocations

There is no formula for determining how many confidential positions can be authorized at a department or agency. The number of confidential positions in a department is contingent upon a variety of factors, including, but not limited to:

• Size of the department’s labor relations office (number of analyst and specialist level positions);
• Level of employer-employee relations activity (e.g., activity of stewards, number of grievances, frequency of meet and confers, job actions, etc.);
• Number of locations or facilities, particularly if local meet and confer sessions occur;
• Department participation in statewide negotiations;
• Size of department;
• Departmental organizational structure;
• Number of already authorized/approved confidential designations;
• Extent of involvement of executive management in employer-employee relations activities; and
• Number and type of bargaining units in the department.

Guidelines

It is not appropriate to use “confidential” status as an incentive for recruitment purposes. The position must perform confidential duties a significant portion of the time.

Equity between individuals within an office or within a classification is not a valid reason for designating a position as confidential. Individual designations must be based upon the duties and responsibilities assigned.

Application

To request a position be designated as confidential, or refill a previously designated position, departments are required to submit the CalHR 124 form along with the duty statement and organizational chart. All requests must receive CalHR approval prior to designating a position as confidential. The approval is for the specific employee performing specific duties. Once the employee or duties change, a new designation request must be submitted. This includes promotions in place.

All requests should be submitted from the department’s labor relations office to confidentialrequests@calhr.ca.gov and the subject line of the email should provide the following:

• Current CalHR # (or New if new request)
• department acronym

Requests will be processed within a two-week turnaround time. 

Removal of Confidential Designation

If the duties change for an employee who is designated as confidential, the employee must receive a 30-day notification that the confidential status will revert back to the rank-and-file position. Departments should coordinate this notification with their Human Resources, Labor Relations Office and the Benefits team to ensure that the employee is provided with benefits continuation opportunity.

Departments will be required to retroactively remove the confidential designation for unauthorized processing of confidential designations, and retroactively convert the employee back into the rank-and-file designation. Removing of confidential designation status retroactively can be minimized by ensuring to receive advance approval by CalHR Labor Relations Division for any confidential designations. 

Reconciliation Process

As a part of the 2023 reconciliation process, if your department is notified of an employee who is no longer eligible for the confidential designation, provide the affected employee(s) with notification of the discontinuation of the confidential status. The discontinuation of the confidential status will be effective July 1, 2023. Notification to the affected employees should be provided within two-weeks from the CalHR notification to the department. 

Authorities

• Government Code sections 3512 to 3524
• Bargaining Contracts - MOUs

Resources

Forms

• CalHR 124: Confidential Designation Request Form

PML

• PML 2016-003: PML 2016-003 - 1/25/2016 - Confidential Designations

Web Pages

• PERB Case Law: Public Employment Relations Board (PERB) case law

Authorized By

Paul M. Starkey
Deputy Director of Labor Relations, Labor Relations Division

Contact Person

Labor Relations Division
Labor Relations Officer , Labor Relations Division
Phone: 916-324-0476
Fax: 916-322-0765
Email: lr.info@calhr.ca.gov

Superseded Policies

History

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