A bill that would create a new legal privilege for communications between a union representative and a union member is scheduled for a public hearing in the House Civil Rights & Judiciary Committee this week. The bill is also scheduled for a committee vote at the end of the week.

Readers are likely familiar with well-known legal privileges that protect certain communications like attorney-client privilege, spousal privilege, clergy-penitent privilege, doctor-patient confidentiality, and others protecting sensitive communications where privacy is critical to the work or relationship involved.

HB 1187, sponsored by Rep. David Hackney (D–Seattle), creates a new legal privilege between a union representative and a union member. The privilege would prevent both the union representative and the union member from being examined in court about, or otherwise being required to disclose, any communications made between the representative and the member in the course of the union representation. The bill includes exceptions for preventing crimes with imminent risk of serious physical injury and if a member sues their union. Unlike most other legal privileges, the exceptions also allow the union to expressly waive the privilege unilaterally for any reason. The bill does not allow the union member to unilaterally waive privilege.

The bill is likely a response to recent cases where courts found that communications between a union member and their union were not protected from discovery. In those cases, when a union member identified their union representative as a witness in employment claims, attorneys for the employer were able to use union records to cross examine the witness about the union’s internal thoughts about the member or the strength of their claim.

HB 1187 is concerning for several reasons. Creating a union-member privilege could make it impossible for public employers to ask questions about what their employees are talking about on paid time. This is important because employers are liable for many kinds of conduct that take place between employees while at work, including discrimination or harassment. As a matter of fairness, employers should also be allowed to cross examine a union representative when an employee chooses to call them as a witness against the employer in court. Additionally, most people know they have no reasonable expectation of privacy when they are on the job (outside those well-known areas where confidentiality is protected) and on the jobsite during working hours is where many employees meet with their unions.

Dates to remember

HB 1187 is scheduled for public hearing in the House Civil Rights & Judiciary Committee on Wednesday, January 18 at 8 am. It is also scheduled for a committee vote on Friday, January 20 at 10:30 am.