AB 2561 Puts a Spotlight on Public Sector Vacancy Rates

Assembly Bill (“AB”) 2561 adds Government Code Section 3502.3 to the Meyers-Milias-Brown Act (“MMBA”), imposing new obligations on public agencies related to tracking and presenting information on job vacancies. The new law and the legal obligations thereunder take effect January 1, 2025.

Note: On December 9, Liebert Cassidy Whitmore will be conducting a training for public agency clients on this new law. Registration will include a number of resources intended to facilitate public agency compliance with the new law. Register for the training here.

AB 2561 declares that job vacancies in local government are a widespread and significant problem for the public sector, and that job vacancies may undermine labor relations between public agencies and their employees. AB 2561 requires that, on an annual basis, public agencies assess and address vacancy rates in order to help avoid the negative effects of understaffing on the delivery of public services as well as on public employees.

New Public Hearing Obligations Require Public Agencies to Report on Vacancies

Under Government Code Section 3502.3, public agencies must now do the following:

1. 1. Track job vacancies at the agency;
   2. Present information on the status of the vacancies (such as information on the number of posted job openings, candidates interviewed, eligibility lists created, conditional offers made, etc.) and the agency’s recruitment and retention efforts. An agency must present this information at a public hearing before the agency’s governing body at least once per fiscal year. If an agency will adopt an annual or multiyear budget in a given year, the public hearing must occur prior to the governing body adopting the agency’s budget; and
   3. Identify, during the public hearing, any policies, procedures, and recruitment activities that may present obstacles in the agency’s hiring process and potential changes that may alleviate such obstacles.

These affirmative obligations apply to all public agencies subject to the MMBA, even if the agency does not have any represented employees. However, if the agency has a represented workforce, the new law entitles recognized employee organizations to make a presentation at the public hearing when the agency makes its presentation. Notably, the law does not regulate the presentation that the employee organization is entitled to make.

Additional Obligations May Apply if the Vacancy Rate in a Bargaining Unit Exceeds 20%

In addition to the requirements described above, if the vacancy rate in a bargaining unit is at least 20% of the total number of authorized full-time positions, the employee organization that represents the bargaining unit may request that the agency present additional information at the public hearing.

Upon such a request, a public agency must present the following additional information:

1. 1. The total number of job vacancies within the bargaining unit;
   2. The total number of applicants for vacant positions within the bargaining unit;
   3. The average number of days to complete the hiring process from when a position is posted; and
   4. Opportunities to improve compensation and other working conditions.

Implications for Public Agency Communications with Employee Organizations

The intent of the new law is to require public reporting on information regarding vacancy rates and to leverage the disclosure of such information to increase staffing at public agencies and increase compensation for public employees to assist with recruitment and retention efforts.

In terms of meet and confer obligations, AB 2561 does not change the obligations to which public agencies are subject. For example, public agencies continue to possess the management right to decide which services to offer and the level of funding for such services. Public agencies must also continue to discharge their obligation to meet and confer over certain decisions that affect the matters within the scope of representation implicated by high vacancy rates, such as the decisions to contract out bargaining unit work, remove work from a bargaining unit, and to make material changes to an employee’s workload. Public agencies regularly rely on these strategies to maintain important public services where there are high vacancy rates.

In terms of requests for information, the new law will likely precipitate an increase in the number of requests from employee organizations seeking information regarding vacancies that the employee organizations may use in their presentation at the public hearing. Agencies should be proactive and prepare for such requests, even before employee organizations make a request. Agencies should also be mindful that employee organizations are entitled to information that is relevant and necessary to their representational responsibilities and that the obligation to provide such information extends to information beyond that which relates to vacancies.

The new law will also affect agency budget planning processes. Agencies should be prepared to add the following steps to their budget planning process in order to account for and address the labor relations issues implicated by the new law:

• • Review and analyze agency vacancy rates prior to or early on in the budget planning process, focusing on vacancy rates by bargaining unit.
  • Review recruitment policies, procedures, and activities and prepare to address any potential obstacles in the hiring process during the public hearing regarding vacancies. The public hearing is an opportunity to highlight successful recruitment and retention efforts.
  • Consider conducting a staffing study in order to analyze the number of positions actually required to provide the public services that the governing body prioritizes.
  • Present vacancy information by bargaining unit to the relevant employee organizations, along with information regarding recruitment and retention efforts for that bargaining unit. Agencies may consider presenting such information proactively on a regular basis (e.g., January 1 each year) and standardizing the information presented to each employee organization in order to potentially avoid more expansive requests for information.
  • Factor in and schedule the public hearing regarding vacancies into the budget preparation process. Agencies may select one date for a City-wide hearing that will include the agency’s presentation as well as the presentations for all recognized employee organizations.
  • Provide advance notice of the hearing to all recognized employee organizations, along with notice that they have the right to make presentations at such hearings.
  • Since AB 2561 does not regulate employee organization presentations, agencies should consider proposing presentation parameters to employee organizations and attempt to reach written agreements on the terms of the presentations with each employee organization. Such terms may specify the number of presenters, length of presentations, subjects to be discussed, and data to be presented.
  • In the event that an agency receives direction from its governing body to improve compensation or other working conditions for represented employees, the agency should be prepared to meet and confer with the relevant employee organizations over such changes.
  • Prepare for employee organizations to make a number of proposals related to staffing, such as guaranteed staffing ratios and minimum staffing in order to address the employee organization’s concerns about understaffing and workload for existing staff.

One potential unintended consequence of the new law is that agencies with persistently high vacancy rates in difficult to recruit positions may consider reducing funding for such positions (i.e., defunding vacant positions) in order to lower the vacancy rate and avoid the additional reporting obligations that attach when there is a high vacancy rate

If you have any questions about how AB 2561 will affect your agency, please consider registering for the training that Liebert Cassidy Whitmore is holding on December 9. Registration for the training will also include a number of resources produced by Liebert Cassidy Whitmore that are intended to facilitate public agency compliance with the new law and its requirements. Register for the training here.

Liebert Cassidy Whitmore attorneys are standing by, ready and able to advise your agency on the impact that this new law may have on your agency. If you have any questions about this issue, please contact our Los Angeles, San Francisco, Fresno, San Diego, or Sacramento office.