People protesting outdoors
People protesting outdoors

For a decade or more, the phenomenon of “cancel culture” – sometimes called “accountability culture” – has been the subject of national debate.  On one side, institutions explain they have a strong interest in maintaining a safe and welcoming environment for their workers and should have the ability to remove individuals who threaten that environment.  Institutions also claim a legitimate interest in distancing themselves from and denouncing speech that contradicts their values, and even an interest in disciplining or terminating an employee whose speech contradicts those values in a sufficiently serious way.  At the same time, many point out that our nation has a strong tradition that individuals should lead their lives speaking publicly and privately whatever they wish to say, and that the threat of “cancellation” imperils important rights.

For public agencies, these considerations take on not just public policy, but legal importance.  Public agencies are bound by the First Amendment in their treatment of workers, and they can commit a constitutional violation if they discipline an employee based on speech a Court determines to be constitutionally protected.  An employee who wins a lawsuit for violation of free speech rights can obtain significant damage awards and can typically recover attorneys’ fees, among other types of relief.

How do public employers determine what employee speech is protected?  This post explains general legal tests and then summarizes two federal appellate cases from the last year that illustrate how these tests apply.  Both are from the U.S. Court of Appeals for the Ninth Circuit (the federal circuit covering California, Oregon, Washington, and other western states) and set precedent for how courts will decide these questions in the future.  Both are in the public education context, but shed light on how courts will view scenarios in other types of public employment settings.

The First Amendment Test:

Courts have developed a general test for whether a public employee’s speech has First Amendment free speech protection.  Under this test, the First Amendment protects a public employee from being disciplined for their speech (1) on matters of “public concern,” (2) that is outside the scope of the employee’s “official duties,” and (3) that prevails in a balancing test which weighs disruption of a government agency’s operations against the importance of the speech interest at issue.  As Courts have phrased it, the balancing is “whether the [state]’s legitimate administrative interests outweigh the employee’s First Amendment rights.”  The first two elements of the test described above serve to rule out several broad categories of speech from consideration.  Speech that is not a matter of “public concern” can be, for example, speech about internal office dynamics, interpersonal conflicts, or more mundane workplace grievances.  “Official duties” speech constitutes that which an employee renders as part and parcel of their job, e.g., a policeman talking to a motorist they have stopped, a social worker providing counseling, or a fire inspector writing a citation.  For speech that passes these first two “tests” (public concern and outside official duties), Courts must apply the third element, the balancing test of competing interests.

The following two cases provide illustrations of how Courts have interpreted this balance in the face of community calls for “cancellation.”

Virulent Political Speech on a Private Facebook Account:

In Thompson v. Central Valley School District No. 365[DU1] , decided December 29, 2025, the U.S. Court of Appeals for the Ninth Circuit considered whether a middle school assistant principal’s inflammatory criticism on Facebook of the 2020 Democratic National Convention had First Amendment protection so as to protect him from discipline by the school district for the speech.  Thompson’s Facebook post disparaged the Convention, used a disability-based epithet in doing so, labeled its speakers “hateful racists” including a derogatory term for women, and threatened that critics would be taken “to the woodshed for a proper education.”  Although Thompson explained that he intended his post to reach only his Facebook friends, it was disclosed and came to the attention of his fellow school district employees. 

The speech was outside Thompson’s official duties and, although inflammatory, on a matter of public concern (partisan politics), so that the Ninth Circuit’s task was to balance the appropriate interests under the third step in the test.

In conducting the balancing, the Court concluded that the school district had shown a reasonable prediction of disruption and that the district had a legitimate interest in maintaining a safe, inclusive educational environment and in avoiding workplace disruption that outweighed Thompson’s free speech interests.  The Court emphasized that, particularly given Thompson’s supervisory role, the district’s interest in ensuring administrators foster a positive educational climate was weighty and that Thompson’s derogatory and violent language (including reference to the “woodshed”) could disrupt school operations.

Because the school district’s interests outweighed Thompson’s speech interests, the Court held that Thompson’s First Amendment rights were not violated and he could be disciplined.

The following reasoning from the Court emphasized the clash between Thompson’s role at the district and the nature of his comments:

The [Central Valley School District (“CVSD”)] reasonably predicted that a Facebook post by a school administrator using disability-related slurs and violent language was likely to disrupt CVSD operations.  The predictable disruption was intensified and reinforced by Thompson engaging in speech while serving in a public-facing role as an assistant principal that undermined the CVSD’s written resolution to foster a safe and supportive educational environment.  As an employee of the CVSD, Thompson had a responsibility to uphold the district’s formal commitment to equity and inclusion.  As evidenced by his Facebook post and workplace comments, Thompson did not uphold his commitment, and we accordingly find that Thompson’s derogatory and violent language could substantially disrupt the orderly operation of the school.

A Professor’s Provocative Statement and a Claim for Academic Freedom Protection:

A second case, decided December 19, 2025 (amended May 14, 2026), reached a different result, finding the inflammatory speech in question protected.  In Reges v. Cauce[DU2] , the United States Court of Appeals for the Ninth Circuit held that the University of Washington violated Professor Stuart Reges’s First Amendment rights in its response to the professor’s controversial syllabus statement.  

Reges, a computer science instructor, had added to his syllabus a line parodying the university’s recommended Indigenous land acknowledgment.  At public universities, a land acknowledgement is a formal statement that recognizes and honors the Indigenous peoples who have historically stewarded and continue to have enduring connections to the land on which a university is located, and the statement serves as a gesture of respect.  In 2015, the University adopted the following acknowledgement and recommended the instructors include it on syllabi, although this was optional: “The University of Washington acknowledges the Coast Salish peoples of this land, the land which touches the shared waters of all tribes and bands within the Suquamish, Tulalip and Muckleshoot nations.” 

Professor Reges instead stated the following on his syllabus: “I acknowledge that by the labor theory of property the Coast Salish people can claim historical ownership of almost none of the land currently occupied by the University of Washington.”  There was evidence that the professor also subsequently used the parody in the signature block of some of his e-mails. 

Students complained about the parody land acknowledgement, and some Indigenous students at the university who learned of it came forward to describe they felt impacted in their studies.  The university’s administration removed Reges’s syllabus, initiated a disciplinary investigation against him, withheld a merit pay increase, reprimanded him, and warned him of future sanctions. 

Reges sued for violation of his First Amendment rights, relying on an important modification to the test described above for constitutional free speech protection available to public employees serving as faculty members – in particular, the “official duties” exception to protection will not apply to faculty speech related to their “scholarship or teaching.”  The balancing test requirement described above, however, still applies.  

The District Court initially granted summary judgment to the university, applying the First Amendment balancing test, and concluded that the institution’s interest in preventing disruption and maintaining an inclusive environment outweighed Reges’s free speech interests. 

On appeal, however, the Ninth Circuit reversed that decision, and held Reges’s parody was protected academic speech (i.e., related to “scholarship and teaching”) on a matter of public concern, and that student offense alone cannot justify retaliation by a public employer.  The Court emphasized that “debate and disagreement are hallmarks of higher education” and that “student discomfort with a professor’s views … is not grounds for the university retaliating against the professor.” 

In applying this First Amendment balancing, the majority found that the university failed to demonstrate that its interests outweighed Reges’s right to speak, noting that claimed disruptions were insufficient to overcome his First Amendment rights.  The Court directed that summary judgment be entered for Reges on his retaliation and viewpoint discrimination claims.

One judge on the three-judge panel of the Ninth Circuit, however, disagreed and wrote a dissent arguing the disruption to Indigenous students’ learning justified limiting Professor’s Reges’s speech.  (In addition, a prominent law professor, Erwin Chemerinsky, has taken issue with the majority decision in Reges, among other ways by criticizing the conclusion that a computer science professor’s parody land acknowledgement related to his scholarship and teaching, i.e., his academic field of computer science.  See Erwin Chemerinsky, 9th Circuit Expands 1st Amendment Protection for Professor’s Syllabus Speech – And Gets it Wrong, Daily Journal (Jan. 15, 2026).) [DU3] 

Conclusion:

What guidance can public agencies draw from decisions like these?  First, disruption and impact on an agency’s operations have significant importance in the third element for free speech protection, i.e., the balancing of interests.  Second, as articulated by the Court in Thompson how the speech at issue tends to undermine the employee’s particular role also has great importance: in that case, the assistant principal’s job was to uphold certain institutional values but the Court opined that the virulent Facebook statements imperiled his role in doing so, and this effect swayed the Court’s analysis in balancing.  By contrast, Professor Reges’s statements were arguably interpreted to be consistent with the role of a faculty member to challenge accepted thinking at times and to provoke debate (although one judge on the panel disagreed, using reasoning more aligned with the Court’s in Thompson).

Finally, at least for purposes of evaluating First Amendment protection, how the employee’s speech came to light did not figure prominently in the Court’s analysis in either case.  Ironically, the assistant principal did not in any way seek to promote his Facebook comments at the school and had a private account, whereas the university professor affirmatively promoted and publicized his statements to the community.  What mattered primarily to the Court in evaluating balancing was impact on the educational institution and ability of the employees to do their jobs.

First Amendment issues in employment require careful consideration.  Trusted legal counsel can help navigate challenges in this continually developing area of law.

 [DU1]https://law.justia.com/cases/federal/appellate-courts/ca9/24-5263/24-5263-2025-12-29.html

 [DU2]https://law.justia.com/cases/federal/appellate-courts/ca9/24-3518/24-3518-2025-12-19.html

 [DU3]https://www.dailyjournal.com/articles/389352-9th-circuit-expands-1st-amendment-protection-for-professors-syllabus-speech-and-gets-it-wrong

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Artificial intelligence (“AI”) has quickly evolved from an emerging technology into a tool that many employers use every day. Whether it is screening job applicants, drafting performance evaluations, summarizing workplace investigations, or assisting with policy development, AI is becoming increasingly integrated into public-sector operations.

California policymakers have taken notice. Earlier this year, Governor Gavin Newsom issued an Executive Order directing state agencies to evaluate AI’s anticipated effects on California’s workforce and to develop strategies to prepare workers, employers, and government for those changes. While the Executive Order primarily applies to state agencies, it reflects a broader policy trend: California is actively preparing for a future in which AI will play a significant role in the workplace.

Although the Executive Order does not impose new legal obligations on local public agencies, it provides a valuable reminder that public employers should begin evaluating how AI is being used within their organizations and whether appropriate policies and safeguards are in place.

AI Is Already Being Used in Public Employment

Generative artificial intelligence (“AI”) is increasingly becoming part of government operations. Public agencies are exploring AI tools to improve efficiency by assisting employees with routine administrative tasks, such as drafting documents, summarizing lengthy materials, synthesizing information, preparing internal reports, and organizing large volumes of data. In 2025, the U.S. Government Accountability Office reported that eleven federal agencies reported a significant increase in generative AI use to support internal operations and service delivery. State and local governments are similarly evaluating how these tools can enhance productivity and reduce administrative burdens. As AI becomes more widely integrated into commonly used workplace software, public employers should consider whether they have appropriate governance, training, and safeguards in place to ensure its responsible use.

California’s Policy Direction Is Becoming Clear

The Governor’s Executive Order focuses on understanding AI’s potential impact on California workers, identifying occupations that may be affected, and developing strategies to help workers adapt to technological change. It also calls for collaboration among state agencies, educational institutions, labor organizations, and industry stakeholders.

While these initiatives do not directly regulate local government employers, they send a clear signal that California intends to remain at the forefront of AI governance. Public employers should expect continued legislative, regulatory, and judicial developments addressing the use of AI in employment.

Indeed, California has already adopted regulations under the Fair Employment and Housing Act addressing the use of automated decision systems in employment decisions. As AI becomes more common in the workplace, agencies should anticipate increased scrutiny regarding how these technologies are selected, implemented, and monitored.

Human Oversight Remains Essential

One of the most important principles for public employers is that AI should assist—not replace—human judgment.

AI-generated content can be remarkably persuasive while still containing factual inaccuracies, incomplete analysis, or fabricated citations. For that reason, any AI-generated work product should be carefully reviewed by an employee with appropriate subject matter expertise before it is relied upon for decision-making.

This is particularly important when AI is used to assist with:

  • Personnel investigations;
  • Disciplinary recommendations;
  • Performance evaluations;
  • Hiring decisions;
  • Accommodation analyses; or
  • Legal research.

Ultimately, employers—not software—remain responsible for employment decisions.

Consider Confidentiality Before Using AI

Public agencies routinely handle confidential information, including personnel records, medical information, attorney-client communications, and sensitive investigative materials.

Before employees input information into any AI platform, agencies should understand:

  • Whether the platform stores submitted information;
  • Whether user data may be used to train future AI models;
  • What contractual privacy protections exist;
  • Whether the platform complies with applicable security requirements; and
  • Whether agency policies permit the use of the platform for confidential work.

Even where an AI platform offers enterprise-level security, employees should exercise caution when handling sensitive information on such platforms and follow applicable agency policies.

Review Existing Policies

Many agencies have not yet adopted formal AI policies. Nevertheless, employees may already be using publicly available AI tools, perhaps without management’s knowledge.

Now is an appropriate time to review existing policies and determine whether additional guidance is warranted.

An effective AI policy may address topics such as:

  • Approved and prohibited AI tools;
  • Protection of confidential information;
  • Required human review of AI-generated work;
  • Documentation and record retention;
  • Compliance with public records laws;
  • Procurement considerations; and
  • Employee training.

Clear expectations can help ensure that AI is used responsibly and consistently across the organization.

Engage Labor Relations Early

For represented employees, the implementation of AI may also raise collective bargaining considerations.

Depending on how AI is introduced, employers may need to evaluate whether implementation affects negotiable terms and conditions of employment, including workload, job duties, performance expectations, or workplace monitoring.

Even where management retains discretion to adopt new technology, bargaining obligations may arise regarding the effects of implementation. Consulting labor relations professionals early in the planning process can help agencies identify potential issues before implementation.

Preparing for What’s Next

AI technology is advancing rapidly, and California’s legal framework is evolving just as quickly. Rather than waiting for new legislation or litigation to define best practices, public employers should begin preparing now.

Among other things, agencies should consider:

  • Identifying where AI is currently being used;
  • Evaluating potential legal and operational risks;
  • Developing governance policies;
  • Training supervisors and employees on appropriate use;
  • Reviewing vendor contracts and data security protections; and
  • Monitoring new legal developments affecting AI in employment.

Looking Ahead

Artificial intelligence presents significant opportunities for California public employers. Used thoughtfully, AI can improve efficiency, streamline administrative tasks, and allow employees to focus on higher-value work. At the same time, the technology raises important questions regarding privacy, bias, transparency, labor relations, and legal compliance.

Governor Newsom’s recent Executive Order underscores that California is actively planning for AI’s impact on the workforce. While local public agencies are not the direct focus of that initiative, they would be well served by viewing it as an opportunity to assess their own AI practices. Agencies that establish thoughtful governance, maintain meaningful human oversight, and proactively address legal risks today will be better positioned to adapt as California’s regulatory landscape continues to evolve.

We are excited to continue our video series – Tips from the Table. In these videos, members of LCW’s Labor Relations and Collective Bargaining practice group will provide various tips that can be implemented at your bargaining tables. We hope that you will find these clips informative and helpful in your negotiations.

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Some Employer-Employee Relations Resolutions are so old they were typed on a typewriter, copied on a mimeograph, photocopied for 30 years, scanned into a PDF, and then photocopied again for good measure. By the time we see them, the text is often at a 15-degree angle and appears to be bargaining over whether it wants to stay on the page. When the document looks like it’s been through impasse, mediation, fact-finding, and a small earthquake, it’s time for a comprehensive update.

For agencies subject to the Meyers-Milias-Brown Act (MMBA), an Employer-Employee Relations Resolution (EERR) serves as the framework governing labor-management relations. Government Code Section 3507 of the MMBA permits a local public agency to adopt reasonable rules and regulations for the administration of employer-employee relations.  Many agencies adopted these rules shortly after the MMBA was signed into law in 1968 – and have never updated them.

Because public sector labor law has evolved dramatically over the past several decades, an outdated resolution can create confusion, increase legal risk, and fail to reflect how the agency actually conducts labor relations today. 

We hope this article inspires you to update your EERR or start from scratch with a fresh 2026 version. 

Your Agency’s Labor Relations Rulebook

An EERR is an agency’s labor-relations rulebook. While the content varies from agency to agency, an EERR can address a wide range of labor-relations procedures, including:

  • Procedures and criteria for handling recognition and representation changes, such as exclusively recognizing employee organizations, determination of appropriate bargaining units, unit modification, decertification, withdrawal of recognition, and more.
  • Employee organization rights, such as access to agency facilities and use of meeting space, access to represented employees, use of bulletin boards and communication systems, participation in employee orientations, release time for representational activities, and distribution of literature.
  • Meet-and-Confer and Impasse Procedures, such as notice requirements for negotiations, procedures for information requests, emergency bargaining procedures, declaration of impasse, impasse procedures such as mediation procedures, fact-finding procedures that reference the factfinding requirements and criteria of the MMBA, timelines and costs associated with impasse proceedings, and governing body hearings following fact-finding.
  • Labor Relations Administration, such as identification of management officials authorized to act on behalf of the agency in regard to labor relations matters, and maintenance of labor relations records.

State Labor Law Has Significantly Changed Since Disco Was Popular

Legislative changes have expanded employee and union rights under the MMBA, imposed new procedural obligations, and created additional bargaining requirements. For example:

  • PERB Jurisdiction: In 2001 under Senate Bill (SB) 739, enforcement of the MMBA was transferred to PERB. Prior to SB 739, a party seeking to enforce provisions of the MMBA had to seek relief directly in superior court. Jurisdiction gave PERB the authority to declare employee relations rules unreasonable and allowed PERB regulations to control when a local agency has no rule governing a particular situation.
  • Fact-finding: In 2011 under Assembly Bill 646, fact-finding was added to the MMBA as a mandatory impasse procedure subject to the union’s request.
  • Agency Shop Declared Unconstitutional: In 2018, The landmark U.S. Supreme Court decision in Janus v. AFSCME declared that agency fees in the public sector violate the First Amendment right to free speech.
  • Regulation of Dues Processing and Safeguards to Union Access: In direct response to the U.S. Supreme Court’s Janus v. AFSCME decision, California adopted SB 866 in 2018, which strictly regulated public-sector union dues authorizing and processing, safeguarded union access to new employees, and limited employer interference in union membership. It also expanded union rights during mandatory new employee orientations to guaranteed union access to present information to newly hired public workers.
  • Temporary Employee Rights: In 2024 under AB 1484, AB 1484 enhanced representational rights for temporary employees at California cities, counties, and special districts, allowing for automatic inclusion in bargaining units with permanent employees who perform the same or similar work, and mandatory bargaining requirements.
  • Annual Public Hearing Requirement on Staffing and Vacancies: In 2025 under AB 2561, the MMBA was amended to require public agencies to hold an annual public hearing on staffing and vacancies.
  • New Contracting Out Notice Requirements: In 2026 under AB 339, local public agencies are now required to give recognized labor unions at least 45 days’ written notice before outsourcing, renewing, or extending contracts for services that fall within the scope of work of represented employees.

An EERR that reflects a decades-old understanding of labor law may no longer accurately describe an agency’s obligations.

From Mimeographs to Microsoft Teams: Collective Bargaining in the Modern World

The evolution from mimeographs to platforms like Microsoft Teams encapsulates the transformation of collective bargaining processes over the decades, reflecting broader technological and cultural shifts in the workplace. Where once unions and management exchanged hard-copy proposals, scheduled face-to-face negotiations, and painstakingly distributed updates via printed materials, today’s stakeholders leverage digital communication tools to coordinate, share documents, and even negotiate in real time, sometimes across continents. This modernization facilitates transparency, broader participation, and rapid dissemination of information, although it also introduces challenges related to data security, the digital divide, and the preservation of confidential discussions. The integration of advanced technologies into collective bargaining underscores both the adaptability of labor relations and the critical need for parties to remain vigilant about privacy, inclusivity, and equitable access as the bargaining table expands into the virtual realm.

Many EERRs were drafted in an era when labor relations communications occurred through paper notices, physical bulletin boards, and hand-delivered correspondence. Collective bargaining has evolved from locked-door table talks and reams of paper to a digital landscape. We now have electronic communications, virtual negotiations and meetings, electronic service of notices, digital document exchange and recordkeeping, and remote and hybrid work arrangements. Your agency’s EERR should reflect these communication advancements. Updating the resolution allows agencies to incorporate modern communication methods and administrative practices.

Why an EERR that Predates PERB’s Jurisdiction Puts an Agency at a Disadvantage

An EERR contains rules for recognition of employee organizations, which give a local agency significant authority over the determination of an appropriate bargaining unit. Now that PERB has jurisdiction over the MMBA, where there are no local agency rules governing certain types of representational changes, (e.g., unit modification) PERB regulations control, and an agency must relinquish control to PERB for determination of an appropriate bargaining unit. Modernizing these provisions can help avoid confusion when representation issues arise, and ensure that your agency controls the decision-making process.

Bargaining Units May Change Over Time

Few agencies look the same as they did ten, twenty, or thirty years ago. Departments merge. New classifications are created. Existing classifications are eliminated. Supervisory and confidential positions evolve. An EERR should accurately reflect the agency’s current bargaining unit structure and clearly identify which classifications must be represented separately because they are management, confidential, or supervisory employees. A re-written EERR can provide greater flexibility to modify units which may be beneficial to management.

Be Aware of What an EERR Cannot Do

An EERR cannot waive, diminish, or override rights granted by the MMBA, PERB regulations, or other applicable laws, and rules must be reasonable. For example, an agency cannot use its resolution to eliminate bargaining obligations, restrict protected employee rights, or create procedures inconsistent with PERB’s jurisdiction.

The “Meet and Consult” Requirement

Government Code Section 3507 of the MMBA requires an employer to “meet and consult” with employee organizations before adopting and implementing local employment relations rules. The consultation required under Government Code section 3507 over employment relations rules is no different from the good faith meet and confer process; however, if the parties are unable to reach an agreement after meeting and consulting in good faith, the agency may unilaterally impose.

For many agencies, labor relations resolutions have not received a comprehensive review in decades. A thoughtful update provides an opportunity to align the document with current law, modern labor relations practices, and the agency’s operational needs.

If your EERR was drafted before email was invented, before PERB assumed its current role under the MMBA, or before anyone in the organization can remember where the original signed copy is located, it may be time for a fresh look. Even absent a specific legal issue, periodic review of an employer-employee relations resolution is good governance. 

HAVE WE CONVINCED YOU?  Are you inspired to make 2026 the year you get a new EERR?  Reach out to your trusted legal advisors for assistance.

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Public agencies in California face ongoing challenges to keep their personnel rules current with evolving legal requirements. Summer offers an ideal opportunity to review and update these rules. Over the past few years, LCW attorneys have identified several key areas where updates are needed in almost every public agency’s personnel rules. Addressing these areas now can help agencies ensure compliance, reduce risk, and stay ahead of potential legal issues in the year ahead.

1. Outdated Family and Medical Leave Definitions

Since 2020, the legislature has updated the California Family Rights Act (“CFRA”) definitions. CFRA now includes siblings, adult children, grandparents, grandchildren, and individuals related by blood or whose association is equivalent to a family relationship (referred to as a “designated person”).

Personnel rules should clearly distinguish between the Family and Medical Leave Act (“FMLA”) and CFRA definitions of “family member.” Without this clarification, agencies risk denying eligible leave, misclassifying the type of leave, or applying outdated eligibility standards.

2. Missing Reproductive Loss Leave

As of January 1, 2024, California employers must provide up to five days of reproductive loss leave under Labor Code section 12945.6. This leave covers events such as miscarriage, stillbirth, failed adoption, failed surrogacy, or unsuccessful assisted reproduction.

Many personnel rules still do not reflect this leave entitlement or offer any procedural guidance. Omitting reproductive loss leave puts agencies out of compliance and leaves Human Resources staff and supervisors without clear direction when these situations arise.

 3. Overly Broad and Vague Grievance Procedures

Grievance procedures often present two problems. First, they allow employees to file grievances over nearly any workplace matter, including issues beyond management’s purview and control. Second, they lack clear procedural steps and timelines, or include language so complex or detailed that it becomes nearly impossible to follow.

Agencies should keep these procedures practical. Define grievable matters appropriately, and ensure the steps are straightforward and realistic. The grievance process should protect employee rights without creating unmanageable administrative burdens.

 4. Undefined Workweek Start and End Times

Many personnel rules do not define the agency’s workweek, which creates uncertainty when calculating overtime and complying with the Fair Labor Standards Act (“FLSA”). Without a clearly defined workweek, agencies risk miscalculating overtime and may be exposed to wage claims or liability for back pay.

Because agencies may include FLSA-related information in their Memorandums of Understanding (MOUs), they often assume the information is covered. However, MOUs frequently address schedules and overtime rules without explicitly defining the start and end of the workweek. This assumption results in the issue being overlooked. To avoid confusion and ensure consistent application, we recommend that agencies clearly establish the workweek for all employee groups, whether in the personnel rules, the MOU, or both.

 5. Harassment, Discrimination, and Retaliation Policy

The Fair Employment and Housing Act (“FEHA”) requires all employers to maintain a harassment, discrimination, and retaliation prevention policy that includes specific content. These requirements include reporting procedures, defined protected classifications, employee and supervisor obligations, and notice about employees’ rights to file complaints with outside agencies.

Personnel rules must identify the Equal Employment Opportunity Commission (“EEOC”) and the California Civil Rights Department (“CRD”) and include contact information for each organization. Despite the CRD changing its name from the Department of Fair Employment and Housing (“DFEH”) in 2021, many personnel rules still use the outdated name. Agencies should review their policies and update these references as needed, and agencies should confirm that policies meet the current legal standards outlined by the CRD. Utilizing the outdated agency name signals to employees that the agency is not maintaining and updating its policies.

Agencies also frequently include designations in their lists of protected classifications that are not required by law. For example, some policies include “political beliefs” as a protected classification. Including classifications beyond those required by applicable law may create additional obligations and increase the risk of disputes, especially when relating to highly charged topics.

6. Outdated Sick Leave Policy

Numerous times in the most recent several years, the California legislature has amended employers’ obligations to provide sick leave. The most significant amendment, in January 1, 2024, was to increase employees’ entitlement to a minimum of 40 hours or 5 days per year. It allows employers to maintain the accrual method of 1 hour per 30 hours worked, but if utilizing an alternative accrual method, employers must provide at least 24 hours by the 120th day of employment and 40 hours by the 200th day of employment. In 2025, AB 2499 expanded sick leave protection to make it available to employees who are victims or whose family members are victims of a “qualifying act of violence,” significantly broadening the circumstances when leave can be used. Finally, AB 406, effective October 1, 2025, clarified that sick leave may be used for specific purposes such as jury service, subpoenaed witness appearances, violence-related relief, and, beginning January 1, 2026, certain crime-victim judicial proceedings. Staying up to date with permitted sick leave uses and allowances is critical to avoiding liability.

Conclusion

Personnel rules serve as the guiding posts of agency operations and employee relations. When agencies fail to keep these rules current, they increase the risk of noncompliance, confusion, and costly disputes. Summer provides valuable time for public employers to review and update their rules in light of recent legislative changes and evolving workplace needs. Regular review and careful revision help ensure that personnel rules remain a reliable and defensible resource for agencies amidst an ever-changing legal landscape.

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Most employers know the value of an exit interview. When an employee resigns, agencies often ask why they are leaving and what could have been done differently. The problem, of course, is that by the time an exit interview takes place, the employee has already decided to move on.

What if agencies asked those questions before employees started looking for the exit?

That is the idea behind a “stay interview”: a conversation with a current employee designed to better understand what keeps them engaged, what challenges they are experiencing, and what might cause them to leave. “Stay interviews” can provide valuable information that agencies can use to improve employee satisfaction and reduce turnover.

This post describes these types of interviews, including their numerous benefits, and concludes with a discussion of some of the legal considerations employers need to navigate in conducting them.

Why Stay Interviews Matter

Finding qualified candidates has become increasingly difficult in many fields, particularly public safety, public works, information technology, and other specialized areas.

At the same time, agencies may overlook one of the most effective retention tools available: asking current employees about their workplace experience before they become dissatisfied enough to leave. Unlike performance evaluations, stay interviews are not intended to assess employee performance. Instead, they are an opportunity for agencies to learn what employees value about their jobs and what improvements might encourage them to remain with the organization.

Even if an agency cannot address every concern, simply asking employees for feedback can demonstrate that leadership is interested in understanding their experiences.

What Should Agencies Ask?

A stay interview does not need to be lengthy or formal. In many cases, a supervisor or manager can conduct a brief conversation focused on a few key questions.

Examples include:

  • What do you enjoy most about your job?
  • What makes your work challenging or frustrating?
  • What motivates you to stay with the agency?
  • Are there skills or experiences you would like to develop?
  • What could the agency do to better support you?

The goal is not to collect perfect data. The goal is to identify trends and opportunities for improvement before retention issues become resignation letters.

Listen for Themes, Not Just Individual Concerns

Looking for recurring themes can help agencies identify issues that may be affecting morale across departments or classifications.

Stay interviews can also help agencies identify strengths. If employees consistently highlight supportive supervisors, meaningful work, or positive workplace culture, leadership can focus on preserving those qualities.

Set Realistic Expectations

One of the biggest mistakes agencies can make is treating a stay interview as a promise session.

Employees may raise concerns that the agency cannot immediately address due to budget constraints, operational needs, collective bargaining obligations, or other considerations. Supervisors should avoid making commitments they may not be able to fulfill. Instead, supervisors can acknowledge concerns, explain that feedback will be considered, and communicate honestly about what changes may or may not be possible.

Employees are often more interested in being heard than receiving an immediate solution.

Public Agencies Should Consider Labor Relations Issues

For public agencies with represented employees, stay interviews may raise labor relations considerations that are not present in a typical exit interview. Before launching a stay interview program, agencies should consider whether the program or the topics discussed could trigger obligations under the Meyers-Milias-Brown Act (“MMBA”) or other applicable public sector labor relations laws.

One concern is the risk of “direct dealing” with represented employees. If stay interviews are used to solicit employee input regarding wages, hours, benefits, working conditions, or other negotiable subjects, employee organizations may argue that the agency is bypassing the union and communicating directly with represented employees about matters that should be addressed through the collective bargaining process. Agencies should consider discussing the purpose and structure of any stay interview program with the applicable employee organization before implementation and consult counsel regarding any bargaining obligations.

Agencies should also be careful not to create the appearance that employees are being pressured to disclose their views regarding union activities, labor relations issues, or workplace concerns. Questions that employees perceive as coercive or as seeking information about protected concerted activity could create unnecessary labor relations issues. Supervisors conducting stay interviews should receive guidance on appropriate topics and understand how to respond if discussions turn to union-related matters.

Finally, although stay interviews are intended to focus on employee engagement and retention, conversations do not always go as planned. If an interview begins to focus on alleged misconduct, performance deficiencies, or other matters that could reasonably lead to discipline, agencies should be mindful of potential Weingarten rights. Specifically, in represented workplaces, employees may have the right to union representation during an investigatory interview that the employee reasonably believes could result in disciplinary action. Supervisors should understand when a stay interview may be shifting into a different type of conversation and seek guidance as appropriate. (In addition, for public safety officers and firefighters, stay interviews can carry the same type of risk under the Public Safety Officers Procedural Bill of Rights Act (POBRA) and the Firefighters Procedural Bill of Rights Act (FOBRA) respectively. These risks primarily arise when such interviews could be construed as interrogations or investigations that might lead to punitive action, and thus give to rise to procedural protections.)

Remember That Some Issues Require Follow-Up

Although stay interviews are intended as retention tools, they may uncover issues that require additional attention. For example, an employee may report concerns involving harassment, discrimination, workplace safety, or other issues that trigger agency obligations to investigate or take corrective action. Supervisors conducting stay interviews should understand when concerns need to be elevated through established reporting channels.

Agencies may also wish to provide guidance or training to supervisors before implementing a stay interview program to ensure conversations are conducted consistently and appropriately.

Start Small

A stay interview program does not need to be complicated. The most important step is simply creating opportunities for employees to share feedback before they decide to leave.

While exit interviews can help agencies understand why employees left, stay interviews may help agencies learn what they can do to encourage employees to stay. Stay interviews give agencies an opportunity to identify concerns, strengthen employee engagement, and improve retention before turnover occurs.

We are excited to continue our video series – Tips from the Table. In these videos, members of LCW’s Labor Relations and Collective Bargaining practice group will provide various tips that can be implemented at your bargaining tables. We hope that you will find these clips informative and helpful in your negotiations.

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Juneteenth commemorates a pivotal moment in U.S. history—the final enforcement of the Emancipation Proclamation in 1865. Celebrated on June 19, the day marks the end of slavery in the United States and serves as a time to reflect on freedom, justice, equity, and progress. Known in the federal service as Juneteenth National Independence Day, it has been recognized as a federal holiday since 2021, and has prompted many public agencies across the country to reevaluate how they acknowledge and observe this important day.

For California public agencies, the decision to observe Juneteenth brings both legal and operational questions—many of which remain relevant year after year.

Is Juneteenth a Required Holiday for California Public Employers?

While Juneteenth is an official federal holiday, and while California has added it to the list of state holidays, California has not declared it a paid state holiday for state and local government entities employees. As a result, the observance of Juneteenth varies widely across jurisdictions:

  • State government offices typically remain open unless otherwise directed.  Many state employees do have options to observe the holiday through available leave and holiday credit provisions, however.
  • Local government entities (cities, counties, special districts) may adopt policies to observe Juneteenth as a paid holiday or provide alternate ways to commemorate the day.
  • Educational Entities (school and community college districts and county offices of education)—after changes to the Education Code sections 45203 and 88203, effective January 1, 2023, districts added Juneteenth as a recognized, paid holiday for classified (but not certificated or academic) employees.
  • Agency discretion plays a key role. Public agencies must assess whether to formally observe the holiday and how to align that decision with existing employment policies, collective bargaining agreements, and budgetary constraints.

Four Key Considerations for Agencies

1. Review Legal Obligations and Labor Agreements
Check whether your agency’s bargaining agreements, personnel rules, policies, or handbooks list Juneteenth as a holiday or allow for the addition of federal holidays. Your agency also has to comply with obligations to meet-and-confer with employee associations before changing holiday observance policies.

2. Analyze Operational Needs
Determine the impact a Juneteenth holiday would have on essential services, staffing levels, and scheduling. Consider whether alternative forms of observance, such as floating holidays or employee education programs, may be more appropriate.

3. Communicate Early and Clearly
Transparent communication is essential. Employees should understand whether Juneteenth is a working day, a floating holiday, or a paid closure. Clear guidance minimizes confusion and supports consistent application across departments.

4. Consider Voluntary or Educational Programming
Agencies that do not formally observe Juneteenth as a holiday may still recognize it through internal events, guest speakers, historical exhibits, or voluntary learning opportunities. These efforts can foster inclusion and awareness without impacting operations.

Creating a Long-Term Framework

Because Juneteenth is now a national holiday, public agencies may want to proactively develop a consistent, long-term policy. Questions to address include:

  • Will Juneteenth be treated like other federal holidays?  If not, why not?
  • Should employee leave options be adjusted?
  • How will the agency explain and document its approach for employees and the public?

Approaching Juneteenth with clarity, fairness, and consistency allows public employers to stay aligned with evolving norms and employee expectations while remaining operationally sound and legally compliant.

Juneteenth offers a meaningful opportunity for reflection and recognition, and public agencies are responsible to set the tone for its observation. Whether through formal closure, symbolic acknowledgment, or internal education, planning ensures that your agency is prepared—not only for this year, but for years to come.

For questions about implementing or modifying holiday observance policies, consult with your agency counsel or designated labor relations representative.

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California public agencies commonly offer a variety of retirement benefits to employees, including defined contribution plans such as 457(b) plans, 401(a) plans, and, in some cases,  401(k) plans or retiree health savings arrangements. While these plans provide valuable retirement security, they also create an often-overlooked administrative responsibility: ensuring that employees complete and maintain current beneficiary designation forms.

A beneficiary designation determines who will receive plan benefits if a participant dies before receiving all benefits payable under the plan. Unlike a will or trust, which generally governs the disposition of a person’s probate estate, retirement plan assets are often distributed according to the beneficiary designation maintained by the plan. As a result, an outdated, incomplete, or missing beneficiary form can create significant problems for surviving family members and the public agency responsible for administering the benefits.

Beneficiary designations are particularly important for 457(b) deferred compensation plans. These plans frequently accumulate substantial account balances over the course of an employee’s career. If a participant dies with an account balance remaining, the plan administrator must determine the proper beneficiary before distributing funds. Similarly, 401(a) plans often provide death benefits or account balances that must be distributed according to the participant’s beneficiary designation. Depending on the plan’s terms, retiree health savings plans and other employer-sponsored benefits arrangements may also require beneficiary elections to direct the payment of remaining benefits upon a participant’s death.

Unfortunately, beneficiary forms are often completed when an employee is first hired and then forgotten. Over a career spanning twenty or thirty years, an employee may marry, divorce, remarry, have children, or experience the death of a previously designated beneficiary. If the employee fails to update the designation, the retirement benefits may be distributed in a manner that no longer reflects the employee’s wishes.

Public agencies can help prevent these issues by regularly reminding employees to review their beneficiary designations. Annual benefits enrollment periods, retirement planning workshops, and major life-event notifications provide excellent opportunities to encourage employees to confirm that their beneficiary information remains current.

Maintaining accurate beneficiary records is only part of the equation. Agencies and plan administrators must also ensure that completed forms are properly retained. When a participant dies, the inability to locate a beneficiary designation can create significant uncertainty. In the absence of a valid form, the plan document may require benefits to be distributed according to a default hierarchy, such as to a surviving spouse, children, estate, or next of kin. These default provisions may not align with the participant’s actual intentions.

Missing beneficiary forms frequently lead to disputes among surviving family members. Former spouses, current spouses, children from prior relationships, and estate representatives may each assert competing claims to the benefits. Agency staff may spend considerable time responding to inquiries, gathering records, coordinating with third-party administrators, and addressing legal challenges. In some cases, disputes may escalate into litigation, requiring agencies to produce decades-old records and defend the administration of the plan.

The consequences can be even more serious when a valid beneficiary designation exists but is not followed. If benefits are distributed to the wrong person despite a properly executed beneficiary form being on file, the intended beneficiary may pursue legal action seeking recovery of the improperly distributed funds. The agency or plan administrator may face allegations that it failed to administer the plan according to its governing documents or neglected its responsibilities in processing the death benefit claim.

To reduce these risks, California public agencies should adopt clear procedures for collecting, storing, and retrieving beneficiary forms. Electronic records should be securely maintained and backed up to ensure accessibility when needed. Agencies should also periodically audit beneficiary records and coordinate with third-party administrators to confirm that beneficiary information maintained by the administrator matches the agency’s records.

Ultimately, beneficiary designation forms are among the most important documents associated with a participant’s retirement benefits. For section 457(b), 401(a), 401(k), retiree health savings, and similar benefits plans, a current and properly maintained beneficiary designation helps ensure that benefits are distributed according to the employee’s wishes. By emphasizing regular updates, maintaining accurate records, and carefully following valid beneficiary elections, California public agencies can protect employees’ families while minimizing administrative burdens, disputes, and potential legal exposure.

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The modern workplace was not designed with every kind of brain in mind, yet an estimated 15-20% of the population is neurodivergent.  This means one in five of your employees may be neurodivergent.  Neurodivergence is a non-medical term used to describe individuals who interact with the world and whose brains function and process information differently from those in the majority of the population.  Neurodivergence can be caused by a medical condition, such as Autism Spectrum Disorder (ASD), Attention-Deficit/Hyperactivity Disorder (ADHD), learning disabilities, and mental health conditions (such as OCD, bipolar disorder, and schizophrenia).  However, individuals may identify or be considered neurodiverse without having an underlying medical disability.  Studies show, however, that neurodivergent individuals are underemployed, and when they are employed, often do not disclose their conditions or request accommodations, and feel unsupported in the workplace. Historically, many employers overlooked the strengths of neurodivergent individuals, instead focusing on their differences or challenges in the workplace.  Over time, our society has become more accepting of neurodiversity in the workplace, recognizing the many strengths neurodivergent employees can bring to the workplace, such as seeing things from different perspectives, offering creative solutions, and high attention to detail. However, standard workplace practices, social norms, and hiring practices can create barriers to hiring and retaining these employees.  This blog post will address steps public agencies can take to create a more inclusive hiring environment and workplace for neurodivergent employees.

FEHA and the Interactive Process

The Fair Employment and Housing Act requires California employers to reasonably accommodate employees’ disabilities, which specifically includes mental disabilities.  Mental disabilities are broadly defined and include “any mental or psychological disorder or condition that limits a major life activity.”  The regulations provide as examples learning disabilities, autism spectrum disorder, and chronic or episodic conditions such as clinical depression, bipolar disorder, post-traumatic stress disorder, and obsessive compulsive disorder.  Under FEHA, upon an employee’s request or when the employer becomes aware of the need of an accommodation, the employer must engage in a good faith interactive process with the employee to provide reasonable accommodations.  Employers have an obligation to initiate the interactive process once they know or should know of the need for an accommodation.  Thus, it is important for employers to be aware of signs an employee might be neurodivergent and in need of an accommodation.

Types of accommodations for neurodivergent employees

This blog post addresses a variety of workplace areas that may present challenges for neurodivergent employees and offers suggested accommodations.  We emphasize that no two neurodivergent employees are identical, and that neurodiversity may arise from a wide range of mental health conditions, learning disabilities, and medical conditions – each with their own strengths and challenges.  These suggestions are intended as starting points for conversation, collaboration, and the interactive process.  Autism Spectrum Disorder (ASD), for example, is referred to as a “spectrum” because symptoms and their severity can vary significantly from person to person.

Environment and Sensory Accommodations

Some neurodivergent employees may be more sensitive to sensory stimuli, which can impact concentration and productivity.  Potential accommodations may include:

·         Providing noise cancelling headphones;

·         Offering quieter workspaces, alternative work locations, or quiet break spaces;

·         Softer lighting and adjusting lighting where bright or flickering lights may be disruptive;

·         Modifying uniform or dress code requirements that create tactile or sensory challenges;

·         Allowing the use of fidget tools; and

·         Allowing flexible seating arrangements.

Communication Accommodations and Best Practices

Communication styles and preferences may vary among neurodivergent employees. Employers may wish to consider:

·         Using clear and direct communications;

·         Limiting sarcasm, euphemisms, or ambiguous instructions;

·         Providing written instructions or follow-up communications in addition to verbal discussions; and

·         Allowing alternative communication methods, such as email or messaging platforms, where appropriate.

Task Management, Organization, and Technology Accommodations

Certain organizational tools and workplace technologies may assist neurodivergent employees in managing assignments and workflow. Potential accommodations include:

·         Breaking larger projects into smaller, manageable tasks;

·         Providing detailed step-by-step instructions or checklists;

·         Using task-tracking or project management applications; and

·         Allowing assistive technology, such as dictation or voice-to-text software.

Schedule and Break Accommodations

Flexibility in scheduling may help some neurodivergent employees maintain focus and productivity. Potential accommodations may include:

·         Modified break schedules, including shorter and more frequent movement breaks;

·         Flexible work hours or modified schedules; and

·         Telework or hybrid-work arrangements, where feasible.

Communicating Change and Transitions

Some neurodivergent employees may experience difficulty with unexpected changes or transitions. Advance communication regarding schedule disruptions or changes in routine may help employees prepare and adapt more effectively. Examples may include advance notice of:

·         Fire drills;

·         Work-related travel;

·         Changes in reporting structure or job duties; and

·         Holiday events, office closures, or special workplace events.

Changes to Workplace Culture and Hiring Practices

In addition to providing accommodations for individual employees, public agencies can also explore broader workplace practices and organizational culture to make their agencies more accessible and welcoming to neurodivergent individuals.

·         Traditional one-on-one interviews may present challenges for some neurodivergent applicants, including individuals with ASD or ADHD, who may struggle with maintaining eye contact, remaining still, or processing questions in high-pressure settings.  Exploring alternative hiring methods – such as skills-based assessments, work simulations, or group activities – may allow candidates to demonstrate their qualifications more effectively.

·         Providing trainings on neurodiversity, workplace sensitivity, and respectful communications can help foster a more inclusive workplace culture.

·         Employers should clearly communicate workplace expectations, norms, and etiquette, rather than assuming employees intuitively understand unwritten social rules or workplace customs.

·         Supervisors and coworkers should avoid stigmatizing labels or assumptions about employees who communicate or interact differently. Creating a respectful and supportive environment includes learning employees’ communication styles, preferences, and workplace needs.

Public agencies benefit from recruiting and retaining talented employees with a wide range of perspectives, experiences, and ways of thinking.  Neurodivergent employees often bring valuable skills, creativity, innovation, and attention to detail to the workplace.  By fostering inclusive workplace practices and considering a spectrum of accommodations, agencies can better support  neurodivergent employees and help them succeed.  Ultimately, creating a more accessible workplace benefits not only neurodivergent employees, but the workforce as a whole.