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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, 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.
  • 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.

This blog post appeared in April 2014.  It has been reviewed and is up to date.

The Family Medical Leave Act (“FMLA”) is a developing and nuanced area of employment law that remains an issue for employees and employers.  The FMLA provides job protection to an eligible employee who takes leave (up to 12 workweeks per year) to care for the employee’s spouse, child or parent with a serious health condition or if such condition makes the employee unable to perform any one or more essential functions of their job. 

In a 2014 decision of the U.S. Court of Appeals titled Escriba v. Foster Poultry Farms, the Ninth Circuit Court in California held that an employee can affirmatively decline to use leave under the FMLA.  However, if the employee affirmatively declines to use FMLA to which he/she would otherwise be entitled, the employer may be shielded from a lawsuit for FMLA interference if it takes an adverse employment action against the employee for violation of its policies.    

In Escriba, an employee declined to use FMLA when she took an extended leave of absence to care for her ill father.  When the employee was terminated for failing to comply with the company’s absence policy, she filed a lawsuit claiming that her termination was an unlawful interference with her FMLA rights.  The Court held that the termination was lawful because the employee had expressly declined to have her time off count as FMLA leave and therefore, was not entitled to job protection.

Maria Escriba worked at a Foster Farms processing plant for 18 years.  On November 19, 2007, she met with her immediate supervisor to request two weeks vacation leave to care for her ailing father in Guatemala.  Her supervisor asked if she needed more time in Guatemala to care for her father, and Escriba responded that she did not.  The supervisor told her that if she later decided to request more than two weeks leave, she would need to visit Human Resources.  Escriba then went to the Foster Farms facility superintendent and told him she was going to Guatemala because her dad was very ill.  She told him she was using two weeks of vacation time and asked him for an additional one or two weeks as a “favor.”  The superintendent told Escriba to send a note or documentation to Human Resources for the extra time.  He did not instruct Escriba regarding her rights and obligations under FMLA and did not take any steps to designate her time off as FMLA.  Escriba never requested any additional time from Human Resources.

Escriba then traveled to Guatemala to care for her father.  While there, she decided that returning to work after two weeks would not be practical but she failed to make contact with her employer to extend her leave.  Sixteen days after she was supposed to return to work, Escriba spoke to her union representative who informed her that she was likely going to be terminated under Foster Farm’s “three day no-show, no-call rule.”  Under this policy, an employee is automatically terminated if absent for three work days without notifying the company or without seeking a leave of absence.  Escriba then sued Foster Farms, claiming that the company interfered with her right to take FMLA leave.

To establish a case of FMLA interference, an employee must establish that 1) he/she was eligible for FMLA protection; 2) the employer was covered by the FMLA; 3) the employee was entitled to leave under the FMLA; 4) the employee provided sufficient notice of intent to take leave; and 5) the employer denied the employee FMLA benefits to which he/she was entitled.  Whether Escriba provided sufficient notice of her intent to take FMLA leave was the dispositive issue. Here, the Court found that Escriba elected not to take FMLA leave after telling her supervisor that she only wanted vacation time and that she did not need additional time off.  She also knew that her supervisor only handled requests for vacation whereas Human Resources had handled her past fifteen requests for FMLA leave.  Moreover, Escriba had intended to take vacation time and not family leave.  Accordingly, Escriba did not express intent to take leave under the FMLA.

Thus, this case demonstrates that an employee cannot have it both ways – the employee cannot decline to use FMLA (even if the leave qualifies for FMLA) and then try to hide behind FMLA protections after the fact.  Accordingly, once an employee declines to use FMLA, the employee assumes the risk of the decision.  Thus, as in this case, if an employee declines FMLA leave, and goes on an unauthorized leave of absence, the employee can be lawfully terminated (consistent with agency policies).  Because the FMLA does not require that an employee expressly ask for “FMLA leave” to fall under its protections, we recommend that the employer should inquire of the employee if it is necessary to determine whether FMLA is being sought by the employee and obtain the necessary details of the leave to be taken.

A 2019 District Court case in Montana titled Sims v. Stillwater Mining Co. reiterates the importance of determining whether the employee has invoked FMLA leave.   In Sims,  Josef Sims requested and was granted FMLA leave from July 20, 2015, to August 1, 2015 from his employer. Upon his return to work, Sims requested additional time off due to his injury and submitted a vacation request form that included a comment stating “for Doctor Apt Regarding FMLA follow up.”  He requested vacation time since he believed he had vacation days remaining, and his supervisor approved the requested leave. However, Sims did not have any vacation days left, and his supervisor terminated him for using a vacation day he did not have. Sims alleged interference with his FMLA rights. The Sims court found that, unlike in Escriba, a jury could reasonably conclude that Sims’ actions did not constitute such a clear declination of his rights. He told his supervisor he was seeking time off due to his shoulder injury and indicated on his leave request form that his time off was “regarding FMLA follow up.” Sims submitted he sought vacation time simply because he thought it was available, and it was an easier process than taking FMLA leave.

Unlike in Escriba, Sim’s supervisor did not inquire further to determine whether he was requesting FMLA leave. All Sims was required to convey was “the qualifying reason for the leave or the need for FMLA leave.” When Sims told his supervisor the reason for his leave, it became his supervisor’s duty to determine whether Sims’ request qualified as FMLA protected leave. The Sims court also found that an employee’s request for paid leave does not “foreclose [] the inference that [he] might be interested in FMLA leave.”

 The court found that summary judgement was not appropriate, as the facts did not undisputedly establish Sims “affirmatively declined FMLA leave” and it was still disputed whether Sims provided sufficient notice of his intention to take FMLA leave and whether the employer fulfilled its duty to determine if FMLA leave was sought.

So, while an employee can affirmatively decline to use FMLA, like in Escriba, it is important that employers properly determine whether FMLA is being sought by the employee.

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This article was originally published in April 2017. The information has been reviewed and is up-to-date as of April 2025. 

A newly-elected official is going to want to fill top posts in their organization with persons committed to the official’s vision for the future.  In the same way, a top official after a period of months or years may want to change key lieutenants because of political differences.  Indeed, this ability to pick and choose among key advisers and high-level posts in a public organization has long been a traditional element of politics.

But sometimes, these notions come into a conflict with well-established job protections of public employees.  One of these is the First Amendment, which in a number of circumstances prohibits public agencies from taking adverse actions against employees based on their speech or political associations.  For most public employees, their speech and even their criticism of their own agency can have protection under the First Amendment if particular conditions are met.  Under principles of constitutional law, a public employee can assert a First Amendment retaliation claim against his or her employer if:

  1. the employee suffers an adverse employment action because of the employee’s speech,
  2. that speech was on a matter of public concern,
  3. the speech was outside the employee’s “official duties,” and
  4. a balancing test of certain respective interests favors the employee.

Of course, public employees often have numerous other protections against adverse employment actions, including due process rights, contractual “for cause” standards, and protections in collective bargaining agreements.

As far as the First Amendment is concerned, however, for some key employees, there is in fact room for what can appear to be arbitrary action or “patronage” dismissals.  The United States Supreme Court has created a “policymaker exception” to First Amendment protection, recognizing that an elected official must be able to appoint some high-level politically loyal individuals who will help him or her implement the goals or programs for which the public voted.  See Branti v. Finkel.  The U.S. Court of Appeals for the Ninth Circuit (covering California) described in a 1997 case titled Fazio v. City of San Francisco that if an employee is “a policymaker, then . . . his government employment could be terminated for purely political reasons without offending the First Amendment.”  The Court described the following factors a Court must consider in identifying a “policymaking” position:

  • “vague or broad responsibilities,”
  • “relative pay,”
  • “technical competence,”
  • “power to control others,”
  • “authority to speak in the name of policymakers,”
  • “public perception,”
  • “influence on programs,”
  • “contact with elected officials,” and
  • “responsiveness to partisan politics and political leaders.”

In a 2012 decision, Hunt v. Orange County, the Ninth Circuit added some refinements to the “policymaker” test.  The Court held that the exception turned essentially on an overarching factor of whether political considerations had sufficient significance in the job duties of the employee in question.  “The essential inquiry” the Court described “is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.”  (Emphasis added.)  In the Hunt case, the Ninth Circuit found that Orange County Sheriff Michael Carona could not rely on the policymaker exception to demote a particular high-ranking employee, William Hunt, who had run against him for Sheriff.  Hunt was the Chief of Police Services for the City of San Clemente, which contracted with Orange County Sheriff’s Department for police work.  The Court reasoned: “Here, the record fails to establish that Hunt’s party affiliation or political outlook were relevant to the effective discharge of his professional duties.”  Instead, the factual findings were that “Hunt’s political statements—which were the basis of his demotion—did not cause, and could not have been reasonably predicted to cause, a disruption in the efficient operation of the department.”  The Court’s opinion interprets the applicable test in a way that appears to make it more difficult for employers to invoke the exception.

District court cases decided after Hunt provide examples of what types of employees were considered policymakers.  In 2013, in Wittenberg v. Public Utility Dist. No. 1 of Skamania County, the U.S. District Court for the Western District of Washington determined that a general manager of a public utility district, selected by three elected officials, was a policymaker.  In 2015, in Summers v. City of McCall, a District Court in Idaho determined that a City Chief of Police in that case met the definition.  In 2016, in Kaelble v. Tulare County, the District Court for the Eastern District of California found that a Supervising Deputy District Attorney to be a policymaker where each of the relevant criteria was satisfied.

In conclusion, deciding that an employee meets the definition of a policymaker can obviously have important ramifications for the employee – and for the agency, if it makes a politically motivated decision as to someone whose job does not actually meet the definition.  Accordingly, it is best to obtain legal advice if there is any doubt.

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If your agency is a contracting agency with the California Public Employees’ Retirement System (CalPERS), chances are you have heard about the important distinctions between an “employee” and an “independent contractor” under the Public Employees’ Retirement Law (PERL).  Whether an individual is an “employee” or an “independent contractor” determines whether the individual must be enrolled in CalPERS under certain circumstances and whether a CalPERS retiree can return to work with a CalPERS agency without being subject to post-retirement work restrictions.

The difficulty for CalPERS employers is that there is no single, absolute factor that distinguishes an “employee” from an “independent contractor.”  Rather, a myriad of factors are considered.  Accordingly, employers often find it difficult to ensure that the person they are contracting with is in fact a true independent contractor, rather than a common law employee.

Many employers have agreements with individuals that clearly state that the individual is an independent contractor and that no employer-employee relationship exists.  However, the label actually matters very little when it comes to determining whether an individual is an “employee” or an “independent contractor.”  Rather, the actual relationship between the parties is paramount and the label may be one of the least important factors in such a determination.  Similarly, just because an employer issues an individual a Form 1099 instead of a W-2 does not guarantee that the individual will be deemed to be an “independent contractor.”

Instead, when it comes to CalPERS, the “common law test” is used to determine whether an individual is an “employee” or an “independent contractor.”  The critical factor is whether the employer retains the right to control the manner and means of accomplishing the work to be performed.  As CalPERS puts it, “[a]n independent contractor is someone who contracts to provide a service or complete a task according to his or her own methods, and is not subject to contracting entity’s control as to the end product, final result of work, or manner and means by which the work is performed.”

Other factors that CalPERS and courts will use to determine whether an individual is an “employee” or an “independent contractor” include:

  1. Is the individual or the employer supplying the tools, instrumentalities, and workspace?
  2. Is the skill required in the occupation the type normally performed under the supervision of the employer or by a specialist without supervision?
  3. Is the individual involved in a distinct occupation or business?
  4. What level of skill is required in the occupation?
  5. Is the relationship between the employer and the individual finite or ongoing?
  6. Is the employee paid by the time or by the job?
  7. Is the work performed part of the employer’s regular business?
  8. How do the parties view their relationship?

As noted above, no single factor is controlling.  CalPERS or a court will look at the individual’s relationship with the agency in light of the above factors and balance them to see if the relationship weighs in favor of an employer-employee relationship or principal-independent contractor relationship.  Understandably, the fluidity of the test frustrates employers who must try to determine at the outset how CalPERS or a court will weigh the factors in the future.  This task is all the more daunting when the employer has not had significant experience in analyzing the factors.  Therefore, contracting agencies should contact legal counsel or develop procedures for analyzing whether an individual is an “employee” or an “independent contractor” in individual circumstances.

There are several mechanisms for CalPERS to be alerted to an individual’s misclassification as an independent contractor instead of an employee.  CalPERS periodically audits contracting agencies to determine, among other things, whether individuals have been improperly classified as “independent contractors” or “employees” for the purposes of the PERL.  CalPERS also can be alerted to certain employment arrangements by the media, taxpayer groups, and other employees.

Even if an employee is properly classified as an independent contractor, there are additional nuances that an employer must address.  CalPERS has been inconsistent in its guidance and publications on how it treats independent contractors.  As we reported, CalPERS indicated in one of its publications that even true independent contractors, those individuals who are independent contractors under the common law control test, are subject to the PERL’s post-retirement restrictions when working directly for a CalPERS employer.  In Circular Letter No. 200-002-14, however, CalPERS backtracked from its previous language and stated that true independent contractors were not subject to the PERL’s requirements on post-retirement work.  As we discussed in our post on Circular Letter No 200-002-14, CalPERS did not clarify whether a CalPERS retiree who is a true independent contractor must still have his or her hours reported in my|CalPERS.  Employers must take care to remain well informed of additional CalPERS guidance and changing interpretations.

It is important for CalPERS contracting entities to take careful stock of the individuals it treats as independent contractors and conduct an analysis of whether they are true independent contractors.  This analysis should be conducted as soon as possible in order for the agency to avoid unwanted consequences for the agency, as well as employees and retirees performing services for the agency.

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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On March 3, 2025, Governor Gavin Newsom issued Executive Order N-22-25 mandating that all state agencies and departments under his authority implement a hybrid telework policy with a minimum of four in-person workdays per week by July 1, 2025. The order also urges agencies and departments not under the Governor’s authority to adopt the same policy.

This marks a significant shift from the previous requirement of two in-person workdays per week. The Executive Order cites research showing that in-person work enhances collaboration, cohesion, creativity, communication, mentorship (especially for newer employees), and supervision, while also improving public trust in government efficiency.

While non-state agencies are not subject to this order, it reflects a broader trend toward in-person work. Many private sector employers have implemented similar policies, and President Trump mandated that all federal agencies require employees to return to the office full-time. If your agency is considering adjusting telework policies to include more in-person days, there are several factors to consider.

Office Space

Does your agency have sufficient office space for all employees to work in person at the same time? Employers should assess their current office space against employee headcount before implementing any policy changes.

Long–Distance Employees

One advantage of expanded telework has been the ability to hire employees who live beyond a reasonable commuting distance. Requiring more in-person days may lead to losing these employees. Employers should also be cautious about making exceptions for certain employees, as this could raise concerns about disparate treatment claims.

Accommodations

Employees may request to continue remote work as an accommodation. These requests should be handled on a case-by-case basis in accordance with the employer’s reasonable accommodation policy. The EEOC has noted that employers should not deny remote work requests solely because a job requires coordination with colleagues. Additionally, the telework infrastructure established during the COVID-19 pandemic may demonstrate that employees can perform their duties remotely. Employers should be prepared to evaluate these requests carefully and consult legal counsel if needed.

Represented Employees

Agencies must be aware of collective bargaining agreements (CBAs or MOUs) that address in-person work requirements. Any new policy must align with existing contracts, and agencies may need to meet and confer with employee representatives before implementing changes.

Creating a Balanced Policy

Requiring additional in-person workdays may be met with resistance, so agencies should consider approaches that make the transition smoother:

  • Gradual Implementation: If there were previously no required in-person days, an agency could start with two per week and increase from there, allowing employees to adjust.
  • Flexible Scheduling: Employees who have been teleworking may have structured their schedules around personal obligations. Allowing flexibility, such as adjusted start times or a 4/10 schedule, could ease the transition.
  • All–Staff Days: If the goal is to improve collaboration, agencies should designate specific days when all employees are in the office to prevent situations where employees come in only to find they are still attending virtual meetings with their coworkers or not benefiting from any face to face time with colleagues.

While local public agencies are not directly affected by the Governor’s Executive Order, many employers are weighing the costs and benefits of in-person work. These considerations can help agencies develop policies that align with their operational needs while supporting employees.

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Hiring can be exhausting; we all know how hard it can be to find that perfect candidate. There’s so much to consider, like work experience, background, educational history, personality fit – but what about what you’re not allowed to consider?

The California Fair Chance Act (California Gov. Code § 12952) gives employers a very specific set of guidelines for when (and how) employers can consider criminal history in employment decisions. This law applies to public agencies throughout California, even though there are some exceptions[1] for certain positions.

The first question that comes up during the hiring process is: When can I run the background check? For most positions, employers may run a background check on a prospective employee after they have issued a conditional offer of employment. This means that the employer has to have designated the individual whose background it is checking as the applicant it is selecting for the position – in other words, assuming nothing happens during the background check process, that applicant will get the position. Employers cannot run background checks on a group of applicants to weed out those with conviction histories.

Assuming you’ve issued a conditional offer to an applicant, congratulations! You can run a background check. But be careful: Even if the background check gives you a lot of information, the statute only allows employers to consider a “conviction history” – not an arrest history, referral to a pretrial or posttrial diversion program, or sealed/dismissed/expunged convictions. This means that if for some reason a background check indicates that an applicant was arrested for a crime, but was never actually convicted, that cannot influence your decision to withdraw the conditional offer.

The same applies to applicants who opted to enter into a pretrial or posttrial diversion program rather than have a conviction on their record – even though participation in the program may indicate that they committed the crime of which they were accused, the statute does not allow employers to consider this information in their decision. Same with history that is sealed, dismissed, expunged, or “statutorily eradicated” (meaning the conviction has been erased by the passing of a subsequent statute). Though these theoretically should not come up on a background check, if for some reason you become aware of a sealed or otherwise eradicated conviction, that cannot be a factor in your final employment decision.

Let’s say the background check turns up a conviction for a crime that doesn’t fall under any of the exceptions listed above. You can just withdraw the conditional offer and move on to the next applicant, right? Wrong. The Fair Chance Act also requires the employer to make an “individualized assessment” about the conviction history, and give the applicant notice and an opportunity to respond.

The individualized assessment requires that the employer evaluate whether the conviction will have a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position. The individualized assessment must consider 1) the nature and gravity of the offense or conduct; 2) the time that has passed since the offense and the completion of the sentence; and 3) the nature of the job sought.

The individualized assessment will (and should) have different results in different circumstances. For example, if you’re hiring a Finance Director, and your applicant John Doe was convicted of wire fraud 5 years ago, you can probably show that this conviction will have a “direct and adverse” impact on his duties as a Finance Director. You have to be able to trust that they will handle your agency’s assets in a trustworthy manner. But what if John Doe was convicted of reckless driving 20 years ago? You may not be able to show that that conviction directly impacts his ability to do the job in a way that would justify withdrawing the conditional offer, since driving has nothing to do with his ability to perform duties as a Finance Director.

After you’ve done an individualized assessment and determined that withdrawing the conditional offer would be justified based on the duties of the position, you must give written notice to the applicant that their offer is being withdrawn as a result of the conviction. This notice must include: 1) an identification of the conviction that is the basis of the decision to rescind the offer, 2) a copy of the conviction report, and 3) an explanation of the applicant’s right to respond.

The right to respond includes more than just letting the applicant know they can contact HR if they have any questions. Specifically, the statute requires the employer to inform the applicant that they can provide evidence challenging the accuracy of the conviction history report (maybe there is another John Doe with a wire fraud conviction who has the same birth date as your Finance Director applicant, and you accidentally got their conviction report) or evidence of rehabilitation or mitigating circumstances (maybe John Doe has spent the last 5 years since his conviction educating people on the dangers of wire fraud and has dedicated thousands of hours of community service to his victims).

Employers must give applicants at least five days to produce their response to the notice of the withdrawn conditional offer, as well as five additional days if the applicant provides written notice that they will be disputing the accuracy of the conviction report and needs the time to obtain evidence supporting their assertion. In many cases, even if an applicant requests additional time to prepare a response, such as seven or ten days instead of five, it would be reasonable for the employer to grant that request to facilitate the purpose of the Fair Chance Act and give an applicant a meaningful opportunity to respond.

So, remember: As you’re making your way through the hiring process, sometimes knowing what you should consider is just as important as knowing what you can’t consider. As always, if you have questions about a particular applicant or conviction, we recommend seeking the advice of your legal counsel.

[1] The statute specifically exempts the following positions from the requirements discussed in this article: A position for which a state or local agency is otherwise required by law to conduct a conviction history background check; a position with a criminal justice agency; a position as a Farm Labor Contractor; and a position where an employer is required by state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history. (Cal. Gov. Code § 12952, subd. (d).)

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.