We are excited to introduce our video series – Wage & Hour Issues in the Workplace. In these videos, members of LCW’s Wage & Hour practice group will provide various tips that can be implemented in your workplace. We hope that you will find these clips informative and helpful!

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While many employers view implementation of workplace technology as a managerial prerogative, labor unions are increasingly framing issues such as electronic surveillance of employees, workplace algorithmic decision-making, and Artificial Intelligence (AI)-driven management tools as core terms and conditions of employment and a new frontier for labor rights.

A set of proposed bills before the California State Legislature in the current 2025-2026 session target the growing role of artificial intelligence, automation, and surveillance in the workplace. Major unions such as the Teamsters and the California Nurses Association are signaling support for these bills and for regulation of workplace technology in general.

Public sector employers should be aware of such efforts in order to prepare for potential shifts in the law. New bills before the legislature seek to address the following issues:

  • AI’s ability to directly shape core employment decisions without restriction, and the use of workplace technology to influence decisions about hiring, discipline, scheduling, and productivity.
  • Potential job displacement and restructuring as a result of AI.
  • Workplace surveillance without the knowledge of employees.
  • Algorithmic management (e.g., productivity quotas, real-time tracking) which increase the pace and stress of work, and potentially compromise workplace safety.

Notably, some of the interests addressed in the proposed legislation correspond with the United States Department of Labor’s “Artificial Intelligence and Worker Well-Being: Principles and Best Practices for Developers and Employers,” issued in October 2024 and subsequently revoked following the change in administration in January of 2025.

A Push to Regulate AI and Algorithmic Management in the Workplace:

A central theme of the current bills before the State Legislature is limitation on the use of AI in employment decision-making. For example:

Senate Bill 947 (McNerney): Coined the “No Robot Bosses Act,” this bill would prohibit employers from relying solely on algorithmic decision-making in discipline or termination. Employers would be required to ensure human oversight and maintain corroborating evidence beyond algorithmic outputs. The bill also mandates disclosure to employees when such tools are used. The bill is part of a broader push to govern “algorithmic management” in the workplace. It is notably similar to Senate Bill 7 which was vetoed by Governor Newsom last year over concern that it imposed overly-broad restrictions on employer use of such tools. In its current form, if passed, this bill would apply to California local government employers.

Similarly, Assembly Bill 1883 (Bryan) takes aim at AI-driven surveillance tools, prohibiting technologies that infer personal information about workers or that may be considered invasive or biased, including facial recognition technology and an employee’s neural data. This bill raises questions about the continued viability of tools used for productivity monitoring, security, and workplace analytics. In its current form, if passed, this bill would apply to California local government employers.

Assembly Bill 2027 (Ward) restricting employers from using worker data to train AI systems that could automate or replace jobs. In its current form, if passed, this bill would apply to California local government employers.

More generally, Senate Bill 813 would create the California AI Standards and Safety Commission and empower the commission to identify the need for development of standards and regulations related to AI, and to take certain actions related to the safety of artificial intelligence.

Taken together, these measures reflect a policy objective of slowing or reshaping AI adoption in employment contexts, particularly where it may displace human labor or reduce managerial discretion.

Expansion of Notice and Transparency Requirements:

Major pillars of the legislative agenda are notice and transparency. For example,

Assembly Bill 1898 (Schultz) would require employers to provide written advance notice to workers that a workplace AI tool was used to assist the employer in making employment-related decisions or to surveil workers in the workplace. Employers would be required to disclose what data is collected, how it is collected, and how it will be used, and would require an employer to maintain an updated list of all workplace AI tools currently in use and their impact on jobs, as specified, and to provide the list to workers annually. In its current form, if passed, this bill would apply to California local government employers.

Senate Bill 951 (Reyes) This bill would establish the California Worker Technological Displacement Act, which would require an employer to provide at least a 90-day advanced written notice before any technological displacement affecting 25 or more workers or 25 percent of the workforce, whichever is less. Employers that lay off workers, reduce hiring, or otherwise alter workforce decisions due to AI or automation would need to provide advance notice to employees and government entities. The bill also creates a right for laid-off workers of employers with more than 100 employees to bid on open positions within the employer. In its current form, if passed, this bill would apply to California local government employers.

Senate Bill238 (Smallwood-Cuevas) would require an employer to annually provide a notice to the Department of Industrial Relations of all workplace surveillance tools the employer is using in the workplace. The bill would require the department to make the notice publicly available on the department’s internet website within 30 days of receiving the notice. The bill would define “employer” to include public employers.

Industry-Specific and Job Protection Measures

The legislative package also includes targeted efforts to preserve human roles in specific sectors. These bills draw bright-line rules to preserve human involvement in roles viewed as critical to safety, professional judgement, and public trust.

Assembly Bill 2575 (Ortega) would regulate AI in healthcare settings to ensure that professionals retain independent clinical judgment. Under the bill, a worker providing direct patient care would have the protected right to be free to use their professional judgment to make assessments and decisions within their scope of practice as appropriate for their patients. In its current form, if passed, this bill would apply to California local government-operated facilities.

Senate Bill 928 (Cervantes) would prohibit California State universities from replacing faculty with AI.

Senate Bill 1011 (McNerney) mandates human oversight and monitoring of automated decision systems in critical utilities infrastructure, and restricts job displacement. Covered utilities under the bill include publicaly owned utilities.

Key Takeaways for Employers

This legislative package is, in many respects, unprecedented. If enacted, these measures would:

  • Significantly increase compliance burdens related to AI and workforce technology deployment;
  • Limit the ability to use data in developing or refining AI tools;
  • Require new layers of documentation, notice, and justification for operational decisions; and
  • Introduce legal uncertainty around common workplace technologies.

Employers should anticipate heightened scrutiny from employees and labor organizations regarding the use of technology. Already, disputes over electronic surveillance, automated discipline, and use of algorithms are surfacing in collective bargaining, and they are often coupled with requests for information about how systems operate, what data is collected, and how decisions are made. In this environment, employers that fail to anticipate union interest risk not only legal exposure but also operational disruption and reputational harm. By contrast, employers that engage early, evaluate bargaining obligations before implementation, and build transparency and guardrails into their technology rollouts are better positioned to preserve flexibility, reduce conflict, and realize the intended efficiencies of new tools.

Employers should be aware that PERB law already establishes bargaining obligations related to some of the changes presented by the proposed legislation, such as workplace surveillance and changes to workload. For example, PERB has held that a District’s decision to install security surveillance cameras in areas where employees work or take breaks has reasonably foreseeable effects on discipline and performance evaluations, both matters within the scope of representation. (Rio Hondo Community College District (2013) PERB Dec. No. 2313.) PERB has also held that an employer must bargain over changes to employee assignments or duties if the change materially alters employees’ workload. (County of Santa Clara (2022) PERB Decision No. 2820-M.)

Looking Ahead

The workplace is becoming a primary battleground for regulating emerging technologies. While many of these proposals may be amended, face opposition, be voted down, or be vetoed by the Governor, they provide a clear roadmap of labor’s priorities. Public sector employers in California should begin evaluating their current use of AI, data collection practices, and workforce planning strategies now. Proactive assessment and strategic planning will be essential as the legal landscape continues to evolve.

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Public agency employers are no strangers to complex wage and hours rules, but the recently enacted “One Big Beautiful Bill Act” (OBBBA) raised new questions with the introduction of the deduction for qualified overtime compensation. See LCW’s prior blog post about the OBBBA. While the focus of the OBBBA’s overtime deduction has been on overtime payments, the IRS provided information in December 2025 clarifying that payments for compensatory time off (CTO) also count as qualified overtime compensation for the deduction. As public agency employers get ready to report the amounts of qualified overtime compensation for non-exempt employees for 2026, it is crucial that they remember to include CTO payments.

What is CTO?

Generally speaking, compensation for Fair Labor Standards Act (FLSA) overtime must be in the form of cash payment. However, the FLSA permits public agencies to compensate employees for FLSA overtime in the form of CTO, subject to an agreement and certain conditions and limitations. When an employee chooses to accrue CTO in lieu of overtime pay in cash, each hour of FLSA overtime worked is credited with one-and-one-half hours of CTO in the employee’s CTO bank. The employee may then use their CTO hours as paid time off in the future or may cash out CTO hours that go unused at the regular rate of pay.

CTO Payments Are Reported As Qualified Overtime Compensation In The Year Paid

Until December 2025, it was unclear if FLSA overtime earned as CTO was reportable as qualified overtime compensation for the OBBBA overtime deduction. The ambiguity has now been resolved. IRS Notice 2025-69 affirmatively states that an individual who works for a state or local government agency that provides CTO at a rate of one and one-half hours for each FLSA overtime hour worked should include one-third of those CTO payments as qualified overtime compensation.

The IRS further specified that CTO is only reported when hours are used or cashed out, not when CTO hours are earned and banked for future use.  A CTO payment can be provided when an employee takes time off using their accrued CTO hours or otherwise cashes out unused CTO hours.

Examples

Notice 2025-69 provides the following example illustrating how to take a CTO payment and calculate the reportable qualified overtime compensation amount:

Example 6. Individual D works for a State or local government agency that gives compensatory time at a rate of one and one-half hours for each overtime hour worked under 29 USC 207(o). In 2025, Individual D was paid wages of $4,500 with respect to compensatory time off taken in accordance with section 207(o). For purposes of determining the amount of qualified overtime compensation received in tax year 2025, Individual D may include $1,500, one-third of these wages for purposes of determining qualified overtime compensation under section 225(c).

The following is an example of how a CTO cash out payment is reported as qualified overtime compensation:

CTO Cash Out Example: Mary works for a local government agency that gives compensatory time at a rate of one and one-half hours for each overtime hour worked under 29 USC 207(o). In 2025, Mary did not take any paid time off using CTO, but pursuant to an applicable memorandum of understanding, Mary was able to cash out $6,000 of unused CTO hours. Mary may include $2,000, one-third of the CTO cash out payment for purposes of determining qualified overtime compensation under section 225(c).

As demonstrated in these examples, only one-third of the CTO payment is reported as qualified overtime compensation. The OBBBA defines “qualified overtime compensation” as the overtime compensation paid to an employee in excess of the regular rate of pay. The one-third amount represents the excess “overtime premium,” which is generally the “half” portion of the “one and one-half times” multiplier CTO hours are banked at for every FLSA overtime hour worked (i.e., 1.5 hours of CTO for every 1 hour of FLSA overtime).

One-third of the CTO payment is included in the total qualified overtime compensation amount reported in Box 12 of the employee’s Form W-2 using Code TT beginning for tax year 2026.

FLSA CTO vs. Non-FLSA CTO

Any public agency that provides employees with CTO for hours that are not FLSA overtime hours will have an additional challenge. This is because the OBBBA’s overtime deduction only applies to payments for FLSA CTO. FLSA CTO is based on hours that are accrued for working FLSA overtime. The FLSA defines overtime as hours actually worked in excess of the applicable threshold of the employee’s FLSA work week or work period (e.g., over 40 hours worked in a 7-day work week for non-safety employees, and the specific overtime threshold for a designated 7(k) work period for safety employees, if adopted). Thus, only CTO hours granted for working hours in excess of the applicable FLSA maximum hours threshold will be considered FLSA CTO hours. 

Some agencies provide CTO for hours worked that are not FLSA overtime hours pursuant to a negotiated memorandum of understanding or other contract or policy. For example, if an agency provides CTO hours for hours worked in excess of 8 hours in a day, for hours worked outside of an employee’s regular schedule, or for work on weekends or holidays, those hours do not automatically count as FLSA CTO hours. These hours are referred to as non-FLSA CTO hours. These hours only become FLSA CTO hours if they push the employee’s total hours worked over the applicable FLSA threshold in the work week or work period. 

Since only FLSA CTO payments can be used for the OBBBA overtime deduction and employers must accurately report qualified overtime compensation for the deduction, employers need to distinguish between FLSA and non-FLSA CTO hours and payments. Any agency that cannot separate the different types of CTO should seek advice from legal counsel on how to calculate the qualified overtime compensation. In light of the IRS’s clarification, public agency employers should take proactive steps now to ensure their payroll systems and reporting practices properly capture CTO payments as qualified overtime compensation under the OBBBA. This includes not only identifying when CTO is paid out, but also carefully distinguishing between FLSA and non-FLSA CTO to avoid overreporting eligible amounts. Thoughtful planning and accurate recordkeeping today will help minimize risk and ensure agencies are well-positioned to meet these new obligations.

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Employees frequently engage in passionate discussions about union issues and working conditions, and those discussions do not always remain polite. Agencies sometimes find themselves at the crossroads of respecting employees’ union-related speech rights and enforcing the agency’s standards of conduct. This blog post provides general guidance to agencies regarding when employee speech exceeds the boundaries of legal protection.

Broad Protections for Workplace and Union Speech

The labor relations laws enforced by the Public Employment Relations Board (“PERB”) broadly protect employee speech concerning legitimate labor and employment concerns, whether or not the speech is directly related to union affairs. This includes the right to criticize management, working conditions, or even union leadership, so long as the speech is tied to advancing employee interests or is a logical extension of group activity.[1]

Importantly, these protections apply to all employees—not just union members or leaders. Even employees who are not formally affiliated with an employee organization may engage in protected activity if their speech relates to workplace concerns described above.

Heated or Unprofessional Language Is Often Still Protected

PERB has long recognized that workplace and union disputes can become heated. As a result, PERB allows “some leeway for impulsive behavior” in the context of protected activity.[2]

This means that employee speech does not lose protection simply because it is rude, disrespectful, hyperbolic, or otherwise unprofessional. Even a degree of shouting and using profanity is protected.

For example, PERB has held that an employee’s speech was protected where he raised his voice at the Human Resources Director in a public lobby area, accused her of “shirking” her duties, and repeatedly rang the office bell after she shut her door.[3] In another case, PERB ordered an employer to rescind discipline against employees for using the words “bullshit” and “chickenshit” in a work-related meeting.[4]

It is important to keep in mind that if employee speech is protected under applicable labor laws, an agency should not discipline the employee for the speech, even if it would otherwise violate the agency’s code of conduct policies.

When Does Speech Lose Protection?

Despite such broad protections for heated and aggressive employee speech, there are limits. Employee speech related to protected topics may lose protection under two primary circumstances:

  1. Maliciously False Statements

An employer may discipline an employee if it can prove, by clear and convincing evidence, that the employee’s statement was maliciously false.  This is a high bar—the employer must show that the employee either knew the statement was false or acted with reckless disregard for whether it was true or false.  Gross or extreme negligence as to a statement’s truth does not rise to the level of actual malice.[5]

Thus, while labor laws do not protect deliberate lies, an employee’s exaggeration of the facts or spreading inaccurate information about workplace matters may still be legally protected.

  • Flagrant or Disruptive Conduct

Employee speech may also lose protection if it is so flagrant or insubordinate that it causes a substantial disruption in the workplace.

PERB evaluates this using a fact-specific test that considers all relevant circumstances, including but not limited to the place or forum in which the speech occurred, its subject matter, the nature of what occurred, and the extent to which the speech was provoked by the employer.[6]

For example, conduct that constitutes harassment under state or federal anti-discrimination laws may fall under this exception.

Notably, it is often more difficult for employers to establish disruption when the speech occurs off-duty or through indirect means such as email or text, rather than in face-to-face interactions.

The Line Between Strong Language and True Threats

One variation of flagrant and disruptive conduct where PERB draws a firm line is credible threats of violence, which do not constitute protected employee speech.

PERB applies an objective standard, asking whether a reasonable observer would interpret the statement as a real threat, not merely heated rhetoric. The listener’s subjective reaction is not determinative. Thus, even statements that make others feel uncomfortable, fearful, or personally attacked may still be protected under state labor laws if the statements do not present an objective threat of actual violence.

Statements that are clearly metaphorical fall within the scope of protected speech. In one case, PERB found that an employee’s emailed statements to employee listservs that he is “taking aim,” he is “pulling the trigger,” and “some nasty stuff is going to hit the fan, and some of it is likely going to splatter on you if you’re not careful” were protected because the speaker made clear he was speaking figuratively regarding threatened legal action, not physical violence.[7]

By contrast, speech may lose protection when it is accompanied by conduct or circumstances suggesting a genuine threat of violence. In Culwell v. Trustees of the California State University, PERB found that an employee’s remarks that he was going to take his union dues “out of [another employee’s] ass” and that he had “unfinished business” with him “after work”—which followed the employee’s receipt of two written reprimands for disruptive conduct including kicking chairs, using profanity toward his supervisor, and telling his supervisor to “grow some balls”—was sufficiently threatening to cross the line into unprotected conduct.[8]  Thus, PERB upheld the university’s disciplinary action against the employee based upon its Violence-Free Workplace Policy.

On-Duty vs. Off-Duty Speech

The protected status of employee speech also depends on whether the speech occurs during or outside of working hours. Employers generally must allow protected activity during an employee’s non-work time and in non-work areas. However, employers may prohibit non-work-related activities, including but not limited to union activities, during work time, so long as those rules are applied consistently to all types of non-work activities.

In other words, an employer cannot single out union-related speech for restriction while allowing other personal conversations during the same time.

Additionally, speech that occurs while on duty is more likely to be found disruptive and therefore unprotected, particularly if it interferes with operations.

Key Takeaways for Employers

Navigating employee speech issues requires careful consideration of both the content and context of the communication. While the law protects a wide range of expression—even when it is heated or offensive—those protections are not unlimited.

Agencies should educate supervisory employees regarding employee speech protections, including the imperative to apply policies regulating speech consistently and neutrally regardless of whether it is related to union activity. Employers should also consult with legal counsel before disciplining an employee for speech related to concerted activity.

Understanding these boundaries can help employers respond appropriately to threats and disruptive conduct while avoiding unfair practice charges.

[1] SunLine Transit Agency (2024) PERB Decision No. 2928-M, p. 18.

[2] City of Oakland (2014) PERB Decision No. 2387-M, p. 23, quoting State of California (Department of Transportation) (1983) PERB Decision No. 304-S, adopting proposed dec. at pp. 22-28.

[3] Carpinteria Unified School District (2021) PERB Decision No. 2797, p. 16.

[4] Rio Hondo Community College District (1982) PERB Decisio n No. 260, pp. 11-12.

[5] Mt. San Jacinto Community College District (2023) PERB Decision No. 2865, p. 23.

[6] SunLine Transit Agency (2024) PERB Decision No. 2928-M, pp. 18-19.

[7] Mount San Jacinto Community College District (2018) PERB Decision No. 2605, pp. 15-17.

[8] Culwell v. Trustees of the California University (2014) PERB Decision No. 2400-H, adopting proposed decision at pp. 15-16.

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For agencies operating hospitals, clinics, behavioral health programs, correctional health programs, or other essential public health services, picketing and strike activity by their employees can raise immediate operational, legal, and public-facing concerns. In these settings, the urgent question is how the agency will maintain critical services, protect patients and the public, and respond lawfully and strategically in a fast-moving situation.

For public health operations especially, labor unrest can become more than a labor relations issue very quickly. Staffing shortages can affect patient care, medication access, emergency response, discharge planning, and other time-sensitive services. Even a temporary disruption may force agencies to make rapid decisions about coverage, communications, facility access, and continuity of operations. That is why planning should begin before a dispute reaches the picket line.

Public Health Operations Cannot Afford Last-Minute Planning

Essential public health operations are different from many other public services because delay can have immediate consequences. A missed deadline in an administrative setting may be inconvenient. A missed shift in a clinic, psychiatric facility, custody health unit, or emergency medical setting may create safety risks for patients, staff, or the public.

That does not mean every employee in a healthcare or public health setting performs work that is equally critical at every moment. But it does mean agencies should identify in advance which services must continue without interruption, which functions can be reduced or delayed, and which positions are necessary to maintain safe operations.

The most effective response starts with operational clarity: what functions are mission-critical, what obligations cannot be paused, what internal resources are available, and where the agency is most vulnerable if staffing drops quickly.

Line Pass Planning May Help Protect Core Services

One practical option in essential operations is advance planning around “line passes” or similar exemptions that allow certain employees to continue reporting to work despite picketing or strike activity. [1] In practice, a line pass permits designated employees to cross a picket line to perform work the agency has identified as necessary to maintain critical operations.

In public health settings, this may be especially important where agencies must preserve minimum staffing for inpatient care, medication administration, emergency intake, mental health response, laboratory work, or other legally or operationally necessary services. Advance planning can also reduce confusion on the day of a labor action by identifying which roles are expected to report, who will oversee coverage, and how those expectations will be communicated.

Picketing Creates More Than a Staffing Problem

Picketing at or near agency facilities creates a second layer of concern beyond staffing. Public employers may need to address employee and patient access, vendor access, traffic flow, emergency vehicle routes, and overall site safety. In healthcare and public health settings, these issues can become operationally significant very quickly.

Agencies should respond thoughtfully: Supervisors and managers should be trained in advance on how to communicate with represented employees, and how to avoid actions that could be characterized as retaliatory, coercive, or unnecessarily inflammatory.

Employers should also exercise caution when monitoring picketing activity. Agencies often need awareness of what is happening at facility entrances and may need to document significant disruptions, but ad hoc actions that appear targeted or punitive can create unnecessary risk. The objective should be maintaining safety and access.

Coverage Planning Should Start Before a Disruption Begins

Strike preparation in a public health setting cannot be treated as solely a legal exercise. The legal issues and the operational issues are closely connected. Agencies should work through practical contingency questions early, including:

  • Who can cover critical functions?
  • Can managers, supervisors, or non-represented personnel perform key duties on a temporary basis?
  • Are outside staffing options realistic and available?
  • Which services can be reduced, consolidated, or temporarily redirected?
  • What communications will be needed for employees, patients, vendors, and leadership?
  • How will the agency handle scheduling, facility access, and command structure during a disruption?

These issues are far easier to evaluate before negotiations deteriorate. A public employer that has already mapped critical services, assessed backup options, and established internal communication channels will be in a much stronger position than one trying to build a response in real time.
For public health employers, labor unrest is not just a bargaining issue. Early planning around picketing, staffing, and line-pass arrangements can help agencies maintain critical operations, protect patients and the public, and respond strategically when tensions rise.

[1] A “line pass” is an agreement with a union that allows designated employees to cross a picket line and report to work in order to maintain critical operations or essential services during a strike or other labor action.

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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As recently as December 31, 2025, peace officers and law enforcement agencies employing them could enter into so-called “clean record agreements” in an effort to settle disputes between them such as pending disciplinary appeals. As of January 1, 2026, however, the landscape is significantly different.

Assembly Bill 1388 was signed into law by Governor Gavin Newsom on October 13, 2025, and went into effect on January 1, 2026. Along with Assembly Bills 847 and 1178, AB 1388 aims to expand and clarify access to confidential peace officer personnel records. Specifically, AB 1388 which amended sections 832.7 and 13510.9 of the Penal Code, now prohibits any agreements between a peace officer and their employing agency that would require the latter to destroy, remove, or conceal a record of a misconduct investigation. Likewise prohibited are any agreements that would require the employing agency to halt a misconduct investigation, to make any particular findings in such an investigation, or to restrict the disclosure of information about an allegation or investigation of misconduct.

The consequences of entering into a prohibited agreement are significant. First, any provision that is inconsistent with the requirements of AB 1388 is deemed contrary to law and public policy, and rendered void and unenforceable. Second, any prohibited agreement is subject to disclosure pursuant to a California Public Records Act request.

Now that AB 1388 is in effect, law enforcement agencies may have many questions about both agreements that pre-date January 1, 2026, and agreements entered into on that date or thereafter. For example, agencies may be contemplating whether any provision that is inconsistent with the requirements of AB 1388 included in an agreement that pre-dates January 1, 2026, is now void and unenforceable? The short answer is that this is likely not the case. AB 1388 does not contain language that suggests that its prohibitions apply retroactively. The longer answer, however, is that such an agreement is still subject to Penal Code section 832.7’s disclosure requirements pursuant to AB 1388.     

Agencies may also be wondering what some of the practical implications of AB 1388 will be going forward. As a preliminary matter, AB 1388 is likely going to result in a significant decrease in informal resolutions of pending disciplinary appeals, which means that more matters will proceed to and through an appeal hearing. Peace officers and the law enforcement agencies employing them may still enter into settlement agreements, but the types of terms they can now agree to are significantly more limited. In addition, law enforcement agencies will also need to ensure that any agreements already entered into between January 1, 2026, and the present are reviewed for compliance with AB 1388, and that any future contemplated agreements are carefully discussed with and reviewed by trusted legal counsel. 

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This article is a re-publication. It was reviewed in February 2026 and is up-to-date.

Public agency officials and employees may read newspaper articles about recently decided landmark cases in public sector labor and employment law, and may feel relief, anger, surprise, or vindication in the result.  This is especially true if the decision impacts how the agency functions on a day-to-day basis.  These same individuals may also find developing U.S. Supreme Court and California Supreme Court decisions important and interesting enough to want to join the fight directly in a particular case, and try to persuade the Court which way a case should be decided.  Understandably, though, they would prefer not to do this if it meant their agency had to be a defendant in a lawsuit. 

There is a way organizations can join the fight on landmark cases without having actually to be a party, and that is by filing an amicus curiae brief with the Court. 

The brief of an amicus curiae (“friend of the court”) is submitted by a company, government agency, trade association, or other organization or individual who is not an actual party to the case but wishes to contribute argument or general information for the Court to consider.  Leave of Court is required to submit an amicus brief.  Although Courts usually grant such leave freely, they expect organizations seeking to file briefs to explain why they have an interest in the case’s outcome, and to explain what their brief can contribute that will help the Court decide.  Such briefs can be filed not only in the U.S. Supreme Court and state Supreme Courts, but in state and federal intermediate appellate courts.

Why would a lower level appellate court decision in a particular case, or even a Supreme Court decision, be important to an agency?  To understand this requires a short digression on the principle of precedent, something all lawyers learn in law school but rarely have occasion to explain in detail to clients.  Rules of precedent require courts to follow the prior decisions of higher courts.  In both state and federal courts, the decisions of trial courts (the first level of courts which conduct jury trials and bench trials, rule on requests for writs, and conduct other proceedings) are not precedential.  Their decisions affect the parties only, and although for example a large jury verdict or an injunction may send a “signal” to an industry, the outcome does not control anyone except the parties.  A Court of Appeal decision designated for publication, however, is controlling on all trial courts in the state.  Thus, if the Court of Appeal holds that individual supervisors can be held personally liable under the Fair Employment and Housing Act (“FEHA”) for retaliation, then every trial court in the state has to follow that holding and has to take that position in every case. 

The losing party may, a short time after the appellate case is decided, ask the California Supreme Court to review the case.  The Supreme Court picks and chooses the cases it takes, and does so with an eye toward shaping California law.  If the Supreme Court decides to review the Court of Appeal decision in our example, and ultimately reverses it, holding that supervisors cannot be personally liable, then every Court of Appeal as well as every trial court in California must follow this rule.  (The Supreme Court in fact rejected a rule of personal liability for retaliation in Jones v. Lodge at Torrey Pines, 42 Cal. 4th 1158 (2008), a case in which our firm participated in amicus briefing.) 

Federal courts work the same way.  The first level of the appellate courts, the one that can issue binding decisions in California, is called the United States Court of Appeals for the Ninth Circuit, which lawyers commonly call just the “Ninth Circuit.”  It covers other states as well, including among others Arizona, Nevada, Hawaii, and Alaska.  Other federal circuits cover different states, and at the top of all the “circuits” is the United States Supreme Court, which, like the California Supreme Court, picks and chooses the cases it takes, and issues decisions that control all the circuit courts and all the federal trial courts.  As you would expect, the California Supreme Court generally decides issues of state law, and the U.S. Supreme Court issues of federal law.

Thus, influencing how an appellate court decides a case can be important, and influencing how the U.S. Supreme Court or a state Supreme Court rules can be very important. 

What are the best arguments for amicus curiae briefs to make?  Generally, they are those that present the organizations’ unique perspective in a cogent light.  For example, in an employment case between an individual and a private company, neither side may think to brief the Court on how the Justices’ decision will affect the public sector, where employment laws can apply differently.  Briefing by public organizations can alert the Court to these issues, so that the Court’s holding can be phrased to avoid unintended problems in the public sector.  Briefs can also emphasize the impact of the case’s ruling on particular segments of the workforce, for example, police, fire, utilities, or educators.  Perhaps most importantly, the amicus brief can present practical, real-world examples from the sponsoring party’s industry, that show why as a public policy matter the Court should rule in a certain way, or at a minimum craft its ruling to avoid certain pitfalls.  

In addition, although it is a less traditional function, amicus briefs can join the legal debate directly by advancing unique and/or creative legal arguments the parties might not have presented.  They can develop one side’s legal case in an alternative way, or even in a more forceful way, if the party was reluctant to take certain approaches or positions.  (That said, counsel for the actual parties have often spent enormous time on the case, and may not have made certain arguments for tactical reasons.  It is best to coordinate with them in presenting arguments.)  As described above, intermediate appellate cases are important areas for amicus briefing as well. 

What if your agency is involved in appellate litigation and would like to encourage amicus curiae participation for support?  Trade associations and leagues designed to benefit the agency can help and may very well welcome the opportunity to participate as amicus curiae.  Other agencies that will be affected by precedent in the area may wish to participate as well.

If your agency wishes to participate itself in amicus curiae briefing, it should be sure to consult lawyers with expertise not only in appellate law and preparation of amicus curiae briefs, but in the general substantive area of law at issue – be it retirement, wage and hour, disability, employee free speech, privacy, or labor relations.   

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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Federal guidance has shifted, but California law continues to set the standard for harassment prevention and response in public workplaces.

In January 2026, the U.S. Equal Employment Opportunity Commission (EEOC) voted to rescind its 2024 Enforcement Guidance on Harassment in the Workplace. The 2024 guidance had offered detailed examples and interpretive direction on federal harassment law. Its withdrawal may create some federal ambiguity, but it does not change employers’ legal obligations under federal anti-discrimination law — and importantly for California public agencies, it certainly does not alter the state’s robust harassment prevention and response requirements.

Below, we break down what this development means for California public agencies and offer practical steps to stay compliant and protect your workplace.

The 2024 EEOC Harassment Guidance

Issued in April 2024, the Enforcement Guidance on Harassment in the Workplace was the EEOC’s most comprehensive harassment guidance in decades. It addressed:

  • Gender identity and sexual orientation as categories of protected characteristics,
  • Effective features of employers’ anti-harassment policies,
  • Employer liability principles, and
  • Harassment in virtual and remote work environments.

As with all EEOC guidance, the document was not legally binding, but it provided insight into how the agency intended to interpret and enforce federal anti-harassment law.

The Rescission and the EEOC’s Justification

On January 22, 2026, the EEOC voted 2–1 to rescind the 2024 guidance. In doing so, the Commission emphasized that:

  • The rescission does not alter federal employment laws against discrimination, harassment, and retaliation.
  • Employers remain obligated to prevent and correct unlawful harassment.

The EEOC indicated that future enforcement would rely more directly on statutes and court decisions rather than a single, comprehensive guidance document.

Why This Matters for California Public Agencies

California public employers operate in a two-layer compliance environment:

  • Federal law: Title VII and other federal anti-discrimination statutes still apply; the EEOC now has fewer formal examples guiding investigations.
  • California law: The Fair Employment and Housing Act (“FEHA”) and state regulations impose detailed harassment prevention, training, investigation, and policy requirements.

For most California public agencies, the state law obligations remain the driving force of how harassment issues are handled.

What Has Not Changed

1. California’s Harassment Prevention Duties Remain Robust

Under FEHA and California regulations, public agencies must maintain clear written anti-harassment policies and complaint procedures that cover:

  • How to file a complaint,
  • Assurances of confidentiality to the extent possible,
  • Timelines for investigation,
  • Options for remedial action, and
  • Protections against retaliation.

These requirements remain regardless of the EEOC’s action and are often more specific than federal law alone. California regulations also specifically define required policy elements that must be distributed to all employees.

2. Mandatory Harassment Prevention Training Has Not Changed

California law continues to require harassment prevention training for employees:

  • Supervisory employees: at least 2 hours,
  • Non-supervisory employees: at least 1 hour,
  • Every two years with defined timing for new hires and promotions.

These training obligations are a compliance cornerstone — not optional. Failure to meet them creates exposure in FEHA claims and enforcement actions.

3. You Still Need Clear, Consistent Investigations

Even without the 2024 EEOC guidance, harassment complaints must be taken seriously with:

  • Timely intake and assessment,
  • Impartial investigations,
  • Well-documented findings,
  • Appropriate corrective action, and
  • Notice of outcomes to complainants and respondents.

A strong investigative process is as important as ever and remains a key line of defense if a claim is later challenged.

What Has Changed (in Federal Enforcement Practice)

With the EEOC’s withdrawal of its guidance:

  • Federal enforcement officials may rely more heavily on prior case law and statutory language rather than a unified interpretive document.
  • There may be less predictability in how the EEOC frames certain harassment issues (for example, virtual conduct or emerging workplace scenarios).

However, this does not relax federal responsibilities, and it certainly does not supplant California’s law as the compliance baseline for public agencies.

Bostock’s Intersection with Executive Action

In Bostock v. Clayton County (2020), the U.S. Supreme Court held that Title VII’s prohibition against discrimination “because of” sex includes discrimination based on sexual orientation and gender identity. Following Bostock, the EEOC issued the 2024 Harassment Guidance reflecting a broad interpretation of sex-based discrimination under federal law. The EEOC’s eventual rescission of the 2024 guidance occurred against the backdrop of President Trump’s executive order directing federal agencies to reassess certain interpretations of federal civil rights law. Bostock remains binding Supreme Court precedent interpreting Title VII.

Practical Takeaways for California Public Agencies

• Don’t roll back your policies or practices.
Federal guidance may have shifted, but the underlying federal case law and statutory authority have not.  Also, California’s requirements remain unchanged and continue to evolve.

• Keep training current and documented.
Training should be relevant to your workplace and address real issues employees may face, including online and hybrid-work conduct.

• Double-down on process.
Consistent complaint handling and documentation help manage risk in both state and federal contexts.

• Communicate to your workforce and leaders.
Make clear that federal guidance changes do not reduce your agency’s commitment to a harassment-free workplace.

Action Steps for 2026

Now is a good time to:

  1. Review your harassment and retaliation policy to confirm it meets regulatory requirements and is up to date.
  2. Ensure training compliance, including tracking who needs training and when it expires.
  3. Refresh your investigation protocols to ensure they reflect best practices under FEHA and agency policy.
  4. Brief your leadership team on how federal interpretive changes affect investigation expectations — and how they don’t change your legal duties.

If your agency needs help updating policies, training programs, or investigation workflows in light of these developments, trusted legal counsel can assist.