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Because public sector labor law has evolved dramatically over the past several decades, an outdated resolution can create confusion, increase legal risk, and fail to reflect how the agency actually conducts labor relations today.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

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Many California public agencies staff summer camps and other recreation activities with seasonal employees, teen workers, coaches, and temporary supervisors.

Below is a short staffing checklist to review before the first day of camp, or before recreation activities commence.

1. Identify Mandated Reporters

Under Penal Code section 11165.7, mandated reporters include an administrator of a public or private day camp, and an administrator or employee of a public or private youth center, youth recreation program, or youth organization. For public agency recreation programs, this generally means camp administrators, recreation program administrators, and employees assigned to youth recreation programs should be treated as mandated reporters and accordingly, they should train covered employees on when and how to report suspected child abuse or neglect and remind them that reporting concerns internally does not replace the employee’s duty to make a mandated report.

2. Complete Background Checks Before Staff Work With Minors

Agencies should determine which employees will supervise or discipline minors, as these employees must undergo a background check under Penal Code section 11105.3. Staff who require clearance should not begin working in youth-facing roles until the clearance has been completed and reviewed.

3. Check Local Camp Rules

Agencies should also confirm whether specific camp roles require additional qualifications before staff begin work. For example, California organized camp rules require programs that are considered an “organized camp” to address staff qualifications, supervision ratios, health supervision, safety procedures, and activity-specific procedures, including for aquatics and other higher-risk activities. Depending on the program this may include:

  • Camp Director: training on the camp’s written operating procedures, emergency plan, supervision rules, and incident reporting procedures. For organized camps, the Director is also responsible for verifying certain staff qualifications and records.
  • Counselors: emergency procedure training, and first aid/CPR training.
  •  Health Supervisor: first aid and CPR certification, and also training on the camp health plan, medication and illness procedures, injury response, parent/guardian notification, and documentation requirements. Organized camp rules require a full-time adult Health Supervisor when campers are present.
  •  Lifeguards, Swim Instructors, And Aquatics Staff: required lifeguard, CPR, first aid, AED, and water safety certifications, plus training on pool rules, emergency rescue procedures, supervision ratios, and incident response.
  •  Drivers And Field Trip Staff: training on transportation procedures, supervision during loading and unloading, emergency contacts, head counts, release procedures, and accident or incident reporting.
  • Coaches, Instructors, And Specialty Activity Staff: verification that they have the skills, certifications, or training needed for the activity they will supervise, especially for higher-risk activities such as aquatics, adventure/challenge activities, horseback riding, or offsite trips.

(17 CCR sections 30704 and 30751)

Public agencies should also check whether their city or county imposes additional camp-specific requirements through local ordinances or health department guidance. For example, Los Angeles County’s Elena Matyas Children’s Camp Safety Ordinance requires children’s camps to verify and document certain staff qualifications before employees or volunteers begin working at camp. This includes required background checks and voluntary disclosures for individuals over age 18 who work or volunteer at the camp, as well as first aid and CPR training for counselors, the Health Supervisor, and the Director. Other counties or cities may have similar rules.  

4. Obtain Proof Of Age For Minor Employees

Many public agencies hire minors to work in summer camps, aquatics programs, youth sports programs, and other seasonal recreation positions. Typically, minors employed in California must obtain a work permit before beginning work. However, both the Division of Labor Standards Enforcement and the California Department of Education take the position that state and local agencies are exempt from California’s work permit requirement because the child labor statutes do not expressly include public agencies. Public agencies remain subject to the FLSA’s child labor provisions. That means agencies should verify that the minor is old enough to perform the assigned work. California issues Certificates of Age using CDE Form B1-1, Statement of Intent to Employ a Minor and Request for a Work Permit – Certificate of Age, pursuant to Education Code section 49114. In practice, before a minor starts work, the agency should have the minor complete CDE Form B1-1 or otherwise maintain reliable proof of age, and should confirm that the minor’s duties and schedule are appropriate for the position.

5. Train Seasonal And Temporary Staff

For covered employers, seasonal, temporary, or other employees hired to work less than six months must receive harassment prevention training within 30 calendar days after hire or within 100 hours worked, whichever occurs first. Agencies should build required training into pre-season onboarding whenever possible.

6. Prepare Staff For Supervision, Emergencies, And Heat

For outdoor programs, agencies should also train staff on heat illness prevention. Cal/OSHA’s outdoor heat illness prevention standard, 8 CCR section 3395, addresses water, shade, emergency response, high-heat procedures, and training.

Final Check

Before staff report to the summer program, agencies should confirm that required background checks are complete, mandated reporter obligations have been explained, minor employee proof of age is on file, required certifications are verified, local camp rules have been reviewed, and staff understand supervision and emergency procedures.

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In the recently published opinion, Grant v. Chapman University, the California Court of Appeal considered whether Chapman University’s publications, course listings, and statements about campus life created an enforceable implied contract to provide in-person instruction amidst the COVID-19 pandemic.

The Court held that Chapman University (“Chapman”) did not make a specific, enforceable promise to provide in-person instruction and therefore did not have to refund students’ tuition when classes moved online. California case law provides that an implied promise by a university is enforceable only if it is “specific” and does not merely represent a “general expectation.”

Although this case involves a private educational university, the Court’s reasoning offers guidance for public agencies at large when drafting employee or public-facing communications about services, facilities, programs, and operational expectations. The decision is a helpful reminder that public-facing statements—such as website language, program descriptions, catalogs, FAQs, and service announcements—can create potential risk if they appear to be firm, explicit promises.

The case arose from Chapman’s response to the COVID-19 pandemic. Like many colleges and universities nationwide, Chapman closed its campus and moved to online instruction in March 2020 following lockdown orders. Before the Fall 2020 semester, Chapman communicated with students regarding the possibility of returning to campus. In June 2020, Chapman stated its “goal” was to reopen campus and offer some in-person instruction. The following month, Chapman said it remained “optimistic” about resuming on-campus instruction but explained this depended on the authorities’ “support and approval.” In August, Chapman informed students it was unlikely to receive this approval and would proceed with remote instruction.

Two students who had remained enrolled at Chapman and later graduated sued the University, arguing that Chapman had breached their contract of providing an in-person education and should not have charged full tuition once classes moved online. The students claimed Chapman had unfairly or unlawfully represented it would provide an in-person education.

The students identified various Chapman publications and practices, contending they reflected an enforceable promise. These publications and practices included: (1) Chapman’s course registration portal listing class times and locations; (2) a credit-hour policy requiring a weekly hour of “face-to-face contact” per credit-hour for traditional classes but not for online classes; (3) statements in a faculty handbook about on-campus teaching and availability; (4) descriptions of high-end campus facilities in Chapman’s undergraduate and graduate catalogs, which noted they were “for informational purposes and should not be considered as the basis of a contract between students and the University”; and (5) Chapman’s historical practice of offering primarily in-person instruction.

The Court reasoned that, absent a formal agreement between a student and the university, the terms of their contract are implied only based on the parties’ reasonable expectations, in light of all the circumstances. Courts may consider representations in university publications while evaluating expectations. “The reasonableness of the student’s expectation is measured by the definiteness, specificity, or explicit nature of the representation at issue.”

This Court held that the student’s evidence depicted only general expectations rather than a specific binding promise. The Court explained why the specific pieces of evidence offered by the students did not qualify as a specific promise. For example, Chapman’s prior practice of providing in-person instruction does not support a binding promise to do it in perpetuity; the catalogs describing the campus expressly disclaimed any binding promises; and the registration portal listed expected class locations but did not promise that instruction would remain in those locations regardless of changed circumstances.

Also, Chapman’s communications prior to the Fall 2020 semester used aspirational and contingent terminology such as “goal”, “optimistic”, and “support and approval” from authorities. This language served as the opposite of specific promises.

The Court ultimately found that the students received instruction, earned credits, and graduated with degrees; and therefore, received the benefit of their bargain with Chapman. The Court reasoned that Chapman’s extensive statements, which listed class locations and touted on-campus facilities and “face-to-face contact” with faculty, were not sufficiently “specific” to constitute enforceable implied promises.

The Court stressed the importance of this case today, stating that six years after the pandemic started, courts nationwide still grapple with these kinds of claims. Grant is also useful beyond this specific pandemic-related context. Public agencies regularly communicate to program participants, permit applicants, employees, vendors, and members of the public through websites, catalogs, brochures, automated emails, social media posts, agendas, FAQs, and service portals. These communications often describe available services, in-person access, facility hours, program offerings, timelines, processing expectations, and service levels.

Grant offers helpful guidance for public agencies because it reminds them that public-facing statements may later be cited as evidence of an alleged promise, especially when those statements describe services, facilities, program format, timelines, or access. However, public agencies have additional limitations and protections when it comes to implied contracts. Under California law, contracts may be express or implied, and an implied contract may arise from conduct showing a mutual agreement and intent to promise. In Retired Employees Assn. of Orange County, Inc. v. County of Orange, the California Supreme Court confirmed that in the public employment context,  “[g]overnmental subdivisions may be bound by an implied contract if there is no statutory prohibition against such arrangements,” and held that a county may be bound by an implied contract where there is no legislative prohibition against such arrangements, such as a statute or ordinance. The Court further explained that contractual rights may be implied from an ordinance or resolution when the language or surrounding circumstances “clearly evince a legislative intent to create private rights of a contractual nature enforceable against the county.” The Court reasoned that a court charged with deciding whether private contractual rights should be implied from legislation should “proceed cautiously” in identifying a contract within the language of a statute and in defining the contractual obligation.

Thus, while Grant is useful as a practical reminder to avoid overly specific or unconditional public-facing statements, public agencies should also consider whether any alleged promise was properly authorized, whether any statute or ordinance prohibits the arrangement, and whether an ordinance, resolution, or other official agency action clearly shows an intent to create enforceable contractual rights.

Agencies should still feel compelled to provide employees and the public with helpful information. However, agencies should distinguish between describing current operations and making definite commitments where those commitments do not exist. Public agencies should also pay attention to disclaimers. In Grant, Chapman’s catalog disclaimers helped show that descriptions of campus facilities were informational rather than contractual. Similar language can be useful for employee and public-facing materials. Agencies may wish to state that certain services are subject to change based on operational needs or other circumstances. Any disclaimers should be visible, understandable, and consistent with the agency’s actual practices. Agencies also should avoid absolute language unless the agency intends to be bound by it.

Grant ultimately reinforces an important but sometimes overlooked principle: public-facing statements matter. Courts may distinguish between general expectations and enforceable promises, but the more specific, definite, and unconditional a statement is, the more likely it may be characterized as, or cited as evidence of, a promise. Public agencies can reduce risk by communicating clearly, accurately, and flexibly – especially when circumstances may require changes to services offered.

Employers should contact their trusted legal advisors if they have any questions regarding whether their employee or public facing statements can create unintended obligations or contractual rights.

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As California public agencies increasingly experiment with generative artificial intelligence (“AI”) tools like ChatGPT, a critical question is no longer theoretical: are AI prompts and outputs subject to disclosure under the California Public Records Act (“CPRA”)?

Recent reporting and public records requests suggest the answer may soon be tested in real time—and that agencies should prepare now. Just as importantly, these developments highlight a parallel concern: how AI use may affect public trust in government communications.

Public Records Requests Are Already Targeting AI Use

A recent California Public Records Act request submitted to a California city sought “generative AI records” and information about how employees interact with AI systems. This request reflects a growing interest by researchers and the public in understanding how government agencies are using AI tools in their day-to-day operations.

Although the request’s outcome remains to be seen, it signals a clear trend:
requesters are beginning to treat AI-generated content and usage logs as potential public records.

For California agencies, this raises immediate questions about whether:

  • AI prompts entered by employees must be retained.
  • AI-generated outputs are disclosable.
  • Agencies can locate and produce these records if requested.

Real-World Example: AI Records Already Produced Through Public Records Laws

A recent investigation by Cascade PBS into AI use by Washington state cities demonstrates how quickly this issue is evolving.

In that investigation:

  • Journalists obtained ChatGPT conversation logs from city officials through public records requests.
  • The records showed employees using AI to draft:
    • emails to constituents
    • mayoral letters
    • policy documents
    • speeches and press releases

In some cases, AI-generated language appeared in final communications sent on behalf of public officials.

This reporting is significant for California agencies for two reasons:

  1. AI prompts and outputs were treated as disclosable records.
    The cities produced ChatGPT conversation logs in response to records requests.
  2. AI is being used in outward-facing communications.
    AI tools are not just internal aids—they are shaping the tone and substance of messages sent to the public.

AI Content May Fall Within the CPRA’s Broad Definition of “Public Records”

Under the CPRA, a “public record” includes any writing relating to the conduct of the public’s business that is prepared, used, or retained by a public agency.

Applied to AI tools, the following may be the case:

  • Prompts are “prepared” by employees.
  • Outputs are “used” in agency business (e.g., drafting communications or policies).
  • Logs or histories may be “retained,” even if stored by a third-party vendor.

The Washington state example demonstrates that, in practice, these materials can be collected and produced—reinforcing the likelihood that similar records could be subject to CPRA in California.

Beyond Compliance: Public Trust and Authenticity Concerns

The Cascade PBS reporting also raises an important public relations and governance issue: when government communications are generated—wholly or partially—by AI, they may appear less authentic to the public.

For example:

  • Constituents may assume communications reflect the personal views or voice of an elected official.
  • AI-generated messages may feel generic, overly polished, or disconnected from community context.
  • Disclosure of AI use through public records requests could lead to public skepticism or criticism.

Even where AI is used appropriately as a drafting tool, agencies should consider how its use might be perceived if:

  • ChatGPT logs are later disclosed.
  • Drafts show heavy reliance on AI-generated language.
  • There is no transparency about AI involvement.

In short, the issue is not only whether AI-generated content is disclosable—but how it will be received once disclosed.

Key Risk: Where Are AI Records Stored?

Unlike traditional documents, AI-generated content may not reside in agency systems. Instead, it may be:

  • Stored on third-party platforms.
  • Maintained in vendor-controlled logs.
  • Not formally saved by the employee at all.

However, as the Washington records requests show, the location of the data does not necessarily prevent disclosure if the agency can access or retrieve it.

This creates practical challenges:

  • Does the agency have access to employee AI usage logs?
  • Are there retention or deletion policies in place?
  • Can the agency respond to a CPRA request for AI records in a timely manner?

Practical Steps for California Public Agencies

Given these developments, agencies should assume that AI-related records may be requested and potentially disclosable—and scrutinized.

To prepare, agencies should consider:

  • Adopting an AI Use Policy
    Address what employees can input into AI tools and whether prompts/outputs must be saved.
  • Considering Transparency Practices
    Evaluate whether and when to disclose AI assistance in public-facing communications.
  • Evaluating Vendor Capabilities
    Determine whether AI platforms retain user inputs and whether those records can be retrieved.
  • Training Employees
    Make clear that AI use in the workplace may generate public records—and may be publicly reviewed.
  • Coordinating with IT and Legal
    Ensure AI usage aligns with records retention schedules and CPRA compliance.
  • Limiting Use for Sensitive or High-Profile Communications
    Exercise caution when using AI for communications that may impact public trust.

Key Takeaways

  • Public records requests are already targeting AI usage, including in California.
  • Investigations show that ChatGPT prompts and outputs can be produced as public records.
  • AI-generated content used in agency business will likely fall within CPRA’s broad definition of “public records.”
  • Disclosure of AI use may raise public trust and authenticity concerns.
  • Agencies must be prepared not only for compliance, but for public scrutiny of how AI shapes government communications.