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High-profile U.S. Immigration and Customs Enforcement operations across the country underscore how rapidly moving and emotionally-charged immigration enforcement actions can be. Planning in advance for how your agency will respond if federal agents contact or involve employees in an enforcement action can be critical to managing risk and maintaining calm. Below are key legal principles and best practices to consider as your agency develops its action plan.

Immigration Enforcement Visits at the Worksite

Immigration enforcement officers may appear at a public agency workplace seeking access to facilities or individuals. Employees should remain calm, respectful, and professional, but they should also understand that they generally may not volunteer information or consent to the officers accessing nonpublic areas absent an appropriate warrant.

If immigration officers arrive at the worksite, agencies should follow these general principles:

  • Request identification. Agencies may ask officers to identify themselves, present their credentials, and explain the purpose of the visit.
  • Refer the officer to a designated agency contact. Agencies should have a protocol directing immigration officers to a central office or designated agency official who is trained to review legal documents and coordinate with legal counsel. Frontline employees and supervisors should advise the agents that they are not authorized to receive warrants and direct the agents to the point person.
  • Review warrants carefully before granting access to nonpublic areas. Absent exigent circumstances, immigration officers cannot enter a nonpublic area of the workplace without either (1) consent or (2) a valid, signed judicial warrant. Administrative warrants issued by the Department of Homeland Security or one of its branches do not authorize entry into nonpublic spaces. This is because administrative immigration arrest warrants authorize the arrest of a named individual, but not a search of facilities. By contrast, a judicial search warrant, signed by a judge or magistrate, may authorize law enforcement entry into private spaces to search the premises and seize evidence, but only for the purposes and locations identified in the warrant.
  • Verify any asserted exigent circumstances. Exigent circumstances are situations where any delay in permitting officer access to restricted areas would pose a significant risk to the safety of employees or the public. If officers assert emergency circumstances, employees should not interfere with the enforcement action, but they should immediately notify the agency’s designated point of contact and legal counsel.

Employers who consent to immigration enforcement agent access to private or restricted work areas absent an appropriate warrant may face penalties of $2,000 to $5,000 for first violation and $5,000 to $10,000 for each subsequent violation. (Government Code § 7285.1.)

Document Requests by Immigration Enforcement

U.S. Immigration and Customs Enforcement may also seek access to personnel records, such as I-9s, payroll records, employee names, and other identifying information, and agency policies related to hiring and employment practices. As with in-person enforcement actions, agencies should carefully review these requests, because disclosing personnel information beyond what is required may result in an employee invasion of privacy claim in addition to the penalties described above. (See Gov. Code § 7285.2.).

  • Identify the type of subpoena. Absent a valid subpoena or court order, agencies generally should not allow immigration officers to review or obtain employee records. Like search warrants, administrative and judicial subpoenas differ in the scope of access they confer on enforcement agents. It is important to recognize that such requests are distinct from a Public Records Act requests and should not be analyzed in the same manner.
  • Administrative subpoenas or requests directly from immigration agencies typically require the production of specific, identified records, but do not permit broad access to files. Agencies are only required to produce the records that the administrative request specifically describes. Broad or vague requests—such as “all employee records”—are not appropriate.
  • Judicial subpoenas, signed by a judge or magistrate, may compel testimony or document production more broadly.
  • Route all requests through designated channels. The same point of contact who reviews search warrants should also be responsible for reviewing subpoenas. Agencies should have an internal process for reviewing subpoenas and warrants, involving agency leadership and legal counsel, before responding.
  • Protect confidential information. Agencies should take care not to release any confidential employee information they are not specifically required to release pursuant to a valid request or subpoena.

In the event an employer must grant an immigration agency access to a current employee’s records, the law requires the employer to provide the employee advance notice of the inspection within 72 hours of receiving the federal notice of inspection. A template notice to employees can be found on the Labor Commissioner’s website. Within 72 hours of the inspection’s conclusion, the employer must also provide the employee notice of the inspection’s results, including any deficiencies identified in the employee’s documentation and the timeline for correcting them.

A Note on Work Authorization Requirements

Nothing about the above changes the fact that employers cannot employ individuals who lack valid authorization to work in the U.S. If an employee’s work authorization expires—even if their renewal is pending—the agency should not maintain the employee in paid status unless and until their work authorization is renewed.

California Labor Code section 1019.2 prohibits an employer from reverifying a current employee’s employment eligibility at a time or in a manner not required by federal law. This prohibition does not include communications with an employee whose work authorization has expired or is set to expire in the near future. Rather, the law prohibits spontaneous demands that employees reestablish their authorization to work.

Conclusion

Preparation is key. California public agencies should train staff on how to respond to immigration enforcement contacts, designate specific points of contact, and ensure leadership understands how to review warrants and subpoenas. When in doubt, pause, verify, and consult counsel before granting access to the workplace or producing documents to federal immigration agents.

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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This blog post originally appeared in February 2016 and was revised in February 2026.

With Valentine’s Day upon us, cupid may have left a few arrows in the workplace. People spend a lot of time with coworkers, so it is not unheard of for workplace relationships to evolve into romantic relationships. A 2023 study from the Society for Human Resource Management found that 24 percent of U.S. workers have dated a coworker. While the idea of having an office sweetheart may boost some employees’ morale, romantic relationships in the workplace can create employee dissension and legal liability for employers.

Relationships Between Supervisors and Subordinates

While any relationship between employees may cause problems in the workplace, the level of exposure to employers increases when a romantic relationship develops between a supervisor and subordinate. Indeed, relationships that begin as consensual between supervisors and subordinates may later form the basis of a harassment lawsuit. When a supervisor and subordinate break up, they are still required to work together professionally despite their past dating history.

Such relationships can have actual and resonating effects on the workplace because of the power inequalities in the positions and the insecurity the relationship may create for other employees, especially those who report to the supervisor. In one case, the Eleventh Circuit found that a public employer’s interest in discouraging intimate association between supervisors and subordinates was so critical to the effective functioning of the employer that it outweighed the employee’s interest in the relationship.  (Starling v. County Board of Commissioners.);;;

More importantly, an employer is strictly liable for supervisory employees’ sexual harassment regardless of whether the employer knew of conduct. (Kelly-Zurian v. Wohl Shoe Co.; Gov. Code, § 12940, subd. (j)(1).) It is not easy for an employer to know when a consensual dating relationship between two employees is no longer consensual. For this reason, it is best to develop policies requiring employees to immediately disclose romantic workplace relationships to a higher-level supervisor or human resources.

Sexual Harassment

If employers do not take swift, proper action upon discovering romantic workplace relationships, they may be faced with claims of sexual harassment. Under the Fair Employment and Housing Act (“FEHA”), it is unlawful for an employer to subject an employee to different terms and conditions of employment because of the employee’s sex. There are two types of sexual harassment. The first type is “Quid pro quo” harassment, which occurs when submission to sexual conduct is explicitly or implicitly made a condition of a job, a job benefit, or the absence of a job detriment. The second type is a “hostile work environment,” in which an individual must show: (1) he or she was subjected to conduct of a harassing nature because of his or her sex; (2) the conduct was both subjectively and objectively unwelcome or offensive; and (3) the conduct was sufficiently severe or pervasive to unreasonably interfere with work performance or to create an intimidating, hostile, or offensive working environment. For the “severe or pervasive” standard, one single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment.

In one example of a workplace relationship forming the basis of a sexual harassment claim, Allan Samson hired Joyce Chan as his legal secretary and the two dated for two years. Chan alleged that she continued the relationship out of fear of losing her job but eventually ended the relationship when she realized that Samson’s behavior constituted sexual harassment. She alleged that soon thereafter, Samson retaliated against her by changing the terms of her employment. Chan informed Samson that she was planning on a sexual harassment and retaliation complaint. Samson ended up settling with Chan. (Samson v. Allstate Insurance Company.)

Sexual Favoritism

Employers must also be aware of any sexual favoritism that may result from romantic relationships. A 2024 Forbes survey found that 50% of employees reported that workplace relationship promotes favoritism. Sexual favoritism is favoritism shown by supervisors to employees who are the supervisors’ sexual partners. (Miller v. Department of Corrections.)Third party employees who are not involved in the relationship may be motivated to bring claims of sexual favoritism if they see a coworker receive job benefits as a result of being intimately involved with a supervisor. In the Miller case, the court found there was evidence that the advancement of female employees at a prison was based upon sexual favors, which blocked merit-based advancement. The California Supreme Court recognized that an employee may establish a sexual harassment claim under the FEHA by demonstrating widespread sexual favoritism that is severe or pervasive enough to alter an employee’s working conditions and create a hostile work environment. (Miller)

Anti-Nepotism and Anti-Fraternization Policies

There are several steps employers can take to set standards of conduct for workplace romances. Federal and state laws, as well as the California Constitution, generally prohibit employers from making employment decisions based on marital status. Anti-nepotism and anti-fraternization policies, however, are permissible. If a personal relationship in the workplace would affect supervision, efficiency, security, or morale, an employer would have a strong argument for implementing and enforcing anti-nepotism and anti-fraternization policies.

These policies should require employees to immediately disclose romantic workplace relationships. By requiring disclosure, employers can red flag romantic relationships between supervisors and subordinates or relationships that create a conflict of interest. The California Court of Appeal has upheld policies that require a supervisor to bring a consensual intimate relationship with an employee to management’s attention for appropriate action. (See Barbee v. Household Automotive Finance Corp.)

Once an employer learns of a romantic workplace relationship, the employer should immediately explore all options and take non-discriminatory corrective action. Pursuant to a policy, employers can reassign or transfer one or both of the employees. Employers can seek the affected employees’ preferences for reassignment or use objective standards such as personnel rules, memorandum of understanding (“MOU”) policies, or seniority to determine which employee to reassign and where to reassign the employee(s). If an employee violates the anti-nepotism or anti-fraternization policy despite notice of the policy, an employer may choose to take disciplinary action against the employee. This may be the right decision if an employee has a pattern or practice of engaging in office relationships that disrupt the workplace.

Employers should uniformly enforce anti-nepotism and anti-fraternization policies. They should not ignore some relationships while taking action against other relationships. Employers should regularly circulate the relevant policies. Employers with represented employees should also remember that they should provide notice and follow the meet and confer process.

Employee Privacy

An employer ultimately may not be able to prevent two employees from engaging in a personal relationship outside of the workplace. Employees can in some circumstances make arguments that they have an expectation of privacy and a right to intimate association, which involves an employee’s choice to enter into and maintain certain intimate human relationships. (Starling.)  Nonetheless, an employer can diminish the expectation to the right to privacy by giving employee’s notice of any anti-nepotism and anti-fraternization policies.  (Barbee.)

Mitigating Risk of Issues with Dating in the Workplace

While employers may not be able to completely prevent office romances, an employer can establish policies that require disclosure of romantic relationships and give the employer the discretion to take appropriate corrective action. Employers are also required to implement and enforce harassment and retaliation policies that are up to date with current law.  Furthermore, harassment prevention training is a key requirement. These trainings provide an opportunity to inform employees about the employer’s policies on harassment, retaliation, anti-nepotism, and anti-fraternization. By taking these steps, employers reduce the odds that they will be hit by a lawsuit if an office romance goes awry.

If your agency needs help updating harassment and retaliation policies or providing the required harassment prevention training, trusted legal counsel can provide assistance.

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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Overview

Assembly Bill 692, effective January 1, 2026, significantly changes how employers in California may use repayment or “stay-or-pay” clauses in employment-related agreements. As described in the last sections of this post, however, it is likely AB 692 does not apply to public employers given that the law does not state specifically that it does so. Nevertheless, public employers should be aware of the provisions of AB 692 so they can evaluate their “stay-or-pay” arrangements in the light of the possibility a court finds differently. As explained below, AB 692 broadly restricts contractual terms that require an employee to repay costs or fees when employment ends, unless the agreement fits within one of the statute’s limited exceptions.

What AB 692 Prohibits

AB 692 declares void and unenforceable any new contract provision that conditions repayment on an employee’s separation from employment. This includes terms requiring workers to:

  • Repay training, education, or certification expenses if they leave before a certain date.
  • Reimburse relocation expenses, visa or immigration-related fees, or other onboarding costs upon resignation or termination.
  • Return sign-on or retention bonuses through clawback provisions tied to duration of employment.
  • Pay penalties, fees, or “liquidated damages” for quitting.

The prohibition applies whether repayment would go to the employer directly, a training provider, or a third-party debt collector.

The law also creates a private right of action with statutory damages and attorney’s fees available to an employee.

What Remains Permitted

AB 692 provides narrow exceptions permitting certain repayment provisions when specific statutory conditions are met.

Tuition or Educational Assistance Agreements

These agreements may require prorated repayment but only if:

  • The agreement is offered separately from any employment contract.
  • The credential is transferable and not required for the employee’s current job.
  • Repayment is specified before the contract is agreed to and capped at actual costs.
  • Repayment is not triggered by termination except for misconduct.
  • A prorated repayment is provided for during any required employment period and does not require an accelerated payment schedule if the worker separates from the employment.

Sign-On or Retention Bonuses

Repayment provisions may be used if:

  • Contained in a separate agreement from the primary employment contract.
  • The employee receives at least five business days to review and consult counsel.
  • The employee is notified of the right to consult an attorney.
  • Repayment is interest-free and prorated over a retention period of no more than two years.
  • The employee may defer payment until completion of the retention period.
  • Repayment is triggered only by voluntary separation or misconduct.

Apprenticeship and Loan-Forgiveness Programs

State-approved apprenticeship agreements and government-administered loan repayment assistance or loan-forgiveness programs remain unaffected.

Agreements that do not meet these criteria will be unenforceable.

How Stone v. Alameda Health System Affects Interpretation and Application of AB 692

The California Supreme Court’s explanation of how to interpret employment statutes leads to the likely result that AB 692 does not apply to public sector employers.

In August 2024, the California Supreme Court issued its decision in Stone v. Alameda Health System. Although Stone did not address repayment agreements, clawback provisions, or “stay-or-pay” arrangements, it is relevant because it clarifies the extent to which statutory provisions apply to public entities.

In Stone, the Court held that the California Labor Code’s meal- and rest-break provisions did not apply to Alameda Health System, a public agency employer, because the text of the statutes did not expressly include public agencies, demonstrating a lack of legislative intent to include them. Moreover, the “persons” covered by the statutes at issue do not include public agencies. The Court further held that public entities are not subject to civil penalties under the Private Attorneys General Act (PAGA) because they are not “persons” within the meaning of that statute, and because PAGA penalties are punitive.

What Stone Means

Because Stone directs courts to closely examine statutory definitions and legislative intent before applying Labor Code provisions to public entities, litigants may look to Stone when assessing whether AB 692 reaches public-sector employers.

Stone does not create a blanket rule that all employment-related statutes are inapplicable to public employers; its analysis is tied to the specific statutory language before the Court. However, courts have applied Stone’s reasoning to other statutes that regulate government agencies.

Practical Implications

Because AB 692 is not one of the statutes examined in Stone, it is uncertain how courts will apply it in the public-sector context. Nevertheless, it is likely based on the principles described in Stone that the statute does not apply to public sector employers. There are two statutes in AB 692 – Business & Professions Code section 16608, and Labor Code section 926. Neither statute contains any reference to public entities or any indication that the statutes are intended to apply to public entities. Also, the definition of “employer” under Business and Profession Code section 16608(a)(4) does not list any type of government agencies. This all supports a lack of any legislative intent to apply AB 692 to them.

Special Considerations for Charter Cities and Counties

In addition, charter cities and counties may have separate arguments under “home rule” principles allowing them to set employee compensation. Those agencies can argue these principles mean AB 692 does not apply to them. (Curcini v. County of Alameda.)

Wage and Hour Issues

Finally, it deserves mention that whether or not AB 692 applies to public employers, those employers still need to be careful – under other laws – with regard to any agreement to recover wages previously paid to employees. For example, under the federal Fair Labor Standards Act (FLSA), requiring an employee to repay training costs when they terminate employment could make it so their final paycheck for the last period of work amounts to less than the federal minimum wage for each hour of work.  Such repayment agreements can thus lead to FLSA liability. This was the holding of the Court of Appeal in 2008 in City of Oakland v. Hassey.  Relatedly, a final paycheck amounting to less than the state minimum wage for each hour of work could lead to liability under California law.   

In evaluating your agency’s response to AB 692, it will be helpful to engage trusted legal counsel for assistance.

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Artificial intelligence (“AI”) tools are increasingly being marketed as a way to streamline workplace investigations: summarizing evidence, generating interview outlines, comparing witness statements, or even “detecting inconsistencies” in testimony. While these tools may appear to help investigators move faster, public employers should approach AI-assisted investigations with caution. California public agencies have unique obligations to ensure their investigations are thorough, impartial, accurate, and defensible under case law and statutory requirements.

AI tools can support certain administrative tasks, but improper reliance on them can jeopardize the validity of the investigation, expose the agency to claims of bias or inadequate fact-finding, and create potential Public Records Act and confidentiality concerns. This blog post outlines the emerging legal and practical risks, and provides guidance to help public employers evaluate whether, and how, AI should (or should not) be used.

AI in Workplace Investigations: What These Tools Claim to Do

AI tools can:

  • Summarize large volumes of documents
  • Generate interview questions based on allegations or policies
  • Analyze transcripts for “inconsistencies”
  • Suggest credibility assessments
  • Identify potential timelines or patterns in evidence

Although these tools may seem efficient, they introduce significant legal and practical risks, especially in the context of public sector investigations.

Risk 1: Hallucinations, Inaccuracies, and Missing Nuance

AI tools are known to produce “hallucinations,” which occur when the system generates statements that appear authoritative but are factually incorrect.

In an investigation, even a minor factual distortion can:

  • Undermine the credibility of the investigatory report
  • Lead to incorrect findings
  • Create inconsistencies that an attorney challenging the report may highlight
  • Damage trust between the employer and employees

AI also frequently misses context, tone, or nuance — all critical to credibility determinations. AI cannot evaluate demeanor, motive, or subtle shifts in a witness’s explanation. It may summarize statements in a way that oversimplifies or distorts them.

Risk 2: Embedded Bias in AI Outputs

AI tools reflect the datasets they are trained on. For public employers, subject to constitutional and statutory nondiscrimination obligations including Title VII (42 U.S.C. § 2000e), Fair Employment and Housing Act (FEHA) (Gov. Code §§ 12940 et seq.) and due process requirements, AI-generated conclusions may inadvertently introduce bias into:

  • Witness credibility assessments
  • Evaluations of employee conduct
  • Interpretation of language or cultural communication styles
  • Discipline recommendations

Because California public employers must demonstrate impartiality in investigations, any bias reflected in AI outputs can compromise the investigation and expose the agency to legal challenge.

Risk 3: Confidentiality, Data Storage, and Public Records Risks

Workplace investigations often involve:

  • Confidential personnel information
  • Medical data (subject to the Confidentiality of Medical Information Act (CMIA) and the Health Insurance Portability and Accountability Act (HIPAA)
  • Peace officer records (subject to Penal Code §832.7)
  • Student information (for education agencies, under the Family Educational Rights and Privacy Act (FERPA)


Uploading investigation-related information into a third-party AI platform may violate confidentiality obligations, compromise privileged communications, or even trigger unintended disclosure requirements. Many generative AI tools store prompts, inputs, and outputs on external servers, and some reserve the right to use uploaded data to train or improve their models. As a result, sensitive details shared with an AI system may be retained, accessed by the vendor, or reproduced in future outputs, exposing an employer to privacy violations, discovery risks, and potential claims.

Risk 4: Ethical Concerns for Workplace Investigators

Over-reliance on AI risks blurring the line between the investigator’s independent judgment and the machine-generated suggestion.

Additionally, investigators must ensure that all work product is their own, that sources are verifiable, and that findings are based on actual evidence—not AI extrapolation.  AI tools that fabricate facts or produce misleading summaries can put investigators at risk of failing these obligations if not carefully controlled and independently verified.

Key Takeaways for Public Employers

  • AI should never replace human judgment in workplace investigations.
  • Any AI-generated summary or analysis must be independently verified.
  • Investigators should avoid uploading confidential personnel data into AI platforms unless the agency has vetted the tool’s security, privacy, and data-use policies.
  • Because AI tools are not designed to evaluate human behavior or nuance, their conclusions about credibility should be viewed with caution especially when used for investigative decision-making. Agencies should develop internal policies on whether, and how, AI may be used in investigations.

Because AI tools are rapidly evolving while legal standards for investigations remain constant, public employers should:

  • Review or update their workplace investigation policies.
  • Evaluate whether AI use should be restricted or prohibited in investigative processes.
  • Provide training to HR teams and investigators on the risks and obligations.
  • Consult legal counsel before adopting or integrating AI tools into investigative workflows.

If your agency is considering the use of AI tools or needs guidance on investigation best practices please reach out to trusted legal counsel.

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The article was reviewed December 2025 and the information is up-to-date.

The holiday season is a festive time to be shared with family, friends, and even co-workers.  Many employers also join in the celebrations by allowing employees to put up decorations and exchange gifts. Employers also like to host holiday parties filled with food, music, and alcohol. Sometimes, however, these activities can create legal liability for employers, particularly public entities. We present here a few tips and reminders that can help employers avoid liability without spoiling their employees’ holiday fun.

Workplace and Workspace Decorations

As the Second Circuit Court of Appeals has aptly stated, “No holiday season is complete, at least for the courts, without one or more First Amendment challenges to public holiday displays.” (Skoros v. City of New York (2d Cir. 2006) 437 F.3d 1.) Before decking the halls, employers should consider the location of holiday decorations. Employers who plan to decorate common work areas should strive to avoid the appearance of endorsing one religion over another. For example, if a nativity scene is displayed in the reception area or lunchroom, the employer may be perceived as favoring the Christian religion. Some employees may find this offensive. Therefore, employers who wish to decorate the workplace should use non-religious, winter themed decorations such as snowflakes, snowmen, candy canes, wreaths, holly, non-flammable candles, and gingerbread houses.

Since non-religious decorations are permissible, there is always debate over whether a decorated tree is a religious symbol. While a decorated tree may have religious connotations for some people, the U.S. Supreme Court has determined that a decorated tree is generally a secular nonreligious symbol. This view was also adopted by the EEOC. Thus, employers may include decorated trees among their holiday displays even if an employee objects. Nevertheless, for purposes of promoting positive employee relations, employers should be sensitive to the diversity of their workplace. Thus, even if you have a tree, ornaments with religious connotations, such as crosses, angels, or nativity references should not be allowed.

Employees who wish to decorate their own personal workspaces with Christmas, Kwanzaa or Hanukah themed decorations present a more difficult question. Prohibiting employees from displaying religious holiday themed decorations in their own workspace may give rise to claims of violation of free speech and religious expression. Also, because the law requires employers to accommodate religious beliefs, employers should not try to suppress religious expression in an employee’s personal workspace unless it creates undue hardship on business operations, or if it is visible to the public in a way that implies the agency’s endorsement of religion. (Berry v. Dep’t of Soc. Servs. (9th Cir. 2006) 447 F.3d 642.)

Finally, mistletoe should never be allowed in any area of the workplace including individual workspaces because it could lead to sexual harassment or hostile work environment claims.

Religious Holiday Accommodations

For many, the holidays are a time for religious observance. For example, a Christian employee working the night shift may ask for the evening off to attend Christmas Eve mass, a Jewish employee may request time off to observe Hanukah, or a Muslim employee may ask to have a break scheduled after sunset when fasting ends during Ramadan. Both federal and state discrimination laws require employers reasonably to accommodate their employees’ sincerely held religious beliefs, practices, and observances. Thus, employers who are confronted with requests for time off should try to accommodate them unless doing so would impose undue hardship. Accommodating an employee may mean changing the employee’s schedule or allowing the employee to switch shifts with a co-worker.

Holiday Gift Exchanges

The traditional holiday gift exchange — where one “Secret Santa” employee gives a gift to a randomly assigned employee — has largely been replaced by the “white elephant” gift exchange. Employees favor this type of gift exchange because it is fun and the gifts up for grabs are often humorous. This game, however, can easily turn into blood sport as employees become competitive and even downright vicious towards each other in their quest for the best gift.

In order to ensure fun for all employees, the announcement of a gift exchange should include language reminding employees to select gifts appropriate for the workplace. For example, employees should be discouraged from buying items that contain profane, graphic, or sexual content. In addition, employees should be reminded that the gift exchange is a festive occasion where everyone should be treated respectfully. A very modest limit on the cost of such gifts should be established, such as $10 to $25.

Individual Holiday Gifts

Despite the popularity of gift exchanges, some employees may choose to give individual holiday gifts to coworkers. While this may bring joy and cheer to some, others may feel left out if they do not receive a gift. Some employees may see selective gift giving as signs of discrimination or retaliation. Aside from any sort of legal claims, selective gift giving may also create a tense workplace environment where employees’ feelings are hurt. While employers should not require employees to bring gifts for everyone, employers may still create other gift giving guidelines or restrictions. For example, employers can create and enforce policies that require employees to exchange gifts outside of the workplace during non-work hours.

Holiday Apparel and Accessories

In addition to holiday decorations in the workplace, some employees may feel extra festive and want to wear holiday apparel or accessories. Prohibiting employees from wearing holiday themed apparel may give rise to claims of violation of free speech and religious expression. Nevertheless, employers do have the right to make sure that any holiday apparel complies with internal dress code policies or standards of professionalism.

In one example of holiday apparel causing uproar, Emilia Sellick was an employee of the U.S. Department of Veterans Affairs. Every holiday season, she wore a “Christmas bell” at work and the bell would jingle every time she moved. One day, Emilia’s supervisor called her into his office and abruptly instructed her to take off the bell. When Emilia asked her supervisor why she should remove her bell, he responded, “[b]ecause it annoys me.” After Emilia was not hired for a higher level position, she sued the Department alleging religious discrimination, among many other claims. She claimed that the “Christmas bell” incident was suggestive of discrimination. In the end, the court found that the incident did not warrant a reasonable inference of religious discrimination.  (Sellick v. Agency-Castle Point (S.D.N.Y. July 16, 2010) 2010 U.S. Dist. LEXIS 71579.)

Holiday Parties

The two biggest concerns for employers about holiday parties are potential legal liability from sexual harassment and drinking and driving. Because employees typically “let their hair down” during these events, they may not conduct themselves the same way they do at work. Also, alcohol clouds judgment. A luncheon rather than an evening event is more prudent for all these reasons. If a festive evening is the preferred celebration, employers may want to consider taking the following preventative steps to reduce liability.

Employers should remind employees of the workplace’s discrimination, harassment, and alcohol and drug policies. In addition, employers should designate a supervisor or manager to provide discrete oversight of employees during the party. For example, if alcohol is served, employers should limit the amount consumed by either issuing drink tickets to employees or stopping the service of alcohol well before guests start leaving the party. If an employee appears to have had too much to drink, a supervisor or manager can intervene and make arrangements for the employee to get home safely. Employers should also ensure that no underage employees, student workers, or interns are served alcohol. 

Finally, inappropriate and unwelcome verbal, physical, or visual conduct at a holiday party may lead to claims of harassment based on protected classification. Supervisors who observe or become aware of an incident that could violate the agency’s harassment policy remain responsible for reporting such conduct. If a harassment complaint is made after the party, employers should make sure they promptly investigate it.

Happy Holidays!

All of us at Liebert Cassidy Whitmore would like to come together to say Thank You and wish you a wonderful holiday season and a Happy New Year!

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Since our original post detailing the tracking and reporting requirements imposed by the One Big Beautiful Bill Act (“OBBBA”) for federal tax deduction of qualified overtime compensation (i.e., Fair Labor Standards Act (FLSA) overtime), the IRS has announced significant guidance for 2025 reporting.

For Tax Year 2025, Employers Are Not Required to Separately Report Qualified Overtime Compensation Due to Penalty Relief from the IRS.

On November 5, 2025, the Department of the Treasury and the Internal Revenue Service (IRS) issued Notice 2025‑62 (see IR-2025-110) providing penalty relief for the 2025 tax year with respect to certain new information-reporting obligations under the OBBBA.

Employers will not face penalties under the Internal Revenue Code (IRC) section 6721 for failure to file correct information returns, or under IRC section 6722 for failure to furnish correct payee statements, if the employer does not separately report the total amount of qualified overtime compensation in tax year 2025. The relief is strictly limited to the 2025 tax year.

Greater Flexibility Applies for Employers Who Voluntarily Report in 2025.

Although not mandatory in 2025, the IRS encourages employers to provide the separate accounting of qualified overtime to employees this year.  However, employers who voluntarily provide the separate overtime accounting in 2025 have greater flexibility than they will in 2026 and will not face penalties for the method used to calculate qualified overtime compensation. Regardless, the method used should be reasonable and consistent and comply with general recordkeeping and accuracy principles. The delay in reporting requirements reflects the IRS’s acknowledgement that many employers do not yet have the systems or information necessary to comply with the new reporting rules for 2025, as well as the fact that the W-2 form for the 2025 tax year will not be updated to accommodate the OBBBA changes.

Absent Employer Reporting, Individual Employees Can Calculate and Claim a Deduction for Qualified Overtime Pay in 2025.

On November 21, 2025, the IRS issued Notice 2025-69, providing guidance to individual taxpayers on how to claim the new qualified overtime compensation deduction for tax year 2025.

Because employers are not required to report qualified overtime compensation on W-2’s in 2025, Notice 2025-69 provides guidance and examples for how individual taxpayers can report and substantiate overtime deductions in the absence of formal reporting from employers. Individuals who are not furnished a separate accounting of qualified overtime compensation in box 14 of Form W-2 (or on a separate statement) must make a reasonable effort to determine whether they are considered overtime-eligible under the FLSA, which may include asking their employers about their status.

Individuals may use any of the following reasonable methods for purposes of determining the amount of qualified overtime compensation under section 225(c) for tax year 2025:

  1. If the individual’s pay statement for 2025 shows the FLSA overtime premium separately, meaning it lists the extra “half-time” portion for working more than 40 hours in the seven-day work period (or other appropriate work period length and hours threshold), then the individual can report that amount as qualified overtime compensation.
  • If the individual’s pay statement does not show the FLSA overtime premium separately, but it does show a combined number for all FLSA overtime pay (regular wages for overtime hours + premium wages), then the individual may report one-third of that combined amount as qualified overtime compensation.

Notice 2025-69 allows use of a similar fractional method to determine the reportable amount if double time overtime applies for hours worked in excess of 40 hours in a workweek (or other appropriate work period length and hours threshold). It also allows the individual to adjust the calculation if the fractional method would undercount the true overtime premium (for example, because the individual’s base rate increased due to a nondiscretionary bonus).

  • If the individual does not receive any statement showing the overtime premium, the total overtime pay, or the total premium above regular pay, the individual can use any reasonable method to estimate the regular rate of pay, and the number of hours worked above 40 per week or above the hour’s threshold for the applicable work period. A reasonable method includes requesting information from the individual’s employer and using the information provided by the employer for purposes of calculating the deduction.
  • If an individual is covered by different overtime rules under the FLSA compared to most 40-hour employees (such as firefighters, police, certain hospital workers), the individual must calculate overtime based on those specific rules but may still use any reasonable method described in this notice.

FLSA Compensatory Time Off is Reportable as Qualified Overtime Pay.

Until now, it has been unclear whether FLSA overtime earned as compensatory time off is reportable as qualified overtime compensation under the OBBBA. Notice 2025-69 affirmatively states that an individual who works for a state or local government agency that gives compensatory time at a rate of one and one-half hours for each FLSA overtime hour worked may include one-third of those wages for purposes of determining qualified overtime compensation.

Individual employees receiving compensatory time off may take the overtime amount into account for reporting purposes only in the year the compensatory time is paid due to the employee cashing it out or using the paid time off.

Where FLSA and Non-FLSA Overtime Are Reported as a Combined Amount, Individuals Can Use Earning Statements to Approximate Reportable FLSA Overtime.

Where employers combine FLSA and non-FLSA overtime on earnings statements, Notice 2025-69 states that individuals can use the statements to approximate the amounts of FLSA overtime.

In all cases, individuals must maintain copies of any documents they rely on in accordance with IRS recordkeeping requirements and should also maintain records of the basis for any approximation.

The Deduction is Capped and Phases Out at a Modified AGI Over $150,000.

The deduction is capped at $12,500 per individual (or $25,000 for married joint filers). The deduction phases out at a Modified Adjusted Gross Income threshold over $150,000 (or $300,000 for joint filers).

Conclusion

While the importance of tracking and reporting qualified overtime compensation under the OBBBA will remain, the IRS’s Notice 2025-62 provides transitional relief for tax year 2025.

Employers should view this as an opportunity to prepare, refine systems and educate stakeholders — but not as a reason to defer the work entirely. Beginning early will smooth the transition into the full enforcement years. We recommend the following employer guidelines:

  1. Continue to plan for the separate tracking of qualified overtime compensation (i.e., the portion of FLSA-mandated overtime that is eligible under the OBBBA). As discussed in our original post, the OBBBA’s deduction for qualified overtime requires a separate accounting of overtime that is FLSA-mandated and the value of “half-time” premium.
  2. Use the 2025 year as a transition year. The IRS is giving employers breathing room regarding the new breakdown reporting in tax year 2025. Failure to accurately report will not trigger penalties, provided other reporting obligations are met.
  3. Keep documentation of the reasonable method used. Even though the IRS is not imposing penalties for failure to separately account in 2025, employers should still document the method used to approximate or identify qualified overtime compensation.
  4. Communicate to employees. For the 2025 tax year, employers are encouraged to provide separate statements for employees showing their separately reported qualified overtime compensation, so that the employee may easily claim the deductions when filing. Early communication may reduce confusion.
  5. Prepare for 2026 and onwards. The relief applies only for 2025. Employers should accelerate system updates ahead of the 2026 reporting year, when the IRS will enforce the breakdown of qualified overtime.[1]

Should you or your agency need assistance evaluating your payroll practices, updating tracking systems, or communicating to employees regarding the eligible overtime deduction and reporting obligations, please reach out to your trusted legal advisors.

[1] As of now, the overtime deduction established by the OBBBA is in effect for tax years 2025 through 2028.