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

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

Public Health Operations Cannot Afford Last-Minute Planning

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

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

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

Line Pass Planning May Help Protect Core Services

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

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

Picketing Creates More Than a Staffing Problem

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

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

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

Coverage Planning Should Start Before a Disruption Begins

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The 2024 EEOC Harassment Guidance

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

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

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

The Rescission and the EEOC’s Justification

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

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

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

Why This Matters for California Public Agencies

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

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

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

What Has Not Changed

1. California’s Harassment Prevention Duties Remain Robust

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

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

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

2. Mandatory Harassment Prevention Training Has Not Changed

California law continues to require harassment prevention training for employees:

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

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

3. You Still Need Clear, Consistent Investigations

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

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

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

What Has Changed (in Federal Enforcement Practice)

With the EEOC’s withdrawal of its guidance:

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

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

Bostock’s Intersection with Executive Action

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

Practical Takeaways for California Public Agencies

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

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

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

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

Action Steps for 2026

Now is a good time to:

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

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

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Disciplinary and investigatory interviews are an unavoidable part of managing a public workforce. When a represented employee is questioned in a setting that could lead to discipline or involving highly unusual circumstances that may significantly impact the employer-employee relationship, the employee may invoke the right to union representation. The right is grounded in both PERB precedent and federal doctrine. Once a request for representation is made, employers must proceed cautiously, as missteps can lead to unfair practice charges and remedies that undo discipline and require corrective action.

How Were Weingarten Rights Established?

“Weingarten rights” trace back to NLRB v. J. Weingarten, Inc. (1975) 420 U.S. 251. In this case, J. Weingarten, Inc. was a chain of retail stores with lunch counters. Sales personnel were represented by the Retail Clerks Union, Local 455. Leura Collins was one of the sales personnel who worked at the lunch counter and lobby. An employee reported that Collins did not pay full price for food she purchased from the counter. Collins was summoned to an interview with an undercover security officer and the store manager. Several times during the questioning, she asked the store manager to call the union shop steward or some other union representative to the interview, and her requests were denied. During the interview, Collins burst into tears and blurted out that the only thing she had ever gotten from the store without paying for it was her free lunch. The store manager believed that free lunches were not permitted by company policy. Collins again asked that a shop steward be called to the interview, but the store manager denied her request. An intense interrogation followed. Based on her answers to his questions, Collins was told to sign a written statement which included a computation that Collins owed the store approximately $160 for lunches. Collins refused to sign the statement. The store manager then discovered that most employees in the store, including the manager of that department, took lunch from the lobby without paying for it, and headquarters advised that it was uncertain if there was any policy against providing free lunches to employees. Collins was told she could return to work. The store manager asked Collins not to discuss the matter with anyone. Collins reported the details of the interview to her shop steward, resulting in an unfair labor practice finding under the National Labor Relations Act (NLRA). The case was eventually brought to the U.S. Supreme Court, which held that employees in unionized workplaces have the right to request representation “at investigatory interviews which the employee reasonably believes may result in disciplinary action.”

When Do Weingarten Rights Apply?

Under California labor relations statutes, the Public Employment Relations Board (PERB) has long applied the Weingarten principle to local public agencies, enforcing representation rights whenever an interview is investigatory in nature and discipline is reasonably anticipated by the employee. PERB applies a three-part test, parallel to the test under the National Labor Relations Act (NLRA):

  1. The employer engages in investigatory questioning (it does not have to be a formal investigatory interview);
  2. The employee has a reasonable belief that discipline may result from the questioning; and
  3. The employee asks for a union representative.

What is an “Investigatory Interview”?

An investigatory interview is a meeting where the employer questions an employee to obtain facts, explanations, or admissions, and the employee reasonably believes discipline may result. The label given to the meeting is not necessarily relevant.

Is the Employer Required to Inform the Employee About Their Weingarten Rights?

No. Weingarten rights are triggered only if the employee affirmatively requests representation. Employers are not required to advise employees of these rights in advance. However, offering an employee the right to a representative in writing in advance of an investigatory interview makes it difficult for an employee to later assert they were denied representation.

What Happens If an Employer Denies Representation After it is Requested?

For California public employers, violations may result in an unfair practice charge before PERB, with remedies such as cease-and-desist orders, posting requirements, and other appropriate relief.

What Types of Meetings Do Not Invoke Weingarten Rights?

  • Meetings intended to give instructions, provide training, or give feedback regarding work performance.[1]
  • Meetings held to announce or issue discipline already decided.[2]
  • Routine performance evaluation meetings. However, PERB has established that employees have a right to union representation during performance evaluation meetings if they reasonably believe the meeting could lead to discipline.[3]

Who Can Serve as a Representative?

Typically, a representative is a union steward or union representative associated with the employee’s bargaining unit. The employee can choose a specific representative if representation is not subject to unreasonable delays to secure a particular individual. Reasonableness depends on the circumstances.

Can the Employee Choose Someone Other Than the Union-Appointed Representative?

An employee may choose their own representative, who may be a representative of the union or a fellow employee.  Employers are required to honor that request, so long as that choice does not unduly interfere with the employer’s ability to conduct its investigation.  Employees may not request a non-employee representative unless that individual is an officer or business agent of the employee’s union.  For example, an employee may not request a private attorney or a family member as their Weingarten representative if that individual has no affiliation with the employee’s union. 

Can the Employer Request a Different Representative?

The employer is not entitled to choose the representative. However, there may be instances where the employer has legitimate concerns about a representative, such as when the employee’s chosen representative is a witness or even a complainant in the investigation. Employers who have concerns about witness integrity should proceed cautiously.

If the Employee’s Chosen Representative Is Unavailable to Appear in Person, Can the Employer Require the Representative to Attend by Phone or Video Conference?

Possibly, depending on circumstances, policies, and MOUs. However, forcing remote participation without justification—especially when in-person is feasible—can undermine meaningful representation.

What is the Role of the Union Representative?

The representative may assist and advise the employee and ask clarifying questions. The representative may not disrupt or obstruct the interview or answer questions on the employee’s behalf. The employer may require that the employee answer questions directly. The representative may advise, clarify, and consult, but not substitute their answers.

Can the Employer Insist that the Union Representative Remain Silent During the Meeting?

No.  The union representative is allowed to speak and to provide information and suggestions during the meeting.  However, the employer retains the right to determine the content and conduct of the meeting.

Are Employees Entitled to Information in Advance of the Interview Regarding the Subject of the Meeting?

PERB has held that an employee and their representative are not entitled to view a written complaint in advance of an investigatory interview. However, a union and the represented employee have a right to sufficient information about alleged wrongdoing in advance of an investigatory interview to allow for consultation and meaningful representation.[4]

Is the Union Representative Entitled to Meet Privately with the Employee Under Investigation Before the Questioning Begins?

Yes. Meaningful representation includes pre-interview consultation with the union representative.

If the Employee Asks for Representation in the Middle of the Investigatory Meeting, is the Employer Required to Stop Questioning Until the Representative is Present?

Yes. Once a valid request is made, the employer must stop questioning immediately and delay further questioning until the representative is present. The employer may not deny the request and continue questioning.

What if I Do Not Intend to Discipline the Employee, but the Employee Asks for Representation?

Representational rights can arise even absent traditional discipline. While classic investigatory interviews that can lead to discipline are the most common trigger, PERB also recognizes representation rights in “highly unusual circumstances”—situations where meetings may significantly impact an employee’s work conditions or relationship with the employer.

Do Weingarten Rights Apply to Probationary Employees?”

Yes. If the probationary employee is represented by a union, Weingarten rights still apply, even if the employee has limited appeal rights.

Can Weingarten Rights Apply During an Informal Conversation?

Yes. Informal settings do not eliminate Weingarten rights. If a supervisor starts asking fact-gathering questions and the employee reasonably believes discipline could result, the setting is irrelevant.

Are There Any Other Times When an Employee Is Entitled to Union Representation?

PERB has held that an employee’s right to representation under California law is considerably broader than federal Weingarten representation rights.[5] PERB has upheld the right to representation in non-investigatory situations to protect employees at meetings that may significantly impact the employer-employee relationship, such as an interactive process meeting about accommodating an employee’s disability or a meeting about job audit forms that could lead to a reclassification or salary adjustment.[6] PERB has upheld the right to representation in “highly unusual circumstances” including:

  • Compelled Interviews: Meetings where employees are ordered to participate, such as by subpoena or directive from high-level investigators (e.g., Office of the Inspector General).[7]
  • Intrusive Personal Searches: Invasively searching an employee’s person, including unclothed body searches, grants an immediate right to representation.[8]
  • Demand for Written Statements: Where an employee is directed to memorialize in writing their previous responses to the earlier questioning. PERB commented that the right to representation applies regardless of whether the employer is seeking additional information or merely attempting to confirm information the employee has already provided.[9]

In addition, the Public Safety Officers Procedural Bill of Rights Act (POBR) and Firefighters Procedural Bill of Rights Act (FBOR) provide further procedural safeguards and rights regarding representation and disclosure of allegations which must be followed when interviewing sworn employees to avoid invalidated disciplinary actions. 

Do Weingarten Rights Apply to Unrepresented Employees?

While other statutes may confer a right to representation, Weingarten rights are grounded in the employee’s right to participate in the activities of employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations and the corresponding right of employee organizations to represent their members in their employment relations with public employer.[10]

Conclusion

PERB has shown that representation rights are not limited to narrow, classic investigatory interviews. They also apply when a meeting could meaningfully affect the employer–employee relationship. PERB decisions continue to refine Weingarten rights under the California public sector labor relations laws, with a clear trend toward ensuring meaningful representation through adequate information and opportunity to confer. Employers who anticipate these issues, provide context in advance, and manage investigatory interviews methodically will be best positioned to avoid unfair practice charges and preserve the integrity of disciplinary outcomes.

[1] State of California (Board of Equalization) (2012) PERB Dec. No. 2237-S. 

[2] City & County of San Francisco (2011) PERB Dec. No. 2222M.

[3] Redwoods Community College District v. PERB (1984) 159 Cal.App.3d 617; State of California (California Correctional Health Care Services) (2015) PERB Dec. No. 2465-S.

[4] Contra Costa Community College District (2019) PERB Decision No. 2652.

[5] Capistrano Unified School District (2015) PERB Decision No. 2440-E; Sonoma County Superior Court (2015) PERB Decision No. 2409-C; Regents of the University of California (1984) PERB Decision No. 403-H, p. 10.

[6] Sonoma County Superior Court (2015) PERB Decision No. 2409C; Capistrano Unified School District (2015) PERB Decision No. 2440-E.

[7] State Of California (Office of the Inspector General) (2019) PERB Decision No. 2660-S.

[8] State of California (Department of Corrections and Rehabilitation) (2018) PERB Decision No. 2598-S.

[9] San Bernardino Community College District (2018) PERB Decision No. 2599-E.

[10] State of California (Department of Consumer Affairs) (2005) PERB Decision No 1762S.

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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.