pexels-karola-g-7876052

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.

pexels-my-photos-50266345-7758569

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.

blog

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!

pexels-pixabay-48148

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.

pexels-bertellifotografia-16094056

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.