Governmental 457(b) plans are a familiar part of the benefits package at many public agencies. Employees can defer a portion of their compensation and into the plan for retirement, often as a supplement to a defined benefit pension. It is tempting to think of a governmental 457(b) plan as the public sector version of a 401(k).

That is a useful shorthand, but the comparison has its limits. Governmental 457(b) plans operate under Internal Revenue Code section 457 and are subject to rules that differ in important respects from those governing 401(k) plans and other retirement plans. Some of those differences create opportunities for employees, while others can create administrative problems when an agency, employee, or payroll department assumes the rules work the same way.

Here are five differences public agencies should keep in mind.

1. The Contribution Limit Stands on Its Own

The annual contribution limit is a good example of how familiar numbers can obscure different rules. For 2026, the basic contribution limit for a governmental 457(b) plan is $24,500, or 100 percent of the participant’s includible compensation if less. That happens to be the same dollar amount as the 2026 elective deferral limit applicable to 401(k) and 403(b) plans.

Despite the identical dollar limits, the 457(b) limit is generally separate from the limit that applies to 401(k) and 403(b) plans. An employee who contributes to a 403(b) plan, for example, may also contribute up to the applicable annual limit to a governmental 457(b) plan. Subject to the terms and limits of the respective plans, an employee with access to both may contribute up to the applicable annual limit to each. That can make a 457(b) particularly valuable for public employees seeking to increase their retirement savings.

The rule is different, however, for contributions made to the 457(b) plan itself. Employer contributions generally count toward the same annual 457(b) limit as the employee’s salary deferrals. For example, an agency that contributes $2,000 to an employee’s 457(b) account generally reduces by $2,000 the amount the employee may defer from compensation for that year.

2. Employees Approaching Retirement May Have Another Catch Up Option

The age based catch up rules changed significantly under the SECURE 2.0 Act, passed by Congress in December 2022 . Prior to the SECURE 2.0 Act, any participant age 50 or older was able to contribute an additional amount to their retirement, with the limit set at a uniform dollar amount for participants. In 2026, participants age 50 or older may be eligible to contribute an additional $8,000. Participants who attain ages 60, 61, 62 or 63 during the year may qualify for an even larger catch up contribution of $11,250.

A governmental 457(b) plan may also provide a different catch up opportunity under Internal Revenue Code section 457(b)(3). During the final three taxable years before reaching the plan’s normal retirement age, an eligible participant may be able to make additional contributions based on amounts the participants could have deferred, but did not defer, in prior years of participation. This is sometimes described as allowing an employee to contribute up to twice the normal annual limit. While that can be true, it is not an automatic doubling of the contribution limit. The amount available depends on the participant’s contribution history. Suppose an employee is two years from the plan’s normal retirement age and wants to maximize contributions before retiring. The employee contributed well below the applicable limit during several earlier years of participation. Depending on the plan terms and the employee’s contribution history, some of that unused capacity may now be available under the special catch up. By contrast, an employee who consistently contributed the maximum may have no unused capacity available for the special catch up.

The special rule also creates an administrative issue that requires more than determining the employee’s age. The employee cannot use the special three-year catch up and the age based catch up in the same year. If both are potentially available, the participant may contribute under the provision that permits the greater contribution. The IRS has specifically identified administration of this special catch up as an area in which 457(b) plan errors occur. For agencies that offer it, accurate historical contribution records matter.

3. Age 59½ Does Not Have the Same Significance

One of the more notable differences between a governmental 457(b) plan and a 401(k) plan appears when an employee takes a distribution.

Generally, a distribution from a governmental 457(b) plan is not subject to the 10 percent additional federal tax on early distributions that generally applies to distributions from other retirement plans before age 59½. For example, a public employee who separates from employment and takes an otherwise permissible 457(b) distribution before reaching age 59½ generally does not incur the additional tax solely because of age.

There is an important exception for amounts that were rolled into the 457(b) plan from certain other retirement plans or accounts. If a participant previously rolled assets from a qualified retirement plan, 403(b) plan, or IRA into the governmental 457(b) plan, distributions attributable to those rollover amounts may still be subject to the 10 percent additional tax.

Employees should also be careful when considering a rollover out of the 457(b) plan. Moving governmental 457(b) assets into an IRA or another retirement plan can affect how a later distribution is treated. If the assets are rolled into an IRA or an employer plan that is not a governmental 457(b) plan, a later distribution before age 59½ may be subject to the 10 percent additional tax unless an exception applies. An employee who expects to need access to retirement funds before age 59½ may therefore want to understand the potential tax consequences before completing a rollover.

4. “457(b)” Does Not Always Mean Governmental 457(b)

Public agencies occasionally encounter guidance that refers broadly to “457 plans.” That description can obscure an important distinction.

Section 457(b) plans may be maintained by state and local governments, but they may also be maintained by certain tax exempt organizations. Governmental and nongovernmental 457(b) plans are subject to important differences.

For governmental plans, Internal Revenue Code section 457(g) requires plan assets and income to be held in trust for the exclusive benefit of participants and their beneficiaries. The requirement may also be satisfied through qualifying custodial accounts or annuity contracts. By contrast, assets set aside to fund a nongovernmental 457(b) plan generally remain the property of the tax-exempt employer and are subject to the claims of the employer’s general creditors. 

This distinction is especially important when researching plan questions or responding to employee inquiries. Internet searches for “457(b) distribution rules” or “457(b) rollover rules” can produce information about both governmental and nongovernmental plans. Agencies should confirm that the guidance they rely on actually addresses the type of plan they sponsor.

5. Outsourcing Administration Does Not Outsource Every Responsibility

A public agency may have an experienced deferred compensation provider administering its 457(b) plan. Employees may enroll through the provider, select investments on the provider’s website, request distributions from the provider, and call the provider when they have questions. From an employee’s perspective, the provider may appear to “run” the entire plan.

However, the agency remains involved in important aspects of plan administration. The agency still has to implement employee deferral elections through payroll and timely transmit contributions. Employment and compensation information may need to be provided to the recordkeeper. The agency and provider also need to understand who is responsible for determining eligibility for particular plan features, and the plan must ultimately operate in accordance with its written terms and Internal Revenue Code section 457.

Consider an employee using the special three year catch up. The recordkeeper may maintain the account, but calculating the employee’s permitted contribution can require historical information about prior eligibility and contributions. If the recordkeeper does not have accurate information, the contribution limit can be calculated incorrectly.

Contribution elections present another potential source of error. For example, an employee changes a contribution election, but the change is entered incorrectly and payroll contributions eventually exceed the employee’s applicable annual limit. The IRS updated its guidance concerning excess governmental 457(b) deferrals in July 2026. When a governmental 457(b) plan exceeds the applicable plan limitation, the excess deferral, together with allocable net income, must be distributed as soon as administratively practicable after the plan determines that there is an excess deferral.

These situations are good reasons for agencies to periodically examine how responsibility is divided among benefits personnel, payroll, and the plan provider. An agency should know who monitors contribution limits, who determines eligibility for special catch up contributions, what information the provider receives from payroll, and how the parties communicate when an error is identified.

A service agreement can assign administrative tasks. It cannot eliminate the need for accurate information, clear allocation of responsibilities, and effective coordination .

Know Which Rules Apply to Your Plan

These differences are not merely technical. Some can provide meaningful advantages to public employees. The separate 457(b) contribution limit may allow an employee participating in another type of retirement plan to save substantially more. The special three-year catch-up can help some employees increase savings as they approach retirement. And the different treatment of governmental 457(b) distributions under the 10 percent additional tax may be particularly important for employees who leave public service before age 59½.

At the same time, not every governmental 457(b) plan offers every feature permitted by federal law. The Internal Revenue Code establishes the framework, but the agency’s plan document determines which optional features are actually available. An agency should therefore review its own plan terms before advising an employee that a particular catch up, distribution option, Roth feature, or other provision is available.

Recent changes make that review particularly timely. SECURE 2.0 increased catch-up contributions for participants who attain ages 60 through 63 during the year. Beginning in 2026, participants whose prior year wages from the employer sponsoring the plan exceed the applicable threshold generally must make age based catch up contributions on a Roth basis. Those changes may require coordination among the agency, payroll, and the agency’s 457(b) provider.

Governmental 457(b) plans can look deceptively familiar. Understanding the rules that make them different from other retirement plans, and the administrative responsibilities those rules create, can help public agencies administer their plans more effectively and provide employees with more accurate information concerning an important part of their retirement benefits.

July 1 marked the deadline for local agencies to comply with Senate Bill 827’s (“SB 827’s”) new website requirement. Under the law, agencies that maintain websites must post instructions and contact information for requesting certain ethics and financial training records. Although the website requirement took effect in July, SB 827’s related training requirements took effect on January 1, 2026. This post explains the new website requirement and reviews the training requirements connected to those records.

New Website Requirement Began July 1

Local agencies that provide required ethics training must keep records showing when officials completed the training and who provided it. Agencies must keep these records for at least five years. The California Public Records Act treats the records as public records subject to disclosure.

Beginning July 1, 2026, local agencies that maintain websites must post clear instructions and contact information for requesting the records. Cities, counties, and special districts must provide the same information for fiscal and financial training records.

SB 827 does not require agencies to post the records or training certificates online. It only requires them to explain how the public can request the records and whom to contact.

Ethics Training Now Covers More Officials

The Government Code already required certain local agency officials to complete at least two hours of ethics training every two years. Generally, the requirement applies when a local agency compensates or reimburses a member of its legislative body. School district, county board of education, and charter school governing board members must complete the training regardless of compensation or reimbursement.

Effective January 1, 2026, SB 827 amended the definition of “local agency official” to include department heads and similar administrative officers. For school districts, county offices of education, and charter schools, this category means the district superintendent, county superintendent of schools, or charter school’s chief administrator.

The training covers conflicts of interest, gifts, use of public resources, government transparency, fair decision-making, and other ethics rules. SB 827 also shortened the initial training deadline for officials who begin service on or after January 1, 2026, from one year to six months. After completing the initial training, officials must repeat it every two years.

New Financial Training Applies to Cities, Counties, and Special Districts

Effective January 1, 2026, SB 827 created a new fiscal and financial training requirement for officials of cities, counties, and special districts. The requirement does not apply to school districts, county offices of education, or charter schools.

The law covers elected officers, legislative body members, agency executives, and similar administrative officers. It also covers officials whom the governing body appoints to make or recommend decisions about financial administration, budgets, or public resources, as well as employees whom the governing body designates.

Each covered official must complete at least two hours of training on topics such as budgeting, financial reporting, auditing, capital financing, debt management, pensions, investments, fiscal planning, procurement, contracting, and safeguarding public resources.

An agency or association of agencies may contract or collaborate with a provider to offer courses or self-study materials with tests. Participants may take the training in person or online. Training courses and materials must draw on input from recognized local government finance experts (which includes local government associations) and providers must give participants proof of participation. Agencies must also provide covered officials with information about available training at least once each year.

Financial Training Deadlines

Government Code section 53238.2 sets the deadline based on when the official began service:

  • An official who began service before January 1, 2026, and remained in service on that date must complete the first training before January 1, 2028, unless the official’s term ends before January 9, 2028.
  • An official who begins service on or after January 1, 2026, must complete the first training within six months.

After the first training, officials must repeat it every two years. An official who serves more than one agency only needs to complete the training once every two years but must provide proof of participation to each agency. Government Code section 53238.4 exempts certain county officials who satisfy separate continuing education requirements.

Next Steps for Agencies

Local agencies can take the following steps:

  • Confirm that the agency’s website includes instructions and contact information for requesting applicable training records.
  • Identify the officials who must complete ethics training and, for cities, counties, and special districts, fiscal and financial training.
  • Determine each official’s deadline based on the date the official began service.
  • Provide covered officials with information about available training at least once each year.
  • Keep records showing when each official completed the training and who provided it for at least five years.

(SB 827 amended Government Code sections 53234, 53235.1, and 53235.2 and added Article 2.4.6 (commencing with section 53238) to Chapter 2 of Part 1 of Division 2 of Title 5 of the Government Code.)

On July 1, 2026, significant new requirements under Senate Bill 707 (“SB 707”) became operative for certain “eligible legislative bodies.” SB 707, sometimes referred to as the “Super Brown Act,” represents one of the most substantial revisions to the Ralph M. Brown Act (“Brown Act”) in recent years.  Although this blog post focuses on the new requirements applicable to “eligible legislative bodies” that became operative on July 1, 2026, readers should be aware that many of SB 707’s provisions took effect on January 1, 2026.

SB 707 imposes additional requirements on “eligible legislative bodies” that do not apply to every legislative body subject to the Brown Act. In light of the changes made effective on July 1, 2026, agencies should confirm which requirements apply to their specific legislative bodies rather than assuming that every body is governed by the same rules.

I. IS YOU AGENCY CONSIDERED AN “ELIGIBLE LEGISLATIVE BODY”?

SB 707 generally defines an eligible legislative body to include:

  • A city council of a city with a population of 30,000 or more;
  • A county board of supervisors of a county, or city and county, with a population of 30,000 or more;
  • A city council of a city located in a county with a population of 600,000 or more; and
  • The board of directors of a special district that has an internet website and meets any of the following conditions: (1) the boundaries of the special district include the entirety of a county with a population of 600,000 or more and the special district has over 200 full-time equivalent employees; (2) the special district has over 1,000 full-time equivalent employees; or (3) the special district has over 200 full-time equivalent employees and has annual revenues, based on the most recent Financial Transaction Report data published by the California State Controller, that exceed four hundred million dollars ($400,000,000), adjusted annually for inflation commencing January 1, 2027, as measured by the percentage change in the California Consumer Price Index from January 1 of the prior year to January 1 of the current year.

II. WHICH NEW REQUIREMENTS APPLY TO ELIGIBLE LEGISLATIVE BODIES?

A. ADDED ACCESS TO MEETINGS

Effective July 1, 2026, and continuing until January 1, 2030, SB 707 expands public access and participation in local government meetings. SB 707 requires eligible legislative bodies to provide an opportunity for members of the public to attend open and public meetings via a two-way telephonic service or a two-way audiovisual platform, except if adequate telephonic or internet service is not operational at the meeting location. If service is available during only part of the meeting, the legislative body shall include an opportunity for members of the public to attend via a two-way telephonic service or a two-way audiovisual platform for that portion of the meeting.

An eligible legislative body shall reasonably assist members of the public who wish to translate a public meeting into any language or wish to receive interpretation provided by another member of the public, so long as the interpretation is not disrupting to the meeting, as defined in Government Code section 54957.95. The eligible legislative body shall publicize instructions on how to request assistance. Assistance may include any of the following, as determined by the eligible legislative body:

  • Arranging space for one or more interpreters at the meeting location.
  •  Allowing extra time during the meeting for interpretation to occur.
  • Ensuring participants may utilize their personal equipment or reasonably access facilities for participants to access commercially available interpretation services.

SB 707 does not require an eligible legislative body to provide an interpreter, although the body may elect to do so.

An eligible legislative body shall also take actions to encourage residents to participate in public meetings, as specified in Government Code section 54953.4 subd. (b)(3).

B. ADOPTION OF POLICY ADDRESSING DISTRUPTIONS TO TELEPHONIC OR INTERNET SERVICE DURING MEETINGS

Additionally, each eligible legislative body will be required to adopt, on or before July 1, 2026, in a noticed public meeting in open session, not on the consent calendar, a policy that addresses disruptions to telephonic or internet service during meetings.

The eligible legislative body must comply with certain requirements related to service disruption, including that when certain disruptions occur, the eligible legislative body must recess the meeting for at least one hour and make a good-faith effort to restore service before resuming. The eligible legislative body may meet in closed session during this period. The eligible legislative body shall not reconvene the open session of the meeting until at least one hour following the disruption, or until telephonic or internet service is restored, whichever is earlier.

Upon reconvening the open session, if telephonic or internet service has not been restored, the eligible legislative body shall adopt a finding by rollcall vote that good faith efforts to restore the telephonic or internet service have been made in accordance with the policy adopted and that the public interest in continuing the meeting outweighs the public interest in remote public access.

This update may have significant consequences for agenda timing, closed-session schedules, staff availability, and meetings held in facilities with unreliable connectivity.

C. TRANSLATED MEETING AGENDAS

Starting July 1, 2026, and continuing until July 1, 2030, each eligible legislative body must translate the agendas for each meeting into all applicable languages, and each translation shall be posted in accordance with Government Code section 54954.2. Each translation shall include instructions in the applicable language describing how to join the meeting by the telephonic or internet-based service option, including any requirements for registration for public comment. The bill defines “applicable languages” as languages that, according to the most recent American Community Survey, are spoken jointly by at least 20% of the applicable population, provided that at least 20% of the people who speak that language in the relevant city or county speak English less than “very well.”

III. COMPLIANCE CHECKLIST FOR ELIGIBLE LEGISLATIVE BODIES

Agencies with an eligible legislative body should consider taking the following steps:

☐ Confirm whether the legislative body qualifies as an “eligible legislative body.” Review current population, number of full-time equivalent employees, revenue, geographic-boundary, and website information, as applicable.

☐ Identify all affected boards and bodies.  Do not assume that every legislative body within the agency is subject to the same requirements.

☐ Review remote-access capabilities. Confirm that open and public meetings can be accessed through a compliant two-way telephonic service or two-way audiovisual platform.

☐ Test remote-access systems before each meeting. Verify that telephone numbers, internet links, microphones, speakers, and public-comment functions are working.

☐ Prepare for partial service availability. Establish procedures for providing remote access during any portion of a meeting when adequate telephone or internet service is operational.

☐ Adopt or confirm adoption of a service disruption policy.  Ensure the policy was approved at a noticed public meeting in open session, not on the consent calendar, and addresses disruptions to telephonic or internet service during meetings.

☐ Develop a disruption-response procedure. Assign responsibility for announcing a recess, attempting to restore service, documenting restoration efforts, and preparing any required rollcall vote.

☐ Plan for meeting delays. Consider how a required recess may affect agenda timing, closed sessions, staff presentations, public hearings, and facility availability.

☐ Identify all applicable languages. Review the most recent American Community Survey data and document the agency’s determination.

☐ Establish an agenda-translation process. Build sufficient time into the agenda calendar to translate, review, and timely post each required agenda translation.

☐ Translate remote-participation instructions. Ensure translated agendas explain how to join the meeting remotely and how to register for public comment, if registration is required.

☐ Create a process for interpretation-assistance requests. Publicize how members of the public may request reasonable assistance when using their own interpreter or interpretation service.

☐ Coordinate meeting logistics for interpreters. Consider available space, additional time, personal equipment, and access to commercially available interpretation services.

☐ Review public-participation practices. Confirm that the agency is taking reasonable steps to encourage broader resident participation in public meetings.

☐ Train relevant personnel. Provide guidance to clerks, meeting chairs, information-technology staff, translators, and legal counsel regarding the new requirements.

☐ Periodically audit compliance. Review agendas, translated materials, meeting notices, remote-access procedures, and disruption records to ensure continued compliance through the applicable sunset dates.

Public agencies should contact their trusted legal advisors if they have any questions regarding whether they are maintaining compliance with the newly enforced requirements under SB 707.

People protesting outdoors
People protesting outdoors

For a decade or more, the phenomenon of “cancel culture” – sometimes called “accountability culture” – has been the subject of national debate.  On one side, institutions explain they have a strong interest in maintaining a safe and welcoming environment for their workers and should have the ability to remove individuals who threaten that environment.  Institutions also claim a legitimate interest in distancing themselves from and denouncing speech that contradicts their values, and even an interest in disciplining or terminating an employee whose speech contradicts those values in a sufficiently serious way.  At the same time, many point out that our nation has a strong tradition that individuals should lead their lives speaking publicly and privately whatever they wish to say, and that the threat of “cancellation” imperils important rights.

For public agencies, these considerations take on not just public policy, but legal importance.  Public agencies are bound by the First Amendment in their treatment of workers, and they can commit a constitutional violation if they discipline an employee based on speech a Court determines to be constitutionally protected.  An employee who wins a lawsuit for violation of free speech rights can obtain significant damage awards and can typically recover attorneys’ fees, among other types of relief.

How do public employers determine what employee speech is protected?  This post explains general legal tests and then summarizes two federal appellate cases from the last year that illustrate how these tests apply.  Both are from the U.S. Court of Appeals for the Ninth Circuit (the federal circuit covering California, Oregon, Washington, and other western states) and set precedent for how courts will decide these questions in the future.  Both are in the public education context, but shed light on how courts will view scenarios in other types of public employment settings.

The First Amendment Test:

Courts have developed a general test for whether a public employee’s speech has First Amendment free speech protection.  Under this test, the First Amendment protects a public employee from being disciplined for their speech (1) on matters of “public concern,” (2) that is outside the scope of the employee’s “official duties,” and (3) that prevails in a balancing test which weighs disruption of a government agency’s operations against the importance of the speech interest at issue.  As Courts have phrased it, the balancing is “whether the [state]’s legitimate administrative interests outweigh the employee’s First Amendment rights.”  The first two elements of the test described above serve to rule out several broad categories of speech from consideration.  Speech that is not a matter of “public concern” can be, for example, speech about internal office dynamics, interpersonal conflicts, or more mundane workplace grievances.  “Official duties” speech constitutes that which an employee renders as part and parcel of their job, e.g., a policeman talking to a motorist they have stopped, a social worker providing counseling, or a fire inspector writing a citation.  For speech that passes these first two “tests” (public concern and outside official duties), Courts must apply the third element, the balancing test of competing interests.

The following two cases provide illustrations of how Courts have interpreted this balance in the face of community calls for “cancellation.”

Virulent Political Speech on a Private Facebook Account:

In Thompson v. Central Valley School District No. 365[DU1] , decided December 29, 2025, the U.S. Court of Appeals for the Ninth Circuit considered whether a middle school assistant principal’s inflammatory criticism on Facebook of the 2020 Democratic National Convention had First Amendment protection so as to protect him from discipline by the school district for the speech.  Thompson’s Facebook post disparaged the Convention, used a disability-based epithet in doing so, labeled its speakers “hateful racists” including a derogatory term for women, and threatened that critics would be taken “to the woodshed for a proper education.”  Although Thompson explained that he intended his post to reach only his Facebook friends, it was disclosed and came to the attention of his fellow school district employees. 

The speech was outside Thompson’s official duties and, although inflammatory, on a matter of public concern (partisan politics), so that the Ninth Circuit’s task was to balance the appropriate interests under the third step in the test.

In conducting the balancing, the Court concluded that the school district had shown a reasonable prediction of disruption and that the district had a legitimate interest in maintaining a safe, inclusive educational environment and in avoiding workplace disruption that outweighed Thompson’s free speech interests.  The Court emphasized that, particularly given Thompson’s supervisory role, the district’s interest in ensuring administrators foster a positive educational climate was weighty and that Thompson’s derogatory and violent language (including reference to the “woodshed”) could disrupt school operations.

Because the school district’s interests outweighed Thompson’s speech interests, the Court held that Thompson’s First Amendment rights were not violated and he could be disciplined.

The following reasoning from the Court emphasized the clash between Thompson’s role at the district and the nature of his comments:

The [Central Valley School District (“CVSD”)] reasonably predicted that a Facebook post by a school administrator using disability-related slurs and violent language was likely to disrupt CVSD operations.  The predictable disruption was intensified and reinforced by Thompson engaging in speech while serving in a public-facing role as an assistant principal that undermined the CVSD’s written resolution to foster a safe and supportive educational environment.  As an employee of the CVSD, Thompson had a responsibility to uphold the district’s formal commitment to equity and inclusion.  As evidenced by his Facebook post and workplace comments, Thompson did not uphold his commitment, and we accordingly find that Thompson’s derogatory and violent language could substantially disrupt the orderly operation of the school.

A Professor’s Provocative Statement and a Claim for Academic Freedom Protection:

A second case, decided December 19, 2025 (amended May 14, 2026), reached a different result, finding the inflammatory speech in question protected.  In Reges v. Cauce[DU2] , the United States Court of Appeals for the Ninth Circuit held that the University of Washington violated Professor Stuart Reges’s First Amendment rights in its response to the professor’s controversial syllabus statement.  

Reges, a computer science instructor, had added to his syllabus a line parodying the university’s recommended Indigenous land acknowledgment.  At public universities, a land acknowledgement is a formal statement that recognizes and honors the Indigenous peoples who have historically stewarded and continue to have enduring connections to the land on which a university is located, and the statement serves as a gesture of respect.  In 2015, the University adopted the following acknowledgement and recommended the instructors include it on syllabi, although this was optional: “The University of Washington acknowledges the Coast Salish peoples of this land, the land which touches the shared waters of all tribes and bands within the Suquamish, Tulalip and Muckleshoot nations.” 

Professor Reges instead stated the following on his syllabus: “I acknowledge that by the labor theory of property the Coast Salish people can claim historical ownership of almost none of the land currently occupied by the University of Washington.”  There was evidence that the professor also subsequently used the parody in the signature block of some of his e-mails. 

Students complained about the parody land acknowledgement, and some Indigenous students at the university who learned of it came forward to describe they felt impacted in their studies.  The university’s administration removed Reges’s syllabus, initiated a disciplinary investigation against him, withheld a merit pay increase, reprimanded him, and warned him of future sanctions. 

Reges sued for violation of his First Amendment rights, relying on an important modification to the test described above for constitutional free speech protection available to public employees serving as faculty members – in particular, the “official duties” exception to protection will not apply to faculty speech related to their “scholarship or teaching.”  The balancing test requirement described above, however, still applies.  

The District Court initially granted summary judgment to the university, applying the First Amendment balancing test, and concluded that the institution’s interest in preventing disruption and maintaining an inclusive environment outweighed Reges’s free speech interests. 

On appeal, however, the Ninth Circuit reversed that decision, and held Reges’s parody was protected academic speech (i.e., related to “scholarship and teaching”) on a matter of public concern, and that student offense alone cannot justify retaliation by a public employer.  The Court emphasized that “debate and disagreement are hallmarks of higher education” and that “student discomfort with a professor’s views … is not grounds for the university retaliating against the professor.” 

In applying this First Amendment balancing, the majority found that the university failed to demonstrate that its interests outweighed Reges’s right to speak, noting that claimed disruptions were insufficient to overcome his First Amendment rights.  The Court directed that summary judgment be entered for Reges on his retaliation and viewpoint discrimination claims.

One judge on the three-judge panel of the Ninth Circuit, however, disagreed and wrote a dissent arguing the disruption to Indigenous students’ learning justified limiting Professor’s Reges’s speech.  (In addition, a prominent law professor, Erwin Chemerinsky, has taken issue with the majority decision in Reges, among other ways by criticizing the conclusion that a computer science professor’s parody land acknowledgement related to his scholarship and teaching, i.e., his academic field of computer science.  See Erwin Chemerinsky, 9th Circuit Expands 1st Amendment Protection for Professor’s Syllabus Speech – And Gets it Wrong, Daily Journal (Jan. 15, 2026).) [DU3] 

Conclusion:

What guidance can public agencies draw from decisions like these?  First, disruption and impact on an agency’s operations have significant importance in the third element for free speech protection, i.e., the balancing of interests.  Second, as articulated by the Court in Thompson how the speech at issue tends to undermine the employee’s particular role also has great importance: in that case, the assistant principal’s job was to uphold certain institutional values but the Court opined that the virulent Facebook statements imperiled his role in doing so, and this effect swayed the Court’s analysis in balancing.  By contrast, Professor Reges’s statements were arguably interpreted to be consistent with the role of a faculty member to challenge accepted thinking at times and to provoke debate (although one judge on the panel disagreed, using reasoning more aligned with the Court’s in Thompson).

Finally, at least for purposes of evaluating First Amendment protection, how the employee’s speech came to light did not figure prominently in the Court’s analysis in either case.  Ironically, the assistant principal did not in any way seek to promote his Facebook comments at the school and had a private account, whereas the university professor affirmatively promoted and publicized his statements to the community.  What mattered primarily to the Court in evaluating balancing was impact on the educational institution and ability of the employees to do their jobs.

First Amendment issues in employment require careful consideration.  Trusted legal counsel can help navigate challenges in this continually developing area of law.

 [DU1]https://law.justia.com/cases/federal/appellate-courts/ca9/24-5263/24-5263-2025-12-29.html

 [DU2]https://law.justia.com/cases/federal/appellate-courts/ca9/24-3518/24-3518-2025-12-19.html

 [DU3]https://www.dailyjournal.com/articles/389352-9th-circuit-expands-1st-amendment-protection-for-professors-syllabus-speech-and-gets-it-wrong

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Artificial intelligence (“AI”) has quickly evolved from an emerging technology into a tool that many employers use every day. Whether it is screening job applicants, drafting performance evaluations, summarizing workplace investigations, or assisting with policy development, AI is becoming increasingly integrated into public-sector operations.

California policymakers have taken notice. Earlier this year, Governor Gavin Newsom issued an Executive Order directing state agencies to evaluate AI’s anticipated effects on California’s workforce and to develop strategies to prepare workers, employers, and government for those changes. While the Executive Order primarily applies to state agencies, it reflects a broader policy trend: California is actively preparing for a future in which AI will play a significant role in the workplace.

Although the Executive Order does not impose new legal obligations on local public agencies, it provides a valuable reminder that public employers should begin evaluating how AI is being used within their organizations and whether appropriate policies and safeguards are in place.

AI Is Already Being Used in Public Employment

Generative artificial intelligence (“AI”) is increasingly becoming part of government operations. Public agencies are exploring AI tools to improve efficiency by assisting employees with routine administrative tasks, such as drafting documents, summarizing lengthy materials, synthesizing information, preparing internal reports, and organizing large volumes of data. In 2025, the U.S. Government Accountability Office reported that eleven federal agencies reported a significant increase in generative AI use to support internal operations and service delivery. State and local governments are similarly evaluating how these tools can enhance productivity and reduce administrative burdens. As AI becomes more widely integrated into commonly used workplace software, public employers should consider whether they have appropriate governance, training, and safeguards in place to ensure its responsible use.

California’s Policy Direction Is Becoming Clear

The Governor’s Executive Order focuses on understanding AI’s potential impact on California workers, identifying occupations that may be affected, and developing strategies to help workers adapt to technological change. It also calls for collaboration among state agencies, educational institutions, labor organizations, and industry stakeholders.

While these initiatives do not directly regulate local government employers, they send a clear signal that California intends to remain at the forefront of AI governance. Public employers should expect continued legislative, regulatory, and judicial developments addressing the use of AI in employment.

Indeed, California has already adopted regulations under the Fair Employment and Housing Act addressing the use of automated decision systems in employment decisions. As AI becomes more common in the workplace, agencies should anticipate increased scrutiny regarding how these technologies are selected, implemented, and monitored.

Human Oversight Remains Essential

One of the most important principles for public employers is that AI should assist—not replace—human judgment.

AI-generated content can be remarkably persuasive while still containing factual inaccuracies, incomplete analysis, or fabricated citations. For that reason, any AI-generated work product should be carefully reviewed by an employee with appropriate subject matter expertise before it is relied upon for decision-making.

This is particularly important when AI is used to assist with:

  • Personnel investigations;
  • Disciplinary recommendations;
  • Performance evaluations;
  • Hiring decisions;
  • Accommodation analyses; or
  • Legal research.

Ultimately, employers—not software—remain responsible for employment decisions.

Consider Confidentiality Before Using AI

Public agencies routinely handle confidential information, including personnel records, medical information, attorney-client communications, and sensitive investigative materials.

Before employees input information into any AI platform, agencies should understand:

  • Whether the platform stores submitted information;
  • Whether user data may be used to train future AI models;
  • What contractual privacy protections exist;
  • Whether the platform complies with applicable security requirements; and
  • Whether agency policies permit the use of the platform for confidential work.

Even where an AI platform offers enterprise-level security, employees should exercise caution when handling sensitive information on such platforms and follow applicable agency policies.

Review Existing Policies

Many agencies have not yet adopted formal AI policies. Nevertheless, employees may already be using publicly available AI tools, perhaps without management’s knowledge.

Now is an appropriate time to review existing policies and determine whether additional guidance is warranted.

An effective AI policy may address topics such as:

  • Approved and prohibited AI tools;
  • Protection of confidential information;
  • Required human review of AI-generated work;
  • Documentation and record retention;
  • Compliance with public records laws;
  • Procurement considerations; and
  • Employee training.

Clear expectations can help ensure that AI is used responsibly and consistently across the organization.

Engage Labor Relations Early

For represented employees, the implementation of AI may also raise collective bargaining considerations.

Depending on how AI is introduced, employers may need to evaluate whether implementation affects negotiable terms and conditions of employment, including workload, job duties, performance expectations, or workplace monitoring.

Even where management retains discretion to adopt new technology, bargaining obligations may arise regarding the effects of implementation. Consulting labor relations professionals early in the planning process can help agencies identify potential issues before implementation.

Preparing for What’s Next

AI technology is advancing rapidly, and California’s legal framework is evolving just as quickly. Rather than waiting for new legislation or litigation to define best practices, public employers should begin preparing now.

Among other things, agencies should consider:

  • Identifying where AI is currently being used;
  • Evaluating potential legal and operational risks;
  • Developing governance policies;
  • Training supervisors and employees on appropriate use;
  • Reviewing vendor contracts and data security protections; and
  • Monitoring new legal developments affecting AI in employment.

Looking Ahead

Artificial intelligence presents significant opportunities for California public employers. Used thoughtfully, AI can improve efficiency, streamline administrative tasks, and allow employees to focus on higher-value work. At the same time, the technology raises important questions regarding privacy, bias, transparency, labor relations, and legal compliance.

Governor Newsom’s recent Executive Order underscores that California is actively planning for AI’s impact on the workforce. While local public agencies are not the direct focus of that initiative, they would be well served by viewing it as an opportunity to assess their own AI practices. Agencies that establish thoughtful governance, maintain meaningful human oversight, and proactively address legal risks today will be better positioned to adapt as California’s regulatory landscape continues to evolve.

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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Some Employer-Employee Relations Resolutions are so old they were typed on a typewriter, copied on a mimeograph, photocopied for 30 years, scanned into a PDF, and then photocopied again for good measure. By the time we see them, the text is often at a 15-degree angle and appears to be bargaining over whether it wants to stay on the page. When the document looks like it’s been through impasse, mediation, fact-finding, and a small earthquake, it’s time for a comprehensive update.

For agencies subject to the Meyers-Milias-Brown Act (MMBA), an Employer-Employee Relations Resolution (EERR) serves as the framework governing labor-management relations. Government Code Section 3507 of the MMBA permits a local public agency to adopt reasonable rules and regulations for the administration of employer-employee relations.  Many agencies adopted these rules shortly after the MMBA was signed into law in 1968 – and have never updated them.

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

We hope this article inspires you to update your EERR or start from scratch with a fresh 2026 version. 

Your Agency’s Labor Relations Rulebook

An EERR is an agency’s labor-relations rulebook. While the content varies from agency to agency, an EERR can address a wide range of labor-relations procedures, including:

  • Procedures and criteria for handling recognition and representation changes, such as exclusively recognizing employee organizations, determination of appropriate bargaining units, unit modification, decertification, withdrawal of recognition, and more.
  • Employee organization rights, such as access to agency facilities and use of meeting space, access to represented employees, use of bulletin boards and communication systems, participation in employee orientations, release time for representational activities, and distribution of literature.
  • Meet-and-Confer and Impasse Procedures, such as notice requirements for negotiations, procedures for information requests, emergency bargaining procedures, declaration of impasse, impasse procedures such as mediation procedures, fact-finding procedures that reference the factfinding requirements and criteria of the MMBA, timelines and costs associated with impasse proceedings, and governing body hearings following fact-finding.
  • Labor Relations Administration, such as identification of management officials authorized to act on behalf of the agency in regard to labor relations matters, and maintenance of labor relations records.

State Labor Law Has Significantly Changed Since Disco Was Popular

Legislative changes have expanded employee and union rights under the MMBA, imposed new procedural obligations, and created additional bargaining requirements. For example:

  • PERB Jurisdiction: In 2001 under Senate Bill (SB) 739, enforcement of the MMBA was transferred to PERB. Prior to SB 739, a party seeking to enforce provisions of the MMBA had to seek relief directly in superior court. Jurisdiction gave PERB the authority to declare employee relations rules unreasonable and allowed PERB regulations to control when a local agency has no rule governing a particular situation.
  • Fact-finding: In 2011 under Assembly Bill 646, fact-finding was added to the MMBA as a mandatory impasse procedure subject to the union’s request.
  • Agency Shop Declared Unconstitutional: In 2018, The landmark U.S. Supreme Court decision in Janus v. AFSCME declared that agency fees in the public sector violate the First Amendment right to free speech.
  • Regulation of Dues Processing and Safeguards to Union Access: In direct response to the U.S. Supreme Court’s Janus v. AFSCME decision, California adopted SB 866 in 2018, which strictly regulated public-sector union dues authorizing and processing, safeguarded union access to new employees, and limited employer interference in union membership. It also expanded union rights during mandatory new employee orientations to guaranteed union access to present information to newly hired public workers.
  • Temporary Employee Rights: In 2024 under AB 1484, AB 1484 enhanced representational rights for temporary employees at California cities, counties, and special districts, allowing for automatic inclusion in bargaining units with permanent employees who perform the same or similar work, and mandatory bargaining requirements.
  • Annual Public Hearing Requirement on Staffing and Vacancies: In 2025 under AB 2561, the MMBA was amended to require public agencies to hold an annual public hearing on staffing and vacancies.
  • New Contracting Out Notice Requirements: In 2026 under AB 339, local public agencies are now required to give recognized labor unions at least 45 days’ written notice before outsourcing, renewing, or extending contracts for services that fall within the scope of work of represented employees.

An EERR that reflects a decades-old understanding of labor law may no longer accurately describe an agency’s obligations.

From Mimeographs to Microsoft Teams: Collective Bargaining in the Modern World

The evolution from mimeographs to platforms like Microsoft Teams encapsulates the transformation of collective bargaining processes over the decades, reflecting broader technological and cultural shifts in the workplace. Where once unions and management exchanged hard-copy proposals, scheduled face-to-face negotiations, and painstakingly distributed updates via printed materials, today’s stakeholders leverage digital communication tools to coordinate, share documents, and even negotiate in real time, sometimes across continents. This modernization facilitates transparency, broader participation, and rapid dissemination of information, although it also introduces challenges related to data security, the digital divide, and the preservation of confidential discussions. The integration of advanced technologies into collective bargaining underscores both the adaptability of labor relations and the critical need for parties to remain vigilant about privacy, inclusivity, and equitable access as the bargaining table expands into the virtual realm.

Many EERRs were drafted in an era when labor relations communications occurred through paper notices, physical bulletin boards, and hand-delivered correspondence. Collective bargaining has evolved from locked-door table talks and reams of paper to a digital landscape. We now have electronic communications, virtual negotiations and meetings, electronic service of notices, digital document exchange and recordkeeping, and remote and hybrid work arrangements. Your agency’s EERR should reflect these communication advancements. Updating the resolution allows agencies to incorporate modern communication methods and administrative practices.

Why an EERR that Predates PERB’s Jurisdiction Puts an Agency at a Disadvantage

An EERR contains rules for recognition of employee organizations, which give a local agency significant authority over the determination of an appropriate bargaining unit. Now that PERB has jurisdiction over the MMBA, where there are no local agency rules governing certain types of representational changes, (e.g., unit modification) PERB regulations control, and an agency must relinquish control to PERB for determination of an appropriate bargaining unit. Modernizing these provisions can help avoid confusion when representation issues arise, and ensure that your agency controls the decision-making process.

Bargaining Units May Change Over Time

Few agencies look the same as they did ten, twenty, or thirty years ago. Departments merge. New classifications are created. Existing classifications are eliminated. Supervisory and confidential positions evolve. An EERR should accurately reflect the agency’s current bargaining unit structure and clearly identify which classifications must be represented separately because they are management, confidential, or supervisory employees. A re-written EERR can provide greater flexibility to modify units which may be beneficial to management.

Be Aware of What an EERR Cannot Do

An EERR cannot waive, diminish, or override rights granted by the MMBA, PERB regulations, or other applicable laws, and rules must be reasonable. For example, an agency cannot use its resolution to eliminate bargaining obligations, restrict protected employee rights, or create procedures inconsistent with PERB’s jurisdiction.

The “Meet and Consult” Requirement

Government Code Section 3507 of the MMBA requires an employer to “meet and consult” with employee organizations before adopting and implementing local employment relations rules. The consultation required under Government Code section 3507 over employment relations rules is no different from the good faith meet and confer process; however, if the parties are unable to reach an agreement after meeting and consulting in good faith, the agency may unilaterally impose.

For many agencies, labor relations resolutions have not received a comprehensive review in decades. A thoughtful update provides an opportunity to align the document with current law, modern labor relations practices, and the agency’s operational needs.

If your EERR was drafted before email was invented, before PERB assumed its current role under the MMBA, or before anyone in the organization can remember where the original signed copy is located, it may be time for a fresh look. Even absent a specific legal issue, periodic review of an employer-employee relations resolution is good governance. 

HAVE WE CONVINCED YOU?  Are you inspired to make 2026 the year you get a new EERR?  Reach out to your trusted legal advisors for assistance.

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Public agencies in California face ongoing challenges to keep their personnel rules current with evolving legal requirements. Summer offers an ideal opportunity to review and update these rules. Over the past few years, LCW attorneys have identified several key areas where updates are needed in almost every public agency’s personnel rules. Addressing these areas now can help agencies ensure compliance, reduce risk, and stay ahead of potential legal issues in the year ahead.

1. Outdated Family and Medical Leave Definitions

Since 2020, the legislature has updated the California Family Rights Act (“CFRA”) definitions. CFRA now includes siblings, adult children, grandparents, grandchildren, and individuals related by blood or whose association is equivalent to a family relationship (referred to as a “designated person”).

Personnel rules should clearly distinguish between the Family and Medical Leave Act (“FMLA”) and CFRA definitions of “family member.” Without this clarification, agencies risk denying eligible leave, misclassifying the type of leave, or applying outdated eligibility standards.

2. Missing Reproductive Loss Leave

As of January 1, 2024, California employers must provide up to five days of reproductive loss leave under Labor Code section 12945.6. This leave covers events such as miscarriage, stillbirth, failed adoption, failed surrogacy, or unsuccessful assisted reproduction.

Many personnel rules still do not reflect this leave entitlement or offer any procedural guidance. Omitting reproductive loss leave puts agencies out of compliance and leaves Human Resources staff and supervisors without clear direction when these situations arise.

 3. Overly Broad and Vague Grievance Procedures

Grievance procedures often present two problems. First, they allow employees to file grievances over nearly any workplace matter, including issues beyond management’s purview and control. Second, they lack clear procedural steps and timelines, or include language so complex or detailed that it becomes nearly impossible to follow.

Agencies should keep these procedures practical. Define grievable matters appropriately, and ensure the steps are straightforward and realistic. The grievance process should protect employee rights without creating unmanageable administrative burdens.

 4. Undefined Workweek Start and End Times

Many personnel rules do not define the agency’s workweek, which creates uncertainty when calculating overtime and complying with the Fair Labor Standards Act (“FLSA”). Without a clearly defined workweek, agencies risk miscalculating overtime and may be exposed to wage claims or liability for back pay.

Because agencies may include FLSA-related information in their Memorandums of Understanding (MOUs), they often assume the information is covered. However, MOUs frequently address schedules and overtime rules without explicitly defining the start and end of the workweek. This assumption results in the issue being overlooked. To avoid confusion and ensure consistent application, we recommend that agencies clearly establish the workweek for all employee groups, whether in the personnel rules, the MOU, or both.

 5. Harassment, Discrimination, and Retaliation Policy

The Fair Employment and Housing Act (“FEHA”) requires all employers to maintain a harassment, discrimination, and retaliation prevention policy that includes specific content. These requirements include reporting procedures, defined protected classifications, employee and supervisor obligations, and notice about employees’ rights to file complaints with outside agencies.

Personnel rules must identify the Equal Employment Opportunity Commission (“EEOC”) and the California Civil Rights Department (“CRD”) and include contact information for each organization. Despite the CRD changing its name from the Department of Fair Employment and Housing (“DFEH”) in 2021, many personnel rules still use the outdated name. Agencies should review their policies and update these references as needed, and agencies should confirm that policies meet the current legal standards outlined by the CRD. Utilizing the outdated agency name signals to employees that the agency is not maintaining and updating its policies.

Agencies also frequently include designations in their lists of protected classifications that are not required by law. For example, some policies include “political beliefs” as a protected classification. Including classifications beyond those required by applicable law may create additional obligations and increase the risk of disputes, especially when relating to highly charged topics.

6. Outdated Sick Leave Policy

Numerous times in the most recent several years, the California legislature has amended employers’ obligations to provide sick leave. The most significant amendment, in January 1, 2024, was to increase employees’ entitlement to a minimum of 40 hours or 5 days per year. It allows employers to maintain the accrual method of 1 hour per 30 hours worked, but if utilizing an alternative accrual method, employers must provide at least 24 hours by the 120th day of employment and 40 hours by the 200th day of employment. In 2025, AB 2499 expanded sick leave protection to make it available to employees who are victims or whose family members are victims of a “qualifying act of violence,” significantly broadening the circumstances when leave can be used. Finally, AB 406, effective October 1, 2025, clarified that sick leave may be used for specific purposes such as jury service, subpoenaed witness appearances, violence-related relief, and, beginning January 1, 2026, certain crime-victim judicial proceedings. Staying up to date with permitted sick leave uses and allowances is critical to avoiding liability.

Conclusion

Personnel rules serve as the guiding posts of agency operations and employee relations. When agencies fail to keep these rules current, they increase the risk of noncompliance, confusion, and costly disputes. Summer provides valuable time for public employers to review and update their rules in light of recent legislative changes and evolving workplace needs. Regular review and careful revision help ensure that personnel rules remain a reliable and defensible resource for agencies amidst an ever-changing legal landscape.

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Most employers know the value of an exit interview. When an employee resigns, agencies often ask why they are leaving and what could have been done differently. The problem, of course, is that by the time an exit interview takes place, the employee has already decided to move on.

What if agencies asked those questions before employees started looking for the exit?

That is the idea behind a “stay interview”: a conversation with a current employee designed to better understand what keeps them engaged, what challenges they are experiencing, and what might cause them to leave. “Stay interviews” can provide valuable information that agencies can use to improve employee satisfaction and reduce turnover.

This post describes these types of interviews, including their numerous benefits, and concludes with a discussion of some of the legal considerations employers need to navigate in conducting them.

Why Stay Interviews Matter

Finding qualified candidates has become increasingly difficult in many fields, particularly public safety, public works, information technology, and other specialized areas.

At the same time, agencies may overlook one of the most effective retention tools available: asking current employees about their workplace experience before they become dissatisfied enough to leave. Unlike performance evaluations, stay interviews are not intended to assess employee performance. Instead, they are an opportunity for agencies to learn what employees value about their jobs and what improvements might encourage them to remain with the organization.

Even if an agency cannot address every concern, simply asking employees for feedback can demonstrate that leadership is interested in understanding their experiences.

What Should Agencies Ask?

A stay interview does not need to be lengthy or formal. In many cases, a supervisor or manager can conduct a brief conversation focused on a few key questions.

Examples include:

  • What do you enjoy most about your job?
  • What makes your work challenging or frustrating?
  • What motivates you to stay with the agency?
  • Are there skills or experiences you would like to develop?
  • What could the agency do to better support you?

The goal is not to collect perfect data. The goal is to identify trends and opportunities for improvement before retention issues become resignation letters.

Listen for Themes, Not Just Individual Concerns

Looking for recurring themes can help agencies identify issues that may be affecting morale across departments or classifications.

Stay interviews can also help agencies identify strengths. If employees consistently highlight supportive supervisors, meaningful work, or positive workplace culture, leadership can focus on preserving those qualities.

Set Realistic Expectations

One of the biggest mistakes agencies can make is treating a stay interview as a promise session.

Employees may raise concerns that the agency cannot immediately address due to budget constraints, operational needs, collective bargaining obligations, or other considerations. Supervisors should avoid making commitments they may not be able to fulfill. Instead, supervisors can acknowledge concerns, explain that feedback will be considered, and communicate honestly about what changes may or may not be possible.

Employees are often more interested in being heard than receiving an immediate solution.

Public Agencies Should Consider Labor Relations Issues

For public agencies with represented employees, stay interviews may raise labor relations considerations that are not present in a typical exit interview. Before launching a stay interview program, agencies should consider whether the program or the topics discussed could trigger obligations under the Meyers-Milias-Brown Act (“MMBA”) or other applicable public sector labor relations laws.

One concern is the risk of “direct dealing” with represented employees. If stay interviews are used to solicit employee input regarding wages, hours, benefits, working conditions, or other negotiable subjects, employee organizations may argue that the agency is bypassing the union and communicating directly with represented employees about matters that should be addressed through the collective bargaining process. Agencies should consider discussing the purpose and structure of any stay interview program with the applicable employee organization before implementation and consult counsel regarding any bargaining obligations.

Agencies should also be careful not to create the appearance that employees are being pressured to disclose their views regarding union activities, labor relations issues, or workplace concerns. Questions that employees perceive as coercive or as seeking information about protected concerted activity could create unnecessary labor relations issues. Supervisors conducting stay interviews should receive guidance on appropriate topics and understand how to respond if discussions turn to union-related matters.

Finally, although stay interviews are intended to focus on employee engagement and retention, conversations do not always go as planned. If an interview begins to focus on alleged misconduct, performance deficiencies, or other matters that could reasonably lead to discipline, agencies should be mindful of potential Weingarten rights. Specifically, in represented workplaces, employees may have the right to union representation during an investigatory interview that the employee reasonably believes could result in disciplinary action. Supervisors should understand when a stay interview may be shifting into a different type of conversation and seek guidance as appropriate. (In addition, for public safety officers and firefighters, stay interviews can carry the same type of risk under the Public Safety Officers Procedural Bill of Rights Act (POBRA) and the Firefighters Procedural Bill of Rights Act (FOBRA) respectively. These risks primarily arise when such interviews could be construed as interrogations or investigations that might lead to punitive action, and thus give to rise to procedural protections.)

Remember That Some Issues Require Follow-Up

Although stay interviews are intended as retention tools, they may uncover issues that require additional attention. For example, an employee may report concerns involving harassment, discrimination, workplace safety, or other issues that trigger agency obligations to investigate or take corrective action. Supervisors conducting stay interviews should understand when concerns need to be elevated through established reporting channels.

Agencies may also wish to provide guidance or training to supervisors before implementing a stay interview program to ensure conversations are conducted consistently and appropriately.

Start Small

A stay interview program does not need to be complicated. The most important step is simply creating opportunities for employees to share feedback before they decide to leave.

While exit interviews can help agencies understand why employees left, stay interviews may help agencies learn what they can do to encourage employees to stay. Stay interviews give agencies an opportunity to identify concerns, strengthen employee engagement, and improve retention before turnover occurs.

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