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With the enactment of SB 1137, California has explicitly recognized “intersectionality” under the Fair Employment and Housing Act (FEHA) and related statutes: or the idea that in certain instances, discrimination is not based solely on one trait, but rather based on the combination of two or more protected characteristics. Intersectionality is an analytical framework for understanding how different forms of inequality operate together, exacerbate each other, and can result in amplified forms of prejudice and harm. For example, under the intersectionality framework, an employee might claim discrimination on the basis of the intersection of gender, national origin, and disability status, rather than any one trait alone.

Traditionally, discrimination claims are framed around one trait at a time: sex discrimination, race discrimination, age discrimination, and so forth. Intersectional claims, however, recognize that discrimination often arises because of overlapping traits. Courts have acknowledged this reality, holding that bias can target the unique intersection of identities—as in Lam v. University of Hawai‘i, 40 F.3d 1551, 1561-62 (9th Cir. 1994), where the court recognized that discrimination against an Asian woman could not be understood merely as discrimination based on sex or race alone.

For example, an employee might allege that she was passed over for promotion not simply because she is a woman (sex discrimination) or because she is Black (race discrimination), but because of the intersection of those two characteristics—the unique stereotypes or assumptions attached to her identity as a Black woman.

Practical Take-Aways for Public Agencies

Employees may now frame claims that reflect the unique ways bias operates at the crossroads of identity categories—such as being both a woman and a person of color, or an older and disabled employee. For employers, including public agencies, this means reviewing policies, training, and documentation practices through a more nuanced lens. Public employers should anticipate that intersectional logic could extend to harassment, retaliation, and failure-to-accommodate claims, especially when multiple protected characteristics interact.

To that end, public agency employers should:

  • Update policies and procedures: Ensure that nondiscrimination policies expressly acknowledge that discrimination can occur based on a combination of traits. This clarification reflects the intent of SB 1137 and may strengthen an agency’s compliance posture.
  • Train supervisors and Human Resources: Supervisory and HR staff should understand that when employee experiences involve overlapping protected traits, disciplinary or evaluative decisions may carry heightened risk of being perceived as discriminatory or retaliatory. Training should emphasize careful documentation and consultation before acting.
  • Review complaint-handling protocols: Investigators should be aware of the possibility for potential patterns of bias that stem from the intersection of traits, for example, analyzing whether older women or employees of a particular race and gender combination are affected differently.
  • Reevaluate equity and inclusion programs: Consider how existing DEI or equal-employment initiatives address intersectional concerns. Programs that focus on one trait at a time may need to broaden their lens to reflect the realities SB 1137 codifies.
  • Document consistently: When taking adverse action, ensure that the reasons are legitimate, nondiscriminatory, and supported by contemporaneous evidence.
  • Consult counsel early: Intersectional claims often involve subtle factual and perception-based issues. Early involvement of legal counsel can help agencies assess risk, navigate investigations, and craft appropriate responses.

In conclusion, under recent California legal updates, for public agencies such as cities, counties, schools, and special districts, SB 1137 signals an important evolution in workplace equity obligations. Public agencies must be prepared for employees to assert claims that involve complex combinations of characteristics, and for investigators, arbitrators, and courts to analyze those claims more holistically.

Agencies should recognize that bias or adverse treatment may not always be evident when traits are considered separately—but may emerge when viewed together. Supervisors, HR professionals, and counsel should be trained to identify, document, and address these patterns early.

Trusted legal counsel can help public agencies stay compliant, proactive, and protective of employee rights by providing expert guidance on responding to intersectional discrimination claims.

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Senate Bill 627, also known as the No Secret Police Act (“Act”) was signed by Governor Newsom on September 20, 2025. The Act takes effect on January 1, 2026; an urgency clause in a prior version of the legislation that would have made it effective immediately was not included in the final version.

Penal Code Section 185.5 – Prohibition on Facial Coverings

Newly enacted Penal Code Section 185.5 prohibits peace officers employed by a city, county, or other local agency, federal law enforcement officers, and law enforcement officers of another state, from wearing a facial covering that conceals or obscures their facial identity while performing their duties in California. The Act excludes SWAT team duty, authorized undercover operations, tactical operations where protective gear is required for physical safety, and where applicable occupational health and safety regulations require.

The definition of facial covering does not include the following:

  • Translucent or clear masks
  • Motorcycle helmets
  • Eyewear to protect against retinal weapons
  • N95 medical or surgical masks
  • Breathing apparatuses necessary to protect against toxins, gas, and smoke
  • Masks to protect against inclement weather, or
  • Masks for underwater operations.

Penal Code section 185.5 makes it a misdemeanor to knowingly and willfully violate this prohibition.  Further, any officer found to have committed certain enumerated torts while wearing a facial covering in knowing and willful violation of the statute is not entitled to assert any privilege or immunity in a civil action, and is liable for the greater of actual damages or statutory damages of no less than $10,000.

Government Code Section 7289 – Mandatory Agency Policy

The Act also creates Government Code section 7289, which requires any law enforcement agency operating in California to maintain and publicly post a written policy limiting the use of facial coverings by July 1, 2026.

The policy must contain a requirement that all sworn personnel not use a facial covering when performing their duties, with narrowly tailored exemptions for:

  • Active undercover operations or assignment authorized by supervising personnel or court order
  • Tactical operations where protective gear is required for physical safety
  • Applicable law governing occupational health and safety
  • Protection of identity during prosecution, and
  • Applicable law requiring legal accommodations.

Agency policies must also include a “purpose statement” affirming the agency’s commitment to all of the following:

  • Transparency, accountability, and public trust,
  • Restricting the use of facial covering to specific, clearly defined and limited circumstances, and
  • The principle that generalized and undifferentiated fear and apprehension about officer safety shall not be sufficient to justify the use of facial coverings.

Even where an exemption applies, the policy must require that opaque facial coverings shall only be used when no other reasonable alternative exists, and the necessity is documented.

Agency policies must also prohibit a supervisor from knowingly allowing a peace officer under their supervision to violate state law or agency policy regarding face coverings.

A written policy that meets these minimum requirements shall be deemed consistent with the Penal Code section 185.5, unless a verified written challenge to its legality is submitted by a member of the public.  Upon receipt of the verified written challenge, the agency shall be afforded 90 days to correct any deficiencies, and if it fails to do so, the complaining party may challenge the written policy in court.

The criminal penalties in Penal Code section 185.5 will not apply to any law enforcement officer if they act in their capacity as an employee of the agency and the agency maintains and publicly posts a written policy no later than July 1, 2026.

Agencies are encouraged to get an early start on drafting their policies. The requisite agency policies will likely be subject to impacts meet and confer requirements with labor groups representing sworn employees, specifically in relation to workplace safety as well as other impacted terms and conditions of employment. Agencies should plan ahead to ensure that the impacts meet and confer process is completed before July 1, 2026. If an agency fails to have a compliant policy by that date, then a member of the public or an oversight body or governing authority can challenge that deficiency. Further, timely adoption of a policy can protect an agency’s officers from the criminal provisions of Penal Code section 185.5.

Further Legislation and Court Challenges Expected

In his signing message, Governor Newsom requested that the Legislature adopt follow-up legislation when it returns in January to ensure that law enforcement operations are not compromised. The Governor specifically stated that he reads the statute to permit the use of motorcycle or other safety helmets, sunglasses, or “other standard law enforcement gear not designed or used for the purpose of hiding anyone’s identity,” but requested that the Legislature provide additional exemptions for legitimate law enforcement activities and remove unnecessary liability for officers who carry out their duties in good faith. He further stated that follow-up legislation should remove any uncertainty or ambiguities around its scope.

The federal government is expected to challenge the statute’s applicability to federal officers, specifically whether the state has the constitutional authority to impose restrictions on federal law enforcement. Shortly after the bill was signed into law, officials with the Department of Homeland Security and Department of Justice indicated their agencies will not comply with the mask ban, calling it unconstitutional under the Supremacy Clause of the United States (U.S.) Constitution and stating that the United States Congress must take formal action to subject federal agents to the no-masking provision of SB 627.

This brings to the forefront the question of the legal ability of local peace officers to enforce the new law against federal law enforcement officers. Legal experts are divided on the constitutionality of the law’s restrictions on federal agents, and this issue will play out in the courts. Some legal scholars assert that state and local authorities have no power to arrest federal officers for official actions. This assertion is based on the seminal U.S. Supreme Court case In re Neagle, which involved a Deputy U.S. Marshal fatally shooting a former California Supreme Court justice who was physically attacking a sitting United States Supreme Court Justice. The Court ruled that the Supremacy Clause grants federal officers immunity from state prosecution when acting in their official capacity under a law of the United States. A likely effect of the Supremacy Clause is that a uniform regulation enacted by a State cannot bind federal agents. (In re Neagle (1890) 135 U.S. 1 at 75).

The statutory text states that the provisions of the Act are severable, so that if any provision, such as applicability to federal officers, is held invalid, the rest of the provisions will remain in effect. LCW will provide an update if any court decision impacts the applicability of these laws to local agencies.

Please reach out to your trusted legal advisors with any questions and for more guidance on SB 627.

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Money Knack, Unsplash

Can a public agency deduct an overpayment directly from an employee’s paycheck without running afoul of the Labor Code?  Two recent cases shed new light on this long-debated issue.  In Stone v. Alameda Health Sys., (2024) 16 Cal. 5th 1040, and Bath v. State of California (2024) 105 Cal.App.5th 1184, California courts confirmed that the Labor Code does not apply to public employers unless the statute clearly says so.  This reasoning casts doubt on whether Labor Code section 221, which prohibits employers from collecting or receiving any portion of wages already paid to an employee and section 224, which permits an employer to withhold or divert any portion of an employee’s wages when required by law, expressly authorized in writing by the employee, or authorized by a collective bargaining agreement, apply to public agencies at all.  For HR professionals and payroll administrators, these rulings create both opportunities and risks that demand attention.

In Stone, the California Supreme Court held that Labor Code provisions apply only to private employers unless the statute expressly provides otherwise.  Looking at the plain language of Labor Code sections 221 and 224, which address overpayments, these statutes do not expressly provide that they apply to public employers.

Shortly after Stone was decided, the Court of Appeal applied the same reasoning in Bath.  There, the court held that Labor Code section 222, which is located in the same chapter as sections 221 and 224, does not apply to public employers because the statute contains no express reference to them.  Section 222 makes it unlawful for an employer to withhold any portion of wages that have been agreed upon in a collective bargaining agreement.  By extending the reasoning in Stone, the Bath decision strongly suggests that other wage payment provisions within the same chapter, including sections 221 and 224, may also be inapplicable to public agencies.

What this means for overpayments and recoupments

In light of Stone and Bath, there is a strong argument that Sections 221 and 224 of the Labor Code do not apply to public employers. If so, public agencies may have greater flexibility to address overpayments.

However, the issue is far from settled. No appellate court has directly addressed whether sections 221 and 224 are inapplicable to public agencies. Until such a decision arrives, or the Legislature clarifies the issue, uncertainty remains.  Even if the statutes are not technically binding, there is a strong public policy in California disfavoring “self-help” actions by employers, such as unilaterally deducting wages without employee authorization. Ignoring this risk can invite litigation on public policy or other grounds, despite the favorable direction of the law.

Practical Guidance for Public Agencies

Even with favorable court rulings, public agencies should proceed cautiously. The safest approach is to notify the employee of any overpayment and seek a written repayment agreement. If the employee refuses to repay or breaches the agreement, the agency should consider pursuing recovery through the courts, rather than deducting directly from wages. This approach minimizes exposure to legal claims and reinforces commitment to lawful, respectful employment practices.

Conclusion: Proceed with Caution, Not Assumption

Public agencies should take this moment to review their wage deduction policies, train staff on best practices, and consult with trusted legal counsel to ensure their approach aligns with both the latest case law and sound employment practices.  Proactive steps now can help your agency avoid costly disputes later.

The legal standard may be evolving, but prudence and transparent communication remain the best foundation for public agency employment practices.

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Artificial intelligence (AI) and other automated decision systems (ADS) are becoming more common in public sector hiring. Resume screeners, video interview platforms, and other algorithmic tools promise efficiency—but they also bring legal risk.

Starting October 1, 2025, new regulations under the Fair Employment and Housing Act (FEHA) will go into effect. These rules clarify how FEHA applies to AI and ADS in employment decisions, with the goal of preventing discrimination.

The Legal Framework: FEHA and Automated Decision Systems

FEHA prohibits employment discrimination on the basis of protected characteristics such as race, gender, age, disability, religion, and more. The new regulations make clear that this prohibition extends to AI and ADS tools used in hiring, promotion, and other employment decisions.

Key points include:

  • Disparate impact counts: Even if bias is unintentional, employers can be liable if an ADS disproportionately excludes a protected group.
  • Examples of risk: Tools that screen applicants by schedule availability, assess reaction times, or analyze speech or facial expressions in virtual interviews, may disadvantage individuals with disabilities, religious obligations, or language differences.
  • Pre-employment inquiries: Pre-employment inquiries limits under FEHA also apply to inquiries made through ADS.
  • Liability extends to agents: If an outside vendor or recruitment partner uses a discriminatory ADS on your behalf, your agency is still responsible under FEHA.
  • Recordkeeping required: Employers must retain records of ADS use—including data, selection criteria, and employment decisions—for at least four years.
  • Bias testing is encouraged: While not mandatory, anti-bias testing and proactive efforts, such as self-auditing, can support a defense if a claim arises. Recency, scope, and quality of such efforts will be considered.

You can view the full regulations through the California Civil Rights Council’s official announcement here.

Why This Matters for Public Agencies

Public agencies face unique scrutiny in hiring because of the expectation of fairness and transparency in government employment. These new rules emphasize that automated tools are subject to the same anti-discrimination standards as human decision-makers.

Agencies must balance the benefits of efficiency with the obligation to maintain equal opportunity. Failure to comply could result in litigation, reputational harm, and reduced public trust.

Practical Steps Toward Compliance

Agencies can continue to use AI and ADS technology in hiring, but steps should be taken to ensure compliance with FEHA.

1. Inventory and Assess AI Tools

  • List all automated tools used in recruitment, hiring, and decisions regarding pay, benefits, or leave.
  • Determine whether each tool directly or indirectly screens candidates.

2. Audit for Bias

  • Test for disparate impact on protected groups.
  • Request documentation from vendors showing validation studies and fairness testing.

3. Update Policies and Vendor Contracts

  • Require vendors to certify FEHA compliance.
  • Ensure contracts include shared responsibility for compliance.
  • Clarify that human review supplements automated results.

4. Strengthen Recordkeeping

  • Retain ADS-related records for at least four years, including data, selection criteria, and outcomes.
  • Document all compliance steps to establish a paper trail of diligence.

5. Train HR and Hiring Teams

  • Educate staff about the limitations and risks of AI hiring tools.
  • Provide guidance on recognizing and addressing potential bias.

6. Provide Transparency and Accessibility

  • Ensure accessible processes for individuals with disabilities.
  • Offer accommodations or alternative application methods when needed; this includes both disability-related and religious accommodations.

AI and automated decision systems will continue to shape the future of hiring, but compliance with FEHA remains essential. Please reach out to your trusted legal counsel if your agency needs assistance in navigating the new FEHA regulations.

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The One Big Beautiful Bill Act (“OBBBA”), approved by Congress and signed into law by President Trump on July 4, 2025, created a new, federal overtime tax deduction that employees can claim on their federal tax returns. The tax deduction applies retroactively to the beginning of 2025 and will terminate on December 31, 2028, unless extended. 

What is Federal Overtime?

The new tax deduction only applies to federally mandated overtime pay. Under the federal Fair Labor Standards Act (“FLSA”), non-exempt employees must be paid overtime pay at a rate of 1.5 times their “regular rate” of pay for all hours actually worked beyond a specified number within a designated work period, usually forty hours in a seven-day work period for non-safety employees.

The “regular rate” of pay required by the FLSA includes various items of compensation provided to an employee for services to the employer, beyond just the base rate of pay. Generally, unless an item of compensation is expressly excluded by statute, it must be included when calculating the overtime rate.  Examples of items that must be included are longevity pay, education pay, certificate pay, and standby pay.

Because “qualified overtime compensation” under the OBBBA is determined by the FLSA, any non-FLSA overtime would not qualify for the deduction. Non-FLSA overtime is overtime such as overtime required solely by the California Wage Orders or contractual overtime under collective bargaining agreements. For example, the FLSA does not require daily overtime, (overtime paid for hours worked over eight in a workday), minimum call back time, extra pay for time worked on holidays, or overtime compensation paid to employees who are exempt from the overtime requirements. These premiums are often provided by collective bargaining agreements or personnel policies. Similarly, although the FLSA only counts hours actually worked towards the overtime threshold, many employers more generously count accrued paid time off as hours worked when calculating the overtime threshold.

Since employees are paid based on the more generous overtime rules adopted by the employer, employers’ payroll systems typically do not differentiate between overtime mandated under the FLSA and the more generous overtime calculation provided under the employer’s policy or bargaining agreements. Many employers have not tracked overtime required under the FLSA separately from non-FLSA overtime.

Employers Must Now Track and Report Federal Overtime Separately.

Since the new tax deduction only applies to FLSA overtime, employers must now separately track overtime required under the FLSA from overtime paid under more generous rules, but not mandated under the FLSA. Payroll systems will be required to track two types of overtime, rather than lumping all types of overtime together.

Starting with tax year 2025 W-2 forms, employers must track and report federal qualified overtime compensation separately so that eligible, non-exempt employees can claim a deduction for federal income tax when filing their federal income tax return.

Only overtime compensation paid to an individual required under the FLSA that is in excess of the regular rate is factored into the deduction amount. The Internal Revenue Service (“IRS”) has interpreted this provision to mean that only the half-time premium portion of time-and-a-half compensation qualifies for the deduction amount. For example, if an employee earns a regular rate of $40 an hour, their FLSA overtime rate would be $60 an hour ($40 x 1.5). Assuming the employee actually, physically worked a total of 50 hours in a seven-day work period, ten hours would be overtime under the FLSA and the employer would owe the employee a total of $600 in overtime pay. However, only $200 (i.e., the half portion in time-and-a-half) qualifies for deduction reporting purposes.

The OBBBA allows an individual whose modified adjusted gross income does not exceed $150,000 to take a maximum overtime deduction of $12,500. If individuals file a joint return and their modified adjusted gross income is less than $300,000, then the maximum overtime deduction is $25,000. The deduction is subject to an income-based phase-out if income exceeds these amounts.

Employers Can Use a Reasonable Method to Approximate FLSA Overtime Up to This Point.

For the 2025 tax year, employers are permitted to approximate a separate accounting of amounts designated as qualified overtime compensation by any reasonable method specified by the Secretary of the Treasury. The separate accounting method used should be documented and retained in the event of a future IRS audit. 

Employers are required to report the total amount of qualified overtime compensation as a separate line item on a W-2 Form or any other specified statement furnished to the individual. Following the previous example, if an employee earns a total of $600 in overtime and only $200 qualifies for the deduction, then employers will need to implement a method that separately records only the overtime amount that qualifies (i.e., the $200).

The IRS has also stated that it will provide transition relief for employers. Because the Secretary of Treasury and the IRS have yet to provide official guidance, W-2 Forms and other payroll forms, and federal income tax withholding tables will remain unchanged for the 2025 tax year.

Employers can expect the IRS to provide withholding procedures for the taxable years following December 31, 2025. For the 2026 tax year, the IRS published a draft W-2 with instructions for employers to use the code “TT” in Box 12 to report qualified overtime compensation.  However, this draft W-2 is for next year and not for 2025 reporting. The IRS and the Treasury Department are expected to provide additional guidance for both reporting entities and individual taxpayers.

Employers May Decide to Negotiate Different Pay Rates for Non-FLSA Overtime.

Previously, different rates of pay for different types of overtime may not have been practical for payroll purposes. However, new federal overtime tracking requirements have changed the landscape in regard to different pay rates. While the FLSA mandates overtime pay at an employee’s regular rate of pay, if a public agency negotiates to pay contractual overtime above and beyond FLSA requirements, payment of the regular rate is not required for non-FLSA overtime. Public agencies looking to save money can consider adopting a straight time rate, 1.5 times base pay, or even 1.5 times minimum wage rather than using the higher regular rate to calculate non-FLSA overtime. Such changes would be subject to meet and confer requirements for represented employees.

Employers Should Review Their Overtime Practices.

Employers must review their practices and agreements related to the payment of overtime.  Employers must isolate and determine which overtime is required under the FLSA and which overtime is based on state, local, or contract provisions not mandated by the FLSA.  For example, overtime paid for working on holidays, overtime based on the inclusion of paid leaves, and minimum call back time at the overtime rate that does not qualify as overtime under the FLSA must be tracked separately from overtime required under the FLSA.

LCW recommends that agencies continue to follow guidance from the Secretary of Treasury and the IRS to navigate new reporting requirements for the current and future years. Agencies should begin taking steps to identify and isolate overtime required under the FLSA.

Trusted legal advisors can assist with questions about compliance with the new federal overtime deduction and identifying FLSA mandated overtime.

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

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This article was reviewed in September 2025 and is up-to-date.

Many times, parties to a lawsuit receive trial court rulings in the midst of the litigation that are unfavorable, oppressive, and seem to them to be demonstrably wrong.  The parties want to appeal immediately, but their counsel will say that cannot happen, citing the “Final Judgment Rule.”  The rule certainly sounds dark and fateful.  Perhaps courts intend it to be, because the rule serves to deter disgruntled litigants from appealing while the trial court case is ongoing, and typically requires those litigants to wait months, or even years, to appeal.  So what is this rule?  And perhaps more importantly, what are ways to gain access to an appellate court early without offending it?

The Final Judgment Rule (sometimes called the “One Final Judgment Rule”) is the legal principle that appellate courts will only hear appeals from the “final” judgment in a case.  A plaintiff or defendant cannot appeal rulings of the trial court while the case is still ongoing.  For example, a party that loses its motion to compel discovery, motion for summary judgment, or demurrer cannot appeal these decisions, at least not until a final judgment has been entered in the case, concluding the lawsuit in the trial court.  The Final Judgment Rule has existed for hundreds of years, and serves the purpose of promoting judicial efficiency – cases would practically never end if the party who lost a motion while the case was pending could appeal it, wait for a decision from the court of appeal, and then continue with the trial court case.

Moreover, the Final Judgment Rule greatly reduces appellate court workloads by tending to make it so that only very important issues are ultimately presented to those courts.  If a party loses a motion early in the trial court case, they may certainly feel wronged.  But in the weeks or months afterward, the case may settle, the issue may fade in importance, or the trial court might actually decide to change the ruling, making appellate review unnecessary.  Postponing review conserves appellate court resources, and those of the parties as well.  In addition, postponing appellate review allows the appellate court to rule on all the challenges to the trial court’s decisions at the same time, thereby further promoting efficiency.  The appellate court will not have to consider “piecemeal” appeals.

The Final Judgment Rule may make sound policy sense.  But it is not much comfort to a litigant who has lost an important motion in court many months before the actual trial will start and cannot immediately appeal the bad ruling.

There are, however, some ways around the Final Judgment Rule.  Here are examples of four significant ways, and the circumstance under which each is available.

  1. Petition for Writ of Mandamus:

This is the classic method for obtaining relief while a litigation matter is still ongoing.  This type of petition to an appellate court seeks a “writ of mandamus” (sometimes also called a “writ of mandate”), essentially an order from the appellate court to the trial court directing it the trial court to change its decision or take some other action.  This type of writ is available in both federal and state courts.

The advantage of a petition for writ of mandamus is that it is available to overturn essentially any ruling or order made by a trial court, even though the lawsuit is still ongoing.  The disadvantage of this type of petition, however, is that it is entirely discretionary in the court of appeal.  The court of appeal is free to turn down any writ petition, even one that clearly has merit, and the court of appeal denies the overwhelming majority of petitions for writ of mandamus seeking review of trial court orders.  The state court percentage of accepted petitions is low and the number is even lower in federal court.  The reason these writs are so often denied on this summary basis (i.e., without even considering whether they raise a valid legal point) is that courts of appeal rarely see any reason to depart from the underlying principles of the Final Judgment Rule.

There are particular types of scenarios in which appellate courts are more likely to decide a writ on the merits.  One is when issues of privilege or confidentiality are concerned.  For example, when a trial court orders a litigant to disclose sensitive personnel records of individuals or information in which the litigant claims attorney-client privilege, the need for appellate review is immediate.  If the litigant obeys the trial court’s order, then the disclosure will be made, and the alleged harm done, before any appellate court can determine whether the trial court’s ruling in fact was correct.  It is widely understood that in these scenarios, appellate courts will more likely choose to intervene in the midst of litigation.

Another example is when the issue raised by the writ petition is one of great public importance, and when the party who files the petition can persuade the court that the public would be well served by the appellate court immediately reviewing and providing guidance on that particular issue without waiting for the case to conclude.

  1. A Preliminary Injunction Ruling:

The parties can also immediately appeal a trial court’s ruling granting or denying injunctive relief.  Trial courts have the power to issue preliminary injunctions at the beginning of a case that can operate to preserve the status quo.  For example, a trial court can order that a public college must stop enforcing a rule that supposedly stifles student First Amendment free speech rights.  Trial courts can make these orders based on an initial showing by the plaintiff, at the beginning of the case, that they are likely to succeed on the merits of their claim, that they are likely to suffer irreparable harm if the preliminary injunction is not granted, and that general equities and the public interest support issuance of the injunction.

Not only are these types of orders for injunctive relief by trial courts (either granting or denying) immediately appealable, but in the federal appellate courts, appeals of injunctions are given priority over other types of cases.

  1. Rulings on Anti-SLAPP Motions:

An immediate appeal is also available from a state trial court’s ruling on what is known as an “anti-SLAPP motion.”  This type of motion can be used by a defendant, including a public entity, in response to a lawsuit that challenges conduct by the defendant in furtherance of the defendant’s right of petition or free speech as defined by the anti-SLAPP statute.  (SLAPP stands for “Strategic Lawsuit Against Public Participation,” and is meant to refer essentially to meritless lawsuits brought against persons or organizations to punish them for and/or deter them from speaking out on important issues or petitioning the government for redress.)  The statute defines protected activities very broadly.  Indeed, courts have interpreted the definition to include government statements in various types of proceedings, including internal investigations conducted by public entities as to their employees.  (Hansen v. California Dept. of Corrections and Rehabilitation.)

If the anti-SLAPP statute applies in a given context, then the defendant can make a motion at the outset of the case to have a trial court determine if there is any “probability” of success on the claim.  If the plaintiff cannot present evidence making this showing of a “probability,” then the trial court rules in favor of the defendant.  If the defendant wins the motion, the trial court will require the plaintiff to pay the defendant’s attorneys’ fees and costs.  Thus, another very important way to have an appeal heard early in state court is to bring an anti-SLAPP motion.

  1. Qualified Immunity Decisions:

Another judicial determination that is often immediately appealable, in the midst of litigation, is a federal trial court’s decision on the defense of qualified immunity.  This is a defense available to individuals who are officials or employees of government agencies and are named personally in federal civil rights lawsuits.  In general, the defense of qualified immunity applies when the individual defendant is challenged for actions he or she took relating to an area of law that is unclear or unsettled.  If it is sufficiently difficult for the individual to tell what is constitutionally prohibited in the situation in question, then this defense will apply.  Qualified immunity will not provide a defense to claims for declaratory or injunctive relief against the individual, but it will serve as a defense to a monetary damages claim.

If the trial court either grants or denies a motion based on qualified immunity in the middle of the case, then either side respectively can appeal the determination, if the appeal involves essentially legal questions such as whether the plaintiff’s alleged rights at issue were sufficiently unclear to merit applying the defense.  The defense applies in a wide variety of cases brought against government officials and employees.  Significantly, individual defendants can claim the qualified immunity defense in wrongful termination cases in which the former employee claims violation of his or her constitutional free speech or due process rights.

Each of these four ways to obtain appellate review on an interlocutory basis — i.e., in the middle of the case — are available to public entity defendants.  This gives public entities a unique ability in many cases to structure the defense to obtain immediate access to an appellate court, and thus have important matters resolved before the case concludes.

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California’s public labor relations statutes require public employers to respond to a labor union’s requests for information (RFI’s) in a timely manner. In fact, the definition of “meet and confer in good faith” includes the obligation to freely exchange information.

With statutory compliance hanging in the balance, it’s important for employers to know how to respond to RFI’s. If you’ve just received a long list of requests from a labor union and are unsure how to proceed, look no further. Here is a step-by-step approach employers can take to help ensure compliance:

1. Step One: Assign an RFI Coordinator in Human Resources to Manage the Agency’s Response.

      This is especially important when dealing with lengthy information requests, and if an agency has multiple bargaining tables open at the same time. Information may need to be drawn from multiple sources, including payroll, finance, Human Resources, and other departments. IT may need to assist with certain reports. An RFI Coordinator can ensure the right people are contacted for information, identify roadblocks early on, and conduct the necessary follow-up to make sure the agency can respond in a timely fashion.

      PERB has held that an unreasonable delay in providing information constitutes as much of a violation as an outright refusal.  A party responding to an information request must exercise the same diligence and thoroughness as it would in other business affairs of importance. For these reasons, the RFI Coordinator should ideally be someone who is well connected in the organization and who can be a squeaky wheel.

      2. Step Two: Carefully Review the RFI with Legal Counsel.

        Is the union entitled to the information? California public sector labor relations statutes provide broader informational rights for labor unions than the general public, and labor unions may have the right to access sensitive and confidential employee information. A labor union is entitled to information that is necessary and relevant in discharging its representational duties. PERB uses a liberal, discovery-type standard, like that used by the courts, to determine relevance. California Public Records Act defenses do not apply to RFIs arising under a labor relations statute.

        At this step in the process, it’s a good idea to reflect on what the RFI may indicate about the union’s interests at the table. The employer’s negotiator should strategically consider and plan for the impact of the information on the bargaining process, including whether the data will support or detract from the employer’s proposals.

        3. Step Three: Raise Any Question or Legal Defense Immediately. Where Appropriate, Discuss Potential Accommodations with the union.

        A responding party’s primary defenses to producing relevant information are clear and unmistakable waiver, privacy, undue burden, or an absolute or qualified privilege. However, such defenses must be raised promptly. A responding party may waive any defenses to disclosure that it fails to raise in a timely manner after receiving a request.

        In many instances, PERB requires the parties to bargain over accommodation of defenses rather than deny the request outright. Here are some appropriate questions and responses to a problematic RFI:

        1. Information Requested Appears Not Relevant: Where information requested appears to be not necessary or relevant to representation, ask the union to explain relevance. Remember that a union’s right to information is broad, so consult with legal counsel before refusing to provide information.
        2. Request is Vague: Where information requested is vague or open-ended, ask the union for clarification or to provide more specifics about the information it seeks.
        3. Request Is Burdensome: Where information requested presents an undue burden for the employer, bargain with the union regarding an appropriate accommodation.
        4. Request is Costly: If providing the information in the form requested by the union imposes substantial costs, bargain with the union over who will bear the costs.
        5. Union Already Has Access: If the employer and the union have equal access to the same information from the same source, tell the union where they can find the information, including where exactly it resides if on the agency’s website.
        6. Request is for Privileged Information: Where information requested consists of internal negotiations strategy communications or attorney-client privileged communications, assert the privilege in correspondence to the union in a timely manner. If the assertion of negotiations strategy communications privilege is challenged, PERB will apply a balancing test, balancing the confidentiality interest against the need for disclosure. 
        7. Request is for Private Information: Where the requested information may violate privacy rights, the employer may not unilaterally refuse to provide information, nor may an employer unilaterally decide what to redact before providing the information. Instead, offer to bargain to determine how to accommodate the privacy concerns. If such reports contain private information of third parties, PERB applies a balancing test that weighs a union’s need and interest in obtaining the information against the employer or third party’s privacy and confidentiality interests. Appropriate accommodations to protect private information include agreed-upon redactions, and arrangements to limit using materials for a given arbitration or negotiation and to prohibit public disclosure.

        4.Step Four: Compile Initial Response, Indicate Where Information Does Not Exist, and Estimate Response Times Where More Time Is Needed.

        At this step, the employer should start to provide information. For lengthy RFI’s, an employer should provide responses on a rolling basis rather than wait until all information is ready.

        Before providing information to the union, remember to verify accuracy. Knowingly providing a labor union with inaccurate information regarding the financial resources of the employer constitutes an unfair labor practice under the Meyers Milias Brown Act (MMBA) and the Educational Employment Relations Act (EERA).

        The RFI Coordinator should provide regular, written status updates to union representatives, so it is clear the employer is exercising diligence in compiling the requested data.

        5. Step Five: Keep Clear Written Records.

        A key responsibility of the RFI Coordinator is to keep a permanent written record of information provided, and to whom and when it was provided. If the parties meet to discuss accommodation, the Coordinator should maintain a written record of what was discussed and what accommodation was agreed upon. If a request is denied, the Coordinator should maintain a written record of what defense was asserted and when. It is common for unions to file unfair practice charges for failure to provide information in response to an RFI. Unions may strategically use such a charge as the basis for an unfair practice strike, so failure to comply with this important obligation can have consequences for your negotiations and labor relationship.

        Once the RFI is fulfilled, the RFI Coordinator should confirm completion of the response by email to the union representative.

        6. Step Six: Remember That RFIs Go Both Ways. The employer can request Information too.

        If your organization has any questions about handling a union RFI, please reach out to your trusted legal advisors for assistance.

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        This blog article was authored by Partner Danny Yoo in 2021.  It has been reviewed with additional discussion included in August 2025 and is up-to-date. 

        When working with employees with disabilities, employers need to keep track of various laws that govern whether the employee may be entitled to leaves, accommodation, or even a disability retirement.  What makes matters more complicated is that the definition of disability is not the same under each law.  So, while a medical condition may meet the legal definition of a disability under one of the laws, it may not under another.  We will explore the various ways that “disability” has been defined in federal and California law.

        FMLA/CFRA

        Under the federal Family and Medical Leave Act and the California Family Rights Act, an employee may be eligible for leave if the employee has a “serious health condition.”  Under the FMLA, a “serious health condition” is defined as “an illness, injury, impairment or physical or mental condition that involves inpatient care . . . or continuing treatment by a health care provider.”  Similarly, under the CFRA, a “serious health condition” is defined as “an illness, injury (including, but not limited to, on-the-job injuries), impairment, or physical or mental condition of the employee or a family member of the employee that involves either inpatient care or continuing treatment, including, but not limited to, treatment for substance abuse.”

        One major difference between the two leave laws is pregnancy-related disabilities.  Under the FMLA, pregnancy-related disabilities do qualify as a “serious health condition.”  However, under the CFRA, pregnancy-related disabilities do not.  Under California law, employees with pregnancy-related disabilities may be entitled to Pregnancy Disability Leave, which is separate from leave under the CFRA.

        ADA/FEHA

        Under the federal Americans with Disabilities Act and the California Fair Employment and Housing Act, an employee may be eligible for a reasonable accommodation if they have a physical or mental condition that impairs a major life activity.  Please note that under the ADA, the requirement is that the condition must “substantially” impair a major life activity, but that under the FEHA, the impairment need not be “substantial.”  For California employers, we recommend using the FEHA standard.

        Unlike the definition of “serious health condition” above, a disability under ADA/FEHA does not need “inpatient care” or “continuing treatment” to be considered a disability.  Rather, ADA/FEHA examines whether a “major life activity” is impaired.  Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.

        PWFA

        Under the Pregnant Workers Fairness Act, an employee may be eligible for a reasonable accommodation if they have a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions,” whether or not that condition meets the ADA’s definition of a disability. This appears to be broader than the definition of a disability under ADA/FEHA.  Notably, the PWFA prohibits an employer from requiring an employee to take leave if another reasonable accommodation is available.  However, an employer can still offer leave if it is the only reasonable accommodation available, or if the employee selects or requests leave as a reasonable accommodation.

        PERL – Disability Retirement

        For those agencies that are subject to the Public Employees’ Retirement Law, there is yet another definition of disability that they must know.  Under PERL, an employee may be eligible for disability retirement if the employee has a “mental or physical incapacity for the performance of the usual duties.”  The “incapacity for performance of duty” means “disability of permanent or extended duration, which is expected to last at least 12 consecutive months or will result in death”

        Here, there is a need to look at the duration of the incapacity prospectively.  It must either be permanent (which is not necessarily the same thing as “Maximum Medical Improvement” or “Permanent and Stationary”) or expected to last at least 12 months.  So, while a short-term disability under ADA/FEHA may entitle an employee to an accommodation, it may not entitle the employee to a disability retirement.

        Workers’ Compensation

        Workers’ compensation defines an industrial injury as any injury or disease arising out of employment, regardless of fault.  This is a broad definition, but the key is that it arises out of employment.  An industrial injury may overlap with any of the definitions of “disability” above, but that is not always necessarily the case.

        Paid Sick Leave

        California’s Paid Sick Leave Law provides for a minimum amount of sick leave for an employee to use for the “diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member” and certain other purposes, including if the employee or their family member has been the victim of a crime.  Employers probably do not consider employees using “sick leave” as having a disability.  For example, a common cold is probably not going to qualify as a disability under the laws above.  However, this does not mean that the laws are mutually exclusive of one another.  If an employee has a condition that qualifies as a “disability,” then the employee could also be eligible to use leave under the Paid Sick Leave Law.

        Employer Policies

        Finally, your agency may provide its own sick leave benefits to your employees.  Please review your agency’s own policies, rules, and regulations to determine for what purposes sick leave can be used.

        * * *

        Employers have to navigate the various laws that define “disability.”  Unfortunately, there is not one standard definition that applies to all the various laws.  As a result, it can often be confusing and difficult at times (especially when you may get conflicting opinions from different doctors!).  Please consult with legal counsel if your agency needs assistance in navigating these various laws.