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.

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        I. Introduction to Stone v. Alameda Health System

        On August 15, 2024, the California Supreme Court issued its opinion in Stone v. Alameda Health System and clarified that public employers are generally exempt from most provisions of the Labor Code unless the California Legislature clearly indicates otherwise.  Key to the dispute in Stone was how courts should read and interpret statutes in the Labor Code that include the term “employer” but do not provide a definition for that term.  Based on longstanding legal principles and what could be derived of Legislative intent when passing Labor Code provisions, in Stone the California Supreme Court found that “employer” does not include the government unless there is an indication that the legislature intended to do so.  (Stone’s specific holdings were that California meal and rest break laws and Labor Code “Private Attorneys General Act” (PAGA) penalties do not apply to public agencies.)

        What makes Stone impactful and far-reaching is the fact that the reasoning and holding is widely applicable to other Labor Code provisions that contain the word “employer” but fail to define it.  Maybe it goes without saying, but the term “employer” frequently appears in the Labor Code—though ChatGPT could not provide an exact count due to the resources required to conduct a thorough search, it estimates somewhere between 900 to 1,200 sections of the Labor Code contain “employer” at least once.  For each of those instances, Stone emphasized the possibility that it does not apply to “the government as an employer.”

        Now, nearly a year after Stone, at least 10 published court opinions have either relied upon or cited to Stone.  Because the Courts and Legislature have had time to react and follow Stone’s guidance, it feels like a good time to recap what has happened since Stone and revisit notable sections of the Labor Code that do not expressly include “the government as an employer.” 

        II. Post‑Stone Cases

        Of the 10 published court opinions that reference Stone, four rely upon it to hold that certain statutes do not apply to public entities. 

        1. Reimbursements — Labor Code § 2802

        The most important of these decisions is likely Krug v. Board of Trustees of the California State University (2025) 110 Cal.App.5th 234, where a professor sued California State University (CSU) under Labor Code section 2802 for reimbursement of work-related expenses, including among other things electricity charges, postage, office supplies, and computer monitors, after being directed to teach remotely due to the COVID-19 pandemic.  Labor Code section 2802 mandates that “employers” reimburse employees for necessary business expenses “in direct consequence” of performing duties or of “obedience to the directions of the employer,” and the professor argued that such basic expenses were necessary to perform his work.  Pointing to Stone, Krug applied the rule that the absence of express inclusion of, or any legislative intent indicating application of section 2802 to, public entities, signals the exclusion of public entities from the statute’s reach.  It thereby found that mandatory reimbursement requirements under section 2802 do not apply to public employers.

        1. Failure to Pay Wages Agreed to in Collective Bargaining — Labor Code § 222

        In Bath v. State of California (2024) 105 Cal.App.5th 1184, dental workers employed within a state prison sued the State of California for pre- and post-shift safety and security activities, alleging the State failed to pay them California minimum and overtime wages, in violation of contract and law, and failed to pay wages agreed to through collective bargaining pursuant to Labor Code section 222.  In assessing Labor Code section 222, the Court found that the statute did not apply to the State because it did not specifically state that it applied to government agencies or public employers.    

        1. Non-Labor Code Analysis

        In Ryan v. County of Los Angeles (2025) 109 Cal.App.5th 337, a California appellate court considered the claims of a surgeon who has been employed by the County of Los Angeles.  After the resolution through motion practice of the surgeon’s claims for violation of whistleblower retaliation laws, including laws found within the Health and Safety Code (§ 1278.5) and the California False Claims Act (Government Code § 12653), and after a jury trial, both sides appealed.  Relying on Stone, the court found that the County was not subject to suit for whistleblower retaliation under the California False Claims Act (Government Code § 12653) but was subject to whistleblower retaliation under Health and Safety Code section 1278.5.  The key distinction between the two statutes considered?  The Health and Safety Code explicitly brought some public health facilities within its scope and prohibited retaliation there; the California False Claims Act did not bring the government within its scope.  The Ryan court noted that including some public health facilities within the statute’s scope indicated the California Legislature’s intent to make retaliation claims viable against government entities.  The court also looked to the legislative history behind the statute’s adoption, which noted potential costs to state and public hospitals. 

        1. Wage Withholding and Overtime — Labor Code §§ 225.5 and 515

        The fourth case, Larocque v. City of Los Angeles (C.D. Cal. 2024) 760 F.Supp.3d 1007, found that, in the absence of affirmative statements that Labor Code sections 225.5 (wage withholding penalties) and 515 (overtime) apply to the government, such claims could not be brought against the government.  (Our firm represented the City in this matter.)  The case is decided by a federal district court and not a state court of appeal, and thus does not set binding precedent in California for either federal or state courts.  Thus, public employers cannot rely on it with any certainty as to what the law is.  But Larocque’s holding is a good barometer of which way the law is heading, and provides potentially persuasive authority for California courts to follow in future cases.

        III. Other Labor Code Provisions

        Though Courts have not weighed in on any additional Labor Code provisions after Stone except for those discussed above, there are a few that we will be tracking because of their possibility to cause litigation. 

        1. Social Media and Labor Code § 980

        One potential flashpoint is Labor Code section 980, which governs employer requests for employee and applicant social media information.  Though section 980 does not explicitly state that it applies to public employers, the California Legislature considered an amendment that would have included public entities within the statute’s scope.  That attempt to amend eventually faded at some point in 2014 and resulted in no change to section 980.  But the consideration of an amendment to specifically make it apply to government entities could impact a future court’s analysis.  Post-Stone, it seems that the failed amendment, coupled with the lack of express language in the statute to indicate it applies to public employers, makes for a strong argument that Labor Code section 980 does not apply to public employers.  Employers will need to await binding California case precedent to be sure, however.

        1. Vested Vacation Time and Labor Code § 227.3

        Another portion of the Labor Code to watch is section 227.3, which mandates payout for accrued, unused vacation upon separation unless otherwise provided by a collective bargaining agreement.  Like the Labor Code sections discussed above, section 227.3 lacks any explicit inclusion of public employers in its language.  Pursuant to Stone, unless the Legislature amends the statute, or any relevant legislative history shows that the California Legislature intended to include public entities within its purview, Labor Code section 227.3 also seems like a candidate for a judicial determination that it does not apply to public employers.  

        IV. Conclusion

        Stone v. Alameda Health System represented a renewed proclamation of the California courts that, insofar as the Labor Code is concerned, government employers fall outside the traditional understanding of “employer” if the statute does not expressly state that it applies to the government and there is a lack of demonstrated intent from the Legislature to make it applicable to the government.  As time continues to pass after Stone, we expect to see additional Labor Code statutes scrutinized for their applicability to public entities. 

        V. Post-Script – Why the Government is Not Automatically an “Employer”

        Common understanding likely draws most from the concept that an “employer” is a business or individual that employs others regardless of what sort of work is performed.  So it comes as a surprise that the government, which has some of the largest employee pools within the state, is not automatically considered to be an “employer.”  But California has a longstanding principle drawn from England’s common law, which formed the foundation of America’s system of law, that “the general words of a statute ought not to include the government, or affect its rights, unless that construction be clear and indisputable upon the text of the act.”  See Mayrhofer v. Board of Education (1891) 89 Cal. 110, 112. 

        Accordingly, “employer” does not mean “the government as an employer” unless it explicitly says so or there is some other indication that the California Legislature intended “employer” to extend to the government.  In effect, this centuries old principle led to the unanimous 7‑0 decision of Stone that hospital authorities and other public entities are not subject to California’s general meal and rest‑break requirements (Labor Code §§ 226.7, 512), timely payment of wages provision (§ 220(b)), or PAGA suits for civil penalties (§ 2699), because the Legislature did not include “the government as an employer” within the definition of “employer” for those laws.   

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        During a Starbucks “listening session,” in 2022, in response to an employee’s attempt to discuss the benefits of unionization and Starbucks’ alleged unfair labor practices at other stores, former CEO Howard Schultz proclaimed, “If you’re not happy at Starbucks, you can go work for another company.” The National Labor Relations Board (NLRB) held that the statement was an implicit threat of discharge, which implied that union activity was incompatible with continued employment.[1]

        While the Starbucks case arose under the National Labor Relations Act (NLRA), and the NLRA does not apply to public agencies, NLRB decisions are relevant in interpreting California’s public-sector labor statutes. The Public Employment Relations Board (PERB) takes guidance from NLRB decisions, where appropriate, in interpreting analogous statutory provisions or principles.

        Under the Meyers-Milias-Brown Act (MMBA), as well as other California public-sector labor relations statutes, employees have the right to engage in protected activity, such as union organizing, circulating petitions, and participating in informational picketing. However, employees do not have the right, except in limited circumstances, to engage in union activity while on-duty. Employers are reminded that they may not impose or threaten to impose reprisals on employees, discriminate or threaten to discriminate against employees, or otherwise interfere with, restrain, or coerce employees because of their exercise of rights under the statute. 

        Public agencies should recognize that PERB has found employer interference in many contexts. Under PERB-administered statutes, employers may not:

        • Threaten employees with adverse consequences for union activity, or
        • Imply retaliation for engaging in protected rights (e.g., striking, filing grievances, organizing).

        Of course, because statements can easily be taken out of context, it is important that supervisors and managers avoid statements that could reasonably be viewed as a threat, promise, or reprisal tied to union activity.

        To determine if an expression or communication could be perceived as a threat of reprisal or force, or a promise of benefit, PERB evaluates whether the employer’s conduct reasonably tends to interfere with, restrain, or coerce employees in the exercise of protected rights. In making that determination, PERB will consider:

        1. The accuracy of the statement;
        2. The context in which the statement occurred;
        3. The impact that such communication had or is likely to have on the employee who may be more susceptible to intimidation or receptive to the coercive import of the employer’s message; and
        4. The effect on the authority of the exclusive representative.

        In evaluating the above factors, it does not matter whether the supervisor or manager intended to engage in conduct that could be perceived as intimidating, or whether any employee was actually intimidated or deterred; appearance and tendency are enough.

        Here are a few examples where PERB has found that employer statements constituted an unlawful threat or reprisal:

        • A Board member’s statement that a union member who posted a photo and expressed safety concerns on social media was engaging in “political theater” which was “not acceptable.”[2]
        • A supervisor’s email claiming that the union “let down” employees in a “huge way” by “manipulating the facts and context to serve half-truths.”[3]
        • A supervisor’s instructions to a bargaining unit member to interrupt a Union meeting and warn all new teachers and non-tenured teachers not to be influenced by the Union or else risk losing their jobs. New teachers were told, “If you know what’s good for you, you better leave now.”[4]
        • A Human Resources Director’s statement to a union representative that, “You will get certification the day that I die or retire,” in response to a petition for certification of a bargaining unit, after referring to a competing union as the HR Director’s “favorite union.”[5]
        • Threatening employees with layoff immediately prior to union election. Specifically, the General Manager told employees if they went with the union, funds would be depleted and there would be layoffs. The General Manager further said he was “disappointed” at the costs caused by the appearance of a union.[6]
        • Advising employees that they were bound by a no-strike cause, and that strikes of any kind were prohibited and would result in discipline, where the intent of the statement was to dissuade employees from engaging in a sympathy strike. Because the MOU did not ban sympathy strikes and employees had a right to engage in sympathy strikes, the memo reasonably tended to coerce or intimidate employees against the exercise of rights protected by law.[7]
        • Marking an employee down on her annual evaluation in the area of professional relations for taking workplace issues directly to her union. The evaluation stated, “By not following established procedures, problems are difficult to address in a timely and efficient manner. Issues that you carry to Price Club and to ETA meetings, for example, before they have gone through channels at the site, waste the time of people involved, and can result in misunderstandings, and frustration.”[8]
        • A District letter threatening discipline for any employee who engaged in informational picketing.[9]

        PERB has found statements like those listed above to chill protected rights. If a reasonable employee could perceive the comment as threatening harm tied to protected union activity, PERB will find a violation.

        Employers sometimes trip over the flip side of threats—promises of benefit intended to coax employees away from the union. Examples include telling workers they will get special consideration or additional compensation if they forego filing a grievance or drop a representation petition. PERB treats such inducements as equally coercive because they create the impression that terms and conditions of employment depend on abandoning protected rights. Even informal statements like “Let’s settle this informally—no need to involve the union,” can cross the line; again, intent is irrelevant.

        California’s public sector labor laws hold supervisors and managers to a high standard. Because PERB applies an objective, employee-focused test, good intentions are not a defense. Any promise of special treatment, or even a hint of reprisal can create agency liability.

        With disciplined communication practices, and by involving HR and Employee Relations early on, supervisors and managers can maintain productive relationships with represented employees without infringing on protected rights. In the end, a measured approach is a strategic investment in stable labor relations, organizational credibility, and public trust.

        [1] Starbucks Corporation (2024) 373 NLRB No. 123.

        [2] Alameda Health Systems (2023) PERB Dec. No. 2856-M.

        [3] City of San Diego (2020) PERB Dec. No 2747-M.

        [4] Compton USD (2003) PERB Dec. No. 1518.

        [5] County of Riverside (2010) PERB Dec. No 2119-M.

        [6] Coachella Valley Mosquito and Vector Control District (2009) PERB Dec. No. 2031M* * * OVERRULED IN PART by City of Roseville (2016) PERB Decision No. 2505-M.

        [7] City and County of San Francisco (2017) PERB Dec. No 2536-M.

        [8] Empire Union School District (2004) PERB Dec. No. 1650E.

        [9] San Marcos Unified School District (2003) PERB Dec. No 1508.

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        Public agencies often find themselves caught between two important obligations: protecting confidential information and fulfilling legal requirements for transparency. Questions commonly arise about when—and how much—sensitive information can be redacted without running afoul of the law. This blog post addresses some of the most common redaction scenarios involving California Public Records Act (“CPRA”) requests, union requests for information (“RFIs”), and Skelly pre-disciplinary disclosures.

        Public Records Act Requests

        The CPRA (Gov. Code Section 7920.000 et seq.) strikes a balance between the need for privacy in certain records and the people’s interest in transparent government. The CPRA describes over a dozen categories of exempted information that a public agency need not disclose in response to a CPRA request.

        Notably, the CPRA exempts from disclosure personnel, medical, or similar files if the disclosure would constitute an unwarranted invasion of personal privacy. (Gov. Code Section 7927.700.) Specifically, unless the requesting entity is a union or association that represents employees, agencies should redact employees’ home addresses, home telephone numbers, personal cellular telephone numbers, birth dates, and personal email addresses (unless used by the employee to conduct public business, or necessary to identify a person in an otherwise disclosable communication). (Gov. Code Section 7928.300.) The CPRA also exempts attorney-client privileged communications. (Gov. Code Section 7927.705.)

        A record that contains some exempt information may still be subject to production. Agencies have a duty to redact or remove non-responsive portions of an otherwise-responsive record where the responsive portions may be reasonably separated. For example, the agency may redact the names of witnesses interviewed in an otherwise disclosable investigation report.

        Because the CPRA defines the term, “writing” broadly to include mediums like photographs, audio recordings, or video footage, redaction may require specialized services to handle different media formats. Consider exploring services that use artificial intelligence to efficiently redact photos, video, and audio—but make sure to have a human review the final product before release.

        Note that if the agency plans to release information pursuant to a CPRA request, a union or association is not entitled to meet and confer with the agency regarding the scope of the release or redactions. (Gov. Code Section 7921.005.)

        Union Requests for Information

        Pursuant to California labor laws, including the Meyers-Milias-Brown Act (“MMBA”), employee organizations have a right to information relevant to representing their members. This information might be broader in scope than that which is available through a CPRA request. However, courts and the Public Employment Relations Board (“PERB”) have recognized the need to balance this right against the individual privacy rights of employees mentioned in the requested documents. This balancing test generally permits agencies to redact identifying information, such as names and personal details.

        In City and County of San Francisco (2020) PERB Dec. No. 2698-M, PERB found that SEIU was entitled to a copy of an investigation report that concluded an employee engaged in misconduct, as the union was representing the employee in a grievance that challenged the resulting written reprimand. PERB further held that the agency violated the MMBA by unilaterally deciding to redact seven pages of the report before it released it to SEIU, without meeting and conferring with SEIU regarding the need for redactions.

        Thus, while an agency may have a basis for redacting confidential information or even withholding documents entirely in response to an RFI (e.g., attorney-client privilege might protect the entirety of an investigation report if prepared by an attorney), the agency should be prepared to discuss the scope of redactions with the requesting union if they raise an objection.

        Documents Supporting Significant Discipline Under Skelly

        A common concern for public agency employers is whether they can redact investigation reports and related materials that are part of disciplinary proceedings—particularly when witness employees express fear of retaliation from the subject employee. However, redacting a report can violate the subject employee’s due process rights.

        Under Skelly v. State Personnel Board (1975) 15 Cal.3d 194, an employee has the right to pre-disciplinary due process, which includes access to the materials upon which the agency is basing the discipline. This right enables the employee to meaningfully respond to the charges before discipline is imposed.

         Attempting to redact or anonymize relevant information such as witness identities—i.e., labeling individuals “Witness 1,” “Witness 2,” and so on—may violate the subject employee’s rights under the Skelly process. The subject employee may argue that without knowing who made specific allegations, they are unable to challenge the credibility of the witnesses, identify potential bias or conflicts, or otherwise refute the evidence. This could lead to a claim that the Skelly process was fundamentally deficient and violated due process.

        Notably, if the discipline proceeds to a subsequent appeal or administrative hearing, the agency bears the burden of proving its case against the employee. This means the agency will likely need to call the witnesses to testify to establish the facts supporting discipline, at which point anonymity is not possible.

        Conclusion

        When it comes to redactions, there is no one-size-fits-all rule. Public agencies should carefully evaluate the legal context—whether a PRA request, a union RFI, or providing Skelly materials— and consult with legal counsel to determine what information must be disclosed and what can be lawfully withheld.