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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.

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        Public agency employers in California are facing increasing pressure to offer competitive, flexible, and legally compliant employee benefits. But there is one foundational document many agencies still overlook or perhaps do not fully understand—the Section 125 cafeteria plan. Without it, certain popular and tax-advantaged benefits cannot be offered, and agencies may inadvertently run afoul of federal tax law.

        In this post, we break down what a cafeteria plan is, why it is legally necessary, and what risks public agencies could face without one.

        What Is a Cafeteria Plan?

        A cafeteria plan is a written plan that allows employees to choose between: (1) receiving their full wages in cash on their paycheck; and (2) setting aside some of their wages (known as a “salary reduction”) to pay for qualified benefits on a pre-tax basis. The plan takes its name from Section 125 of the Internal Revenue Code (“IRC”). For public agencies, this written plan is essential to offering a range of employee benefits in a compliant and tax-efficient manner.

        Paying for Benefits With Pre-Tax Salary Reductions Must Be Done Through a Cafeteria Plan

        The key feature of a cafeteria plan is that it allows employees to reduce their salaries on a pre-tax basis to pay for their share of health insurance premiums and other qualified benefits. Without a cafeteria plan, employees’ premium contributions must be taken on an after-tax basis, which can:

        • Increase employees’ taxable income,
        • Decrease their take-home pay,
        • Reduce the perceived value of your public agency’s benefits package, and
        • Take away the public agency’s opportunity to save on payroll taxes tied to the pre-tax portions of employee salaries.

        Some Benefits Can Only Be Offered Through a Cafeteria Plan

        Some of the most valuable and popular benefits—like Health Flexible Spending Accounts (Health FSAs) and Dependent Care Assistance Programs (DCAPs) – can only be offered through a cafeteria plan. Without a formal cafeteria plan:

        • Employees cannot contribute pre-tax dollars to a Health FSA to cover eligible medical expenses.
        • Employees cannot contribute to a DCAP to pay for child care or elder care expenses with pre-tax income.

        This means that without a cafeteria plan in place, a Health FSA or a DCAP would be taxable benefits. As a result, your public agency may be denying employees access to critical tax savings—or offering benefits in violation of IRS rules if a Health FSA or DCAP are treated as a pre-tax benefit—when there is no cafeteria plan.

        Offering Cash in Lieu of Health Insurance? Your Public Agency Needs a Cafeteria Plan

        Many public agencies offer a “cash in lieu” or “opt-out” payment to employees who waive agency-provided health insurance because they have other group health insurance (such as coverage through a spouse). Cash in lieu should be offered through a cafeteria plan to avoid triggering the constructive receipt doctrine. When the constructive receipt doctrine applies:

        • The IRS could determine that employees had the choice to receive either cash in lieu or benefits and, therefore, should be taxed on the value of the cash in lieu regardless of their election.
        • The cash in lieu payments will be considered taxable income—even if the employee does not elect to take the cash.

        This can result in surprise tax liabilities for employees and compliance issues for the public agency.

        Compliance with the CalPERS Equal Contribution Rule

        Public agencies that provide health insurance through the Public Employees’ Medical and Hospital Care Act (“PEMHCA”) must comply with the equal contribution rule. The equal contribution rule generally requires employers to provide the same contribution amount toward health benefits for all employees and retirees in a group or class. Gov. Code, § 22892(b).

        A cafeteria plan provides a structure where a public agency can provide a cafeteria plan contribution to active employees to pay for health insurance, without offering the same contribution to retirees, while maintaining equal treatment under the CalPERS rules. Failure to use a cafeteria plan could inadvertently result in inequities in employer contributions, potentially putting your public agency at odds with the CalPERS regulations.

        Other Cafeteria Plan Benefits

        Beyond legal compliance, adopting a cafeteria plan provides:

        • Flexibility: Employees can elect and customize their cafeteria plan benefits based on the needs of themselves and their family members.
        • Cost Savings: Both employers and employees save on payroll and income taxes.
        • Competitiveness: Public agencies offering pre-tax benefits are more attractive in today’s competitive public sector job market.

        Has Your Public Agency Properly Adopted a Cafeteria Plan?

        In order to take advantage of all of the benefits offered by having a cafeteria plan, it is essential that a public agency ensure that it has completed all the steps to adopt a valid one. There are two key requirements. First, Section 125 requires the cafeteria plan to exist in the form of a written plan, which is usually called a plan document. A cafeteria plan document specifies the operational terms of the cafeteria plan, including what benefits are offered, the term and structure of each benefit, eligibility requirements, and a description of employer contributions and employee salary reduction agreements.

        Second, the cafeteria plan must be adopted by an employer and should be effective on or before the first day of the cafeteria plan year to which it relates. (Prop. Treas. Reg. § 1.125-1(c)(1).) The Proposed Treasury regulations provide guidance and the IRS’s stance on the administration of cafeteria plans. While the Proposed Treasury regulations do not specify how an employer must adopt a cafeteria plan, the generally acceptable method is for the governing body of a public agency to adopt it. If a cafeteria plan is not formally adopted by the employer, there is a risk that the employer does not have a valid cafeteria plan in place and as a result, employees who are electing to pay for their share of their benefits by a salary reduction must do so on an after-tax basis.

        Trusted legal counsel can assist public agencies with:

        • Assessing whether a public agency has adopted a valid cafeteria plan.
        • Drafting Section 125 cafeteria plan documents and customizing them to the public agency’s benefits.
        • Reviewing existing plans for compliance with IRS and CalPERS regulations.
        • Advising on plan implementation and employee communications.

        Key Takeaway: Implementing a compliant Section 125 cafeteria plan is not optional—it is a necessary legal safeguard and a smart benefits move. If your public agency does not have a cafeteria plan—or if your current plan has not been reviewed in the last few years—now is the time to act.

        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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        U.S. Supreme Court Justice David Souter passed away on May 8, 2025, at the age of 85. A quiet and scholarly figure, Justice Souter served nearly two decades on the high court, leaving behind a legacy marked by judicial restraint, independence, and humility.

        Nominated by President George H. W. Bush and confirmed in 1990, Souter was initially seen as a conservative jurist expected to align with the Court’s right wing. Yet over time, he became a key member of its moderate-to-liberal bloc. His evolution was not driven by ideology, but by method. Souter believed that precedent carried deep meaning, and that the law must be understood in the context of real lives. His judicial philosophy reminds us that jurisprudence can evolve not from politics, but from principle.

        That commitment to principle found perhaps its clearest articulation in Planned Parenthood v. Casey (1992), where Souter joined Justices O’Connor and Kennedy in crafting the controlling opinion. Souter, who had written his senior thesis at Harvard on the legal positivism of Oliver Wendell Holmes Jr., seemed in Casey to carry forward Holmes’s legacy of pragmatic judicial thought.

        Souter is widely credited with authoring the portion of the opinion discussing stare decisis, in which the plurality articulated a four-part test for when the Court should consider overruling precedent: whether the existing rule had become unworkable; whether reliance on the rule would create hardship or inequity; whether legal developments had left the rule a relic of outdated doctrine; and whether changes in factual understanding had undermined its continued justification. The opinion grounded the Court’s legitimacy not in political winds, but in the public’s trust that legal reasoning can remain principled even in contentious times. The Constitution, it insisted, “serves human values,” and that service demands both continuity and humility.

        Legal historian David Garrow observed that this part of the opinion on stare decisis contained “two paragraphs that rank among the most memorable lines ever authored by an American jurist.” Souter wrote:

        Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.

        The Court is not asked to do this very often, having thus addressed the Nation only twice in our lifetime, in the decisions of Brown [v. Board of Education] and Roe. But when the Court does act in this way, its decision requires an equally rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation. . . . So to overrule under fire in the absence of the most compelling reason to re-examine a watershed decision would subvert the Court’s legitimacy beyond any serious question.

        That vision—that the Court’s authority rests not merely on legal acumen but on the public’s belief in its constancy—offered a sober defense of judicial independence and an unease with politically-motivated reversals. Yet Souter did not view precedent as sacrosanct. He understood that circumstances evolve and facts shift, and that adherence to precedent should yield when grounded in reasoned justification. His approach was not rigid, but responsive—anchored in continuity, open to change, and always insistent that any deviation be principled, not political.

        Thirty years later, Casey was overturned in Dobbs v. Jackson Women’s Health Organization, on the ground that the 2022 Supreme Court believed that Roe and Casey had simply gotten the constitutional question on abortion wrong. One wonders what Souter might have thought—whether, in his careful framework, the facts, law, and reliance interests had changed so significantly as to merit such a reversal. His views on stare decisis did not bar change entirely but demanded an honest accounting of when change was warranted.

        Indeed, at his 2010 Harvard commencement address, Souter reflected that there are “no resolutions immune to rethinking when the significance of old facts may have changed in the changing world.” His was not a vision of moral relativism, but of intellectual humility: a recognition that society’s evolving experience can transform the legal meaning of even long-established rules.

        Justice Souter also authored and joined opinions that meaningfully shaped the landscape for public employers. In Board of County Commissioners v. Umbehr (1996), he joined the majority opinion holding that independent contractors who perform services for public entities enjoy First Amendment protections against retaliatory termination for speech on matters of public concern.

        He also authored a dissent in Garcetti v. Ceballos (2006), where the majority held that public employees may be disciplined for speech made pursuant to their official duties. Souter warned that the decision risked silencing employees who speak out against government wrongdoing, especially where their official roles give them unique insight. “Would anyone doubt,” he wrote, “that a school principal evaluating the performance of teachers for promotion or pay adjustment retains a citizen’s interest in addressing the quality of teaching in the schools?” It reflected Souter’s faith in the judgment of those closest to the work, and his belief that public institutions depend on the honesty and expertise of those who serve within them.

        Justice Souter retired from the Court in 2009, returning to his home state of New Hampshire, where he continued to serve on lower federal courts by designation and remained largely out of public view. Long before his retirement, Souter had expressed a desire to leave Washington, D.C. and return to the rhythms of a quieter life. President Obama announced Souter’s retirement in May 2009 and nominated Sonia Sotomayor to succeed him. Souter never wrote a memoir or sought the spotlight. Instead, he left his legacy to the pages of the U.S. Reports and to the lawyers and judges who continue to cite his careful reasoning.

        His passing marks the end of an era, but his work endures in the constitutional protections he helped uphold, in the integrity of his judicial reasoning, and in the example he set for judicial service.