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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On March 3, 2025, Governor Gavin Newsom issued Executive Order N-22-25 mandating that all state agencies and departments under his authority implement a hybrid telework policy with a minimum of four in-person workdays per week by July 1, 2025. The order also urges agencies and departments not under the Governor’s authority to adopt the same policy.

This marks a significant shift from the previous requirement of two in-person workdays per week. The Executive Order cites research showing that in-person work enhances collaboration, cohesion, creativity, communication, mentorship (especially for newer employees), and supervision, while also improving public trust in government efficiency.

While non-state agencies are not subject to this order, it reflects a broader trend toward in-person work. Many private sector employers have implemented similar policies, and President Trump mandated that all federal agencies require employees to return to the office full-time. If your agency is considering adjusting telework policies to include more in-person days, there are several factors to consider.

Office Space

Does your agency have sufficient office space for all employees to work in person at the same time? Employers should assess their current office space against employee headcount before implementing any policy changes.

Long–Distance Employees

One advantage of expanded telework has been the ability to hire employees who live beyond a reasonable commuting distance. Requiring more in-person days may lead to losing these employees. Employers should also be cautious about making exceptions for certain employees, as this could raise concerns about disparate treatment claims.

Accommodations

Employees may request to continue remote work as an accommodation. These requests should be handled on a case-by-case basis in accordance with the employer’s reasonable accommodation policy. The EEOC has noted that employers should not deny remote work requests solely because a job requires coordination with colleagues. Additionally, the telework infrastructure established during the COVID-19 pandemic may demonstrate that employees can perform their duties remotely. Employers should be prepared to evaluate these requests carefully and consult legal counsel if needed.

Represented Employees

Agencies must be aware of collective bargaining agreements (CBAs or MOUs) that address in-person work requirements. Any new policy must align with existing contracts, and agencies may need to meet and confer with employee representatives before implementing changes.

Creating a Balanced Policy

Requiring additional in-person workdays may be met with resistance, so agencies should consider approaches that make the transition smoother:

  • Gradual Implementation: If there were previously no required in-person days, an agency could start with two per week and increase from there, allowing employees to adjust.
  • Flexible Scheduling: Employees who have been teleworking may have structured their schedules around personal obligations. Allowing flexibility, such as adjusted start times or a 4/10 schedule, could ease the transition.
  • All–Staff Days: If the goal is to improve collaboration, agencies should designate specific days when all employees are in the office to prevent situations where employees come in only to find they are still attending virtual meetings with their coworkers or not benefiting from any face to face time with colleagues.

While local public agencies are not directly affected by the Governor’s Executive Order, many employers are weighing the costs and benefits of in-person work. These considerations can help agencies develop policies that align with their operational needs while supporting employees.

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Hiring can be exhausting; we all know how hard it can be to find that perfect candidate. There’s so much to consider, like work experience, background, educational history, personality fit – but what about what you’re not allowed to consider?

The California Fair Chance Act (California Gov. Code § 12952) gives employers a very specific set of guidelines for when (and how) employers can consider criminal history in employment decisions. This law applies to public agencies throughout California, even though there are some exceptions[1] for certain positions.

The first question that comes up during the hiring process is: When can I run the criminal background check? For most positions, employers may run a criminal background check on a prospective employee after they have issued a conditional offer of employment. This means that the employer has to have designated the individual whose criminal background it is checking as the applicant it is selecting for the position – in other words, assuming nothing happens during the background check process, that applicant will get the position. Employers cannot run criminal background checks on a group of applicants to weed out those with conviction histories.

Assuming you’ve issued a conditional offer to an applicant, congratulations! You can run a background check. But be careful: Even if the background check gives you a lot of information, the statute only allows employers to consider a “conviction history” – not an arrest history, referral to a pretrial or posttrial diversion program, or sealed/dismissed/expunged convictions. This means that if for some reason a background check indicates that an applicant was arrested for a crime, but was never actually convicted, that cannot influence your decision to withdraw the conditional offer.

The same applies to applicants who opted to enter into a pretrial or posttrial diversion program rather than have a conviction on their record – even though participation in the program may indicate that they committed the crime of which they were accused, the statute does not allow employers to consider this information in their decision. Same with history that is sealed, dismissed, expunged, or “statutorily eradicated” (meaning the conviction has been erased by the passing of a subsequent statute). Though these theoretically should not come up on a background check, if for some reason you become aware of a sealed or otherwise eradicated conviction, that cannot be a factor in your final employment decision.

Let’s say the background check turns up a conviction for a crime that doesn’t fall under any of the exceptions listed above. You can just withdraw the conditional offer and move on to the next applicant, right? Wrong. The Fair Chance Act also requires the employer to make an “individualized assessment” about the conviction history, and give the applicant notice and an opportunity to respond.

The individualized assessment requires that the employer evaluate whether the conviction will have a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position. The individualized assessment must consider 1) the nature and gravity of the offense or conduct; 2) the time that has passed since the offense and the completion of the sentence; and 3) the nature of the job sought.

The individualized assessment will (and should) have different results in different circumstances. For example, if you’re hiring a Finance Director, and your applicant John Doe was convicted of wire fraud 5 years ago, you can probably show that this conviction will have a “direct and adverse” impact on his duties as a Finance Director. You have to be able to trust that they will handle your agency’s assets in a trustworthy manner. But what if John Doe was convicted of reckless driving 20 years ago? You may not be able to show that that conviction directly impacts his ability to do the job in a way that would justify withdrawing the conditional offer, since driving has nothing to do with his ability to perform duties as a Finance Director.

After you’ve done an individualized assessment and determined that withdrawing the conditional offer would be justified based on the duties of the position, you must give written notice to the applicant that their offer is being withdrawn as a result of the conviction. This notice must include: 1) an identification of the conviction that is the basis of the decision to rescind the offer, 2) a copy of the conviction report, and 3) an explanation of the applicant’s right to respond.

The right to respond includes more than just letting the applicant know they can contact HR if they have any questions. Specifically, the statute requires the employer to inform the applicant that they can provide evidence challenging the accuracy of the conviction history report (maybe there is another John Doe with a wire fraud conviction who has the same birth date as your Finance Director applicant, and you accidentally got their conviction report) or evidence of rehabilitation or mitigating circumstances (maybe John Doe has spent the last 5 years since his conviction educating people on the dangers of wire fraud and has dedicated thousands of hours of community service to his victims).

Employers must give applicants at least five days to produce their response to the notice of the withdrawn conditional offer, as well as five additional days if the applicant provides written notice that they will be disputing the accuracy of the conviction report and needs the time to obtain evidence supporting their assertion. In many cases, even if an applicant requests additional time to prepare a response, such as seven or ten days instead of five, it would be reasonable for the employer to grant that request to facilitate the purpose of the Fair Chance Act and give an applicant a meaningful opportunity to respond.

So, remember: As you’re making your way through the hiring process, sometimes knowing what you should consider is just as important as knowing what you can’t consider. As always, if you have questions about a particular applicant or conviction, we recommend seeking the advice of your legal counsel.

[1] The statute specifically exempts the following positions from the requirements discussed in this article: A position for which a state or local agency is otherwise required by law to conduct a conviction history background check; a position with a criminal justice agency; a position as a Farm Labor Contractor; and a position where an employer is required by state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history. (Cal. Gov. Code § 12952, subd. (d).)

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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Since the 2018 United States Supreme Court decision in Janus v. AFSCME prohibited public sector labor unions from charging agency fees to non-members, public sector labor unions have sought methods to incentivize union membership. For example, the state legislature recently amended the Meyers Milias Brown Act permitting labor unions who represent public safety officers to charge non-members for the cost of individual representation in a discipline, grievance, arbitration, or administrative hearing.

Another method for incentivizing union membership is to offer certain benefits only to union members, excluding non-members from coverage.

While permissible in certain circumstances, public agencies must be cautious when contributing to the cost of benefits exclusively for union members.

Benefits funded directly from the union’s resources (e.g., a union providing additional insurance, legal assistance, or exclusive benefits from its own funds or paid for by union dues) are generally allowed. Such benefits are voluntary, available through union membership, but not funded by public money. However, if a government agency directly funds or administers benefits exclusively for union members while excluding non-members in the bargaining unit, this can lead to potential legal challenges. For example:

  • Employer Interference: A public agency’s paying for a benefit that exclusively goes to union members, and not to non-members, could be considered employer interference under California labor laws. Under the Meyers Milias Brown Act, public agencies are prohibited from interfering with, restraining, or coercing employees in their right to join or not join a union. If a public employer funds a benefit that only union members receive, it could be held to interfere with employee choice by financially incentivizing union membership over non-membership.
  • Union Failure of Duty of Fair Representation: Public-sector unions are required to represent all bargaining unit members fairly, in good faith, and without discrimination, regardless of union membership status. If an agency-funded benefit is part of a collective bargaining agreement and applies only to union members, excluding non-members in the same bargaining unit, the union might be violating its duty of fair representation to non-members. In such instance, non-member employees could potentially file an unfair labor practice charge with PERB against the union for failure to fairly represent all employees.
  • First Amendment Violation: As Janus v. AFSCME reinforces that public employees cannot be financially coerced into joining a union, exclusive benefits funded by public money could raise constitutional concerns.

The Public Employment Relations Board (PERB) has adopted federal precedent as the public sector test for interference, acknowledging that the act of paying benefits to one group of employees and not another group of employees who are distinguishable only by their participation in concerted activity, can constitute interference. If an employer’s discriminatory conduct is facially or inherently discriminatory, no proof of antiunion motivation is needed and PERB can find an unfair labor practice, even if the employer introduces evidence that the conduct was motivated by business considerations. In those instances, the employer’s conduct will be excused only on proof that it was occasioned by circumstances beyond the employer’s control and that no alternative course of action was available.

On the other hand, if the adverse effect of the discriminatory conduct on employee rights is comparatively slight, the employer can produce evidence of legitimate and substantial business justifications in defense of the conduct, and the burden then shifts to the charging party (the union or an employee) to demonstrate that the employer had a motivation of interference.

Agencies that extend benefits exclusively to union members risk violating state labor law by effectively penalizing non-members and creating an unlawful incentive to join a union. Rather, any benefit funded by public funds should apply equally to all represented employees, regardless of membership status.

For public agencies, the lesson is clear: union membership should not be a prerequisite for workplace benefits. As a general rule, if the agency funds the benefit – even if it payments are made through the union to a third party – all employees represented by the bargaining unit (members and non-members) should be eligible. If the benefit is exclusive to union members, it should be funded by the union itself, not funded by public funds. Like the iconic Members Only jackets of the 1980s, these exclusive perks might seem appealing—but they can quickly go out of style in the eyes of the law.

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As we cruise into 2025, LCW has received a number of questions regarding Senate Bill 1100, the new law that prohibits including a driver’s license requirement in job postings and applications unless the employer reasonably expects that driving is a job function of the position. This blog post addresses some FAQs regarding compliance with SB 1100, including tips for analyzing whether driving is a job function of a position, the law’s relationship to DMV Employer Pull Notices, and reimbursement for transportation. 

Determining Whether Driving is a Job Function of a Position

Effective January 1, 2025, California employers may not include statements about the need for a driver’s license in job advertisements, postings, applications, and similar employment materials, unless: (1) the employer reasonably expects driving to be one of the job functions for the position, and (2) the employer reasonably believes that satisfying those job functions using an “alternative form of transportation” would not be comparable in travel time or cost to the employer. An “alternative form of transportation” includes, but is not limited to ride-hailing services (e.g., Uber or Lyft), taxi, carpool, biking, and walking. (See Government Code section 12940.)

Employers should review all job descriptions and application materials that include a driver’s license requirement and analyze whether the position meets the exception in SB 1100. Some factors to consider include, but are not limited to:

  • Approximately how often does the employee need to travel? If the need to drive arises only rarely or sporadically, it may not be reasonable to expect that driving is a job function of the position. Commuting to and from a worksite is not a job function of a position.
  • What is the distance the employee has to travel?
  • Does the employee need to transport supplies, such that loading an Uber/Lyft would be impractical?
  • How time-sensitive are the employee’s transportation-related duties? I.e., could delays in obtaining alternative transportation interfere with operations or the employee’s ability to fulfill their duties?

DMV Employer Pull Notice (EPN) Program

SB 1100 raises additional questions for employers that have a practice of enrolling all employees in the Department of Motor Vehicles’ EPN Program, which allows employers to receive updates about an employee’s driving record.

Enrollment in the EPN Program is mandatory for those employed for the operation of a vehicle for which they are required to have a Class A license, a Class B license, or certain types of Class C licenses, or if they operate large passenger vehicles. (See Veh. Code, § 1808.1.) Some employers choose to voluntarily enroll all or some employees in the EPN Program, even if the position does not require the employee to possess a special license.

If an employer determines that SB 1100 prohibits it from requiring a driver’s license for a position, the employer should likewise avoid stating in job posting and application materials that enrollment in the EPN program is required. That said, SB 1100 does not preclude the employer from providing a prospective employee or new hire with DMV EPN program forms to fill out if they do possess a driver’s license. Employers who choose to provide the forms to applicants to positions that do not meet the SB 1100 exception should clearly communicate that the forms do not amount to a driver’s license requirement.

Reimbursement for Alternative Forms of Transportation

The exception to SB 1100 directs employers to consider whether alternative methods of transportation (e.g., Uber/Lyft or taxi) are “comparable in travel time or cost to the employer.” So what exactly is the cost?

While Labor Code section 2802 generally requires employers to reimburse costs incurred in the course and scope of employment, including transportation costs, some case law suggests that section 2802 may not apply to public agencies and the issue will likely be decided in the appellate courts soon. Nonetheless, it is prudent to take into account the requirements of section 2802 in the meantime—and also for an agency to keep in mind any reimbursement policy it has.

If an employee uses alternative methods of transportation in connection with their job duties—for example, if they take an Uber to travel from their primary worksite to a different location to perform a work-related task during the workday—the employer should reimburse the employee for the cost of the Uber. Employers can factor in potential reimbursement costs when they assess whether a position meets the exception under SB 1100. We note that commuting to and from the employee’s primary workplace is not compensable and does not require reimbursement (unless the employer has a policy to the contrary).

For specific question about how SB 1100 applies to particular positions or circumstances, consult with experienced employment counsel.

This blog was originally authored in August 2019 but has been reviewed and updated for January 2025. 

Applying the different California Public Employees’ Retirement System (“CalPERS”) rules related to Temporary Upgrade Pay, out-of-class appointments, and non-reportable extra-duty pays can be unnerving.  For classic employees, compensation for appointments meeting the definition of Temporary Upgrade Pay are reportable to CalPERS and is included in pension benefits.  For out-of-class appointments, the Government Code establishes a 960-hour per fiscal year limit, regardless of whether the employee is a classic or new member.  Some compensation is reportable as Temporary Upgrade Pay and the hours are reportable as an out-of-class appointment.  Other appointments might meet the definition of Temporary Upgrade Pay but do not meet the definition of an out-of-class appointment. And, whether the employee is a new member subject to the California Public Employees’ Pension Reform Act (“PEPRA”) or a classic member might change the answer.

As discussed in more detail below, for classic members, where an appointment meets the definition of Temporary Upgrade Pay, but not out-of-class appointments, the compensation is reportable to CalPERS and included in the employee’s pension benefits.  However, the hours are not reportable for the purposes of the 960-hour limit on out-of-class appointments.  For a classic member, where an appointment meets the definition for Temporary Upgrade Pay and out-of-class appointments, the compensation is reported to CalPERS and included in pension benefits, and the hours are reported to CalPERS for the purposes of tracking the 960-hour limit for out-of-class appointments.  For new members, compensation for Temporary Upgrade Pay is not reportable to CalPERS for the purpose of inclusion in pension benefits, but the hours may be reported to CalPERS for the purpose of tracking the 960-hour limit if the appointment meets the definition of an out-of-class appointment.

Few items of special compensation reportable to CalPERS have caused as much confusion as Temporary Upgrade Pay.  CalPERS even had difficulty determining whether Temporary Upgrade Pay would be reportable for CalPERS new members after PEPRA was enacted.  Initially, CalPERS indicated in a circular letter that Temporary Upgrade Pay would not be reportable for new members who were subject to PEPRA.  CalPERS later reversed course and indicated that Temporary Upgrade Pay would be reportable for new members.  Finally, after a brief standoff with then-Governor Brown, CalPERS excluded Temporary Upgrade Pay from reportable compensation for new members under its final regulation.

Temporary Upgrade Pay is an item of “special compensation” that is reported to CalPERS for the purpose of inclusion in CalPERS pension benefits for classic members.  Under the applicable regulation, Temporary Upgrade Pay is defined as follows:

Compensation to employees who are required by their employer or governing board or body to work in an upgraded position/classification of limited duration.

In a 2014 Circular Letter, CalPERS noted that many agencies were incorrectly reporting certain assignments as Temporary Upgrade Pay.  Specifically, CalPERS takes the position that when an individual maintains the duties of their current position and takes on some or all of the duties of an upgraded position, the compensation for taking on the additional duties is non-reportable overtime.

For example, many agencies have “out-of-class” or “acting” pay in their MOUs that provide an employee with additional compensation for taking on a portion of the duties of an upgraded classification.  In some cases, multiple employees will split the duties of a higher position and receive additional compensation.  Under CalPERS’ interpretation, since the individual retains the duties of their current position, the compensation is not reportable to CalPERS for new or classic members.

To complicate matters further, on January 1, 2018, Government Code section 20480 went into effect. This new law places limits on certain out-of-class appointments, and provides for penalties on out-of-class appointments that exceed 960 hours in a fiscal year.  As with Temporary Upgrade Pay, an out-of-class appointment under the Government Code has a specific definition.  An “out-of-class appointment” is “an appointment of an employee to an upgraded position or higher classification by the employer or governing board or body in a vacant position for a limited duration.”  A “vacant position” is defined as “a position that is vacant during recruitment for a permanent appointment.”  The definition of “vacant position” excludes a “position that is temporarily available due to another employee’s leave of absence.” If the appointment meets the definition of an out-of-class appointment, the hours must be reported to CalPERS, but the compensation is only reportable if the appointment meets the definition of Temporary Upgrade Pay and only if the employee is a classic member.

It would have been convenient for the definition of Temporary Upgrade Pay under the regulations and out-of-class appointments under the Government Code to have the same definition, but that would be too easy.  As the definitions above illustrate, an appointment might meet the definition of Temporary Upgrade Pay without meeting the definition of an out-of-class appointment.  For example, if a CalPERS classic employee is placed in an upgraded position while the permanent employee is on an extended leave of absence, assuming the technical requirements in the regulation are met as they relate to all items of special compensation, the compensation would be reportable as Temporary Upgrade Pay.  However, the appointment would be expressly excluded from the definition of an out-of-class appointment and the hours would not have to be reported in my|CalPERS for the purposes of tracking the 960-hour limit.  Similarly, if an individual serves in an upgraded position, but the agency is not recruiting to fill the position, the additional compensation may be reported as Temporary Upgrade Pay, but does not meet the definition of an out-of-class appointment.

With the mix of overlapping and divergent definitions for Temporary Upgrade Pay, out-of-class assignments, and non-reportable extra-duty pays, it is important to apply each definition separately to the appointment and compensation when reporting compensation as Temporary Upgrade Pay or reporting the hours for out-of-class appointments.  Agencies should also audit any out-of-class, upgrade pays, interim pays, acting pays and extra-duty pays to determine whether these pays are reportable as special compensation, and when they may meet the definition of out-of-class appointment for the purposes of tracking the 960-hour limit.

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.

This blog was originally published in December 2013 but has been reviewed and updated for 2025. 

It’s that time of year again to reflect on this year’s achievements and set goals for the new year. With the beginning of 2025 upon us, we encourage managers, supervisors, and human resources personnel to add the following five resolutions to their 2025 goals.

  1. Update Personnel Rules, Policies and Regulations

The California legislature was customarily active in 2024 in passing new obligations for employers. There also were several changes to federal employment laws over the last few years. For example, SB 1100 amends the Fair Employment and Housing Act (“FEHA”) to place restrictions on the ability of employers to include statements on the need for a driver’s license in job postings and similar materials. SB 1137 also amends the FEHA to prohibit discrimination based on a combination (e.g. intersectionality) of any two or more protected statuses. These two recent changes alone will require employers to update their policies, job descriptions and hiring-related documents. Therefore, public employers are encouraged to audit all policies to ensure they reflect current law.

  1. Adopt an AI Policy

Artificial Intelligence (“AI”) tools and technology are becoming ubiquitous in our society. Indeed, the federal Equal Employment Opportunity Commission and Department of Labor have issued guidance on AI in the workplace that address topics such as tracking hours worked and biased AI resume screening tools. As AI tools become more widely available, public employers should adopt AI policies that set forth the parameters on employees’ use of AI to perform their job duties. Such policies should address responsible and effective use of AI that will help agencies enhance their services to the public.

  1. Audit Your Agency’s MOUs

Heading into negotiations? Take some time in 2025 to audit your labor agreements. A labor agreement audit is a legal compliance review and internal analysis of contract language. Agencies should regularly audit their agreements to ensure legal compliance, which can help avoid litigation and potential fines. For example, CalPERS and FLSA compensation often overlap and auditing a labor agreement for compliance on both issues is an efficient way to avoid costly errors in the future. Labor agreement audits can also help identify ambiguous language that may be subject to multiple interpretations. Identifying these gaps allows both parties to negotiate clarifying provisions in upcoming negotiations.

  1. Evaluate Your Agency’s Handling of Disability-Related Issues

Employee disability-related issues are among the most complicated and confusing that employers face. It is critical that employers understand their obligations under disability laws. This includes understanding the interaction between the disability interactive process, workers’ compensation, FMLA/CFRA, pregnancy-related laws, fitness for duty examinations, and CalPERS disability retirement. Knowing the differences between these laws and how to comply with each of them will help employers navigate through employee disability-related issues.

  1. Document, Document, and Document

The importance of good documentation cannot be emphasized enough. Whether you have just completed a disability interactive process meeting or counseled an employee on performance issues, it is critical to create and maintain documentation of these interactions. When writing annual performance evaluations, employers should make sure they accurately and honestly reflect the employee’s work over the preceding 12-month period. Regular documentation of communications with and actions taken towards employees can be used to support discipline. It can also be used as tool to give feedback to and motivate employees.

Following through on these five resolutions will go a long way towards strengthening your agency and reducing the risk of lawsuits and unfair practice charges. If your agency needs assistance with implementing these resolutions, our offices are ready to help.