We are excited to share our newest video from our series – Wage & Hour Issues in the Workplace. In these videos, members of LCW’s Wage & Hour practice group will provide various tips that can be implemented in your workplace. We hope that you will find these clips informative and helpful!
Our archive of Wage and Hour Issues in the Workplace videos is available here: https://www.calpublicagencylaboremploymentblog.com/category/wage-and-hour-2/.
On August 6, 2026, the IRS issued Fact Sheet FS-2026-13, providing its most detailed guidance yet about the One Big Beautiful Bill Act’s (OBBBA) tax deduction for qualified overtime compensation. The new Fact Sheet identifies frequently asked questions and provides answers related to the deduction. For public agencies, the message is clear: 2026 payroll systems, overtime classifications, and W-2 reporting deserve a closer look now—not next January when reporting is due.
What is Qualified Overtime Compensation (QOC) for the Tax Deduction?
QOC is the amount of overtime compensation required under Section 207 of the FLSA that is in excess of a non-exempt employee’s regular rate of pay. Generally, QOC that is subject to the deduction is the “one-half” (0.5) portion of the time and one-half (1.5) paid to a non-exempt employee for overtime hours worked under the federal Fair Labor Standards Act (FLSA). For more information on the basics, see LCW’s prior blog post about the deduction.
The Key Question: Is the Overtime Required by the FLSA?
This is where public agencies need to pay particular attention. The IRS makes clear that the deduction applies only to overtime compensation required under Section 7 of the FLSA. Overtime paid solely because of a memorandum of understanding, a collective bargaining agreement, or an agency’s own policy does not qualify.
Comp Time Off Creates Another Wrinkle
Public agencies also should take note of the IRS’s guidance concerning compensatory time off (CTO). As described in LCW’s prior blog post about the OBBBA and CTO, the FLSA permits public agencies to compensate employees for FLSA overtime in the form of CTO, subject to an agreement and certain conditions and limitations. When an employee chooses to accrue CTO in lieu of overtime pay in cash, each hour of FLSA overtime worked is credited with one and one-half hours of CTO in the employee’s CTO bank. The employee may then use their CTO hours as paid time off in the future or may cash out CTO hours that go unused at the regular rate of pay upon separation (or at other times based on the terms in an MOU or other agreement).
The IRS specifies that CTO is only reported when hours are used or cashed out, not when CTO hours are earned and banked for future use. A CTO payment can be provided when an employee takes time off using their accrued CTO hours or otherwise cashes out unused CTO hours. The IRS provides specific formulas for determining the qualifying amount.
IRS Notice 2025-69 provides the following example illustrating how to take a CTO payment and calculate the reportable QOC amount:
Example 6. Individual D works for a State or local government agency that gives compensatory time at a rate of one and one-half hours for each overtime hour worked under 29 USC 207(o). In 2025, Individual D was paid wages of $4,500 with respect to compensatory time off taken in accordance with section 207(o). For purposes of determining the amount of qualified overtime compensation received in tax year 2025, Individual D may include $1,500, one-third of these wages for purposes of determining qualified overtime compensation under section 225(c).
The following is an example of how a CTO cash out payment is reported as QOC:
CTO Cash Out Example: Mary works for a local government agency that gives compensatory time at a rate of one and one-half hours for each overtime hour worked under 29 USC 207(o). In the tax year, Mary did not take any paid time off using CTO, but pursuant to an applicable memorandum of understanding, Mary was able to cash out $6,000 of unused CTO hours. Mary may include $2,000, which is one-third of the CTO cash out payment, for purposes of determining qualified overtime compensation under section 225(c).
For agencies with employees who have significant comp-time balances, this could create an important timing issue for payroll and year-end W-2 reporting.
W-2 Reporting Is No Longer Optional
Perhaps the most immediate operational change is the enforcement of the reporting requirement. The transition relief from 2025 that made it optional for employers to report QOC is no more. Beginning with tax year 2026, employers must report QOC for non-exempt employees on Form W-2 using Box 12, Code TT.
Importantly, the amount reported is the total QOC paid—not necessarily the amount the employee ultimately may deduct. Employers are required to report the full amount of QOC the employee received regardless of the deduction cap. For example, an employee could have $30,000 of QOC reported in Code TT even though the OBBBA caps the amount of the overtime deduction at $12,500 ($25,000 for joint filers) and limits the deduction if the employee’s modified adjusted gross income (“MAGI”) is over $150,000 ($300,000 for joint filers). The deduction is phased out by $100 for every $1,000 of MAGI above $150,000 ($300,000 for joint filers). See LCW’s article about the deduction cap for more information.
Report Qualified Overtime Compensation Correctly, or Be Prepared to File Corrections
One of the biggest takeaways from the new IRS guidance is that if the amount of QOC reported on the W-2 is wrong, employees are going to rely on employers to correct it using Form W-2c. Employees rely on their employers to report accurate amounts since they use the W-2 when calculating and claiming their deduction on Schedule 1-A (Form 1040). The IRS provides guidance for the following scenarios:
What Should Public Agencies Do Now?
The IRS FAQs are guidance, not regulations, and the IRS expressly cautions that the FAQs may be revised and will not be relied on or used by the IRS to resolve a case. Still, they provide an important roadmap for employers as the OBBBA overtime deduction reporting gets underway.
Governmental 457(b) plans are a familiar part of the benefits package at many public agencies. Employees can defer a portion of their compensation and into the plan for retirement, often as a supplement to a defined benefit pension. It is tempting to think of a governmental 457(b) plan as the public sector version of a 401(k).
That is a useful shorthand, but the comparison has its limits. Governmental 457(b) plans operate under Internal Revenue Code section 457 and are subject to rules that differ in important respects from those governing 401(k) plans and other retirement plans. Some of those differences create opportunities for employees, while others can create administrative problems when an agency, employee, or payroll department assumes the rules work the same way.
Here are five differences public agencies should keep in mind.
1. The Contribution Limit Stands on Its Own
The annual contribution limit is a good example of how familiar numbers can obscure different rules. For 2026, the basic contribution limit for a governmental 457(b) plan is $24,500, or 100 percent of the participant’s includible compensation if less. That happens to be the same dollar amount as the 2026 elective deferral limit applicable to 401(k) and 403(b) plans.
Despite the identical dollar limits, the 457(b) limit is generally separate from the limit that applies to 401(k) and 403(b) plans. An employee who contributes to a 403(b) plan, for example, may also contribute up to the applicable annual limit to a governmental 457(b) plan. Subject to the terms and limits of the respective plans, an employee with access to both may contribute up to the applicable annual limit to each. That can make a 457(b) particularly valuable for public employees seeking to increase their retirement savings.
The rule is different, however, for contributions made to the 457(b) plan itself. Employer contributions generally count toward the same annual 457(b) limit as the employee’s salary deferrals. For example, an agency that contributes $2,000 to an employee’s 457(b) account generally reduces by $2,000 the amount the employee may defer from compensation for that year.
2. Employees Approaching Retirement May Have Another Catch Up Option
The age based catch up rules changed significantly under the SECURE 2.0 Act, passed by Congress in December 2022 . Prior to the SECURE 2.0 Act, any participant age 50 or older was able to contribute an additional amount to their retirement, with the limit set at a uniform dollar amount for participants. In 2026, participants age 50 or older may be eligible to contribute an additional $8,000. Participants who attain ages 60, 61, 62 or 63 during the year may qualify for an even larger catch up contribution of $11,250.
A governmental 457(b) plan may also provide a different catch up opportunity under Internal Revenue Code section 457(b)(3). During the final three taxable years before reaching the plan’s normal retirement age, an eligible participant may be able to make additional contributions based on amounts the participants could have deferred, but did not defer, in prior years of participation. This is sometimes described as allowing an employee to contribute up to twice the normal annual limit. While that can be true, it is not an automatic doubling of the contribution limit. The amount available depends on the participant’s contribution history. Suppose an employee is two years from the plan’s normal retirement age and wants to maximize contributions before retiring. The employee contributed well below the applicable limit during several earlier years of participation. Depending on the plan terms and the employee’s contribution history, some of that unused capacity may now be available under the special catch up. By contrast, an employee who consistently contributed the maximum may have no unused capacity available for the special catch up.
The special rule also creates an administrative issue that requires more than determining the employee’s age. The employee cannot use the special three-year catch up and the age based catch up in the same year. If both are potentially available, the participant may contribute under the provision that permits the greater contribution. The IRS has specifically identified administration of this special catch up as an area in which 457(b) plan errors occur. For agencies that offer it, accurate historical contribution records matter.
3. Age 59½ Does Not Have the Same Significance
One of the more notable differences between a governmental 457(b) plan and a 401(k) plan appears when an employee takes a distribution.
Generally, a distribution from a governmental 457(b) plan is not subject to the 10 percent additional federal tax on early distributions that generally applies to distributions from other retirement plans before age 59½. For example, a public employee who separates from employment and takes an otherwise permissible 457(b) distribution before reaching age 59½ generally does not incur the additional tax solely because of age.
There is an important exception for amounts that were rolled into the 457(b) plan from certain other retirement plans or accounts. If a participant previously rolled assets from a qualified retirement plan, 403(b) plan, or IRA into the governmental 457(b) plan, distributions attributable to those rollover amounts may still be subject to the 10 percent additional tax.
Employees should also be careful when considering a rollover out of the 457(b) plan. Moving governmental 457(b) assets into an IRA or another retirement plan can affect how a later distribution is treated. If the assets are rolled into an IRA or an employer plan that is not a governmental 457(b) plan, a later distribution before age 59½ may be subject to the 10 percent additional tax unless an exception applies. An employee who expects to need access to retirement funds before age 59½ may therefore want to understand the potential tax consequences before completing a rollover.
4. “457(b)” Does Not Always Mean Governmental 457(b)
Public agencies occasionally encounter guidance that refers broadly to “457 plans.” That description can obscure an important distinction.
Section 457(b) plans may be maintained by state and local governments, but they may also be maintained by certain tax exempt organizations. Governmental and nongovernmental 457(b) plans are subject to important differences.
For governmental plans, Internal Revenue Code section 457(g) requires plan assets and income to be held in trust for the exclusive benefit of participants and their beneficiaries. The requirement may also be satisfied through qualifying custodial accounts or annuity contracts. By contrast, assets set aside to fund a nongovernmental 457(b) plan generally remain the property of the tax-exempt employer and are subject to the claims of the employer’s general creditors.
This distinction is especially important when researching plan questions or responding to employee inquiries. Internet searches for “457(b) distribution rules” or “457(b) rollover rules” can produce information about both governmental and nongovernmental plans. Agencies should confirm that the guidance they rely on actually addresses the type of plan they sponsor.
5. Outsourcing Administration Does Not Outsource Every Responsibility
A public agency may have an experienced deferred compensation provider administering its 457(b) plan. Employees may enroll through the provider, select investments on the provider’s website, request distributions from the provider, and call the provider when they have questions. From an employee’s perspective, the provider may appear to “run” the entire plan.
However, the agency remains involved in important aspects of plan administration. The agency still has to implement employee deferral elections through payroll and timely transmit contributions. Employment and compensation information may need to be provided to the recordkeeper. The agency and provider also need to understand who is responsible for determining eligibility for particular plan features, and the plan must ultimately operate in accordance with its written terms and Internal Revenue Code section 457.
Consider an employee using the special three year catch up. The recordkeeper may maintain the account, but calculating the employee’s permitted contribution can require historical information about prior eligibility and contributions. If the recordkeeper does not have accurate information, the contribution limit can be calculated incorrectly.
Contribution elections present another potential source of error. For example, an employee changes a contribution election, but the change is entered incorrectly and payroll contributions eventually exceed the employee’s applicable annual limit. The IRS updated its guidance concerning excess governmental 457(b) deferrals in July 2026. When a governmental 457(b) plan exceeds the applicable plan limitation, the excess deferral, together with allocable net income, must be distributed as soon as administratively practicable after the plan determines that there is an excess deferral.
These situations are good reasons for agencies to periodically examine how responsibility is divided among benefits personnel, payroll, and the plan provider. An agency should know who monitors contribution limits, who determines eligibility for special catch up contributions, what information the provider receives from payroll, and how the parties communicate when an error is identified.
A service agreement can assign administrative tasks. It cannot eliminate the need for accurate information, clear allocation of responsibilities, and effective coordination .
Know Which Rules Apply to Your Plan
These differences are not merely technical. Some can provide meaningful advantages to public employees. The separate 457(b) contribution limit may allow an employee participating in another type of retirement plan to save substantially more. The special three-year catch-up can help some employees increase savings as they approach retirement. And the different treatment of governmental 457(b) distributions under the 10 percent additional tax may be particularly important for employees who leave public service before age 59½.
At the same time, not every governmental 457(b) plan offers every feature permitted by federal law. The Internal Revenue Code establishes the framework, but the agency’s plan document determines which optional features are actually available. An agency should therefore review its own plan terms before advising an employee that a particular catch up, distribution option, Roth feature, or other provision is available.
Recent changes make that review particularly timely. SECURE 2.0 increased catch-up contributions for participants who attain ages 60 through 63 during the year. Beginning in 2026, participants whose prior year wages from the employer sponsoring the plan exceed the applicable threshold generally must make age based catch up contributions on a Roth basis. Those changes may require coordination among the agency, payroll, and the agency’s 457(b) provider.
Governmental 457(b) plans can look deceptively familiar. Understanding the rules that make them different from other retirement plans, and the administrative responsibilities those rules create, can help public agencies administer their plans more effectively and provide employees with more accurate information concerning an important part of their retirement benefits.
July 1 marked the deadline for local agencies to comply with Senate Bill 827’s (“SB 827’s”) new website requirement. Under the law, agencies that maintain websites must post instructions and contact information for requesting certain ethics and financial training records. Although the website requirement took effect in July, SB 827’s related training requirements took effect on January 1, 2026. This post explains the new website requirement and reviews the training requirements connected to those records.
New Website Requirement Began July 1
Local agencies that provide required ethics training must keep records showing when officials completed the training and who provided it. Agencies must keep these records for at least five years. The California Public Records Act treats the records as public records subject to disclosure.
Beginning July 1, 2026, local agencies that maintain websites must post clear instructions and contact information for requesting the records. Cities, counties, and special districts must provide the same information for fiscal and financial training records.
SB 827 does not require agencies to post the records or training certificates online. It only requires them to explain how the public can request the records and whom to contact.
Ethics Training Now Covers More Officials
The Government Code already required certain local agency officials to complete at least two hours of ethics training every two years. Generally, the requirement applies when a local agency compensates or reimburses a member of its legislative body. School district, county board of education, and charter school governing board members must complete the training regardless of compensation or reimbursement.
Effective January 1, 2026, SB 827 amended the definition of “local agency official” to include department heads and similar administrative officers. For school districts, county offices of education, and charter schools, this category means the district superintendent, county superintendent of schools, or charter school’s chief administrator.
The training covers conflicts of interest, gifts, use of public resources, government transparency, fair decision-making, and other ethics rules. SB 827 also shortened the initial training deadline for officials who begin service on or after January 1, 2026, from one year to six months. After completing the initial training, officials must repeat it every two years.
New Financial Training Applies to Cities, Counties, and Special Districts
Effective January 1, 2026, SB 827 created a new fiscal and financial training requirement for officials of cities, counties, and special districts. The requirement does not apply to school districts, county offices of education, or charter schools.
The law covers elected officers, legislative body members, agency executives, and similar administrative officers. It also covers officials whom the governing body appoints to make or recommend decisions about financial administration, budgets, or public resources, as well as employees whom the governing body designates.
Each covered official must complete at least two hours of training on topics such as budgeting, financial reporting, auditing, capital financing, debt management, pensions, investments, fiscal planning, procurement, contracting, and safeguarding public resources.
An agency or association of agencies may contract or collaborate with a provider to offer courses or self-study materials with tests. Participants may take the training in person or online. Training courses and materials must draw on input from recognized local government finance experts (which includes local government associations) and providers must give participants proof of participation. Agencies must also provide covered officials with information about available training at least once each year.
Financial Training Deadlines
Government Code section 53238.2 sets the deadline based on when the official began service:
After the first training, officials must repeat it every two years. An official who serves more than one agency only needs to complete the training once every two years but must provide proof of participation to each agency. Government Code section 53238.4 exempts certain county officials who satisfy separate continuing education requirements.
Next Steps for Agencies
Local agencies can take the following steps:
(SB 827 amended Government Code sections 53234, 53235.1, and 53235.2 and added Article 2.4.6 (commencing with section 53238) to Chapter 2 of Part 1 of Division 2 of Title 5 of the Government Code.)
On July 1, 2026, significant new requirements under Senate Bill 707 (“SB 707”) became operative for certain “eligible legislative bodies.” SB 707, sometimes referred to as the “Super Brown Act,” represents one of the most substantial revisions to the Ralph M. Brown Act (“Brown Act”) in recent years. Although this blog post focuses on the new requirements applicable to “eligible legislative bodies” that became operative on July 1, 2026, readers should be aware that many of SB 707’s provisions took effect on January 1, 2026.
SB 707 imposes additional requirements on “eligible legislative bodies” that do not apply to every legislative body subject to the Brown Act. In light of the changes made effective on July 1, 2026, agencies should confirm which requirements apply to their specific legislative bodies rather than assuming that every body is governed by the same rules.
SB 707 generally defines an eligible legislative body to include:
Effective July 1, 2026, and continuing until January 1, 2030, SB 707 expands public access and participation in local government meetings. SB 707 requires eligible legislative bodies to provide an opportunity for members of the public to attend open and public meetings via a two-way telephonic service or a two-way audiovisual platform, except if adequate telephonic or internet service is not operational at the meeting location. If service is available during only part of the meeting, the legislative body shall include an opportunity for members of the public to attend via a two-way telephonic service or a two-way audiovisual platform for that portion of the meeting.
An eligible legislative body shall reasonably assist members of the public who wish to translate a public meeting into any language or wish to receive interpretation provided by another member of the public, so long as the interpretation is not disrupting to the meeting, as defined in Government Code section 54957.95. The eligible legislative body shall publicize instructions on how to request assistance. Assistance may include any of the following, as determined by the eligible legislative body:
SB 707 does not require an eligible legislative body to provide an interpreter, although the body may elect to do so.
An eligible legislative body shall also take actions to encourage residents to participate in public meetings, as specified in Government Code section 54953.4 subd. (b)(3).
Additionally, each eligible legislative body will be required to adopt, on or before July 1, 2026, in a noticed public meeting in open session, not on the consent calendar, a policy that addresses disruptions to telephonic or internet service during meetings.
The eligible legislative body must comply with certain requirements related to service disruption, including that when certain disruptions occur, the eligible legislative body must recess the meeting for at least one hour and make a good-faith effort to restore service before resuming. The eligible legislative body may meet in closed session during this period. The eligible legislative body shall not reconvene the open session of the meeting until at least one hour following the disruption, or until telephonic or internet service is restored, whichever is earlier.
Upon reconvening the open session, if telephonic or internet service has not been restored, the eligible legislative body shall adopt a finding by rollcall vote that good faith efforts to restore the telephonic or internet service have been made in accordance with the policy adopted and that the public interest in continuing the meeting outweighs the public interest in remote public access.
This update may have significant consequences for agenda timing, closed-session schedules, staff availability, and meetings held in facilities with unreliable connectivity.
Starting July 1, 2026, and continuing until July 1, 2030, each eligible legislative body must translate the agendas for each meeting into all applicable languages, and each translation shall be posted in accordance with Government Code section 54954.2. Each translation shall include instructions in the applicable language describing how to join the meeting by the telephonic or internet-based service option, including any requirements for registration for public comment. The bill defines “applicable languages” as languages that, according to the most recent American Community Survey, are spoken jointly by at least 20% of the applicable population, provided that at least 20% of the people who speak that language in the relevant city or county speak English less than “very well.”
Agencies with an eligible legislative body should consider taking the following steps:
☐ Confirm whether the legislative body qualifies as an “eligible legislative body.” Review current population, number of full-time equivalent employees, revenue, geographic-boundary, and website information, as applicable.
☐ Identify all affected boards and bodies. Do not assume that every legislative body within the agency is subject to the same requirements.
☐ Review remote-access capabilities. Confirm that open and public meetings can be accessed through a compliant two-way telephonic service or two-way audiovisual platform.
☐ Test remote-access systems before each meeting. Verify that telephone numbers, internet links, microphones, speakers, and public-comment functions are working.
☐ Prepare for partial service availability. Establish procedures for providing remote access during any portion of a meeting when adequate telephone or internet service is operational.
☐ Adopt or confirm adoption of a service disruption policy. Ensure the policy was approved at a noticed public meeting in open session, not on the consent calendar, and addresses disruptions to telephonic or internet service during meetings.
☐ Develop a disruption-response procedure. Assign responsibility for announcing a recess, attempting to restore service, documenting restoration efforts, and preparing any required rollcall vote.
☐ Plan for meeting delays. Consider how a required recess may affect agenda timing, closed sessions, staff presentations, public hearings, and facility availability.
☐ Identify all applicable languages. Review the most recent American Community Survey data and document the agency’s determination.
☐ Establish an agenda-translation process. Build sufficient time into the agenda calendar to translate, review, and timely post each required agenda translation.
☐ Translate remote-participation instructions. Ensure translated agendas explain how to join the meeting remotely and how to register for public comment, if registration is required.
☐ Create a process for interpretation-assistance requests. Publicize how members of the public may request reasonable assistance when using their own interpreter or interpretation service.
☐ Coordinate meeting logistics for interpreters. Consider available space, additional time, personal equipment, and access to commercially available interpretation services.
☐ Review public-participation practices. Confirm that the agency is taking reasonable steps to encourage broader resident participation in public meetings.
☐ Train relevant personnel. Provide guidance to clerks, meeting chairs, information-technology staff, translators, and legal counsel regarding the new requirements.
☐ Periodically audit compliance. Review agendas, translated materials, meeting notices, remote-access procedures, and disruption records to ensure continued compliance through the applicable sunset dates.
Public agencies should contact their trusted legal advisors if they have any questions regarding whether they are maintaining compliance with the newly enforced requirements under SB 707.
For a decade or more, the phenomenon of “cancel culture” – sometimes called “accountability culture” – has been the subject of national debate. On one side, institutions explain they have a strong interest in maintaining a safe and welcoming environment for their workers and should have the ability to remove individuals who threaten that environment. Institutions also claim a legitimate interest in distancing themselves from and denouncing speech that contradicts their values, and even an interest in disciplining or terminating an employee whose speech contradicts those values in a sufficiently serious way. At the same time, many point out that our nation has a strong tradition that individuals should lead their lives speaking publicly and privately whatever they wish to say, and that the threat of “cancellation” imperils important rights.
For public agencies, these considerations take on not just public policy, but legal importance. Public agencies are bound by the First Amendment in their treatment of workers, and they can commit a constitutional violation if they discipline an employee based on speech a Court determines to be constitutionally protected. An employee who wins a lawsuit for violation of free speech rights can obtain significant damage awards and can typically recover attorneys’ fees, among other types of relief.
How do public employers determine what employee speech is protected? This post explains general legal tests and then summarizes two federal appellate cases from the last year that illustrate how these tests apply. Both are from the U.S. Court of Appeals for the Ninth Circuit (the federal circuit covering California, Oregon, Washington, and other western states) and set precedent for how courts will decide these questions in the future. Both are in the public education context, but shed light on how courts will view scenarios in other types of public employment settings.
The First Amendment Test:
Courts have developed a general test for whether a public employee’s speech has First Amendment free speech protection. Under this test, the First Amendment protects a public employee from being disciplined for their speech (1) on matters of “public concern,” (2) that is outside the scope of the employee’s “official duties,” and (3) that prevails in a balancing test which weighs disruption of a government agency’s operations against the importance of the speech interest at issue. As Courts have phrased it, the balancing is “whether the [state]’s legitimate administrative interests outweigh the employee’s First Amendment rights.” The first two elements of the test described above serve to rule out several broad categories of speech from consideration. Speech that is not a matter of “public concern” can be, for example, speech about internal office dynamics, interpersonal conflicts, or more mundane workplace grievances. “Official duties” speech constitutes that which an employee renders as part and parcel of their job, e.g., a policeman talking to a motorist they have stopped, a social worker providing counseling, or a fire inspector writing a citation. For speech that passes these first two “tests” (public concern and outside official duties), Courts must apply the third element, the balancing test of competing interests.
The following two cases provide illustrations of how Courts have interpreted this balance in the face of community calls for “cancellation.”
Virulent Political Speech on a Private Facebook Account:
In Thompson v. Central Valley School District No. 365[DU1] , decided December 29, 2025, the U.S. Court of Appeals for the Ninth Circuit considered whether a middle school assistant principal’s inflammatory criticism on Facebook of the 2020 Democratic National Convention had First Amendment protection so as to protect him from discipline by the school district for the speech. Thompson’s Facebook post disparaged the Convention, used a disability-based epithet in doing so, labeled its speakers “hateful racists” including a derogatory term for women, and threatened that critics would be taken “to the woodshed for a proper education.” Although Thompson explained that he intended his post to reach only his Facebook friends, it was disclosed and came to the attention of his fellow school district employees.
The speech was outside Thompson’s official duties and, although inflammatory, on a matter of public concern (partisan politics), so that the Ninth Circuit’s task was to balance the appropriate interests under the third step in the test.
In conducting the balancing, the Court concluded that the school district had shown a reasonable prediction of disruption and that the district had a legitimate interest in maintaining a safe, inclusive educational environment and in avoiding workplace disruption that outweighed Thompson’s free speech interests. The Court emphasized that, particularly given Thompson’s supervisory role, the district’s interest in ensuring administrators foster a positive educational climate was weighty and that Thompson’s derogatory and violent language (including reference to the “woodshed”) could disrupt school operations.
Because the school district’s interests outweighed Thompson’s speech interests, the Court held that Thompson’s First Amendment rights were not violated and he could be disciplined.
The following reasoning from the Court emphasized the clash between Thompson’s role at the district and the nature of his comments:
The [Central Valley School District (“CVSD”)] reasonably predicted that a Facebook post by a school administrator using disability-related slurs and violent language was likely to disrupt CVSD operations. The predictable disruption was intensified and reinforced by Thompson engaging in speech while serving in a public-facing role as an assistant principal that undermined the CVSD’s written resolution to foster a safe and supportive educational environment. As an employee of the CVSD, Thompson had a responsibility to uphold the district’s formal commitment to equity and inclusion. As evidenced by his Facebook post and workplace comments, Thompson did not uphold his commitment, and we accordingly find that Thompson’s derogatory and violent language could substantially disrupt the orderly operation of the school.
A Professor’s Provocative Statement and a Claim for Academic Freedom Protection:
A second case, decided December 19, 2025 (amended May 14, 2026), reached a different result, finding the inflammatory speech in question protected. In Reges v. Cauce[DU2] , the United States Court of Appeals for the Ninth Circuit held that the University of Washington violated Professor Stuart Reges’s First Amendment rights in its response to the professor’s controversial syllabus statement.
Reges, a computer science instructor, had added to his syllabus a line parodying the university’s recommended Indigenous land acknowledgment. At public universities, a land acknowledgement is a formal statement that recognizes and honors the Indigenous peoples who have historically stewarded and continue to have enduring connections to the land on which a university is located, and the statement serves as a gesture of respect. In 2015, the University adopted the following acknowledgement and recommended the instructors include it on syllabi, although this was optional: “The University of Washington acknowledges the Coast Salish peoples of this land, the land which touches the shared waters of all tribes and bands within the Suquamish, Tulalip and Muckleshoot nations.”
Professor Reges instead stated the following on his syllabus: “I acknowledge that by the labor theory of property the Coast Salish people can claim historical ownership of almost none of the land currently occupied by the University of Washington.” There was evidence that the professor also subsequently used the parody in the signature block of some of his e-mails.
Students complained about the parody land acknowledgement, and some Indigenous students at the university who learned of it came forward to describe they felt impacted in their studies. The university’s administration removed Reges’s syllabus, initiated a disciplinary investigation against him, withheld a merit pay increase, reprimanded him, and warned him of future sanctions.
Reges sued for violation of his First Amendment rights, relying on an important modification to the test described above for constitutional free speech protection available to public employees serving as faculty members – in particular, the “official duties” exception to protection will not apply to faculty speech related to their “scholarship or teaching.” The balancing test requirement described above, however, still applies.
The District Court initially granted summary judgment to the university, applying the First Amendment balancing test, and concluded that the institution’s interest in preventing disruption and maintaining an inclusive environment outweighed Reges’s free speech interests.
On appeal, however, the Ninth Circuit reversed that decision, and held Reges’s parody was protected academic speech (i.e., related to “scholarship and teaching”) on a matter of public concern, and that student offense alone cannot justify retaliation by a public employer. The Court emphasized that “debate and disagreement are hallmarks of higher education” and that “student discomfort with a professor’s views … is not grounds for the university retaliating against the professor.”
In applying this First Amendment balancing, the majority found that the university failed to demonstrate that its interests outweighed Reges’s right to speak, noting that claimed disruptions were insufficient to overcome his First Amendment rights. The Court directed that summary judgment be entered for Reges on his retaliation and viewpoint discrimination claims.
One judge on the three-judge panel of the Ninth Circuit, however, disagreed and wrote a dissent arguing the disruption to Indigenous students’ learning justified limiting Professor’s Reges’s speech. (In addition, a prominent law professor, Erwin Chemerinsky, has taken issue with the majority decision in Reges, among other ways by criticizing the conclusion that a computer science professor’s parody land acknowledgement related to his scholarship and teaching, i.e., his academic field of computer science. See Erwin Chemerinsky, 9th Circuit Expands 1st Amendment Protection for Professor’s Syllabus Speech – And Gets it Wrong, Daily Journal (Jan. 15, 2026).) [DU3]
Conclusion:
What guidance can public agencies draw from decisions like these? First, disruption and impact on an agency’s operations have significant importance in the third element for free speech protection, i.e., the balancing of interests. Second, as articulated by the Court in Thompson how the speech at issue tends to undermine the employee’s particular role also has great importance: in that case, the assistant principal’s job was to uphold certain institutional values but the Court opined that the virulent Facebook statements imperiled his role in doing so, and this effect swayed the Court’s analysis in balancing. By contrast, Professor Reges’s statements were arguably interpreted to be consistent with the role of a faculty member to challenge accepted thinking at times and to provoke debate (although one judge on the panel disagreed, using reasoning more aligned with the Court’s in Thompson).
Finally, at least for purposes of evaluating First Amendment protection, how the employee’s speech came to light did not figure prominently in the Court’s analysis in either case. Ironically, the assistant principal did not in any way seek to promote his Facebook comments at the school and had a private account, whereas the university professor affirmatively promoted and publicized his statements to the community. What mattered primarily to the Court in evaluating balancing was impact on the educational institution and ability of the employees to do their jobs.
First Amendment issues in employment require careful consideration. Trusted legal counsel can help navigate challenges in this continually developing area of law.
[DU1]https://law.justia.com/cases/federal/appellate-courts/ca9/24-5263/24-5263-2025-12-29.html
[DU2]https://law.justia.com/cases/federal/appellate-courts/ca9/24-3518/24-3518-2025-12-19.html
[DU3]https://www.dailyjournal.com/articles/389352-9th-circuit-expands-1st-amendment-protection-for-professors-syllabus-speech-and-gets-it-wrong
Artificial intelligence (“AI”) has quickly evolved from an emerging technology into a tool that many employers use every day. Whether it is screening job applicants, drafting performance evaluations, summarizing workplace investigations, or assisting with policy development, AI is becoming increasingly integrated into public-sector operations.
California policymakers have taken notice. Earlier this year, Governor Gavin Newsom issued an Executive Order directing state agencies to evaluate AI’s anticipated effects on California’s workforce and to develop strategies to prepare workers, employers, and government for those changes. While the Executive Order primarily applies to state agencies, it reflects a broader policy trend: California is actively preparing for a future in which AI will play a significant role in the workplace.
Although the Executive Order does not impose new legal obligations on local public agencies, it provides a valuable reminder that public employers should begin evaluating how AI is being used within their organizations and whether appropriate policies and safeguards are in place.
AI Is Already Being Used in Public Employment
Generative artificial intelligence (“AI”) is increasingly becoming part of government operations. Public agencies are exploring AI tools to improve efficiency by assisting employees with routine administrative tasks, such as drafting documents, summarizing lengthy materials, synthesizing information, preparing internal reports, and organizing large volumes of data. In 2025, the U.S. Government Accountability Office reported that eleven federal agencies reported a significant increase in generative AI use to support internal operations and service delivery. State and local governments are similarly evaluating how these tools can enhance productivity and reduce administrative burdens. As AI becomes more widely integrated into commonly used workplace software, public employers should consider whether they have appropriate governance, training, and safeguards in place to ensure its responsible use.
California’s Policy Direction Is Becoming Clear
The Governor’s Executive Order focuses on understanding AI’s potential impact on California workers, identifying occupations that may be affected, and developing strategies to help workers adapt to technological change. It also calls for collaboration among state agencies, educational institutions, labor organizations, and industry stakeholders.
While these initiatives do not directly regulate local government employers, they send a clear signal that California intends to remain at the forefront of AI governance. Public employers should expect continued legislative, regulatory, and judicial developments addressing the use of AI in employment.
Indeed, California has already adopted regulations under the Fair Employment and Housing Act addressing the use of automated decision systems in employment decisions. As AI becomes more common in the workplace, agencies should anticipate increased scrutiny regarding how these technologies are selected, implemented, and monitored.
Human Oversight Remains Essential
One of the most important principles for public employers is that AI should assist—not replace—human judgment.
AI-generated content can be remarkably persuasive while still containing factual inaccuracies, incomplete analysis, or fabricated citations. For that reason, any AI-generated work product should be carefully reviewed by an employee with appropriate subject matter expertise before it is relied upon for decision-making.
This is particularly important when AI is used to assist with:
Ultimately, employers—not software—remain responsible for employment decisions.
Consider Confidentiality Before Using AI
Public agencies routinely handle confidential information, including personnel records, medical information, attorney-client communications, and sensitive investigative materials.
Before employees input information into any AI platform, agencies should understand:
Even where an AI platform offers enterprise-level security, employees should exercise caution when handling sensitive information on such platforms and follow applicable agency policies.
Review Existing Policies
Many agencies have not yet adopted formal AI policies. Nevertheless, employees may already be using publicly available AI tools, perhaps without management’s knowledge.
Now is an appropriate time to review existing policies and determine whether additional guidance is warranted.
An effective AI policy may address topics such as:
Clear expectations can help ensure that AI is used responsibly and consistently across the organization.
Engage Labor Relations Early
For represented employees, the implementation of AI may also raise collective bargaining considerations.
Depending on how AI is introduced, employers may need to evaluate whether implementation affects negotiable terms and conditions of employment, including workload, job duties, performance expectations, or workplace monitoring.
Even where management retains discretion to adopt new technology, bargaining obligations may arise regarding the effects of implementation. Consulting labor relations professionals early in the planning process can help agencies identify potential issues before implementation.
Preparing for What’s Next
AI technology is advancing rapidly, and California’s legal framework is evolving just as quickly. Rather than waiting for new legislation or litigation to define best practices, public employers should begin preparing now.
Among other things, agencies should consider:
Looking Ahead
Artificial intelligence presents significant opportunities for California public employers. Used thoughtfully, AI can improve efficiency, streamline administrative tasks, and allow employees to focus on higher-value work. At the same time, the technology raises important questions regarding privacy, bias, transparency, labor relations, and legal compliance.
Governor Newsom’s recent Executive Order underscores that California is actively planning for AI’s impact on the workforce. While local public agencies are not the direct focus of that initiative, they would be well served by viewing it as an opportunity to assess their own AI practices. Agencies that establish thoughtful governance, maintain meaningful human oversight, and proactively address legal risks today will be better positioned to adapt as California’s regulatory landscape continues to evolve.
We are excited to continue our video series – Tips from the Table. In these videos, members of LCW’s Labor Relations and Collective Bargaining practice group will provide various tips that can be implemented at your bargaining tables. We hope that you will find these clips informative and helpful in your negotiations.
Some Employer-Employee Relations Resolutions are so old they were typed on a typewriter, copied on a mimeograph, photocopied for 30 years, scanned into a PDF, and then photocopied again for good measure. By the time we see them, the text is often at a 15-degree angle and appears to be bargaining over whether it wants to stay on the page. When the document looks like it’s been through impasse, mediation, fact-finding, and a small earthquake, it’s time for a comprehensive update.
For agencies subject to the Meyers-Milias-Brown Act (MMBA), an Employer-Employee Relations Resolution (EERR) serves as the framework governing labor-management relations. Government Code Section 3507 of the MMBA permits a local public agency to adopt reasonable rules and regulations for the administration of employer-employee relations. Many agencies adopted these rules shortly after the MMBA was signed into law in 1968 – and have never updated them.
Because public sector labor law has evolved dramatically over the past several decades, an outdated resolution can create confusion, increase legal risk, and fail to reflect how the agency actually conducts labor relations today.
We hope this article inspires you to update your EERR or start from scratch with a fresh 2026 version.
Your Agency’s Labor Relations Rulebook
An EERR is an agency’s labor-relations rulebook. While the content varies from agency to agency, an EERR can address a wide range of labor-relations procedures, including:
State Labor Law Has Significantly Changed Since Disco Was Popular
Legislative changes have expanded employee and union rights under the MMBA, imposed new procedural obligations, and created additional bargaining requirements. For example:
An EERR that reflects a decades-old understanding of labor law may no longer accurately describe an agency’s obligations.
From Mimeographs to Microsoft Teams: Collective Bargaining in the Modern World
The evolution from mimeographs to platforms like Microsoft Teams encapsulates the transformation of collective bargaining processes over the decades, reflecting broader technological and cultural shifts in the workplace. Where once unions and management exchanged hard-copy proposals, scheduled face-to-face negotiations, and painstakingly distributed updates via printed materials, today’s stakeholders leverage digital communication tools to coordinate, share documents, and even negotiate in real time, sometimes across continents. This modernization facilitates transparency, broader participation, and rapid dissemination of information, although it also introduces challenges related to data security, the digital divide, and the preservation of confidential discussions. The integration of advanced technologies into collective bargaining underscores both the adaptability of labor relations and the critical need for parties to remain vigilant about privacy, inclusivity, and equitable access as the bargaining table expands into the virtual realm.
Many EERRs were drafted in an era when labor relations communications occurred through paper notices, physical bulletin boards, and hand-delivered correspondence. Collective bargaining has evolved from locked-door table talks and reams of paper to a digital landscape. We now have electronic communications, virtual negotiations and meetings, electronic service of notices, digital document exchange and recordkeeping, and remote and hybrid work arrangements. Your agency’s EERR should reflect these communication advancements. Updating the resolution allows agencies to incorporate modern communication methods and administrative practices.
Why an EERR that Predates PERB’s Jurisdiction Puts an Agency at a Disadvantage
An EERR contains rules for recognition of employee organizations, which give a local agency significant authority over the determination of an appropriate bargaining unit. Now that PERB has jurisdiction over the MMBA, where there are no local agency rules governing certain types of representational changes, (e.g., unit modification) PERB regulations control, and an agency must relinquish control to PERB for determination of an appropriate bargaining unit. Modernizing these provisions can help avoid confusion when representation issues arise, and ensure that your agency controls the decision-making process.
Bargaining Units May Change Over Time
Few agencies look the same as they did ten, twenty, or thirty years ago. Departments merge. New classifications are created. Existing classifications are eliminated. Supervisory and confidential positions evolve. An EERR should accurately reflect the agency’s current bargaining unit structure and clearly identify which classifications must be represented separately because they are management, confidential, or supervisory employees. A re-written EERR can provide greater flexibility to modify units which may be beneficial to management.
Be Aware of What an EERR Cannot Do
An EERR cannot waive, diminish, or override rights granted by the MMBA, PERB regulations, or other applicable laws, and rules must be reasonable. For example, an agency cannot use its resolution to eliminate bargaining obligations, restrict protected employee rights, or create procedures inconsistent with PERB’s jurisdiction.
The “Meet and Consult” Requirement
Government Code Section 3507 of the MMBA requires an employer to “meet and consult” with employee organizations before adopting and implementing local employment relations rules. The consultation required under Government Code section 3507 over employment relations rules is no different from the good faith meet and confer process; however, if the parties are unable to reach an agreement after meeting and consulting in good faith, the agency may unilaterally impose.
For many agencies, labor relations resolutions have not received a comprehensive review in decades. A thoughtful update provides an opportunity to align the document with current law, modern labor relations practices, and the agency’s operational needs.
If your EERR was drafted before email was invented, before PERB assumed its current role under the MMBA, or before anyone in the organization can remember where the original signed copy is located, it may be time for a fresh look. Even absent a specific legal issue, periodic review of an employer-employee relations resolution is good governance.
HAVE WE CONVINCED YOU? Are you inspired to make 2026 the year you get a new EERR? Reach out to your trusted legal advisors for assistance.
Public agencies in California face ongoing challenges to keep their personnel rules current with evolving legal requirements. Summer offers an ideal opportunity to review and update these rules. Over the past few years, LCW attorneys have identified several key areas where updates are needed in almost every public agency’s personnel rules. Addressing these areas now can help agencies ensure compliance, reduce risk, and stay ahead of potential legal issues in the year ahead.
1. Outdated Family and Medical Leave Definitions
Since 2020, the legislature has updated the California Family Rights Act (“CFRA”) definitions. CFRA now includes siblings, adult children, grandparents, grandchildren, and individuals related by blood or whose association is equivalent to a family relationship (referred to as a “designated person”).
Personnel rules should clearly distinguish between the Family and Medical Leave Act (“FMLA”) and CFRA definitions of “family member.” Without this clarification, agencies risk denying eligible leave, misclassifying the type of leave, or applying outdated eligibility standards.
2. Missing Reproductive Loss Leave
As of January 1, 2024, California employers must provide up to five days of reproductive loss leave under Labor Code section 12945.6. This leave covers events such as miscarriage, stillbirth, failed adoption, failed surrogacy, or unsuccessful assisted reproduction.
Many personnel rules still do not reflect this leave entitlement or offer any procedural guidance. Omitting reproductive loss leave puts agencies out of compliance and leaves Human Resources staff and supervisors without clear direction when these situations arise.
3. Overly Broad and Vague Grievance Procedures
Grievance procedures often present two problems. First, they allow employees to file grievances over nearly any workplace matter, including issues beyond management’s purview and control. Second, they lack clear procedural steps and timelines, or include language so complex or detailed that it becomes nearly impossible to follow.
Agencies should keep these procedures practical. Define grievable matters appropriately, and ensure the steps are straightforward and realistic. The grievance process should protect employee rights without creating unmanageable administrative burdens.
4. Undefined Workweek Start and End Times
Many personnel rules do not define the agency’s workweek, which creates uncertainty when calculating overtime and complying with the Fair Labor Standards Act (“FLSA”). Without a clearly defined workweek, agencies risk miscalculating overtime and may be exposed to wage claims or liability for back pay.
Because agencies may include FLSA-related information in their Memorandums of Understanding (MOUs), they often assume the information is covered. However, MOUs frequently address schedules and overtime rules without explicitly defining the start and end of the workweek. This assumption results in the issue being overlooked. To avoid confusion and ensure consistent application, we recommend that agencies clearly establish the workweek for all employee groups, whether in the personnel rules, the MOU, or both.
5. Harassment, Discrimination, and Retaliation Policy
The Fair Employment and Housing Act (“FEHA”) requires all employers to maintain a harassment, discrimination, and retaliation prevention policy that includes specific content. These requirements include reporting procedures, defined protected classifications, employee and supervisor obligations, and notice about employees’ rights to file complaints with outside agencies.
Personnel rules must identify the Equal Employment Opportunity Commission (“EEOC”) and the California Civil Rights Department (“CRD”) and include contact information for each organization. Despite the CRD changing its name from the Department of Fair Employment and Housing (“DFEH”) in 2021, many personnel rules still use the outdated name. Agencies should review their policies and update these references as needed, and agencies should confirm that policies meet the current legal standards outlined by the CRD. Utilizing the outdated agency name signals to employees that the agency is not maintaining and updating its policies.
Agencies also frequently include designations in their lists of protected classifications that are not required by law. For example, some policies include “political beliefs” as a protected classification. Including classifications beyond those required by applicable law may create additional obligations and increase the risk of disputes, especially when relating to highly charged topics.
6. Outdated Sick Leave Policy
Numerous times in the most recent several years, the California legislature has amended employers’ obligations to provide sick leave. The most significant amendment, in January 1, 2024, was to increase employees’ entitlement to a minimum of 40 hours or 5 days per year. It allows employers to maintain the accrual method of 1 hour per 30 hours worked, but if utilizing an alternative accrual method, employers must provide at least 24 hours by the 120th day of employment and 40 hours by the 200th day of employment. In 2025, AB 2499 expanded sick leave protection to make it available to employees who are victims or whose family members are victims of a “qualifying act of violence,” significantly broadening the circumstances when leave can be used. Finally, AB 406, effective October 1, 2025, clarified that sick leave may be used for specific purposes such as jury service, subpoenaed witness appearances, violence-related relief, and, beginning January 1, 2026, certain crime-victim judicial proceedings. Staying up to date with permitted sick leave uses and allowances is critical to avoiding liability.
Conclusion
Personnel rules serve as the guiding posts of agency operations and employee relations. When agencies fail to keep these rules current, they increase the risk of noncompliance, confusion, and costly disputes. Summer provides valuable time for public employers to review and update their rules in light of recent legislative changes and evolving workplace needs. Regular review and careful revision help ensure that personnel rules remain a reliable and defensible resource for agencies amidst an ever-changing legal landscape.