Briefing Room
firm victories
LCW Partner James Oldendorph and Associate Peter Cress Persuade Hearing Officer to Uphold Termination of Non-Sworn Records Manager.
A police department terminated a non-sworn records manager for dishonesty. The manager had secretly recorded a counseling session she had with a subordinate and shared the recording with a co-worker. The recording was then shared with a supervisor and resurfaced later.
During the internal investigation, the manager lied multiple times by stating: she did not make the recording; she did not recall the counseling session she recorded; and she did not remember the telephone call she had with the police captain regarding the recording.
The manager requested an appeal to challenge her termination. The hearing officer found that the manager was dishonest because: 1) the lie concerned a workplace matter; 2) the manager’s statements were false; 3) the manager knew that her statements were false at the time she made them; and 4) the manager made the false statements with the intent to have the department investigators rely upon them. The hearing officer highlighted how Oldendorph had elicited testimony from the manager that proved that the manager knew that her statements were false at the time she made them.
The hearing officer also determined that the penalty of termination was reasonable since the manager should have known that presenting false information in a workplace investigation would be met with severe consequences.
LCW Associate Alex Wong Convinces Court That Airport Security Guard Was a Local Miscellaneous Member.
A city employee began working as an airport security guard (ASG) in 1985. The city reported the ASG’s service as a local miscellaneous member to the Board of Administration of the California Public Employees’ Retirement System (Board). The ASG retired. In 2000 and in 2015, the ASG requested the Board to reclassify her as a local safety member. Each time, the Board declined.
In 2018, the ASG appealed the denial of her request to the California Superior Court. The ASG argued that her duties qualified as “active law enforcement” as required for safety member status, because she patrolled the airport, responded to emergencies, issued citations, and received law enforcement training. In 2021, the ASG filed a preemptory writ of mandate to request the court to direct the Board to reclassify her position to local safety member. The court denied this petition. The ASG appealed.
The California Court of Appeal affirmed the lower court’s decision. The Court concluded that the ASG’s duties only sometimes involved elements of law enforcement, and did not primarily consist of “active law enforcement service” such as: the investigation and suppression of crime; or the arrest and detention of suspected criminals. Instead, the evidence indicated that ASGs primarily performed security, administrative, and operational tasks and were directed to “observe and report” rather than engage in active enforcement or apprehend individuals.
The Court distinguished the ASGs work from others who have more extensive law enforcement
responsibilities or comparable risks. It emphasized that occasional involvement in law enforcement activities does not meet the statutory criteria for reclassification as a safety member. Ultimately, the Court upheld the trial court’s denial of a writ of mandate.
Senior Counsel Stefanie Vaudreuil Secures Demotion of Fire Captain Who Failed to Respond.
In February 2024, a fire captain’s unit was called to bring a water tanker to a fire in a rural area. The fire captain failed to respond. When the battalion chief contacted the fire captain to discuss the lack of a response, the fire captain said that it did not seem necessary to respond because the incident would likely be cancelled, so the fire captain decided to monitor the radio instead. But, CALFire was relying on the water tanker to respond to the incident in the rural area where access to water for firefighting purposes is scarce.
The fire district sought to demote the fire captain to fire engineer. The fire captain exercised his Skelly rights in response. At his Skelly conference, the fire captain gave several reasons for his actions, which expanded over time. At the disciplinary appeal hearing before an administrative law judge, the fire captain’s expanded explanations cast doubt on his credibility, and he gave vague and repeated references to unfounded assertions. Senior Counsel Stefanie Vaudreuil convinced the ALJ that sufficient cause existed to demote the fire captain based on his failure to respond to the February 2024 call, and that demotion was appropriate.
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disability
Employee Terminated for Inaccurate Responses on Her Health Screening Wins Minimal Jury Verdict.
Ashley Howell worked as a temporary pre-licensed psychiatric technician (PT) with the State Department of State Hospitals (DSH) from January 2 - 24, 2020. PTs provide nursing and psychiatric care to DSH’s patients.
Howell underwent a health screening which required her to disclose, among other things, any disorders to her nervous system, lung or respiratory trouble, or shortness of breath. Howell disclosed her asthma, but nothing else despite the facts that Howell had been previously diagnosed with: major depressive disorder and post traumatic stress disorder while employed with the California Department of Corrections and Rehabilitation (CDCR); panic attacks with trouble breathing; and shortness of breath. Howell was still on medical leave from CDCR and received counseling and treatment through workers compensation, when she responded to the DHS health screening questions.
When Howell began employment with DSH on January 2, 2020, she was still on medical leave with CDCR. The next day, Howell submitted a doctors’ note to CDCR stating she could not return to work until February 23.
DSH only learned of Howell’s leave status until on or about January 22, when CDCR informed DSH. Then, DSH discovered that Howell had sustained an injury to her “nervous system,” which was inconsistent with her response on DSH health questionnaire. On January 24, DSH therefore terminated Howell’s employment.
Howell sued DSH under the Fair Employment and Housing Act (FEHA) for mental and physical disability discrimination, as well as other FEHA claims. The court granted DSH’s motion for summary judgment in favor of DSH on the other FEHA claims. Howell’s claims for mental and physical disability discrimination were tried to a jury. The jury found for Howell on her mental disability discrimination claim only, and awarded $28,941 in lost earnings, $7,810.25 in lost health insurance, and zero for pain and suffering.
DSH moved for judgment notwithstanding the verdict, which the court granted. As a result, the court struck the award for lost health insurance because Howell had failed to present evidence of out-of-pocket expenses caused by the loss. As the prevailing party, Howell also sought over $1.75 million in attorney fees, costs, and prejudgment interest. The court awarded only $135,102. Howell appealed.
Howell argued that there was no justification for the zero-dollar award for her pain and suffering because she had offered supporting testimony of several witnesses. The Court of Appeal’s review of the record showed that her pain and suffering arose from her sexual assault at CDCR, and not from her termination from DSH. Howell also argued that the trial court erred by striking the jury’s award for lost health insurance benefits, and granting only part of Howell’s motion for attorney fees, costs, and interest. The Court noted that Howell did not provide evidence of out-of-pocket expenses for lost health insurance benefits. The Court also upheld the trial court’s award of $135,102 in attorney fees and costs, finding Howell’s request for $1.75 million to be unreasonable. The Court remanded the case for the trial court to address Howell’s request for prejudgment interest.
Howell v. State Dept. of State Hospitals, 2024 Cal. App. LEXIS 784.
governmental liability
Off Duty School District Police Officer Could Have Been Acting Within Scope of Employment When He Assaulted Man.
In February 2018, Antonio Juarez found a cellphone on the ground and placed it in his truck. Later that afternoon, Police Officer Alejandro Brown tracked his cell phone location to the home of Jose Hinojosa. Officer Brown worked for the San Bernardino City Unified School District (District). Officer Brown went to Hinojosa’s home and approached Juarez, Hinojosa, Jose Espinosa, and Maria Morfin (collectively, Plaintiffs).
Officer Brown, carrying his firearm and displaying his badge, identified himself as a District police officer, and demanded that the group comply with his commands. Officer Brown then pulled his firearm, cocked it, and aimed it at Juarez, Espinosa and Hinojosa, who were outside the home, while Morfin watched from inside. Officer Brown demanded they turn over the cell phone and repeatedly asserted his authority as a police officer. Juarez retrieved the phone and attempted to hand it to Officer Brown, but Brown ordered Juarez to put the phone on the ground. As Juarez went to do so, Officer Brown struck Juarez in the face with his gun, causing Juarez to fall back, hit his head on the ground, and lose consciousness. Officer Brown then took pictures of Plaintiffs and told them he knew who they were.
Officer Brown later pled guilty in to assault by a public officer and threatening the Plaintiffs under color of law. Brown admitted that he had acted under the color of authority as a District police officer when he detained the Plaintiffs and assaulted Juarez.
The Plaintiffs then sued the District, alleging negligence, among other things.
The Plaintiffs alleged that the District was liable for harm Officer Brown caused. Plaintiffs argued Officer Brown was acting within the scope of his employment based on: the vast authority the District gives its officers; and the fact that the incident occurred while Officer Brown was investigating what he believed to be the theft of his cell phone.
The District demurred and the Superior Court dismissed the case. The court found that Plaintiffs failed to allege sufficient facts: to hold the District directly liable for Officer Brown’s acts; that Officer Brown acted within the course and scope of his employment; or that Officer Brown was exercising arrest powers pursuant to the Penal Code at the time of the incident. Plaintiffs appealed.
The California Court of Appeal reversed and remanded. The Court found the Plaintiffs had plead facts sufficient to establish Officer Brown was acting within the scope of his employment. The Court reasoned that Plaintiffs had established a connection between Officer Brown’s duties as a District officer and his misconduct because: 1) he had a duty to ensure the security of property; and 2) the District authorized and equipped him to use force to do so. Finally, the Court concluded that whether Officer Brown was off duty at the time of the incident was not dispositive given the alleged breadth of his off-duty authority.
The Court directed the trial court to vacate its order sustaining the demurrer and conduct further proceedings.
Juarez v. San Bernardino City Unified School Dist., 106 Cal.App.5th 1213 (2024).
LCW 2025
LCW Annual Public Sector
Employment Law Conference
Public Safety Track
January 30-31, 2025
Pre-Conference session: January 29, 2025
• Public Safety Critical Incidents: Complex Scenarios Involving Investigations and Discipline
2025 Liebert Cassidy Whitmore Annual Employment Law Conference January 30, 2025 - Janaury 31, 2025
• Public Safety Legal Update
• Top 10 Things Public Safety Management Needs to Know about HR and Personnel Law
• Managing Critical Incidents: Does Your Law Enforcement Department Need a Constitutional Policing Advisor?
• Defending Employment Litigation Matters Involving Police Officers
POST Credit
POST: We are pleased to announce both the Pre-Conference session: Public Safety Critical Incidents: Complex Scenarios Involving Investigations and Discipline AND the LCW Conference’s Public Safety Track are approved for POST credit.
• 6 hours of POST credit for the Pre-Conference session: Public Safety Critical Incidents: Complex Scenarios Involving Investigations and Discipline
• 8 hours of POST credit for the Conference’s Public Safety Track
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socialsecurity
The Social Security Fairness Act Increases Social Security Benefits for Some Public Employee Pensioners.
President Biden signed the Social Security Fairness Act (Act) into law on January 5, 2025. The Act repeals two provisions that lowered the amount of social security benefits that some public pensioners and/or their spouses could receive. The Act is retroactive to January 2024.
The Act repeals two provisions that were enacted in 1983: the Windfall Elimination Provision (WEP); and the Government Pension Offset (GPO). The WEP reduced Social Security benefits for individuals who received pension or disability benefits from employment where Social Security payroll taxes were not withheld, such as most state and local governmental employment. The GPO reduced Social Security benefits for spouses, widows and widowers who also received income from their own government pensions.
The Social Security Administration is evaluating how to implement the Act. If a public pensioner or their surviving spouse previously filed for Social Security benefits, and their benefit was partially or completely offset by the WEP or the GPO, the Social Security Administration advises that there is no need for pensioners to take any action except to verify that the Social Security Administration has their current mailing address and direct deposit information. If a public pensioner or their surviving spouse has never filed for Social Security benefits, then they should apply online at www.ssa.gov/myaccount.
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Did You Know?
Whether you are looking to impress your colleagues or just want to learn more about the law, LCW has your back! Use and share these fun legal facts about various topics in public safety.
• Government Code section 1031.1 requires that, under certain conditions, an employer comply with a request for background check information for candidates for sworn peace officer positions. Under this statute, the employer that provides information is shielded from liability based on the disclosure of information.
• This month, the Commission on Peace Officer Standards and Training (POST) released its Revised Background Investigation Manual, which is available on POST’s website.
• U.S. Attorney Phillip A. Talbert announced the recipients of the annual Eastern District of California Law Enforcement Awards. These awards are presented to law enforcement agencies and investigators in the District’s Sacramento and Fresno divisions to recognize outstanding collaborations between federal, state, and local law enforcement in addressing public safety issues in this region. Recipients this year include the Fresno Multi-Agency Gang Enforcement Consortium, Sacramento Hi-Tech Crimes / Internet Crimes Against Children Task Force, Yuba County Sheriff’s Office Peace Officer Sixto Torres, Fresno County Sheriff’s Office Sergeant Scott Schwamb, FBI Special Agent Jessi Groff, and Homeland Security Investigations Special Agent Jackie Lovato.
new to the Firm!
Jessica Neighbors is an Associate in the Los Angeles office of Liebert Cassidy Whitmore, where she provides advice and counsel on a wide range of labor and employment law matters.
Call Of The Month
Members of Liebert Cassidy Whitmore’s employment relations consortiums may speak directly to an LCW attorney free of charge regarding questions that are not related to ongoing legal matters that LCW is handling for the agency, or that do not require in-depth research, document review, or written opinions. Consortium call questions run the gamut of topics, from leaves of absence to employment applications, disciplinary concerns and more. This feature describes an interesting consortium call and how the question was answered. We will protect the confidentiality of client communications with LCW attorneys by changing or omitting details.
Question:
Our agency has some issues with attrition for peace officers and dispatchers who are represented by a POA. The rest of our nonsworn staff is represented by another organization. If we offer to meet and confer regarding a retention bonus with the POA, do we have to meet with other organization as well?
Answer:
No. Since the retention bonus is wages, your agency is required to provide written notice and to meet and confer upon request with only the employee organizations whose members would be eligible for the bonus.
On The Blog
The Risks of Rewards: Are Your Year-End Bonuses Discriminatory?
By: Anthony Co
Bonuses are a common form of employee compensation that can incentivize and reward performance to retain high quality employees. On the flip side, employers must navigate legal risks and challenges to ensure compliance with federal and state laws.
As with any matter that concerns payment of wages, bonuses implicate a plethora of legal subjects. This discussion aims to alert employers of some potential issues, but a full and periodic legal review of an agency’s compensation procedures is always prudent.
Familiar Issues
Employers tend to be familiar with discrimination which falls under the Fair Employment and Housing Act and Title VII. Such discrimination may manifest as “disparate treatment” or “disparate impact.
Disparate Treatment
Disparate treatment is intentional discrimination as to similarly situated individuals based on a protected classification, such as race, sex, gender, religion, national origin, or disability. While it would be difficult to “audit” whether a supervisor is doling out bonuses discriminatorily, the employer can minimize the risk of disparate treatment by establishing clear, objective, and written criteria for an employee’s eligibility for a bonus. The employer should encourage employees to report potential unlawful or perceived unlawful conduct to any member of management. Employers should also require management employees to promptly and appropriately address such complaints or face disciplinary action themselves.
Disparate Impact
Disparate impact discrimination occurs when a facially neutral employment practice disproportionately affects members of a protected class, even with no intent to discriminate. A complainant must show that the practice resulted in a significant adverse effect on a protected class, typically through statistical evidence showing a disproportionate exclusion of members of a protected class.
The EEOC applies a general rule-of-thumb known as the “four-fifths rule” to determine if an employment practice has a disproportionate impact. In the context of a bonus, if the ratio between the bonus for one group is less than 80% (four-fifths) of the bonus received by another group, this may indicate a disparate impact.
For example, if a school’s female teachers receive an average bonus of $7000 and its male teachers receive an average bonus of $10,000, the female teachers are receiving less than 80% of their male counterparts’ bonus compensation:
Ratio = $7,000 / $10,000 = 70%
Employers need not wait for a complaint to determine whether its bonus system has a disproportionate impact on a protected classification. Agencies can consult with legal counsel to proactively detect potential disparities.
The Equal Pay Act (EPA)
The federal Equal Pay Act prohibits pay disparity between employees conducting substantially similar work on the basis of sex. The California Equal Pay Act similarly mandates equal pay for equal work, but with an expanded scope to include gender, race, and ethnicity.
Essentially, employees of a protected class cannot be paid at a rate less than the rate paid to employees of a different protected class. Employers may defend against an EPA claim by showing that the disparity is the result of (a) a seniority system; (b) a merit system; (c) a system that measures earnings by quantity or quality of productions; or (4) a bona fide factor other than sex, race, or ethnicity such as education, training, or experience. Notably, employers cannot rely on the employee’s prior salary to excuse the disparity.
How to Spot an EPA Issue
Similar to the disparate impact analysis, employers should also proactively investigate whether their bonus systems have resulted in pay disparity between members of different protected classifications. Generally, members of the same job classification should receive bonuses measured under the same metrics regardless of their protected classification. If an employee within a job classification is performing substantially different work, which thereby results in an apparent pay disparity, the employer should consider moving the employee out of class.
Keep in mind that prior salary is never a defense to an alleged pay disparity. This may become an issue if employees within a job classification receive different bonus rates based on their salary step.
For example, a bonus system could establish that employees at step 1 of the salary scale receive a bonus of 5% for satisfactory performance while employees at step 2 receive a bonus of 7% for also satisfactory performance; such bonus systems are not inherently unlawful. However, if the system results in pay disparity between protected classifications, the employer cannot defend the disparity by asserting that the employees were simply at different salary steps. The employer must demonstrate different objective criteria, such as a non-discriminatory reason for placing the employees at different salary steps in the first place (e.g., employees with less than 2 years of experience are at step 1 while employees with more than 2 years of experience are at step 2).
To effectively defend potential legitimate, nondiscriminatory disparities in pay between members of protected classifications, employers should endeavor to detail as thoroughly as possible the objective criteria of their bonus system.
Leave a Paper Trail
As noted above, these are just a few of the several issues employers may encounter when providing bonus compensation. Generally speaking, an employer cannot go wrong documenting its legal activities, and this is true with bonuses. Ideally, agencies should document the reason for any employee’s bonus pay based on written procedures for objective evaluations adopted by its governing body. Clear documentation and adherence to established procedures not only ensure compliance but also foster transparency and fairness in bonus compensation practices.
Read the full blog post here.
Liebert Cassidy Whitmore