Client Update
firm victories
Partner Paul Knothe and Associate Gabriella Kamran Defeat Firefighter’s Retaliation Claims.
A firefighter sued his city employer in the California Superior Court. He alleged retaliation in the form of disproportionate discipline for his alleged advocacy on behalf of the firefighters’ union. He also alleged non-specific violations of the Firefighters Procedural Bill of Rights (FBOR).
LCW demurred to all causes of action in the complaint on the grounds that the firefighter’s claims amounted to a labor dispute that fell under the exclusive jurisdiction of the Public Employment Relations Board (PERB). The firefighter argued that the alleged retaliation was unrelated to union activities. LCW countered that the firefighter’s claims—that the city retaliated against him for his participation in protected union activities, and that all whistleblower activities that the firefighter pursued—were performed through the union or while advocating on behalf of the union.
The Court agreed with LCW that the firefighter’s union activity was central to his claims, sustained the city’s demurrer without leave to amend, and dismissed the case.
LCW Partner Jennifer Rosner and Associate Viddell Lee Heard Secure Aggressive Deputy’s Termination.
A sheriff’s deputy responded to a call for service at a residential building, and began interviewing a suspect. During the interview, the suspect started a verbal argument with a visibly disabled resident, who was passing by. The resident complied with the deputy’s order to keep walking but continued to exchange words with the suspect. The deputy then aggressively arrested the resident and placed him in a patrol vehicle.
After an investigation into the arrest, the department terminated the deputy for policy violations regarding: excessive use of force; conduct unbecoming an officer; and conduct bringing discredit to the department. The deputy appealed the decision to arbitration.
The arbitrator found for the city on all questions. The arbitrator agreed with LCW that the deputy’s use of force was excessive, unnecessary, and in violation of several department policies. The arbitrator also found the deputy’s conduct to be a violation of several sections of the MOU between the officer’s association and the department. The arbitrator upheld the deputy’s termination and concluded that such a termination was necessary to protect and serve the public.
discrimination
Postal Employee Can Proceed With Title VII Claims For
Disparate Treatment and HWE.
Dawn Lui is a woman of Chinese ethnicity. She began working for the U.S. Postal Service (USPS) in 1992. By 2014, she became Postmaster of the Post Office in Shelton, WA. Employees then began targeting Lui with a series of false complaints, grievances, and slurs.
After an investigation into the employee grievances, Lui received a notice of Unacceptable Conduct that charged her with: 1) threatening a carrier to get him to accept a schedule change; and 2) throwing a clipboard and kicking packages and boxes. The notice demoted her to a lower-paying position. USPS replaced Lui with a white man.
Lui then filed a discrimination complaint, appealed her demotion to the Merit Systems Board, and sued USPS in U.S. District Court. Lui’s lawsuit alleged Title VII claims for: disparate treatment; hostile work environment (HWE); and retaliation. USPS moved for summary judgment. The district court granted USPS’s motion in full. Lui timely appealed.
The Ninth Circuit reversed the district court as to the disparate treatment and HWE claims, and upheld the district court on the retaliation claim.
As to the disparate treatment claim, the Ninth Circuit determined that an employee could satisfy the fourth element of a Title VII prima facie case in any of the following alternative ways: a position remained open and the employer continued to seek applicants; or the position was ultimately filed by an employee outside the protected class; or the employee was treated less favorably than similarly situated employees. The Ninth Circuit rejected the district court’s requirement that Lui needed to show both that she was replaced by an employee outside her protected class, and that she was treated less favorably than similarly situated employees.
The Ninth Circuit also found fault with the district court’s conclusion that USPS’s independent investigation met the USPS’ burden of showing a legitimate, nondiscriminatory reason for Lui’s demotion. The Court found that Title VII violations may occur even if the ultimate decision-maker has no discriminatory intent, but takes an adverse employment action in reliance on factors infected by another decision-maker’s discriminatory animus. Here, the ultimate decision-maker heard no live testimony. She credited the employee’s written complaints even though she knew that the employees could have been motivated by racial bias. Instead, she based her decision to demote Lui entirely upon information provided by the very individuals that Lui alleged were racially biased. At the very least, the Ninth Circuit determined that there was a genuine dispute of material fact whether the ultimate decision-maker was independent or influenced by subordinate bias.
As to the HWE claim, the Ninth Circuit determined that, contrary to USPS’s argument, Lui’s failure to address administrative exhaustion in her opening brief was at most a forfeiture, not a waiver. The court can review a forfeited issue if the failure to properly raise the issue did not prejudice the opposing party. The record showed that USPS had notice of Lui’s positions and arguments. The Ninth Circuit concluded that Lui exhausted her administrative remedies for her HWE claim.
As to the retaliation claim, the Ninth Circuit affirmed the district court. It found that Lui failed to establish a causal connection between Lui’s actions to bring an employee’s husband into a staff-only area of the Post Office, and USPS’s decision to downgrade her position. The Court affirmed the district court’s grant of summary judgment to USPS on Lui’s retaliation claim.
The Ninth Circuit remanded for the district court to address the merits of Lui’s disparate treatment and hostile work environment claims.
Lui v. DeJoy, 129 F.4th 770 (9th 2025).
retaliation
County Defeats Surgeon’s Whistleblower Claims.
Dr. Timothy Ryan, a vascular surgeon, was on the medical staff of the Los Angeles County- operated HarborUCLA Medical Center.
Ryan believed that the Chief of Vascular Surgery, Dr. Rodney White, encouraged a patient to have aortic stents implanted because White was receiving a financial incentive from the stent’s manufacturer. The patient died while White was implanting the stents. Ryan also suspected that White falsified the patient’s medical records to justify the unnecessary surgery. Ryan reported his concerns to several County officials. He also reported his suspicions that the medical records had been falsified.
In 2015, Ryan filed a government claim with the County. Ryan claimed that White had a long course of retaliating against him. For example, in 2015, White filed a formal complaint accusing Ryan of disruptive and unprofessional conduct. An ad hoc committee also found Ryan’s behavior was unprofessional, and recommended counseling or revocation of privileges if he failed to improve. Ryan refused to sign a behavioral agreement and a required release in his reappointment application. Ryan’s refusal to sign led to the lapse of his clinical privileges and his termination.
Ryan sued the County in 2016 in the California Superior Court, asserting claims for: 1) retaliation in violation of Health and Safety Code section 1278.5; 2) retaliation in violation of Labor Code section 1102.5; and 3) retaliation after reporting potential false claims to Medi-Cal under Government Code section 12653. This summary focuses on the Labor Code and Government Code claims.
The trial court found for the County regarding the Labor Code section 1102.5 claim. Ryan’s refusal to complete his reappointment requirements was a legitimate, non-retaliatory reason for his termination. The trial court ruled in favor of Ryan on the Government Code section 12653 claim, finding that Ryan reported what he believed was the creation of a false medical record to Medi-Cal, the County took adverse action against Ryan, and Ryan’s act to stop a false claim was a motivating reason for the County’s decision to take adverse action against Ryan. The jury awarded Ryan $2.1 million for past and future mental suffering and emotional distress. Both Ryan and the County appealed.
The California Court of Appeal reviewed Ryan’s Labor Code section 1102.5 claim and found that the County met the legal burden of proving Ryan would have been terminated regardless of his whistleblowing activity. Regarding Ryan’s Government Code section 12653 claim, the Court found that public entities like the County cannot be sued under this section based on California Supreme Court precedent. The Court entered judgment for the County on the Government Code section 12653 claim and otherwise affirmed the judgment.
Timothy Ryan, M.D., vs. County of Los Angeles, 109 Cal.App.5th 337 (2025)
No CalPERS Benefits For Overtime Or Holiday Pay For Sergeant On Association Leave.
Gerry Serrano was a homicide detective sergeant for the City of Santa Ana. In April 2016, Serrano was elected as president of the Santa Ana Police Officers Association.
While serving as president, Serrano was on leave of absence from law enforcement duties. The MOU provided that the City would pay the Association president “full salary including any salary additives” while the Association president was on leave, and that the Association would reimburse the City 100% of the cost of the Association president. The MOU also noted that whether the Association’s president’s compensation was “PERSable” was up to CalPERS. The City continued to pay Serrano his sergeant’s salary and related pay additives that he earned while a homicide detective sergeant: detective premium; bilingual premium; educational incentive; holiday pay; uniform allowance; and a confidential premium – overtime pay.
In October 2020, CalPERS notified the City that the confidential overtime premium was not pensionable for Serrano because he was on leave of absence. The City appealed this determination, which Serrano joined. CalPERS subsequently reviewed the entirety of Serrano’s pay and determined, with the exception of the educational incentive, the pay additives were also not pensionable.
Serrano filed a petition for a writ of mandate. Serrano alleged that the MMBA required the City to give him a reasonable leave of absence to serve as a union representative “without loss of compensation or other benefits.” (Government Code section 3558.8.) Serrano dropped his claims to all add on compensation except confidential premium pay and holiday pay. The superior court denied Serrano’s petition. Serrano appealed.
The California Court of Appeal affirmed the superior court. CalPERS law distinguishes between “compensation” and “compensation earnable”.
Compensation earnable includes only the payrate and special compensation. If an item of special compensation is not listed in the CalPERS Regulation 571, then it is not included in the calculation of CalPERS retirement benefits. The Court noted that the MMBA does not define “compensation” or “benefits” and determined these terms would mean the same as defined in CalPERS law. The Court held that the MMBA at Government Code section 3558.8 did not require all of the compensation Serrano earned as a police sergeant to be part of his pension benefit while he served as Association president.
The Court concluded that the confidential premium was not pensionable under CalPERS law because it was a payment for overtime, and not for work during normal work hours. The court found that Serrano’s holiday pay was not pensionable because he was not required to work on holidays, as required by Regulation 571.
Serrano v. Public Employees’ Retirement System, 109 Cal. App.5th 96 (2025)
Reciprocal Retirement Benefit Did Not Create Any Vested Pension Rights.
In 1975, through a Los Angeles City Charter amendment, the LA Department of Water and Power (DWP) and the City of Los Angeles entered a “reciprocal benefits arrangement between their retirement systems” (Reciprocal Arrangement). In the beginning, a roughly equal number of employees transferred between the entities. However, in 2009, to avoid layoffs, City employees were encouraged to transfer to DWP which had separate funding.
Facing financial imbalances and disproportionate employee transfers from the City to DWP, DWP’s retirement board suspended the Reciprocal Arrangement. The City then formally suspended the arrangement in 2013 by adopting an Ordinance. As a result, employees transferring from DWP to City retirement after January 1, 2014 could no longer receive City retirement credit for
their previous DWP employment. In 2016, several City employees petitioned for a writ against the City and others for, in part, “unconstitutional impairment of vested contractual rights in violation of the California Constitution.” The International Brotherhood of Electrical Workers, Local 18 intervened, on the City’s side. Local 18 represented DWP employees.
City employees and their unions (City Employees) asserted that the 2013 Ordinance impaired employees’ vested retirement benefits in violation of the contract clause of the California Constitution.
The trial court determined that the City Employees had failed to establish that they had a vested contractual right to the Reciprocal Arrangement. The City Employees appealed.
The California Court of Appeal found that the Reciprocal Arrangement did not grant the City Employees a form of deferred compensation akin to vested pension benefits. The Reciprocal Arrangement was available to employees regardless of years of service. Thus, unlike pension benefits, the terms of the Reciprocal Arrangement were not proportional to years of service, a hallmark of deferred compensation. A legislative change, like the 2013 Ordinance that ended the Reciprocal Arrangement, that has the effect of lowering expected pension benefits does not necessarily impair vested rights. The diminished rights the City Employees complained about were not their rights to the pension benefits, but rather to the terms of the Reciprocal Arrangement, which were never akin to deferred compensation, nor constitutionally guaranteed. The Court concluded that any rights employees had under the Reciprocal Arrangement were not vested rights, and the City Council could modify those terms as it did in adopting the 2013 Ordinance.
The Court affirmed the superior court’s denial of the petition for writ of mandate.
American Federation of State, County and Municipal Employees v. City of Los Angeles & International Brotherhood of Electrical Workers, Local 18, 2025 Cal.App. LEXIS 197.
LCW In The News
To view these article and the most recent LCW attorney-authored articles, please visit: www.lcwlegal. com/news
• Recently quoted in Western City, LCW Firm Co-Managing Partner Melanie L. Chaney discusses the opportunities and challenges of generative artificial intelligence (GenAI) for local governments. Cities across California are leveraging GenAI for tasks such as infrastructure monitoring, staff report generation, and resident engagement. However, Chaney emphasizes the importance of safeguarding municipal data, ensuring compliance with privacy laws, and maintaining human oversight to prevent misinformation. She also highlights the significant energy demands of AI technologies, urging cities to adopt a cautious and strategic approach. Experts recommend piloting GenAI tools before full-scale implementation to mitigate risks and maximize benefits.
To access the full article, please click the following link: https://www.westerncity.com/article/should-yourcity-embrace-genai-its-complicated
• Recently published in PSHRA’s Public Eye Magazine, LCW Partners Paul D. Knothe and Alexander C. Volberding provide insights into the potential impact of a second Trump administration on the public sector workforce. Knothe and Volberding discuss key policy shifts, including on the regulation of AI, changes to public sector labor relations, and the rollback of diversity, equity, and inclusion (DEI) initiatives. They highlight the potential reduction of federal oversight on AI, proposed civil service reforms that could lead to large-scale reclassifications, and efforts to curtail remote work. With significant implications for state and local governments, they emphasize the need for public sector employers to prepare for these possible changes.
LABOR RELATIONS
PERB Orders CalHR To Distribute Notice Of Decision And Order Directly To Third-Party Child Care Providers.
Childcare Providers United – California (CCPU) was the certified provider organization that represented family childcare providers in negotiations with the State of California pursuant to the Childcare Provider Act. In 2020, CCPU was preparing for bargaining. CCPU requested the State to provide information that only the third-parties who provided child care could supply, such as: data on subsidies; program participation; and waived family fees. The State resisted, asserting it could only provide aggregate data already in its possession. CCPU filed an unfair practice charge with PERB.
The PERB ALJ issued a proposed decision to sustain CCPU’s charge, holding that the State—through its bargaining agent, the California Department of Human Resources (CalHR)—had a duty to make reasonable efforts to obtain the requested information from all political subdivisions, contractors, and subcontractors.
The ALJ’s proposed decision also directed the State to make reasonable efforts to distribute the Notice of Decision and Order (Notice) directly to the child care providers via mail or email. No party excepted to the ALJ’s proposed decision, so it became final.
In subsequent compliance proceedings, the State claimed it fulfilled the Notice distribution requirement by posting the Notice on agency websites and instructing contractors to send it to providers. CalHR argued that direct mail or e-mail was impractical due to the size of the bargaining unit, technological limitations, and incomplete contact information. CCPU argued that the Decision clearly directed the State to distribute the Notice directly to providers. PERB’s Office of General
Counsel (OGC) issued an Administrative Determination finding that the State had complied with the Order by directing its contractors to distribute the Notice. CCPU appealed the Administrative Determination, arguing that the State did not comply because only about 80% of contractors confirmed that they distributed the Notice to providers.
PERB reversed the OGC’s Administrative Determination that the State had complied with the Notice distribution requirement. PERB reasoned that the State could not avoid the Order’s “reasonable efforts” requirements by shifting responsibility to third parties and then failing to make reasonable efforts to monitor their success. Given that a significant number of contractors failed to respond, and others seemingly failed to distribute the Notice directly to providers, the State failed to carry its burden to prove it complied with the order. PERB ordered the State to distribute the Notice directly to providers by mail or e-mail by a deadline to be set by the OGC.
California Child Care Workers United v. State of California (2025) PERB Dec. No. A524N
Attorney General Opines That A General Law City Cannot Establish a Seven-Member Library Board of Trustees.
The California Attorney General asked and answered this question: May a general law city that has expanded its city council from five to seven members establish a seven-member municipal library board of trustees to permit all members of the city council to serve on that board, instead of a five-member board as specified in Education Code section 18910?
No. A general law city that has expanded its city council from five to seven members may not establish a sevenmember municipal library board of trustees because Education Code section 18910 specifies that such a board consists of five members, and neither that statute nor any other statute or applicable authority provides an exception.
Attorney General Opinion No. 24-803, February 13, 2025. Don't Miss Our Upcoming
What Labor Code Sections Apply to the Public Sector?
June 9, 2025 10:00 a.m. - 11:00 a.m.
2026 Public Agency Legislative Roundup
November 12, 2025 10:00 a.m. - 11:00 a.m.
Labor Relations Legislative Update: What Your Agency Needs to Know about New Legal Obligations for 2026
December 11, 2025 10:00 a.m. - 11:00 a.m.
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 labor and employment law.
• California’s law regarding lactation accommodation does not contain any age limit for the child.
• Employers are not required to compensate employees for lactation break time if the break time does not run concurrently with established break times.
• California’s law regarding lactation accommodation applies to all employers, regardless of size, but allows an employer to deny a lactation break if the break would seriously disrupt the operations of the employer.
Consortium 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:
What records can an employee review from their own personnel file?
Answer:
California Labor Code section 1198.5 provides that all current and former employees have the right to request and inspect records or receive a copy of the records themselves or through their union representative.
This right extends to all documents which the employer maintains relating to the employee’s performance or to any grievance concerning the employee. An employee is not entitled to records relating to the investigation of a possible criminal offense or letters of reference. In addition, an employee is not entitled to ratings, reports or records that were: obtained prior to the employee’s employment, prepared by identifiable examination committee members, or obtained in connection with a promotional examination.
benefits corner
IRS Explains Notice Requirements for Employers to Skip Furnishing Form 1095-C.
Applicable large employers (ALEs) have a new option to skip furnishing Form 1095-C to full-time employees and employees enrolled in an employer-sponsored selfinsured plan (eligible employees) if certain conditions are met. On December 23, 2024, President Biden signed the Paperwork Burden Reduction Act (HR 3797) into law. This law adds an option where ALEs do not have to automatically furnish Form 1095-C to eligible employees and instead, ALEs will be treated as timely furnishing the required Form 1095-C if they provide a notice to eligible employees informing them that they can request a copy of their Form 1095-C (Notice). Please see our Special Bulletin describing the Paperwork Burden Reduction Act (HR 3797) for more information.
The language in the Paperwork Burden Reduction Act states that the Notice to employees must be “clear, conspicuous, and accessible (at such time and in such manner as the Secretary may provide)....” It was initially unclear what type of notice would suffice to allow an ALE to skip furnishing Form 1095-C because the Secretary of Treasury had not issued any information.
The Internal Revenue Service (IRS) recently issued awaited guidance on the “time” and “manner” required for such Notice. (See IRS Notice 2025-15.) The IRS will apply the time and manner requirements from Treasury Regulation section 1.6055-1(g)(4)(ii)(B)(1)-(3). Under these requirements, the Notice must:
1. Post a clear and conspicuous notice in a location on the ALE’s website that is reasonably accessible to full-time employees;
2. State that employees may receive a copy of their statement upon request;
3. Explain how employees may request a copy of their Form 1095-C;
4. Include an email address and a physical address where employees can make a request for their Form 1095-C;
5. Include a telephone number that employees may use to contact the ALE with questions; and
6. Be written in plain, non-technical terms and with letters of a font size large enough to call a viewer’s attention that the information pertains to tax statements reporting health coverage. For example, a website that includes words on the main page reading “Tax Information” and a secondary page that includes the statement “IMPORTANT HEALTH COVERAGE TAX DOCUMENTS” in capital letters.
The Notice must be posted on the ALE’s website by the due date for furnishing Form 1095-C, including the automatic 30-day extension (i.e., 30 days after January 31). The notice must remain on the ALE’s website through October 15 of the year following the calendar year that the Form 1095-C covers (or the first business day after if it falls on a Saturday, Sunday or legal holiday.) For Form 1095-Cs covering tax year 2024, the required posting period would March 3, 2025 to October 15, 2025.
If an employee requests their Form 1095-C, then the ALE must furnish the Form 1095-C to the employee no later than: (i) January 31 in the year following the calendar year the Form 1095-C covers; or (ii) 30 days after the request date.
The IRS only recently issued this guidance on February 21, 2025. Since the start date ALEs would be required to post the Notice (March 3, 2025) has passed, it is now too late for ALEs to follow the IRS’s guidance on the time and manner of the Notice to skip furnishing Form 1095-Cs for this year. Any ALEs interested in utilizing the option to skip furnishing Form 1095-Cs in the future should follow the IRS’s guidance on how, when, and where to post the notice and what to include in the Notice for future years.
See IRS Notice 2025-15 for more information, available at https://www.irs.gov/pub/irs-drop/n-25-15.pdf.
Health Care Provider Did Not Engage in Bad Faith When Issuing COBRA Notice that Former Employee (Allegedly) Never Received.
Michael Savino was an electrician who received health coverage through the “Joint Industry Board of the Electrical Industry” (Joint Board), which is a board made up of representatives from electrical employers and the union Savino was a member of. Savino was injured on the job and received free family health coverage while he collected workers’ compensation benefits from May 2017 to May 2019.
After those two years, his health coverage was scheduled to end. The Joint Board sent Savino a COBRA notice explaining his free family coverage would end and that if he did not elect and pay for COBRA continuation coverage, his coverage would end. The Joint Board sent the COBRA notice by first-class mail to Savino’s home address. Savino denied receiving the March 2019 COBRA notice. The Joint Board decided to extend his free family coverage to February 2020. Thereafter, the Joint Board sent him another COBRA notice in February 2020. Savino also denied receiving the February 2020 COBRA notice.
Savino did not elect COBRA and claims he only found out that he had lost his health coverage after receiving
medical bills. He asked the Joint Board to reinstate his free family coverage. The Joint Board, instead, sent him an additional COBRA notice. Savino then filed a lawsuit against the Joint Board with a claim that the Joint Board had failed to provide COBRA notice.
COBRA requires employers and plan administrators to use “measures reasonably calculated to ensure actual receipt” of the COBRA notice by the qualified beneficiaries. (29 C.F.R. section 2520.104b-1(b)(1).)
Under this standard, proof of the actual notice to the former employee is not required. An employer merely has to use methods reasonably calculated to ensure actual receipt of the notice.
Upon a showing of prejudice or bad faith, a plaintiff may be entitled to a penalty when they do not receive a COBRA notice. The Court noted that it is well settled that “[w]hen an employer mails a COBRA notice to the covered employee's last known address, the notice is reasonably calculated and the employer is ‘deemed to be in good faith compliance with COBRA's notification requirements.’”
Savino argued that the Joint Board did not actually mail a COBRA notice to his home address, or that the Joint Board did not follow its standard mailing procedure since he did not receive the COBRA notice. However when asked whether he had any knowledge that the COBRA notice was not sent to him, Savino testified that he had, “[n]o knowledge that it wasn’t sent to me.”
The Court assessed that bare denials could not defeat the Joint Board’s motion for summary judgment.
However, the Court also found information missing from the Joint Board’s evidence. Even though the Joint Board was able to provide copies of the COBRA notices it prepared for Savino, there was no sworn statement by an individual with personal knowledge that the COBRA notices were, in fact, sent. In many cases, courts will look for “something more than a declaration from an individual removed from the actual noticemailing process.” Yet, the Court still ruled in favor of the Joint Board.
The Court found Savino failed to raise any issue of fact about the Joint Board’s bad faith or prejudice to him. Savino conceded he had no reason to believe the Joint Board failed to send the COBRA notices on purpose, and the Court found there was no prejudice to Saviano because his COBRA premium payments would have exceeded the medical bills he incurred during the period of coverage in dispute. Therefore, the Court did
not award statutory penalties for failure to provide COBRA notice. The tax penalty for not sending out a COBRA notice would have been $100 per day per person or $200 per day per family. (26 U.S.C. § 4980B(b)(1), (2)(B)(i)-(ii).)
Savino v. Joint Indus. Bd. of the Elec. Indus. (E.D.N.Y. Jan. 13, 2025, No. 22-cv-682 (CBA) (PK)) 2025 U.S.Dist.LEXIS 7201.
Note:
Many health plan administrators send out COBRA notices to qualifying employees. For example, CalPERS sends out COBRA notices to individuals who lose coverage under a CalPERS health plan. Therefore, if an employer does not timely send out a COBRA notice, it should check whether its health plan administrator sent out a COBRA notice to meet the notice requirements.
Benefits Compliance Question.
Question: Why are temporary employees required to enroll in an alternate retirement plan if they not eligible for enrollment in the CalPERS retirement system and do not pay into Social Security?
Answer: Beginning in 1951, states were allowed to enter voluntary agreements with the federal government to provide Social Security coverage to public employees. These agreements are called Section 218 Agreements. Local public agencies were also allowed to voluntarily provide Social Security coverage to their employees by adopting their own Section 218 Agreements and notifying the state. Then, the Omnibus Budget Reconciliation Act of 1990 (OBRA) went into effect July 1, 1991, which made Social Security coverage mandatory for all state and local government employees who are not members of a public retirement system of such state or political subdivision. For public agency employees who were not members of a public retirement systems, the OBRA resulted in a choice where public agencies could either: (1) start providing Social Security coverage to these employees and deducting/paying Social Security taxes; or (2) enroll them in a public retirement system. Many public agencies took the second option. In order to avoid mandatory Social Security coverage for temporary employees under the OBRA, these agencies began enrolling temporary employees in an alternative retirement plan.
LCW Benefits Best Practices Timeline
Each month, LCW presents a monthly benefits timeline of best practices.
April
• If the IRS rejects the Forms 1094-C or 1095-C filing from March, immediately troubleshoot and correct the error and refile. Maintain a record of all filing attempts and any accepted filings.
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LCW LIEBERT CASSIDY WHITMORE
Labor Relations
Liebert Cassidy Whitmore’s Labor Relations Practice Group offers an array of services to help your agency. These services include:
1. Being in the role of Chief Negotiator at your labor negotiations tables. Services include:
Interfacing with elected officials
Meeting with appropriate department representatives
Preparation of proposals and compensation surveys
Acting as the Chief spokesperson at the collective bargaining table
2. Trusted legal advisors on labor issues including:
Unfair practice charges
Job actions (including strike preparation)
Wage and hour
Retirement and leaves issues that are addressed in your Memoranda of Understanding (MOU) or Collective Bargaining Agreements (CBA)
Any legal issue under California collective bargaining laws applicable to the public sector
3. Reviewing and offering recommendations for your MOUs or CBAs in advance of an upcoming labor negotiation.
4. Handling Unfair Practice Charge filings at the Public Employment Relations Board, including any hearings that may be set.
5. Training your staff on how to be more successful on the numerous issues raised by your labor relationships. Review our trainings here: https://www.lcwlegal.com/labor-relations-certification-program/
If you have any question(s) about whether LCW can help you with your labor relations, please reach out to the Chair of LCW’s Labor Relations Practice Group, Peter Brown at pbrown@lcwlegal.com.
On The Blog
Governor Newsom’s Executive Order and the Future of Teleworking
By: Madison Tanner
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 fulltime. 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.
Liebert Cassidy Whitmore