Client Update
firm victories
LCW Partner James Oldendorph and Associate Chris Frederick
Defeat Fire Engineer’s Claims for Whistle Blower Retaliation and FBOR Violations.
A fire engineer was ranked fourth on an eligibility list out of five candidates for promotion to a fire captain position at a City’s fire department. The engineer was subsequently investigated for creating a staffing error when he scheduled coverage for one of his shifts. He received a written record of a verbal reprimand.
Later, while at the scene of an emergency, the engineer missed his meal break and had department ambulance drivers bring him food, which bypassed department procedures. His superiors questioned him, but he was not disciplined. The engineer was next investigated for delaying the department’s response to an incident as a result of a miscommunication with his supervisor. He received another written record of a verbal reprimand.
The engineer was asked about these incidents during two separate interviews for promotion with the Fire Chief in order to determine if: 1) he understood the policies he violated; and 2) took responsibility for his mistakes.
After learning that the fifth-ranked candidate was to be promoted to captain over him, the engineer made complaints to CAL/OSHA regarding alleged mold remediation issues at his fire station. The engineer then sued the department, alleging whistleblower retaliation, and claims under the Firefighters Procedural Bill of Rights Act (FBOR).
The Court agreed with LCW that the engineer could not establish whistleblower retaliation, because he only
complained to CAL/OSHA, or made complaints about other staff at the Fire Department, after he failed to receive the promotion. The Court also agreed that the engineer failed to establish a violation of the FBOR because the engineer was not under investigation nor interrogated within the meaning of the FBOR during his job interviews with the Fire Chief. The Court granted summary judgment on all counts.
Partner Danny Yoo and Associate Anthony Co Defeat Challenge to BCs’ Exemption Status.
A group of battalion chiefs (BCs) sued for overtime pay. They alleged that their city employer was wrong to classify them as exempt under the Fair Labor Standards Act (FLSA). The BC’s argued that since they performed some firefighting duties, the U.S. Department of Labor’s (DOL’s) “first responder” regulation prohibited their overtime-exempt status.
The city moved for summary judgment on the grounds that the BCs qualified for the FLSA overtime exemption under the executive, administrative, and highly compensated employee criteria.
The U.S. District Court first addressed the BCs’ claim that the first responder regulation disqualifies all employees who engage in some sort of fire suppression work from exempt status regardless of the “bigger picture” of their duties. The court quickly dismissed that claim.
The court then addressed whether the city was entitled to summary judgment on the grounds that the BCs qualified for the highly compensated employee (HCE) exemption. The HCE exemption applies to employees who: 1) have a total annual compensation of at least $107,432; 2) customarily and regularly perform any one
or more of the exempt duties or responsibilities of a white-collar employee; and 3) primarily perform office or nonmanual work.
The court found that the BCs met the compensation requirement.
In order to prove the second requirement, LCW argued that the BCs: 1) customarily and regularly performed executive and administrative duties. The court agreed with LCW, that the undisputed evidence showed, for example, that the BCs customarily and regularly supervised lower-ranking officers and personnel every shift they worked. The BCs admitted that they supervised and directed the work of fire captains, firefighter engineers, and paramedics. The BCs also performed exempt managerial tasks because they directed emergency responses in their incident commander roles.
As to requirement three, the court again agreed with LCW and found that the BCs’ primary duty consisted of office and non-manual work. The BCs spent the majority of their work time on office and managerial work as opposed to fire suppression work.
Because the court found that the BCs qualify for the HCE exemption, judgment was entered in favor of the city.
LCW Annual Public Sector Employment Law Conference
January 30-31, 2025
We're thrilled to announce that registration is open for the Annual LCW Conference taking place January 30-31, 2025, in San Diego!
The LCW Conference is California's premier public sector employment and labor relations educational event. Our speakers are California labor relations and employment law attorneys who have dedicated their careers to representing and supporting California's cities, counties, special districts, public safety agencies and public educational institutions.
When: January 30-31, 2025
Where: Hilton San Diego Bayfront
Flight Attendant Defeats
MSJ Based on Evidence That Airline Discriminated and Retaliated.
Alexa Wawrzenski, a flight attendant at United Airlines, was investigated and ultimately fired for failing to remove photos of herself in uniform and wearing a bikini on her social media account that had a link to a subscriptionbased account. She sued United alleging that she endured years of gender discrimination and harassment and that United retaliated against her for her complaints. She claimed that she experienced harassing, derogatory, and objectifying comments about her body and the way she looked in her uniform from coworkers and supervisors. She said she heard these comments several times a month.
Wawrzenski produced evidence of United’s disparate treatment of male employees. She submitted evidence of three male employees with social media accounts that included pictures of themselves in uniform and in “suggestive” poses, but who were not disciplined or who received only a performance warning. She also had evidence of United’s failure to investigate her complaints. She alleged that United had a discriminatory atmosphere because a co-worker told her she would experience “a lot of hate” because she was a “young, attractive female” and that she should “get used to it.”
The trial court granted United’s motion for summary judgment and Wawrzenski appealed. The California Court of Appeal held that the trial court was wrong to grant United’s motion
as to her causes of action under the Fair Employment and Housing Act (FEHA).
The Court concluded that Wawrzenski had sufficient evidence to make a prima facie case of FEHA gender discrimination, because she showed: 1) membership in a protected class; 2) competent work performance; 3) an adverse employment action, namely termination; and 4) other circumstances suggesting discriminatory motive. United conceded the first three elements of a prima facie case, but contested the fourth.
The Court of Appeal determined that Wawrzenski had sufficient evidence to suggest a discriminatory motive because United treated at least three male employees with similar social media activities more favorably. That evidence created a factual dispute as to whether Wawrzenski’s termination was motivated by a discriminatory animus. The Court also found sufficient evidence to suggest she was subjected to a hostile work environment.
The Court also determined that there was a triable issue regarding whether United retaliated against Wawrzenski for her complaints. The Court found that the trial court was wrong to exclude evidence of comments made before the limitations period for the purpose of establishing animus. In addition, the timing of Wawrzenski’s termination, just days after she complained about harassment, supported an inference of a retaliatory motive, even though United also discovered that she had failed to remove all photos of her uniform from her social media after she complained.
Alexa Wawrzenski v. United Airlines, Inc., 2024 Cal. App. LEXIS 717.
promotion
Deputy Could Not Prove Any Right to Promotion.
Marlon Quesada joined the Los Angeles County Sheriff’s Department (Department) in 1995. The Department suspended Quesada twice for misconduct: once in 1999; and again in 2012.
In 2015, the Department launched another administrative investigation into Quesada’s conduct. That investigation, centered on allegations of fraternization and misconduct, was ultimately dismissed as untimely in 2017. The Department classified the case as “inactivated,” meaning no findings were made regarding Quesada’s guilt or innocence.
In 2017 and 2019, Quesada sought a promotion to sergeant. The Department utilized a comprehensive process that included evaluating candidates on written test scores; professional evaluations; disciplinary records; and other performance factors. Quesada scored well in the written exams—placing in Band Two in 2017 and Band One in 2019. But, Quesada’s evaluations consistently rated him as “Competent,” with no “Outstanding” ratings in any category.
In 2019, Quesada’s application for promotion to sergeant was rated overall “Very Good.” But, the rater said Quesada did not have the skills and qualities for a sergeant. The rater’s reasons were that Quesada was “generally a mediocre employee” who “did not have the best work ethic.” Quesada was not recommended for promotion.
Quesada filed a petition for a writ of mandate under Code of Civil Procedure section 1085. Quesada sought to compel the Department to promote him to sergeant and to give him back salary and interest, among other penalties. To obtain this writ, the burden was on Quesada to show that: Quesada had no other plain, speedy, and adequate remedy; the County had a clear and present duty to act in Quesada’s interest; and Quesada had a beneficial right to the County’s performance of that duty. Quesada alleged the Department used the 2015 time-barred, “inactivated” investigation against him during the promotional review process. In a 27-page single-spaced opinion, the trial court denied Quesada’s petition. Quesada appealed.
Quesada argued that the California Court of Appeal should adopt the burden-shifting approach as to the production of evidence that is used in civil rights cases. The Court declined because Quesada was not claiming the Department discriminated against him on grounds of race or because he belongs to a historically oppressed and disfavored group. Instead, Quesada was claiming that the Department improperly referred to an inactivated investigation in passing him over for promotion.
The Court found substantial evidence to support the Department’s decision, highlighting Quesada’s mediocre evaluations, history of misconduct, and lack of exceptional performance. The Department has discretion in promotion decisions to ensure the integrity and trustworthiness of its leadership. The Court affirmed the judgment and awarded costs to the County.
Quesada v. County of Los Angeles, 2024 Cal.App. LEXIS 733.
new to the Firm!
Alexandra C. Clark, an Associate in our Los Angeles office, provides legal counsel on labor and employment law matters.
discipline
Officer’s Termination Relating to COVID Vaccine Was Proper; Remedy for Skelly Violation Was Backpay.
Jeannine Bedard was a police officer with the City of Los Angeles Police Department (LAPD). In March 2020, the City declared an emergency due to COVID-19. In August 2021, the City Council passed Ordinance 187134, which required that all City employees be vaccinated or request an exemption by October 19, 2021. The ordinance stated City employees must receive their first vaccine by September 7, 2021. Employees with medical conditions/restrictions or sincerely held religious beliefs that prevented them from receiving a COVID-19 vaccine could request an exemption.
LAPD negotiated with the Los Angeles Police Protective League (LAPPL) over the consequences for failing to abide by the Ordinance. After negotiations failed, LAPD issued a “Last, Best and Final Offer” (LBFO). The LBFO stated the City would issue a notice to its unvaccinated, nonexempt employees, instructing each employee to either be vaccinated, or be found to be exempt from the vaccination requirement by December 18, 2021. Employees who did not timely comply would be subject to “corrective action.” An employee terminated for noncompliance could seek “reemployment”, subject to the COVID-19 vaccination requirements. Or, an employee could resign or retire, and be eligible for rehire after the vaccination order was lifted.
The mayor issued a memo directing all departments to implement the LBFO and issue a notice to every unvaccinated employee to acknowledge the LBFO deadlines. Employees were required to sign the Notice of Mandatory COVID-19 Vaccination Policy Requirements (Notice), within 24 to 48 hours. Employees who refused to sign the notice were to “be placed off duty without pay,” and sworn employees were to “be subject to applicable Board of Rights proceedings.”
Bedard never submitted documentation showing she had been vaccinated or had applied for an exemption.
On November 5, 2021, Bedard’s supervisor, Deputy Chief (then-Commander) Donald Graham, gave Bedard a Notice. Bedard sent an email to Graham and others, stating that she would not be vaccinated because a family member had an adverse reaction to it (not a religious or personal reason for the exemption).
LAPD served Bedard with a Complaint and Relief from Duty for failing to sign and/or comply with the Notice, pending a hearing before the LAPD Board of Rights (Board).
The Board reviewed the proposed discipline and found Bedard failed to comply, and upheld her discharge. The Board also found, however, that LAPD violated her Skelly rights by giving her only five days to respond to the Notice, as opposed to the 30 days the MOU required. The Board ordered back pay for that violation.
Bedard filed a petition for a writ of mandate in the superior court, arguing that her dismissal was excessive and disproportionate. The court found the termination justified, reasoning that either complying with the vaccine mandate or receiving an exemption was a threshold condition of employment, and having neither, Bedard could not meet the minimum requirements for her position. The court agreed with the Board’s award of back pay. Bedard appealed.
The California Court of Appeal affirmed. The Court rejected an argument that Bedard raised for the first time on appeal -- that her termination was improper because it was based solely on her refusal to sign the Notice, which she claimed was an illegal contract. The Court found that her termination was based on both her failure to sign the Notice and her refusal to comply with vaccine requirements. The Court also found that the penalty of termination was within the Board’s discretion. Finally, the Court held that the appropriate remedy for the due process violation was back pay from the time she was denied sufficient time to prepare for the Skelly meeting until the time the Board heard her testimony and made its decision.
Jeannine Bedard v. City of Los Angeles, 106 Cal.App.5th 442 (2024).
LCW In The News
To view this article and the most recent LCW attorney-authored articles, please visit: www.lcwlegal.com/ news
• Recently published in the Daily Journal, LCW Firm Co-Managing Partner Melanie L. Chaney and Senior Labor Relations Consultant Peter Q. Nguyen address the growing issue of workplace incivility and provide key strategies for fostering a respectful work environment. Chaney and Nguyen explore the impact of incivility on employee satisfaction and retention, emphasizing the importance of building trust, encouraging active listening, and holding individuals accountable. They outline solutions for addressing team-level dysfunctions, handling individual challenges, and mitigating microaggressions.
To access the full article, please click the following link (subscription required): https://www.dailyjournal. com/articles/381222-tips-for-addressing-incivility-in-the-workplace
peace officer records
Sustained Findings of Peace Officer’s Dishonesty Are Public Records and Not Subject to Protective Orders.
In March 2021, Manuel Banuelos was charged with first degree murder. In August 2023, during the investigation, a prosecutor notified Banuelos’s Defense Counsel (Defense Counsel) that the Azusa Police Department (Department): 1) sustained a finding of dishonesty against Officer Jonathan Rush (Sustained Finding) earlier that year; and 2) the Department intended to publish the records related to the Sustained Finding pursuant to Penal Code section 832.7(b)(1)(C). This law makes peace officer records non-confidential if they are related to a sustained finding that an officer’s misconduct related to: false statements; filing false reports; destruction, falsifying, or concealing of evidence; or perjury.
Defense Counsel requested the Sustained Finding, among other records, under the California Public Records Act (CPRA). While this request was pending, Defense Counsel filed a Pitchess motion seeking additional Brady material. The Department requested that, if the court ordered that the Sustained Finding (or any other records were) were discoverable, the court also issue a protective order limiting their dissemination. Defense Counsel opposed, arguing that the Sustained Finding was nonconfidential. After an in-camera review, the court found no additional Brady material and ordered the release of the Sustained Finding, but issued a protective order limiting its dissemination outside the defense team.
Banuelos sought an extraordinary writ of mandate to vacate this protective order, arguing that the records were non-confidential and subject to public inspection under section 832.7(b)(1)(C). The Court of Appeal initially denied the petition. Banuelos petitioned the California Supreme Court for review, which transferred the matter back to the Court of Appeal, directing the appellate court to reconsider.
On the second review, the Court of Appeal concluded that the records of the officer's sustained finding of dishonesty were non-confidential and subject to public inspection under section 832.7(b)(1)(C). The Court of Appeal explained that in certain circumstances, Pitchess requires disclosure of confidential law enforcement personnel records, and also typically requires the court to issue a protective order providing that such disclosures are not used for any other purpose. However, effective January 1, 2019, Senate Bill No. 1421 (SB 1421) amended sections 832.7 and 832.8 to render certain types of law enforcement personnel records non-confidential and subject to public disclosure under the CPRA, including the types of records sought in the Sustained Finding.
The Court of Appeal found that the trial court should not have issued the protective order, as the only records to be disclosed were those related to the Sustained Finding. As these records are non-confidential under the Penal Code, they are not entitled to a protective order under Pitchess. Consequently, the Court of Appeal granted the petition for writ of mandate and directed the trial court to vacate its protective order concerning the Sustained Finding.
Banuelos v. Superior Court, 2024 Cal.App. LEXIS 705.
meyers milias brown act
PERB Finds Agency Unlawfully Disciplined Employee for Violating Social Media Policy.
Motor Coach Operator Anthony Garcia filed an unfair practice charge with the Public Employment Relations Board (PERB) against his employer SunLine Transit Agency. Garcia alleged the SunLine violated the Meyers-Milias-Brown Act (MMBA) by retaliating against him via: 1) issuing Garcia a notice of an impending written warning in January 2022; 2) placing Garcia on paid administrative leave pending investigation in May 2022; and 3) firing Garcia in September 2022.
The case arose after SunLine retained an investigator to conduct two separate investigations into Garcia’s behavior. The first investigation concerned complaints that two of Garcia’s co-workers filed against him.
During the investigation, the investigator found several videos that Garcia posted to YouTube regarding SunLine. The videos commented about working conditions, health and safety issues, and alleged poor management. Garcia often expressed similar concerns at work about unsafe and poor working conditions at SunLine, such as worn-out driver’s seats on buses, that employees could not take breaks, and the lack of access to restrooms. He raised these issues with SunLine managers, and filed grievances.
The investigation exonerated Garcia on the coworker complaints, however, Garcia’s YouTube videos violated SunLine’s social media policy because Garcia was wearing his SunLine uniform and failed to state he was not speaking for SunLine. SunLine issued Garcia a Notice of Impending Discipline (NID) because of his violation of the social media policy.
The second investigation began after one of Garcia’s co-workers, Tiffany Moore, complained to SunLine’s
Human Resources Department. Moore alleged Garcia stated in a YouTube video that Moore: used SunLine funds for personal use; and had contracted COVID. After the investigation concluded, SunLine placed Garcia on paid administrative leave. Garcia remained on that leave for the remainder of his time as a SunLine employee. This second investigation led to Garcia’s termination in September 2022 for unauthorized outside employment, among other things.
The Administrative Law Judge (ALJ) found MMBA violations on the first two of Garcia’s claims regarding the written warning and paid administrative leave pending investigation. The ALJ dismissed Garcia’s third claim that his termination was retaliatory. SunLine filed exceptions to the proposed decision, challenging the ALJ’s rulings in Garcia’s favor.
PERB rejected SunLine’s exception as to Garcia’s written warning. PERB applied the Novato framework for discrimination or retaliation claims: 1) one or more employees engaged in activity protected by a labor relations statute; 2) the employer had knowledge of the protected activity; 3) the employer took adverse action against one or more employees; and 4) the employer took the adverse action “because of” the protected activity, which PERB interprets to mean that the protected activity was a substantial or motivating cause of the adverse action. PERB found that SunLine issued Garcia the written warning because of Garcia’s social media videos, which concerned workplace complaints and related criticism of management. There was no evidence that Garcia’s videos were undeserving of protected status in that they were maliciously false and disruptive. PERB held that SunLine violated the MMBA when it issued Garcia an NID and related written warning.
PERB sustained SunLine’s exception regarding its decision to place Garcia on paid administrative leave pending investigation. PERB reviewed whether Garcia’s protected activity was a substantial or motivating
cause for the District’s decision to investigate him. PERB found that Moore’s complaint that Garcia falsely accused her of using SunLine funds for her use was a sufficiently plausible complaint to warrant beginning an investigation, even though the investigation involved off-duty social media activity that related to workplace concerns. SunLine thus did not violate the MMBA by placing Garcia on paid administrative leave pending investigation.
Because neither party challenged the ALJ’s dismissal of Garcia’s claim that SunLine terminated him for protected activity, PERB incorporated that dismissal into its order without expressing any opinion on it.
SunLine Transit Agency (2024) PERB Dec. No. 2928-M
County Required to Negotiate Before OIG Could Interview Deputies Regarding
Gang Affiliations.
ALADS represents deputies who work for the Los Angeles County Sheriff’s Department. The Office of the Inspector General (OIG), acting under a County ordinance and Penal Code sections 13670 and 13510.8, was investigating alleged law enforcement gang affiliations and wanted to compel interviews with 35 deputies. Deputies would be required to disclose tattoos and provide information about gang affiliations. Sheriff Robert Luna reinforced the directive, warning that refusal to comply could result in termination.
ALADS argued that the directive to answer questions, show tattoos, and identify colleagues, constituted a significant change in employment conditions, and triggered the County’s obligation to negotiate under the Meyers-Milias-Brown Act (MMBA).
ALADS filed a claim with the County’s Employee Relations Commission (ERCOM) and simultaneously sought injunctive relief in superior court. The trial court ruled that: 1) ALADS had shown a likelihood that it would prevail on its ultimate claim; and 2) the OIG’s interviews constituted a significant and adverse change to deputies’ terms and conditions of employment. Therefore, injunctive relief was proper to prevent irreparable harm. The County appealed.
The California Court of Appeal agreed with the trial
court. The Court explained that the OIG’s directive, while a legitimate managerial decision, impacted employment conditions significantly enough to require bargaining. The Court drew parallels to prior cases in which similar directives—such as mandatory drug testing or changes in disciplinary rules—triggered the duty to meet and confer regarding the impacts of managerial decisions.
The Court noted that the interviews, which could lead to disciplinary action or decertification, created new grounds for discipline under the recently enacted Penal Code sections. It held that these effects were subject to the MMBA’s meet-and-confer requirements. The Court concluded that the County was obligated to negotiate before implementing the interviews, and issued an injunction.
The Court rejected the County’s argument that its investigatory powers under Penal Code section 13670 exempted it from negotiating. It noted that while the Penal Code mandates investigations into law enforcement gangs, it does not override the MMBA’s requirements. The interviews would impose obligations on deputies to disclose sensitive information and identify colleagues, and therefore raised substantial employment and disciplinary concerns.
The court also considered ERCOM’s previous decisions, which supported ALADS’ position. The court found them persuasive in determining that the County’s actions violated the MMBA.
The Court upheld the trial court’s finding that the failure to negotiate would irreparably harm ALADS’ ability to represent its members. The Court acknowledged the public interest in addressing law enforcement gangs, but found no compelling need to bypass the negotiation process. It noted that the injunction preserved the status quo while allowing the County to proceed with bargaining or adjudicate the labor dispute through ERCOM.
Association For Los Angeles Deputy Sheriffs v. County of Los Angeles, 2024 Cal.App. LEXIS 738.
RETIREMENT
CalPERS Merger Requirements Were Not Met as to Former Officers Who Joined County Sheriff’s Department.
In 1996, the City of Perris dissolved its police department (Perris PD) and contracted with Riverside County to provide law enforcement services through the County Sheriff’s Department (Sheriff’s Department). The former Perris PD officers were hired by the Sheriff’s Department.
Both Perris PD and the Sheriff’s Department contracted with CalPERS to provide pension benefits to their employees. At Perris PD, officers and former officers who retired at age 55 or older were entitled to annual pension payments equal to 2.5% of their final salary multiplied by their years of service. When the Perris PD officers joined the Sheriff’s Department, the County’s formula was called “2% at 50”, which entitled deputies who retired at age 50 or older to draw annual pensions equal to 2% of their final salary multiplied by their years of service. Riverside County changed this formula to 3% at 50 in 2001 and applied it to “credited prior and current service.” But because the Perris PD officers were not County employees before 1996, the pension formula increase did not apply to credits earned with the Perris PD. Rather, CalPERS had consistently calculated Perris PD officers’ pension benefits in two separate segments: 1) one based on service credit with the Perris PD (2.5% at 55), and 2) another based on service credit with the Sheriff’s Department (now 3% at 50).
The former Perris PD officers sued, and asserted that the dissolution of the Perris PD and their subsequent hiring by the Sheriff’s Department constituted a "merger" under Government Code section 20508. They argued this merger required the County and the CalPERS to credit their prior Perris PD service towards more favorable pension formulas. They sought application of the “3% at 50” pension formula retroactive to 2001.
The superior court ruled against the officers, holding that section 20508 applies only if : 1) there is a formal merger of CalPERS contracts between two employing agencies; or 2) when one agency assumes another’s municipal functions. The County did not take over any of the City’s obligations beyond providing law enforcement services under a renewable contract.
The former Perris PD officers and Sheriff’s deputies were governed by separate CalPERS contracts, making section 20508 inapplicable. The Perris PD officers appealed.
The California Court of Appeal affirmed. The County was never a "successor agency" to the City and did not assume the City’s functions as required for a merger of contracts under section 20508. Evidence showed that the County simply provided contracted services, while the City retained ultimate responsibility for municipal policing. The County’s contract could also be terminated at any time, underscoring that no municipal functions were permanently transferred.
The Court rejected claims that informal references to the transition as a "merger" and alleged promises made during later pension negotiations could override the requirements in the law. The Court found no evidence of an actual merger of CalPERS contracts, and concluded the County had no obligation to give the enhanced pension benefits retroactively for service at Perris PD.
Petree v. Public Employees Retirement System, 2024 Cal.App. LEXIS 710.
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.
• The statute of limitations for Fair Labor Standards Act (FLSA) recovery is two years, but may extend to three years upon a finding that an employer’s violation is “willful.”
• A willful FLSA violation is shown when an employer knew or showed reckless disregard as to whether its conduct was prohibited by the Act.
• Courts have interpreted this to mean that “an employer’s violation of the FLSA is ‘willful’ when it is ‘on notice of its FLSA requirements, yet takes no affirmative action to assure compliance with them.’”
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:
Can an employer require an employee to use any accrued sick leave during the otherwise unpaid portion of her pregnancy disability leave?
Answer:
• An employer may require an employee to use any accrued sick leave during the otherwise unpaid portion of her pregnancy leave. Also, the employee may elect to use sick leave, vacation leave, paid time off and any other accrued leave credits in order to receive compensation during the unpaid portion of the pregnancy disability leave.
• Employers may, but are not required to, allow employees to extend the up to four-month pregnancy disability leave by adding sick leave, vacation leave or any other leave credits to the end of the pregnancy disability leave instead of running the leaves concurrently.
benefits
Is Your Agency Ready for ACA Reporting in 2025?
The IRS has released the final Affordable Care Act (ACA) reporting forms (Forms 1094-C and 1095-C) for filing next year to cover tax year 2024. Applicable Large Employers, as defined by the Affordable Care Act, are required to file Forms 1094-C and 1095-C to provide the IRS with information about health care offered to employees and furnish a copy of Form 1095-C to each employee to whom it pertains. Employers who fail to furnish statements or file the completed forms by the deadlines may be subject to penalties, which is why preparation is key.
The Deadline to Furnish Form 1095-C to Employees is March 3, 2025.
Employers must provide or “furnish” employees their Form 1095-C by the deadline on Monday, March 3, 2025. Taking into account that the typical due date on March 2 is a Sunday in 2025, the deadline is the following business day.
The Deadline to E-File ACA Returns is March 31, 2025.
Nearly all public agencies are required to file returns electronically. Last year, the Department of the Treasury and the Internal Revenue Service issued final regulations requiring employers to electronically file Forms 1094-C and 1095-C when filing ten (10) or more returns. The final regulations combine all types of returns when counting whether the employer meets the 10-return threshold. The IRS has increased the penalty for failing to file electronically to $330 per return (up from $310).
The deadline to e-file Forms 1094-C and 1095-C is Monday, March 31, 2025. Employers that would like an automatic 30-day extension to file Forms 1094-C and 1095-C must submit Form 8809 on or before the due date of the returns.
Flexible Spending Account Dollar Limits for 2025.
The employee salary reduction contribution limit for health flexible spending accounts (health FSAs) has increased to $3,300 for 2025 (up from $3,200 from 2024). Health FSA funds are tax-free dollars that may be used to pay eligible medical expenses not covered by other health plans. While $3,300 is the new limit set by the IRS, employers should also review the limits set by their own Section 125 cafeteria plan documents. Some cafeteria plan documents may set a lower limit, or may need to be revised if an employer would like to allow employee to make salary reduction contributions up to the IRS limit as it adjusts on an annual basis.
The increase to the 2025 health FSA contribution limit also means the IRS will permit employees to carry over up to $660 of unused health FSA funds at the end of a 2025 plan year to the following 2026 plan year. Employers should verify whether they have adopted a carryover option for their health FSA under their Section 125 cafeteria plan, and if so, should check the maximum amount that may be carried over per the terms of their cafeteria plan document.
The maximum amount of DCAP benefits does not change year-to-year and remains at $5,000 (or $2,500 if married filing separately) for 2025.
Rev. Proc. 2024-40 (Oct. 22, 2024); IRS News Release IR-2024273 (Oct. 22, 2024)
Benefits Compliance Question.
Question: If our agency’s employees participate in Social Security, can employees opt out of Social Security coverage or otherwise terminate participation in Social Security?
Answer: Likely no. If a public agency participates in
corner
Social Security, this means that the public agency voluntarily joined the State of California’s Section 218 Agreement to provide Social Security coverage to public agency employees. Any public agency that currently participates in Social Security through a Section 218 Agreement can no longer opt out or withdrawn from Social Security. In 1983, Congress amended the Social Security Act to prohibit the termination of any Section 218 agreements on or after April 20, 1983. Congress adopted this amendment after 190,000 state and local employees opted out of Social Security coverage between 1977 and 1982, and another 634 agencies had pending terminations coming in 1983 and 1984. The large number of withdrawals threatened the Social Security system. This pushed Congress to repeal the option for public agencies to terminate Social Security coverage on or after April 20, 1983. Therefore, public agencies can no longer terminate Social Security coverage.
LCW Benefits Best Practices Timeline.
Each month, LCW presents a monthly benefits timeline of best practices.
December
• Assess whether the 2024 ACA affordability percentage of 9.02% will affect whether your agency offers affordable health coverage to employees. (For ACA Applicable Large Employers only.)
• Notify employees who participate in a flexible spending account (health FSA, DCAP, or adoption assistance) of any deadline to withdraw funds before the end of the plan year. Notice shall be by two different forms, one of which may be electronic.
• Ensure any changes to a Section 125 cafeteria plan document or any other plan document are adopted by the governing body by the end of the year to be effective starting on January 1, 2025.
• For agencies with cash-out election procedures for leave that avoid the constructive receipt doctrine, ensure employees make irrevocable elections before December 31, 2024 to cash out vacation and sick leave that will be earned in 2025.
On The Blog
Federal Judge Blocks DOL’s New FLSA Exempt Salary Rules
By: Lisa S. Charbonneau & Anthony Co
On November 15, 2024, a federal judge in the Eastern District of Texas blocked the Department of Labor’s (DOL) newly issued salary rules for exempt status under the Fair Labor Standards Act (FLSA).
The new rules, which took effect July 1, 2024, increased the minimum salary threshold required in order to qualify for overtime-exempt status, thereby increasing the number of employees who are eligible for overtime. The Court’s action on November 15 enjoins, or stops, the DOL rule change nationwide.
Consequently, the salary thresholds for exempt status under the FLSA return to the levels in effect as of June 30, 2024: $684 per week executive, administrative, and professional (EAP) employees or $107,432 per year for the highly compensated employees (HCE).
What Were the DOL’s 2024 Salary Rules?
The DOL’s 2024 salary rules increased the “standard salary level” minimum for exempt EAP employees from $684 per week ($35,568 per year) to $884 per week ($43,888 per year), effective July 1, 2024. On January 1, 2025, the standard salary level minimum will be set to increase again to $1,128 per week ($58,656 per year).
The 2024 salary rules also increased the minimum “total annual compensation” for employees exempt under the HCE exemption from $107,432 per year to $132,964 per year effective July 1, 2024 and to $151,164 per year on January 1, 2025.
The new rule also included an automatic indexing mechanism that would increase the minimum salary levels in the future.
In sum, under the new rules, employers would have to pay higher salaries to employees in order to avoid paying those employees overtime.
November 15, 2024 Eastern District TX
Shortly after the DOL finalized the new rules, various business groups as well as the State of Texas sued, arguing that the new rule exceeded the DOL’s authority.
In its November 15 decision, the Eastern District of Texas agreed, holding that the 2024 salary rule was an unlawful exercise of the DOL’s authority because the salary threshold was set so high and would increase so frequently that the test for exemption would turn on salary only, and not account for an employee’s job duties. As the Court stated of the EAP exemptions, citing the U.S. Supreme Court, “Congress elected to exempt employees based on the capacity in which they are employed. It’s their duties and not their dollars that really matter.” (Emphasis added.)
Accordingly, the court nullified the 2024 salary rules.
The court’s ruling returns the salary thresholds for FLSA exemptions to the levels effective on June 30, 2024:
EAP Standard Salary Level HCE Total Annual Compensation
$684 per week ($35,568 per year) $107,432 per year; including at least $684 per week
It is possible that the DOL appeals the decision to the Fifth Circuit Court of Appeals. However, given the upcoming changes in the Executive Branch with the incoming Trump administration, DOL may elect not to do so. Further, even if the DOL appealed the decision to the Fifth Circuit, it is likely that the Fifth Circuit would uphold the decision given the Fifth Court’s composition and conservative predisposition. Thus, for the foreseeable future, the salary thresholds in effect on June 30, 2024 will likely remain in effect and control employee eligibility for overtime.
What Does This Mean For Your Agency?
Given that changes to employee compensation may be warranted at your agency, you should consult with legal counsel and your agency’s labor relations team to consider FLSA overtime implications. LCW attorneys will continue to closely monitor developments in this area of the law and will provide updates as needed.
The case is State of Texas, Plano Chamber of Commerce, et al. v. United States Department of Labor, et al. (E.D. TX) Civil Case No. 4:24-CV-499-SDJ, November 15, 2024.
Liebert Cassidy Whitmore attorneys are closely monitoring developments in relation to this Special Bulletin and are able to advise on the impact this could have on your organization. If you have any questions about this issue, please contact our Los Angeles, San Francisco, Fresno, San Diego, or Sacramento office.
View the full blog post here.
Liebert Cassidy Whitmore