Fire Watch
Cynthia O’Neill Partner Emeritus | San Francisco Ronni Cuccia Associate
Los Angeles
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).
retirement
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.
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)
Train the Trainer Program
Via
September 17, 2025 9:00 AM - 4:00 PM
To learn more about our program, please visit our website below or contact Anna Sanzone-Ortiz 310.981.2051 or asanzone-ortiz@lcwlegal.com.
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:
A firefighter who is the subject of an IA investigation has requested that her interview be recorded. Are we required to comply with that request?
Answer:
No, the Firefighters Procedural Bill of Rights Act says that the interrogation “may” be recorded, but the Act does allow a firefighter to bring his or her own recording device and record any and all aspects of the interrogation. (Government Code section 3253(g).)
For more information on some of our upcoming events and trainings, click on the icons:
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.
• Assembly Bill 247 (2025) would increase pay for inmate firefighters to $19 per hour.
• Firefighters from around the world have sent their department’s T-shirts to replace a Palisades Fire victim’s collection, which was lost in that Southern California fire.
• CalFire recently released its revised fire hazard maps, showing what parts of the State are particularly prone to wild fire.
Don't Miss Our Upcoming Webinars!
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.
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