Fire Watch
O’Neill Partner Emeritus | San Francisco Ronni Cuccia Associate
Los Angeles
firm victories
LCW Partners Elizabeth Arce and Geoffrey Sheldon, and Associates
Alex Wong and Victor Gonzalez, Prevail at the Ninth Circuit.
When the Covid-19 pandemic broke out in 2020, a county fire academy quickly implemented procedures that required firefighter trainees to be housed in a hotel for six days a week as a condition of participating in the academy. Trainees had the option of deferring to a later training cycle if they did not want the hotel stay. The trainees were free to spend their time in the hotel as they saw fit before and after the trainings.
Trainees were paid for ten hours of work on each of the six training days. They received straight time for the first 40 hours, and overtime for the remaining 20 hours each week.
A firefighter trainee, who agreed to the hotel stay and underwent training in 2020, sued the county in federal district court, alleging violations of the Fair Labor Standards Act (FLSA). The trainee argued that the time he spent at the hotel was work time even though he was free to do what he pleased. The trainee also argued that he should be entitled to overtime compensation and liquidated damages.
LCW attorneys prevailed in district court and the trainee appealed to the Ninth Circuit Court of Appeals. Through briefing and oral argument, LCW convinced the panel that the time spent in the hotel was not compensable FLSA work time, and that the county did not require the trainees to work “off-the-clock” while staying at the hotel. The Ninth Circuit affirmed the district court’s finding in the county’s favor and dismissed the lawsuit.
LCW Partner Che Johnson and Associate James Bonnie Defeat Fire Union’s Unfair Practice Charge.
A firefighters’ union claimed that a fire district employer unilaterally changed the status quo regarding the use of Limited Term Firefighters (LTFs). The union claimed that the district’s past practice was to use unrepresented LTFs only for additional staffing for special events and emergencies, but not to otherwise fill firefighter vacancies. The district claimed there was no change in the status quo because it had long used LTFs interchangeably with full time firefighters.
The union filed an unfair practice charge (UPC) with the Public Employment Relations Board (PERB). An administrative law judge (ALJ) heard the case. LCW deployed several arguments. First, LCW argued that the six-month statute of limitations defeated the UPC. The ALJ agreed, but went on to address LCW’s arguments regarding the merits of the case. The ALJ found that the union did not establish a prima facie case for unilateral change. The union’s evidence contradicted the bargaining history that showed that the union had unsuccessfully sought to change the very past practice it was alleging was a unilateral change.
The union did not timely file any exceptions, so the ALJ’s proposed decision in favor of the district became final.
wage&hour
USSC Clarifies Legal Standard for White Collar Overtime Exemption Determinations.
The Fair Labor Standards Act (FLSA) exempts many categories of employees from minimum-wage requirements and exempts many more from overtimepay requirements. Common public sector exemptions include those for executive, administrative, or professional employees. Other exemptions are for those employed “in the capacity of outside salesman” and certain highly skilled jobs involving computers.
Employers are responsible for determining whether an employee qualifies for one or more of these exemptions. If an employee challenges an exemption determination in court, the employer has the burden of proving that the exemption applies.
EMD Sales, Inc. (EMD) distributes food products in the Washington, D.C. area. EMD employs sales representatives who manage inventory and take orders at grocery stores. Several sales representatives sued EMD, alleging that the company violated the FLSA by failing to pay them overtime. EMD argued that the sales representatives were outside salesmen and therefore exempt from the FLSA’s overtime-pay requirement.
After a bench trial, a Maryland District Court found EMD liable for overtime pay because EMD did not prove by “clear and convincing evidence” that its sales representatives met the legal criteria for outside sales people. The court ordered EMD to pay overtime wages and liquidated damages. EMD appealed.
On appeal to the U.S. Court of Appeals for the Fourth Circuit, EMD contended that the District Court should have applied the less stringent “preponderance of the evidence” standard. The Fourth Circuit disagreed and affirmed the judgment of the district court. EMD appealed to the U.S. Supreme Court (USSC).
The USSC reversed and held that the preponderance of the evidence standard applies to determining whether an employee is exempt from the FLSA minimumwage and overtime-pay provisions. The Fourth Circuit was the only circuit that used the higher clear and convincing standard. The USSC reasoned that since civil litigation generally uses the preponderance standard, and the FLSA did not specify that the higher standard applied, the default preponderance standard applies to these FLSA determinations.
E.M.D. Sales v. Carrera, 220 L.Ed 2d 309 (2025).
Train Dispatchers Entitled To Attorneys’ Fees And Costs In Unpaid Wages Case.
Train dispatchers sued their employer, Bombardier Mass Transit Corporation, for unpaid wages. They alleged they were entitled to overtime wages and wage statement penalties for on-call time.
When a California employer fails to pay wages to an employee, the employee may either: 1) file an original civil action directly in court, or 2) seek administrative relief with the California Labor Commissioner under the Berman statutes (Labor Code section 98 and following.)
If the employee elects for administrative relief, the Labor Commissioner may: accept the matter and conduct a Berman hearing; prosecute a civil action for collection of wages; or take no further action on the complaint.
The train dispatchers first decided to seek relief from the Labor Commissioner. The Labor Commissioner denied their claim.
The train dispatchers then filed a request for de novo hearing in the superior court. The train dispatchers prevailed in the superior court, receiving over $140,000 in back wages and penalties. They then moved for attorneys’ fees and costs, which the trial court granted in the amount of $200,000.
On appeal, Bombardier accepted its liability for the more than $140,000 in back wages and penalties. Bombardier’s sole argument on appeal was that Berman hearing process described in Labor Code section 98.2(c) is the exclusive statute authorizing an award of attorneys’ fees and costs in a superior court appeal from the Labor Commissioner’s Berman order. Based on this logic, Bombardier concluded that the train dispatchers were not entitled to recover attorneys’ fees and costs because Section 98.2(c) only authorizes an award against unsuccessful appellants in a de novo trial in superior court.
The Court of Appeal disagreed with Bombardier’s argument, and upheld the trial court’s decision. The Court emphasized that the Berman procedure penalizes only those who lose a de novo superior court action. The Court noted that: 1) those who win superior court actions for unpaid wages – like the train dispatchers -- are generally entitled to an award of reasonable fees and costs under Labor Code sections 218.5, 226, and 1194; and 2) nothing in Section 98.2 suggested that the Legislature intended to make this remedy unavailable to employees who used the Berman hearing process. Thus, the Court affirmed the order awarding $200,000 in attorneys’ fees and costs to the train dispatchers.
Villalva v. Bombardier Mass Transit Corp., 2025 Cal.App. LEXIS 19 (1/19/25.)
new to the Firm!
Bryant S. Forster is an Associate in the Los Angeles office of Liebert Cassidy Whitmore, where he provides counsel on labor and employment law matters and represents clients in litigation.
Navigating Developments in Wage and Hour Laws in 2025
March 4, 2025
10:00 a.m. - 11:00 a.m.
Class & Comp: The Foundation of Informed Labor Negotiations
March 11, 2025
10:00 a.m. - 11:00 a.m.
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. Visit the above links for more information.
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:
An employee went on Family and Medical Act Leave (FMLA) in order to care for a family member who is not a service member. After returning, the employee has again requested leave to care for a different family member. Is the employee entitled to a new full 12 week leave period?
Answer:
No, FMLA provides for 12 weeks of leave over the applicable 12-month period. The number of family members an employee has will have no bearing on the amount of leave an employee is eligible to receive.
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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.
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.
• The Firefighter’s Procedural Bill of Rights allows an employer to search a firefighter’s employer-owned locker or storage space: if the firefighter is present; with the firefighter’s consent; or with a valid search warrant if the firefighter is not present. (Gov. Code section 3259.)
• During the recent fires in Los Angeles County, firefighters were pre-positioned in strategic locations throughout the County in anticipation of severe fire weather and to get a jump on anticipated incidents.
• Over 45% of firefighters who die while on duty die from heart related issues. Firefighters are 12 times more likely to have a heart attack when putting out a fire than when they are performing duties not related to emergencies.
On The Blog
Is this PERSable/Reportable? Reporting and Tracking Temporary Upgrade Pay, Out-ofClass Appointments, and Extra Duty Pays
By: Michael Youril
This blog was originally authored in August 2019 but has been reviewed and updated for January 2025.
Applying the different California Public Employees’ Retirement System (CalPERS) rules related to Temporary Upgrade Pay, out-of-class appointments, and non-reportable extra-duty pays can be unnerving. For classic employees, compensation for appointments meeting the definition of Temporary Upgrade Pay are reportable to CalPERS and is included in pension benefits. For out-of-class appointments, the Government Code establishes a 960-hour per fiscal year limit, regardless of whether the employee is a classic or new member. Some compensation is reportable as Temporary Upgrade Pay and the hours are reportable as an out-of-class appointment. Other appointments might meet the definition of Temporary Upgrade Pay but do not meet the definition of an out-of-class appointment. And, whether the employee is a new member subject to the California Public Employees’ Pension Reform Act (PEPRA) or a classic member might change the answer.
As discussed in more detail below, for classic members, where an appointment meets the definition of Temporary Upgrade Pay, but not out-of-class appointments, the compensation is reportable to
CalPERS and included in the employee’s pension benefits. However, the hours are not reportable for the purposes of the 960-hour limit on out-ofclass appointments. For a classic member, where an appointment meets the definition for Temporary Upgrade Pay and out-of-class appointments, the compensation is reported to CalPERS and included in pension benefits, and the hours are reported to CalPERS for the purposes of tracking the 960-hour limit for out-of-class appointments. For new members, compensation for Temporary Upgrade Pay is not reportable to CalPERS for the purpose of inclusion in pension benefits, but the hours may be reported to CalPERS for the purpose of tracking the 960-hour limit if the appointment meets the definition of an out-ofclass appointment.
Few items of special compensation reportable to CalPERS have caused as much confusion as Temporary Upgrade Pay. CalPERS even had difficulty determining whether Temporary Upgrade Pay would be reportable for CalPERS new members after PEPRA was enacted. Initially, CalPERS indicated in a circular letter that Temporary Upgrade Pay would not be reportable for new members who were subject to PEPRA. CalPERS later reversed course and indicated that Temporary Upgrade Pay would be reportable for new members.
Finally, after a brief standoff with then-Governor Brown, CalPERS excluded Temporary Upgrade Pay from reportable compensation for new members under its final regulation.
Temporary Upgrade Pay is an item of “special compensation” that is reported to CalPERS for the purpose of inclusion in CalPERS pension benefits for classic members. Under the applicable regulation, Temporary Upgrade Pay is defined as follows:
Compensation to employees who are required by their employer or governing board or body to work in an upgraded position/classification of limited duration.
In a 2014 Circular Letter, CalPERS noted that many agencies were incorrectly reporting certain assignments as Temporary Upgrade Pay. Specifically, CalPERS takes the position that when an individual maintains the duties of their current position and takes on some or all of the duties of an upgraded position, the compensation for taking on the additional duties is non-reportable overtime.
For example, many agencies have “out-of-class” or “acting” pay in their MOUs that provide an employee with additional compensation for taking on a portion of the duties of an upgraded classification. In some cases, multiple employees will split the duties of a higher position and receive additional compensation. Under CalPERS’ interpretation, since the individual retains the duties of their current position, the compensation is not reportable to CalPERS for new or classic members.
To complicate matters further, on January 1, 2018, Government Code section 20480 went into effect.This new law places limits on certain out-of-class appointments, and provides for penalties on out-of-class appointments that exceed 960 hours in a fiscal year. As with Temporary Upgrade Pay, an out-of-class appointment under the Government Code has a specific definition. An “out-of-class appointment” is “an appointment of an employee to an upgraded position or higher classification by the employer or governing board or body in a vacant position for a limited duration.” A “vacant position” is defined as “a position that is vacant during recruitment for a permanent appointment.” The definition of “vacant position” excludes a “position that is temporarily available due to another employee’s leave of absence.” If the appointment meets the definition of an out-of-class appointment, the hours must be reported to CalPERS, but the compensation is only reportable if the appointment meets the definition of Temporary Upgrade Pay and only if the employee is a classic member.
It would have been convenient for the definition of Temporary Upgrade Pay under the regulations and out-ofclass appointments under the Government Code to have the same definition, but that would be too easy. As the definitions above illustrate, an appointment might meet the definition of Temporary Upgrade Pay without meeting the definition of an out-of-class appointment. For example, if a CalPERS classic employee is placed in an upgraded position while the permanent employee is on an extended leave of absence, assuming the technical requirements in the regulation are met as they relate to all items of special compensation, the compensation would be reportable as Temporary Upgrade Pay. However, the appointment would be expressly excluded from the definition of an out-of-class appointment and the hours would not have to be reported in my CalPERS for the purposes of tracking the 960-hour limit. Similarly, if an individual serves in an upgraded position, but the agency is not recruiting to fill the position, the additional compensation may be reported as Temporary Upgrade Pay, but does not meet the definition of an out-of-class appointment.
With the mix of overlapping and divergent definitions for Temporary Upgrade Pay, out-of-class assignments, and non-reportable extra-duty pays, it is important to apply each definition separately to the appointment and compensation when reporting compensation as Temporary Upgrade Pay or reporting the hours for out-of-class appointments. Agencies should also audit any out-of-class, upgrade pays, interim pays, acting pays and extraduty pays to determine whether these pays are reportable as special compensation, and when they may meet the definition of out-of-class appointment for the purposes of tracking the 960-hour limit.
Read the full blog post here.
Liebert Cassidy Whitmore