Client Update
Ronni Cuccia
Stephanie
Cynthia
Juliana Perch
firm victory
LCW Partner Jennifer Rosner And Associate Jessica Neighbors Win Summary Adjudication On Police Officer’s Disability Discrimination Claims.
A police officer was injured on the job. He returned to temporary light-duty work with a lifting restriction of no more than 20 pounds. Although the city’s policy limited light-duty assignments to 90 days, with a one-time 90-day extension, the officer remained in a modified assignment for about five months.
The city determined that continued light duty was no longer feasible due to operational needs and informed the officer of his leave rights. The city also initiated and conducted several interactive process meetings and identified several vacant non-sworn positions as potential accommodations. The officer declined those non-sworn positions due to concerns about his retirement benefits. The officer sued for disability discrimination, failure to accommodate, and related claims.
Partner Jennifer Rosner and Associate Attorney Jessica Neighbors moved for summary adjudication. They showed that the officer could not establish any triable issues as to whether he could perform his essential police officer functions with or without reasonable accommodation. They also established that the city fully satisfied its obligations regarding the interactive process. The city provided multiple reasonable accommodation options, including a modified desk assignment for five months, paid and unpaid leave, and consideration of alternative vacant positions. The Superior Court found that the officer was not entitled to permanent light duty and ruled in the city’s favor, leaving only two claims to be resolved.
LCW Partner Jesse Maddox And Associate Attorneys Emanuela Tala And Selena Farnesi Get Police Officer’s Case Dismissed Without Trial.
A police officer sued his city employer. He alleged various vague and undefined adverse actions, including issues related to a medical leave and the handling of a retired K9 partner, along with other alleged workplace grievances.
LCW Partner Jesse Maddox and Associate Attorneys Emanuela Tala and Selena Farnesi convinced the Superior Court to dismiss the case at the pleading stage. They filed a series of successful demurrers on behalf of the city. The court ultimately sustained the city’s demurrer to the officer’s Third Amended Complaint without leave to amend, which terminated the case.
The court concluded that the officer did not allege sufficient facts to support any claim. As to the whistleblower retaliation claim under Labor Code section 1102.5, the court found no factual allegations pinpointing any protected activity or disclosure of wrongdoing. The court determined that the Fair Employment and Housing Act retaliation claim was deficient because the protected activity was either not adequately pleaded or too attenuated in time to support a causal connection.
The court also sustained the city’s demurrer to: 1) the discrimination claim because the officer failed to allege facts showing differential treatment or discriminatory motive; and 2) the harassment claim because the officer did not identify a protected classification or allege conduct sufficient to constitute harassment. The court determined that further amendment would be futile and denied leave to amend.
Partner Mark Meyerhoff, Senior Counsel David Urban, And Associate Morgan Johnson
Persuade U.S. Court Of Appeals To Affirm Existing Injunctive Relief In Response To Students’ Challenges And To Limit Damages Available Under Federal Disability Law.
Two sight-impaired students sued a California community college district under Title II of the Americans with Disabilities Act (ADA) in the U.S. District Court. They alleged they were denied equal access to educational resources and accommodations. The jury ruled in the students’ favor and ordered that they be paid money for the harm done to them. After trial, the district court issued limited injunctive relief and significantly reduced the damages based on its opinion that: 1) emotional
distress damages were unavailable in ADA Title II cases; 2) the students had only minimal out-of-pocket losses.
The U.S. Court of Appeals for the Ninth Circuit agreed that emotional distress damages could not be recovered under Title II of the ADA, and confirmed this in a published decision. Nevertheless, it ultimately held that the District Court erred by failing to consider other permissible forms of damages, including compensation for lost educational opportunities. The Ninth Circuit found that the jury’s award was supported by the evidence and consistent with the jury instructions, and held that the District Court should not have reduced the damages.
As to the injunction, however, the Ninth Circuit accepted the district’ arguments and acknowledged the evidence submitted after trial that the district had improved its technology and processes since the time period at issue. In an unpublished opinion, it affirmed the existing injunctive relief and did not order that the injunction be expanded.
Labor Relations
PERB Orders County To Count Release Time Hours Toward Overtime Threshold.
County employees on the Teamsters bargaining team received release time to bargain for successor agreements. Once the negotiations were completed, the Teamsters asked that the release time hours be counted toward overtime due to Government Code section 3505.3(a). That law states that employers must release a reasonable number of employee representatives for collective bargaining “without loss of compensation or other benefits [emphasis added].” The County responded that it would follow the parties’ Memoranda of Agreement (MOA), which stated that release time did not count as actual hours worked when establishing eligibility for any type of overtime compensation.
After the Teamsters filed its unfair practice charge, the PERB’s Office of General Counsel issued a complaint. The County answered on the merits and also argued that the Teamsters waived its claims by agreeing to the MOA language that release time did not count toward eligibility for overtime. The parties submitted the case on joint stipulated facts and evidence. PERB addressed two issues: 1) the meaning of the phrase “without loss of
compensation or other benefits” in Government Code section 3505.3; and 2) the County’s waiver defense.
First, PERB decided that the phrase in Section 3505.3 —“without loss of compensation or other benefits”— means that the release time and associated benefits must be at least equal to what the employees would have earned had they not been released for bargaining. PERB found that not counting release time hours toward overtime caused a decrease in compensation for employees who would have met the applicable overtime standard.
Second, PERB reviewed the County’s waiver defense. The County asserted that the MOA language waived any right to have release time credited toward eligibility for overtime. PERB found that such a waiver would be illegal and unenforceable. PERB described Section 3505.3 as a non-waivable minimum statutory guarantee that is not negotiable.
PERB ordered the County to count release time toward overtime in the future and to make whole those employees who would have received overtime but for the fact that the County did not count their release time hours.
County of San Diego (2026) PERB Dec. No. 3006-M.
Parole Agent Who Retired For Service During Misconduct Investigation Could Not Receive Disability Retirement.
Randy Monroe was a parole agent for the California Department of Corrections and Rehabilitation (CDCR). He received notice that he was under investigation for on-duty misconduct and that he would be interviewed. He applied for a CalPERS service retirement pending disability retirement. CalPERS retired Monroe for service effective March 1, 2022.
On March 23, 2022, Monroe received a Notice of Adverse Action from CDCR that he would be terminated effective April 1, 2022. Monroe attended his Skelly meeting on March 23, 2022. The Skelly officer upheld Monroe’s termination. On April 8, 2022, CDCR learned that Monroe had retired from service on March 1, 2022. The regional parole administrator determined that Monroe’s retirement was “under unfavorable circumstances.” CDCR withdrew Monroe’s Notice of Adverse Action.
On May 13, 2022, CalPERS sent Monroe a notice that he was ineligible for disability retirement because his employment ended for reasons not related to a disabling medical condition. Monroe appealed, but the administrative law judge upheld CalPERS’s determination. Monroe then filed a petition for a writ of mandate, but the trial court also agreed with CalPERS that Monroe was barred from applying for disability retirement.
The California Court of Appeal affirmed, holding that disability retirement requires the possibility of reinstatement if and when the employee is no longer disabled. By voluntarily retiring from service while under investigation, Monroe effected a “complete severance” of his employment relationship and eliminated any possibility of reinstatement. It was immaterial whether Monroe's service retired or was terminated for cause. He departed under unfavorable circumstances, with no right to return to his employment. The Court affirmed the judgment for CalPERS.
Monroe v. California Public Employees’ Retirement System, No. B345865 (Cal Ct. App. Feb. 18, 2026).
PEACE OFFICER RECORDS
“Great Bodily Injury” Means Just That For Purposes Of Public Records Act Requests.
The American Civil Liberties Union of Southern California (ACLU) requested the City of Fresno provide public records relating to the use of police canines, including: “all records relating to the report, investigation, or findings of a K-9 incident involving use of force resulting in death or great bodily injury…”. The ACLU’s request was based on Penal Code 832.7(b), which uses the term “great bodily injury” and which expanded the scope of disclosable peace officer records in public records requests.
The City provided over 900 pages of records, but did not disclose use-of-force records that did not result in “great bodily injury,” which the City narrowly defined as “serious bodily injury.” The City contended that “great bodily injury” should have the same meaning as “serious bodily injury” in Government Code section 12525.2(d)(4): “a bodily injury that involves a substantial risk of death, unconsciousness, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member or organ.”
The ACLU filed a petition for writ in the superior court and won. The court found that the City had a duty to
provide every record regarding a canine deployment that resulted in “great bodily injury” as broadly defined in Penal Code section 12022.7(f)(1). The court noted that: 1) Penal Code section 832.7(b)(1)(A)(ii) expanded the scope of disclosable public records to include those involving peace officers’ use of force that causes “great bodily injury”; and 2) the phrase “great bodily injury” should be defined as broadly stated in Penal Code section 12022.7(f) (1) as a “a significant or substantial physical injury.” The City appealed.
The California Court of Appeal found that “serious bodily injury” and “great bodily injury” were already long-standing and well-defined terms of art at the time the Legislature expanded the scope of disclosable public records in Penal Code section 832.7. The Legislature chose the term “great bodily injury.” It could have, but did not, choose the term “serious bodily injury.” Because the Legislature chose a term with a familiar and wellestablished legal meaning, in place of a different term with its own familiar and well-established meaning, the Court concluded that the Legislature’s choice of term most accurately reflected its intent. The Court found in favor of the ACLU.
City of Fresno v. Superior Court (ACLU), No. F089987 (Cal. Ct. App. March 23, 2026).
Administrative Hearings
Courts Cannot Make New Findings Under The Independent Judgment Standard Of Review.
Shevon Harrington, a participant in the federal Section 8 housing assistance program (Harrington), received notice from the local housing authority (Housing Authority) that her benefits would be terminated due to several alleged violations.
At Harrington’s administrative hearing, the hearing officer concluded that termination was required because a court-ordered eviction had occurred. Harrington then filed a petition for writ of administrative mandamus with the superior court, arguing that the key factual finding was incorrect. Shortly thereafter, the appellate division of the superior court reversed the eviction judgment for insufficient evidence.
The superior court acknowledged that the evidence did not support the hearing officer’s finding regarding the eviction. However, it identified other alleged violations,
concluded that those violations supported termination of Harrington’s benefits, and denied her petition.
The California Court of Appeal reversed. It held that the superior court misunderstood the scope of judicial review under CCP section 1094.5, which requires a court to evaluate whether the administrative agency’s actual factual findings are supported by the evidence and whether those findings support the decision. The superior court could not make its own factual findings or rely on alternative grounds that were not decided at the administrative hearing. Because the hearing officer’s findings were unsupported, and because the agency’s decision could not be upheld based on grounds not adjudicated at the hearing, the Housing Authority had abused its discretion when it terminated Harrington’s assistance. The judgment was reversed with directions to grant the petition and order the Housing Authority to vacate the termination of Harrington’s assistance.
Harrington v. Housing Authority of Riverside County (2026) 118 Cal.App.5th 1086.
new to the Firm!
Dominique Armstrong is an Associate at the Los Angeles office and has experience in litigation, workplace investigations and compliance training, and appellate advocacy. She brings a well-rounded perspective shaped by her work with public employers, unions, and employee benefit trust funds, along with a strong academic background from UC Law San Francisco and Spelman College.
Jessica Le is joining Liebert Cassidy Whitmore as an Associate Attorney. Prior to joining LCW, she worked as a law clerk with the Los Angeles Superior Court, where she assisted with a range of motions and conducted in-depth research on employment matters, contract drafting, and redlining.
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.
• An employer may require that an employee’s sick leave run concurrently with leave taken under the Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) when the leave is for the employee’s own serious health condition. Sick leave may also run concurrently with leave taken under the Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) for other qualifying reasons – such as caring for a family member – if the employee and employer agree.
LCW In The News
To view these articles and the most recent LCW attorney-authored articles, please visit: www.lcwlegal.com/news.
• We’re proud to share that Burgess v. City of Sacramento has been named a 2025 Top Defense Verdict by the Daily Journal Corporation. Read more here
• Western City recently featured LCW partners Paul D. Knothe and Alex Volberding in an article exploring why there is no single “killer” AI application for cities and why that may be a positive development. Paul, who specializes in public safety, notes the uncertain legal landscape surrounding emerging technologies, including the expiration of a 2020 state law banning facial recognition on body-worn cameras and the absence of a statewide replacement, though some municipalities have adopted their own restrictions. Read more here.
• LCW Partner Alex Volberding authored an article explaining a new California law that changes how public agencies must approach outsourcing bargaining unit work. The piece focuses on how the law affects contracting timelines and labor relations obligations. Read more here
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 is our agency required to keep in a former employee’s personnel file?
Answer:
Under Labor Code section 1198.5, employers are required to produce personnel records related to the employee’s performance, education, and training upon receipt of a written request. This obligation includes any notes, emails, or other documents that were maintained and relied upon in connection with the employee’s employment and termination. The records must be maintained for at least three years after an employee’s separation.
LCW Welcomes Andrew Dorado, Expanding Benefits and Compliance Services
LCW is pleased to welcome Andrew Dorado as Senior Counsel. Andrew’s addition expands the firm’s ability to advise clients on complex benefits, tax, and retirement plan issues across all sectors we serve.
Andrew counsels employers on a wide range of retirement plans, including defined contribution and defined benefit plans, deferred compensation arrangements, and 403(b) and 457 plans, as well as ERISA and fiduciary compliance. He also advises on IRS and Department of Labor reporting obligations, correction of operational errors, and payroll-related issues that may impact plan compliance or tax status.
His practice is particularly valuable in helping organizations navigate compliance challenges such as late or incorrect contributions, plan administration errors, and reporting requirements, as well as in guiding clients through correction programs, audits, and plan changes.
With Andrew’s arrival, LCW further strengthens its ability to provide comprehensive, practical guidance on employee benefits and payroll compliance issues that increasingly intersect with dayto-day operations.
We are excited to have Andrew join the firm and look forward to the value he will bring to our clients.
benefits corner
IRS Publishes Schedule For Non-Exempt Employees To Calculate The OBBBA Overtime Tax Deduction.
The Internal Revenue Service (IRS) has published the brand new Schedule 1-A to Form 1040 to help employees claim deductions under the One Big Beautiful Bill Act (OBBBA), including the overtime tax deduction. Part III of Schedule 1-A lays out the step-by-step method for non-exempt employees to calculate their own individual overtime deduction amount.
The method takes into account the caps and limitations to the deduction. The OBBBA caps the amount of the overtime deduction at $12,500 ($25,000 for joint filers) and limits the amount of the deduction if the non-exempt employee’s modified adjusted gross income (MAGI) is over $150,000 ($300,000 for joint filers). The deduction is phased out by $100 for every $1,000 of MAGI above $150,000 ($300,000 for joint filers).
The method contains the following steps:
Lines 14a, 14b, and 14c: The employee enters their qualified overtime compensation.
Line 15: The employee compares their qualified overtime compensation to $12,500 (or $25,000 if married filing jointly) and enters the smaller amount on Line 15.
Line 16: The employee enters their MAGI amount on Line 16.
Line 17: The employee enters $150,000 (or $300,000 if married filing jointly) on Line 17.
Line 18: The employee subtracts $150,000 (or $300,000 if married filing jointly) from their MAGI and enters that number on Line 18. If the number is zero or less, then the employee skips Lines 19 and 20 and enters the Line 15 amount on Line 21.
Line 19: The employee divides Line 18 by $1,000 and enters the number on Line 19. If the resulting number is not a whole number, the employee decreases the result to the next lower whole number. For example, 1.5 is decreased to 1. This is to determine the phase-out of $100 for every $1,000 of MAGI above $150,000 ($300,000 for joint filers).
Line 20: The employee multiplies Line 19 by $100 and enters the number on Line 20.
Line 21: The employee subtracts Line 20 from Line 15 and enters the amount on Line 21 as their qualified overtime compensation deduction.
The Form 1040 Instructions clarify that qualified overtime compensation (Lines 14a, 14b, and 14c) means overtime
compensation that is paid as required under Section 7 of the Fair Labor Standards Act of 1938 (FLSA) that is more than the employee’s regular rate of pay. When employees are paid at time-and-a-half their regular rate of pay, the qualified overtime compensation means the “half” portion of “time-and-a-half” compensation that is required by the FLSA. The instructions also provide illustrative examples and worksheets.
The Form 1040 Instructions clarify that premium pay that is paid at a rate above time-and-a-half is not qualified overtime compensation. The IRS recognizes that some employers provide more pay than the FLSA requires under a collective bargaining agreement and/or under state law. For example, some employers may pay overtime at rates higher than time-and-a-half, such as at double time. The IRS states that the amount of overtime paid at overtimeand-a-half is not qualified overtime compensation.
The Form 1040 Instructions also provide that payment for work on holidays and weekends does not automatically count as qualified overtime compensation. Some employers pay employees at higher rates for working on certain weekends or holidays, even if the employee does not end up working more than 40 hours in the work week (or the overtime threshold for employees on a 7(k) work period). These amounts cannot be included when figuring out the OBBBA overtime deduction for qualified overtime compensation when the employee has not worked more than 40 hours in the work week (or the 7(k) overtime threshold).
Non-exempt employees are encouraged to become familiar with and use Schedule 1-A to calculate and claim the OBBBA overtime deduction. The IRS is using Schedule 1-A for tax year 2025 and will likely continue using the same form for future years while the OBBBA remains in effect (currently through 2028).
For more information, please see Form 1040 Instructions, Schedule 1-A, and IRS News Release 2026-28 (March 2, 2026).
LCW BENEFITS
BEST PRACTICES
TIMELINE
Each month, LCW presents a monthly benefits timeline of best practices.
April:
• Ensure ACA reporting filings are complete. If the IRS rejects the Forms 1094-C or 1095-C filing from March, immediately troubleshoot and correct the error and refile. Retain all records.
• Consider and start planning for any changes or updates your agency wants to make to open enrollment materials. Review employee questions and feedback to identify potential compliance or communication issues.
Benefits Compliance Question
Question:
Our agency currently provides a benefit where the agency pays for the cost of a certification training program and certification examination attempt for employees holding certain classifications. The current MOU requires employees who separate employment within twelve (12) months of obtaining their certification to reimburse the City for the full cost of the training and examination. Does the recent Assembly Bill (AB) 692 restrict our agency’s ability to require reimbursement?
Answer:
AB 692 declares void and unenforceable any new contract provision that requires a worker to pay an employer or training provider for a debt if the worker’s employment terminates. The first thing to note is that it is possible that AB 692 does not apply to public agency employers, given that the law does not state specifically that it applies to public agencies. Nevertheless, public agency employers should be aware of the provisions of AB 692 so they can evaluate their “stay-or-pay” arrangements in the light of the possibility that a court finds differently.
For any current MOUs that were entered into before January 1, 2026, their provisions are not currently subject to AB 692’s restrictions based on the exception carved out in Labor Code section 926(a). However, the agency should delete any stay-or-pay provisions in the next round of negotiations since the exception will no longer apply to a new MOU entered into on or after January 1, 2026. If AB 692 applies to public agency employers, there is a risk in requiring employees to reimburse the cost of the training and examination in the new MOU term.
Labor Relations Certification Program
Developing Positive Partnerships and Leadership Excellence for Labor Relations Professionals
The use of this official seal confirms that this Activity has met HR Certification Institute’s® (HRCI®) criteria for recertification credit pre-approval.
2026 VIRTUAL CLASSES
All seven workshops include both traditional training and interactive simulations to develop skills helpful to labor relations professionals.
LCW 2026 Pre-Conference 21 January COSTING LABOR CONTRACTS In-Person event: San Francisco
12 & 19 February NUTS & BOLTS OF NEGOTIATIONS
12 & 19 March RULES OF ENGAGEMENT
16 & 23 April BARGAINING OVER BENEFITS
07 & 14 May PERB ACADEMY
04 & 11 June TRENDS & TOPICS AT THE TABLE
Interested?
Start Earning Your Certificate at: https://cvent.me/qWm1W9
16 & 23 July COMMUNICATION COUNTS!
13 & 20 August RULES OF ENGAGEMENT
17 & 24 September NUTS & BOLTS OF NEGOTIATIONS 15 & 22 October PERB ACADEMY
03 & 10 December BARGAINING OVER BENEFITS
*Each class consists of two dates/parts. Participation in both dates/parts is required for certification.
*Participants in the LRCP program have a three-year timeframe to complete all seven classes.
Liebert Cassidy Whitmore