Client Update
Bryce Bakewell
Graduate Law Clerk | Los Angeles
Stephanie J. Lowe
Senior Counsel | San Diego
Cynthia O’Neill Partner Emeritus | San Francisco
Juliana Pech Associate | Los Angeles
Richard S. Whitmore Partner Emeritus | San Francisco
firm victory
Partner J. Scott Tiedemann And Associate Attorney Nicole Powell Secure A Police Officer’s Termination.
A group of police officers arrested an armed suspect who appeared to be experiencing mental illness. During the arrest, a cover officer struck the suspect’s head and held his foot on the suspect’s neck for approximately 20 seconds while other officers attempted to restrain the suspect.
The city retained independent use-of-force experts who concluded that the officer’s tactics were unreasonable, inconsistent with department training, and violated the department’s use-of-force policies. The city provided the officer with his due process rights and terminated his employment. The officer appealed.
At the appeal hearing, both the city and the officer provided extensive expert testimony regarding police tactics, training standards, and the reasonableness of the force the officer used. The city presented evidence that its officers are: 1) trained to avoid strikes to the head and neck area; and 2) not trained to use boot strikes or foot restraints on prone subjects. The Hearing Officer ultimately credited the testimony of the city’s independent experts over that of the officer’s expert. The Hearing Officer found that the officer acted outside his training and used unreasonable force against a prone suspect.
The Hearing Officer further concluded that the evidence showed that the officer used deadly force without any imminent threat that justified that level of force under department policy. Although the suspect was actively resisting, that resistance did not present an immediate threat necessary to justify the use of deadly force, particularly because multiple officers were already restraining the suspect.
In upholding the termination, the Hearing Officer also found that the city provided all required procedural protections, including conducting an independent investigation and giving a pre-disciplinary Skelly conference. The Hearing Officer rejected the officer’s statute-of-limitations and procedural challenges under the Public Safety Officers Procedural Bill of Rights Act.
Based on the totality of the evidence, the Hearing Officer concluded that the city properly determined that the officer’s conduct posed a risk to the public service and recommended that the termination be sustained in full.
Partner Elizabeth Arce, Senior Counsel Patrick Skahan, And Associate Attorney Kelsey Ridenhour Win Summary Judgment In FLSA On-Call Case.
Two deputy sheriffs sued their county employer under the Fair Labor Standards Act (FLSA) to get compensation for their on-call time. They claimed that they were entitled to compensation for periods during which they alternated weekly on-call duties. The county’s potential exposure was estimated in the millions of dollars.
LCW attorneys analyzed the county’s defenses under the FLSA, marshalled the facts, and developed a litigation strategy. They moved for summary judgment on behalf of the county and opposed the cross-motion for summary judgment that the employees filed.
The court ultimately granted summary judgment in favor of the county, resulting in a complete victory for the county.
Disability
Decision To Revoke Officer’s FitnessFor- Duty Certification Was Not A Nonreviewable National Security Judgment.
Roman Gonzales worked as a Security Police Officer (SPO) for Battelle Energy Alliance. Battelle contracted with the U.S. Department of Energy (DOE) to manage the Idaho National Laboratory, where the government stores spent nuclear fuel. Gonzales had a chronic back injury and had long used prescribed opioids while successfully performing his duties. Gonzales possessed the two certificates necessary to work as an SPO: the section 1046 fitness-for-duty certification and the Human Reliability Program (HRP) Q certification.
After new medical staff raised concerns about Gonzales’s medication use, Battelle temporarily revoked Gonzales’s HRP certification and assigned him to the badging office at a lower pay rate. Then, two events occurred at approximately the same time: 1) Gonzales sent an email to human resources to complain that his coworkers heard management say that Gonzales was losing his job for being an “opioid abuser”; and 2) Battelle revoked Gonzales’s section 1046 fitness-for-duty certification. Shortly thereafter, Battelle gave Gonzales a notice of intent to terminate that was based on the revocation of his section 1046 fitness-forduty certification. Gonzales was eventually terminated.
Gonzales sued under the Americans with Disabilities Act (ADA), alleging discrimination and retaliation. At the close of evidence in the jury trial, Battelle filed a motion for judgment as a matter of law, arguing that its decision was a nonreviewable national-security judgment similar to a security-clearance determination. The district court denied Battelle’s motion and sent the case to the jury. The jury ruled in Gonzales’s favor, finding that Battelle treated Gonzales as impaired because of his opioid use even though his job performance and medication regimen had not materially changed. Battelle appealed the denial of its motion for judgment as a matter of law.
The U.S. Court of Appeals for the Ninth Circuit rejected Battelle’s argument, explaining that the revoked section 1046 fitness-for-duty certification involved medical fitness and job-performance standards rather than true security-clearance decisions. The Court distinguished the DOE’s HRP, which involves national-security and counterintelligence functions, from the ordinary medical fitness for duty certification at issue here. Since Gonzales was terminated based on the latter certification, the Court held that his ADA claims could be reviewed and affirmed the judgment in his favor.
Gonzales v. Battelle Energy Alliance, LLC, No. 25-1037 (9th Cir. Apr. 16, 2026).
new to the Firm!
Moriah Denton joins Liebert Cassidy Whitmore’s Los Angeles office as an Associate! She brings experience representing employers and companies in complex litigation matters involving labor and employment, antitrust, product liability, and class actions.
Alex Larrabee joins as Senior Counsel, focusing on complex employment litigation across FEHA, wage and hour class actions, and PAGA matters. He will be based in our Sacramento office.
Phillip Murray joins as Senior Counsel at the Sacramento office, bringing deep experience in employment law, litigation, and appellate advocacy.
RELIGIOUS ACCOMMODATION
Health Care Employer Established Undue Hardship Defense.
Legacy Health (Legacy) adopted a COVID-19 vaccination policy for its eight Washington- and Oregon-area hospitals in August 2021. Legacy denied requests from employees for religious exemptions from the vaccination policy. Several current or former Legacy employees then sued Legacy for discrimination on the basis of religion in violation of Title VII.
Title VII requires employers to make reasonable accommodations for their employees’ religious beliefs unless doing so would cause “undue hardship” to the employer’s business. (42 U.S.C. section 2000e(j).) The U.S. district court granted summary judgment to Legacy on undue-hardship grounds, finding that the employees failed to dispute Legacy’s evidence that their requested vaccine exemptions would impose a substantial burden on Legacy’s healthcare business. The employees appealed.
The U.S. Court of Appeals for the Ninth Circuit used this case to announce its standard for the amount of hardship necessary for an employer to establish the undue hardship defense to Title VII religious accommodation cases. The U.S. Supreme Court held in 2023 that showing only more than a de minimis cost was insufficient to show undue hardship. But the Supreme Court did not specify how much more of a cost would be sufficient to show hardship. The Ninth Circuit decided that an employer establishes the undue hardship defense if the burden is substantial in the overall context of an employer’s business.
The Ninth Circuit analyzed the three types of risks that could occur if Legacy were to accommodate the employees’ vaccine exemption requests: 1) an employee becomes ill and creates a staffing issue; 2) other employees become infected; and 3) the transmission risk affects Legacy’s patients. Legacy’s expert opined that alternative safety protocols, such as masking, other personal protective equipment, and frequent testing, were all insufficient replacements for vaccination. Taken together, the Ninth Circuit agreed these three risks created a substantial burden on Legacy’s business of providing health care.
The employees argued that religiously-affiliated hospitals had granted vaccine accommodation requests. The Ninth Circuit reiterated that the inquiry centers on the particular employer at issue, and Legacy did not have a religious affiliation. The employees also argued that Legacy relied on pre-vaccine data to support its risk analysis, while post-vaccine data would have supported their request for a vaccine exemption. The Ninth Circuit found that an employer is entitled to rely on the data available at the time it makes a religious accommodation decision. The employees could not point to any contemporary data that supported their claims.
The Ninth Circuit affirmed the district court’s granting of Legacy’s motion for summary judgment.
Williams et al v. Legacy Health, No. 24-5977 (9th Cir. May 6, 2026).
First Amendment
Professor’s Parody Was Protected Academic Speech.
Stuart Reges is a Teaching Professor at the University of Washington (UW). In 2015, UW adopted an acknowledgement stating that certain indigenous peoples lived on the land where UW is located. UW recommended that instructors include UW’s “Indigenous Land Acknowledgement” in their course syllabi.
As a parody of UW’s recommendation, Reges stated in his syllabus that indigenous groups could claim ownership of “almost none” of the land that UW occupied. The statement sparked student complaints and media attention. UW initiated an internal disciplinary investigation. A UW administrator emailed Reges asking him to remove the statement from his syllabus “immediately” because it was creating a “toxic environment.” The administrator invited Reges to voice his opposition to the land acknowledgement in other contexts. Reges then posted his land acknowledgment on his email signature block and on his office door.
An administrator wrote Reges a letter to close the investigation and inform him that the committee found that he had likely violated UW’s EO policy and caused “significant disruption.” The letter warned Reges not to include his land acknowledgement in his future syllabi, or UW would proceed with the next steps. The letter noted that Reges’s merit pay would be released to him now that the investigation was concluded.
Reges sued UW officials under 42 U.S.C. section 1983, alleging First Amendment retaliation and other challenges to UW’s EO policy. The district court granted UW summary judgment, finding that although Reges spoke on a matter of public concern, UW’s interests in preventing disruption outweighed his speech interests.
The U.S. Court of Appeals for the Ninth Circuit reversed. First, the Court rejected UW’s argument that Reges’s parody land acknowledgment was not protected speech. UW had argued that because professors were required to distribute syllabi, Reges’s syllabus did not relate to his own scholarship or teaching, and should instead be considered “government speech” that UW could rightfully control. The Court held that Reges was speaking in his own capacity as a professor in his syllabus, and not on behalf of UW. The Court noted that UW syllabi were largely controlled by faculty and that academic freedom occupies a “special niche” under the First Amendment law.
Second, the Court found that Reges alleged an adverse employment action based upon UW’s actions to: open a disciplinary investigation (during which his merit pay increase was withheld); reprimand him; and threaten him with further discipline. As a result, Reges had stated a prima facie claim for protected speech.
The Court further held that UW could not defeat Reges’s First Amendment claim under the Pickering balancing test because UW could not show sufficient disruption to its legitimate administrative interests. Although students expressed distress, transferred sections, and complained, that discomfort and disagreement are inevitable features of academic discourse and cannot justify suppressing controversial viewpoints. The Court also found that UW’s evidence of disruption was speculative or unsupported.
Finally, the Court revived Reges’s facial overbreadth and vagueness challenges to UW’s EO policy. The Court explained that the EO policy’s prohibition on “unacceptable or inappropriate” conduct extended beyond unlawful discrimination, harassment, or retaliation. The case was remanded for further proceedings and the determination of appropriate relief.
Reges v. Cauce, No. 24-3518 (9th Cir. May 14, 2026).
LCW In The News
To view these articles and the most recent LCW attorney-authored articles, visit: www.lcwlegal.com/news
• As California public agencies increasingly adopt AI tools to improve public services and workplace efficiency, labor unions are advancing legislation aimed at regulating agency use of AI and protecting bargaining unit work, write LCW attorneys Alexander Volberding and Gabriella Kamran. Their Bloomberg Law article examines AB 2656 and other labor-backed bills that would expand notice obligations related to AI implementation and further shape labor relations in the public sector. View the full article 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.
Answer:
Question:
An employee told his supervisor that the City Engineer was a lazy bum who sat in his office all day while the rest of his staff did his work. Can we discipline this employee for his insubordinate statements?
Disciplining an employee for the content of their speech is risky and depends on the specific context of each case. In this case, the speech appears to be a personal gripe, as opposed to a matter of public concern that would warrant First Amendment protection. But the Public Employment Relations Board (PERB) tends to be protective of employee speech like this that concerns working conditions. If an employer disciplines an employee for flagrant or insubordinate and therefore disruptive speech, PERB conducts a fact-intensive inquiry that considers all relevant circumstances, including but not limited to: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of what occurred; and (4) the extent to which the speech or conduct at issue can fairly be said to have been provoked by the employer. (Mt. San Jacinto Community College District (2023) PERB Decision No. 2865, p. 22.)
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.
There are many ways to evaluate an employee’s performance. In addition to using the traditional “upward feedback” evaluations, these methods may be effective for particular categories of employees. Complete any collective bargaining duties before attempting to change current policies and practices:
• A 360 evaluation gathers feedback from supervisors, peers, subordinates, and sometimes the employee themselves to provide broader insight into leadership, communication, and interpersonal skills.
• Peer reviews can promote mentorship and professional growth by allowing colleagues to observe and provide constructive feedback to one another.
• Self-assessments allow supervisors to better tailor performance discussions by comparing employees’ perceptions of their performance with feedback from others.
benefits corner
IRS Increases ACA Employer Mandate Penalties For 2027.
The IRS has announced the adjusted 2027 penalty amounts for violations of the Affordable Care Act’s employer shared responsibility provisions (otherwise known as the ACA Employer Mandate). The ACA Employer Mandate authorizes the Internal Revenue Service (IRS) to assess a penalty on applicable large employers under one of the following two circumstances:
Penalty A: The applicable large employer fails to offer “substantially all” of its full-time employees and their dependents the opportunity to enroll in minimum essential coverage, and any full-time employee receives a subsidy for coverage through Covered California (26 U.S.C. section 4980H(a)(1)); or
Penalty B: The applicable large employer offers coverage to full-time employees and their dependents that is “unaffordable” or does not offer “minimum value,” and a full-time employee receives a subsidy for coverage through Covered California. (26 U.S.C. section 4980H(b)(1).)
The amount of the penalties changes year-to-year. For plan years beginning after December 31, 2026, Penalty A will be $3,780 per year ($315 per month) multiplied by the number of full-time employees employed by the employer, less 30. Penalty B will be $5,670 per year ($472.50 per month) multiplied by the number of fulltime employees who obtain subsidized coverage through Covered California. These penalty amounts for 2027 are higher than the amounts currently in place for 2026 ($3,340 per year for Penalty A and $5,010 per year for Penalty B).
Here are some examples of how Penalty A and Penalty B are calculated based on the penalty amounts for 2027:
Penalty A Example: If an applicable large employer has 300 full-time employees and fails to offer “substantially all” of its full-time employees and their dependents the opportunity to enroll in minimum essential coverage and at least one of those employees receives a subsidy for coverage through Covered California for 12 months, then the IRS could assess a Penalty A at $3,780 multiplied by 270 (300 minus 30 full-time employees), which is $1,020,600
Penalty B Example: If an applicable large employer has 300 full-time employees and fails to offer coverage that that is affordable and provides “minimum value,” and 10 of those employees receive a subsidy for coverage through Covered California for 12 months, then the IRS could assess a Penalty B in the amount of $56,700 ($5,670 multiplied by 10 employees who obtain the subsidy).
While employers who intend to offer full-time employees and their dependents affordable minimum essential coverage hope to never face these penalties, it helps to be aware of the adjusted amounts year-to-year as part of staying up to date on the ACA. For more information, see IRS Revenue Procedure 2026-22.
IRS Updates Sample Educational Assistance Plan And FAQs To Reflect Recent Legal Updates.
The past 12-months have brought multiple legal updates to educational assistance plans (EAP) under section 127
of the Internal Revenue Code. In April 2026, the IRS updated its Frequently Asked Questions webpage about EAPs. Employers that provide educational assistance benefits to help employees pay for tuition, fees, books, supplies, equipment, and qualified student loans may exclude the payments, up to the annual limit, from employees’ gross income if the benefit complies with section 127. The IRS’s FAQs describe and clarify the benefit. Here are the highlights from the IRS’s FAQs:
Updated Sample EAP Plan: To qualify as a valid EAP, the plan must be written and must meet certain other requirements. The IRS released an updated sample plan to assist employers with establishing EAPs that comply with section 127. (See IRS Publication 5993 for the sample EAP plan.)
Educational Assistance Plan (section 127 Plan) Cap Increase: Starting in 2026, the $5,250 annual cap for section 127 educational assistance benefits will be adjusted for increases in the cost of living. The IRS will announce what the new amount will be. Unused amounts cannot be carried forward to subsequent years.
Repayments to Qualified Education Loans: Employerprovided student loan repayments are now a permanent benefit available through a section 127 educational assistance plan. The benefit includes principal or interest payments on certain qualified education loans incurred by the employees paid directly to a third party (such as an educational provider or a loan service) or directly reimbursed to the employee. Generally, EAP benefits for qualified education loans are only available if the employer amends the terms of its EAP plan to include the benefit.
No Educational Assistance Benefits for Spouses or Dependents: EAP benefits only apply to employees. An employer cannot provide EAP benefits for the spouse or dependent of an employee.
For more information, please see the IRS’s EAP FAQ’s webpage: https://www.irs.gov/newsroom/updates-tofrequently-asked-questions-about-educational-assistanceprograms.
Benefits Compliance Question
Question:
We offer employees tuition reimbursement under our section 127 educational assistance plan. As part of our policy, we have employees sign agreements stating that if they voluntarily resign or separate employment within one year of completing their educational course, they will be required to return the tuition reimbursement to us by having the amount withheld from their final paycheck. Is this allowable?
Answer:
There are a few different angles used to analyze whether an employer can automatically deduct the tuition reimbursement from an employee’s final paycheck.
First, whether an employer can require employees to repay previously paid educational reimbursements depends on whether the educational expenses were for an employer-mandated course or training. If the educational reimbursement is for an employermandated training or course, the employer cannot seek repayment if the employee voluntarily separates or otherwise leaves employment. If the education benefit is for discretionary training or a course not required by the employer, the employer can seek repayment. (In re Acknowledgment Cases, 239 Cal.App.4th 1498 (2015).)
Second, there are also minimum wage considerations. The employer cannot withhold the repayment amount from the employee’s final paycheck to satisfy the employee’s debt if the withholding would reduce the employee’s wage below the statutory minimum wage. (City of Oakland v. Hassey, 163 Cal.App.4th 1477 (2008).) The prohibition applies even if the employee agrees to the withholding in writing. If the employee’s wage falls below minimum wage, there is a risk of a wage and hour claim.
Third, the area of the law regarding the repayments changed in 2026. For contracts entered into on or after January 1, 2026, Assembly Bill 692 (AB 692) prohibits contracts or work-related agreements from doing the following:
(1) requiring a worker to repay an employer, training provider, or debt collector if the worker’s employment or work relationship ends; or
(2) imposing any penalty, fee, or cost as a result of termination.
AB 692 also provides multiple specific, narrow exemptions that could apply in some situations. If the tuition reimbursement agreement was entered into before January 1, 2026, then AB 692 does not apply to that agreement. AB 692 applies to private employers but may not apply to public agency employers, given that the law does not state specifically that it does so. Nevertheless, all employers should be aware of the provisions of AB 692 so they can evaluate their “stay-orpay” arrangements. Our full LCW blog post applicable to public employers on AB 692 is located here: https:// www.calpublicagencylaboremploymentblog.com/ employment/ab-692-and-its-possible-impact-oncalifornia-public-employers/.
LCW BENEFITS BEST PRACTICES TIMELINE
Each month, LCW presents a monthly benefits timeline of best practices.
June:
• Prepare for the end of the fiscal year, including budgeting for employee benefits.
• Consider whether the employer wants to revise any of its benefit plan documents. Prepare for any changes as soon as possible to ensure the timely adoption of any amendments before the start of the next plan year.
LABOR RELATIONS CERTIFICATION PROGRAM
All seven workshops include both traditional training and interactive simulations to develop skills helpful to labor relations professionals.
Interested?
Start Earning Your Certificate at: https://cvent.me/qWm1W9
*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.
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