Client Update
firm victory
LCW Partner Danny Yoo And Associate Attorney Nicholas Grether Win Defense Verdict On Police Officer’s Disability Discrimination Trial.
The City of Monterey Park placed one of its police officers on leave pending a fitness for duty exam after the officer was observed speaking in an incoherent manner and not being able to track conversations during management team meetings. The examination showed that the officer was not fit for duty. The City attempted to engage the officer in the interactive process to explore potential accommodations.
While on leave, the officer’s police powers were suspended, but the officer attended his son’s graduation from the police academy in full uniform, and he carried an unloaded gun. The officer told another chief of police who was present that “You did not see me here” because the officer did not want his own chief to find out that he was in uniform, contrary to his chief’s directives. The City’s police department investigated and determined the officer was insubordinate for exercising police officer powers while they were suspended, was dishonest for saying he did not know he could not be in full uniform, and violated the Penal Code. The City terminated the officer’s employment.
The officer filed a lawsuit claiming: 1) disability discrimination; 2) failure to accommodate; and 3) failure to engage in the interactive process. Danny and Nicholas rapidly adapted to all the twists and turns of a jury trial, including inconsistent theories of liability; attacks on the City’s efforts to engage in the interactive process; and the challenges to the psychologists’ opinions regarding possible accommodations. Their work convinced the jury that none of the officer’s three claims had any merit. The jury ultimately decided that the City did not perceive the officer to have a mental disability; the officer could not perform his essential job duties; and that the officer failed to ask for any accommodations for the disability that the City perceived him to have.
Sr. Counsel Alison Kalinski And Associate Attorney Nicole Powell Win
Three-Year Workplace Violence Restraining Order Against Former Officer.
A police sergeant was demoted, appealed his demotion, lost, and subsequently retired. The former officer began mailing flyers to city residents to criticize police leadership, including the former chief, the current interim chief, and a commander. Later, the officer sent individualized mailers directly to the former and interim chiefs and the commander, as well as to the former city manager and police union president. The officer sent between 5 and 20 mailers to these individuals, a number that escalated over time. The mailers: insulted the recipients; accused them of dishonesty, incompetence, and infidelity; suggested they were under surveillance; and contained escalating and veiled threats of violence.
The city applied for a workplace violence restraining order (WVRO) for all of the individuals and one individual’s family member. During four days of direct and cross-examination of eight witnesses, the city witnesses described how the mailers threatened and intimidated them and caused them to alter their behavior in significant ways, including quitting a job and installing surveillance cameras on their property. Although the officer claimed that his mailers contained protected speech, he testified that he sent them to air his personal grievances by mocking the recipients, hurting their feelings, and demonstrating that he would not stop.
The Superior Court judge found that the flyers constituted harassment under the WVRO law codified at Code of Civil Procedure section 527.8 because their content would both cause a reasonable person substantial emotional distress, and actually did so, according to the witnesses’ testimony. The Court rejected the officer’s First Amendment arguments because the officer’s speech was not protected and constituted a credible threat of violence. The Court found the evidence showed a reasonable probability of future violence and issued a three-year WVRO against the former officer.
Note:
Many agencies encounter similar harassment issues and may not have considered a WVRO as a viable option to address ongoing behavior from a former officer.
Partners Adrianna Guzman And Alex Volberding, And Associate Brittany Trainer, Win Dismissal Of Challenge To Firefighter Dress Code Rules.
A fire union allegedly raised safety concerns with Cal-OSHA. The union claimed that thereafter, the fire department required compliance with its dress code and prohibited firefighters at one station from wearing belt buckles that displayed their station number. The union filed an unfair practice charge claiming the enforcement of the dress code was retaliation for the protected union activities of raising safety concerns and wearing the belt buckles.
The union provided no facts in its unfair practice charge to show that the employer knew the union had raised safety concerns with CalOSHA. Further, the charge did not explain how wearing the belt buckle with the station number qualified as a protected activity under the MMBA or the employer’s local rules. The position statement LCW filed for the employer showed that no adverse action had occurred and that there was no connection between the belt buckles and union activity.
The union declined to submit a written response, opting instead to present oral arguments before the administrative agency. LCW successfully argued that the administrative agency should dismiss the unfair practice charge. The administrative agency dismissed the unfair practice charge without leave to amend.
Partner Jesse Maddox Defeats Firefighter’s Termination Appeal.
A female fire department volunteer was removed from the volunteer training program. The volunteer then informed department leadership that during the program, a firefighter sent her suggestive messages, made sexual comments and inquiries, and singled her out for sexual ridicule.
The case presented a significant challenge because an outside investigator declined to sustain key allegations in his report. He found the firefighter was more credible than the volunteer. But, the city was aware of this firefighter’s prior discipline for misconduct, conducted its own thorough review, and moved forward with termination based on the totality of the evidence and policy violations.
After a multi-day arbitration hearing, the hearing officer concluded that the city had met its burden to establish just cause. Central to the decision was the firefighter’s own admissions. The firefighter acknowledged he made inappropriate communications, including a “shameful” text exchange, admitted he “probably” violated several city policies, conceded he should have reported his conduct, and recognized that his behavior was unprofessional. These admissions established multiple policy violations that supported his termination.
The hearing officer rejected the union’s key defense. The union’s argument that the conduct was “mutual” did not excuse the misconduct. The hearing officer emphasized that anti-harassment policies prohibit specific types of conduct regardless of whether the recipient initially participates or fails to object.
Finally, the hearing officer found termination was an appropriate penalty. The city properly considered the employee’s history of similar misconduct and determined that progressive discipline had failed to correct his behavior. The hearing officer credited testimony that the misconduct harmed the department, undermined its mission, and negatively impacted recruitment and retention, including the viability of the volunteer program. Given the repeated nature of the conduct and the likelihood of recurrence, the hearing officer concluded that no lesser penalty would be sufficient.
Based on the totality of the evidence, the hearing officer denied the grievance and upheld the firefighter’s discharge.
Partner
Scott Tiedemann
And
Sr. Counsel
Jeffery Stockley Defeat A Corporal’s Termination Appeal.
A police corporal began a consensual affair with an officer in the same police department. During the affair, the officer was also dating a community member who was an informal informant. The corporal saw some messages on the officer’s cell phone from the community member, and used the officer’s phone to message the community member to stay out of her relationship with the officer. The corporal also threatened to expose the community member’s personal life; directed the community member not to participate in a city program; and disparaged the officer. The corporal admitted to deactivating her body-worn camera prior to confronting the community member while on duty at a public event. The corporal’s conduct ultimately led to a citizen complaint and an internal affairs investigation. The city terminated the corporal, and she appealed.
The personnel board found that the evidence established misconduct. The board concluded that the corporal improperly used her position to influence a private matter, made threatening and misleading statements, failed to report a potentially improper relationship involving the officer and the community member, and discredited both the department and its personnel.
In analyzing the misconduct, the board emphasized that even if some of the corporal’s communications occurred off duty, her improper use of her peace officer status permeated her actions. Her directives to the community member could be perceived as an abuse of authority. The board also cited the corporal’s admissions that she embellished statements to harm the officer’s reputation, and that she knew that her actions were inappropriate and damaging.
The board determined that the misconduct was not a brief lapse in judgment but rather a sustained course of conduct driven by personal motives, including actions taken while on duty and in uniform. The conduct undermined public trust, disrupted departmental operations, and created a risk of future misconduct. The board held the corporal to a higher standard of conduct because of her rank, experience, and leadership responsibilities.
Finally, the board concluded that termination was not an abuse of discretion. It credited the police chief’s determination that the corporal’s actions compromised her integrity and the department’s reputation, and that lesser discipline would not sufficiently address the harm or mitigate the risk of recurrence. The city manager adopted these findings and issued a final decision affirming the termination.
Partner Peter Brown Defeats Union’s “Me Too” Grievance In Arbitration.
A union filed a grievance alleging that the county employees it represented should receive a significant signing bonus because another union representing county employees had received the bonus. The grievance claimed the bonus under the “me too” clause in the MOU.
During the arbitration hearing, Brown argued for the county that the other union had received the bonus only because it gave up the “me too” clause in its MOU. The grieving union had been offered the same deal, but had declined. For the county to now give the bonus, without requiring the grieving union to relinquish its “me too” provision, would be treating the grieving union more favorably. Moreover, a union official had said, after rejecting the bonus deal, that the union was looking for other ways to get the same benefit for its members.
The grieving union argued that how or why the other union received the bonus was irrelevant. The grieving union also noted that on two prior occasions, the county did not require it to make concessions in order to effectuate its “me too” clause.
The arbitrator noted that the county’s bonus offer was contingent on the release of the “me too” clause. The arbitrator also noted the evidence of the grieving union’s intent at the time. The grieving union was offered the same deal at a time when it was aware that the other union had accepted the deal and was trying to negotiate for the bonus through other means. This evidence showed that the grieving union did not believe it was entitled to the bonus by simply relying on its own ‘me too” clause. In addition, the arbitrator distinguished the two prior instances the union cited
when it was not required to make concessions to effectuate its “me too” clause. In those instances, the county’s offers were not contingent on any particular concession. The arbitrator denied the grievance.
Sr. Counsel Jeff Stockley Defeats Former Officer’s Termination Appeal.
A police officer took photos and videos of himself having sexual relations with a woman. The officer created an Instagram account in the woman’s name without her knowledge. The officer then uploaded the material into the account. The woman’s family alerted her to the account. She filed a criminal complaint against the officer.
A county sheriff’s department initiated the criminal investigation. The officer denied that he or his then-girlfriend and now wife created or used the Instagram account. The officer admitted he took two photos of the woman, but claimed he did not share them. The receiving department subpoenaed information from Meta that showed the officer’s email and cell phone number were used to create the account. But the prosecuting attorney declined to prosecute, and the sheriff’s department turned the matter over to the officer’s own department.
The officer’s department conducted an administrative investigation, found the officer to be in violation of department policies, and eventually terminated the officer for serious misconduct, dishonesty, criminal actions, and violations of department policy. The officer appealed.
Sr. Counsel Stockley argued that the termination should stand because the officer repeatedly lied and uploaded the sexually explicit material without the woman’s knowledge or consent. The officer argued that it was his wife and her co-worker who created the Instagram account and uploaded the photos. Sr. Counsel Stockley argued that this was simply the officer’s wife’s last-minute effort to save her husband’s job.
The hearing officer determined that the former officer’s testimony was not truthful. The hearing officer found the testimony that the officer’s wife and co-worker created the Instagram account without the former officer’s knowledge was neither believable nor supported by any evidence. The hearing officer concluded in his recommended decision that termination was an appropriate remedy. The city council voted to accept the hearing officer’s findings and denied the appeal.
Labor Relations
County Must Barain Over The Decision To Outsource Security Services.
Los Angeles County decided to outsource certain security services that were performed by officers who were represented by the Professional Peace Officers Association (PPOA). The PPOA demanded that the County meet and confer over this decision. The County refused, arguing that the PPOA had waived its right to bargain over such managerial decisions through its MOU, including a management-rights clause that included language about transferring functions through any reorganization.
PPOA filed an unfair labor practice charge with the County’s Employee Relations Commission (ERCOM). Although outsourcing decisions are generally subject to bargaining, the ERCOM hearing officer concluded that the MOU contained a “clear and unmistakable” waiver of that right to bargain. The PPOA then sued in the superior court, but that court agreed with the County, reasoning that the MOU’s reference to “reorganization” was broad enough to include outsourcing and therefore excused the County from bargaining.
The California Court of Appeal reversed. A waiver of statutory bargaining rights must be clear and unmistakable, and the MOU language did not meet that demanding standard. The MOU stated only that the County had no duty to negotiate “the decision of any reorganization.” The Court found that “reorganization” did not equate with “contracting out.” In addition, the MOU provision was not a clear and unmistakable waiver because it did not mention any waiver of the meet and confer process, nor did it expressly conflict with or replace that process. The Court directed the lower court to issue a writ of mandate compelling the County to bargain with the union.
Los Angeles County Professionals Peace Officers Association v. County of Los Angeles (Cal. Ct. App. April 10, 2026) No. B338182.
Due Process
A Neutral Hearing Officer Can Both Develop A Hearing Record and Decide A Case.
A motorist’s driver’s license was suspended after he refused a chemical test following a stop for suspected DUI. Later, at the Department of Motor Vehicles (DMV) hearing, the hearing officer admitted evidence, questioned witnesses, ruled on objections, and upheld the suspension of the driver’s license. The motorist argued the hearing violated his due process rights because the hearing officer acted as both the advocate for the DMV and the decisionmaker.
The motorist petitioned for a writ of mandate in the Superior Court. He claimed the hearing officer’s actions to move documents into evidence despite his objections created an unconstitutional appearance of bias. The trial court rejected the claim, finding that DMV policy
requires hearing officers to act as neutral adjudicators and that no due process violation occurred.
The California Court of Appeal affirmed. The Court explained that due process guarantees an impartial decisionmaker but does not forbid the same official from both developing the record and deciding the case in an administrative proceeding, absent a disqualifying interest or strong evidence of bias. The Court held that the DMV’s system is constitutional, presumes hearing officers are impartial, and that their role in eliciting evidence does not make them advocates. The Court also declined to adopt a subjective “appearance of bias” standard. The Court found that because the motorist did not produce any evidence of an unacceptable risk of bias, it must assume that the hearing officer could decide the case fairly.
Chi v. Department of Motor Vehicles (Cal.Ct. App. April 7, 2026) No. A172237.
Peace Officers
Civilian Oversight Body Has Subpoena Powers.
Sonoma County’s Independent Office of Law Enforcement Review and Outreach (IOLERO), a civilian oversight body for the Sheriff’s Office, sought enforcement of subpoenas it issued during a whistleblower investigation. After Sheriff’s Office employees refused to comply, IOLERO sought a court order to enforce the subpoenas. The trial court ruled against IOLERO, finding it lacked subpoena authority.
The California Court of Appeal concluded that Government Code section section 25303.7 grants subpoena power to county sheriff oversight entities as a matter of law. The Court also determined that IOLERO qualifies as such an entity and functionally acts as an inspector general, even if it is not labeled that way. The Court also rejected arguments that a labor agreement or prior administrative rulings could limit IOLERO’s authority, finding that local agreements cannot override powers granted by state law.
The Court held that IOLERO has the authority to issue subpoenas and can compel compliance. It emphasized that counties cannot contract around powers granted by state law and that meaningful oversight requires subpoena authority.
Independent Office of Law Enforcement Review and Outreach v. Sonoma County Sheriff’s Office (2026) 119 Cal. App. 5th 668.
LCW In The News
To view these articles and the most recent LCW attorney-authored articles, visit: www.lcwlegal.com/news
• David Urban authored an article in HR Dive where he discusses free speech rights and politics in the workplace. View the full article here
• Liebert Cassidy Whitmore's Senior Counsel Andrew Dorado was recently featured in MarketWatch, where he shared insights on the shifting regulatory landscape impacting retirement savers. In light of a recent court decision affecting fiduciary standards, Andrew says "many financial professionals, particularly those offering one-time recommendations such as 401(k) rollovers, may not be required to act as fiduciaries. As a result, Americans with retirement accounts should not assume all advice is subject to a consistent fiduciary standard.” View the full article here.
• LCW attorneys Mark Meyerhoff and Chase Booth authored an article in the Daily Journal Corporation, explaining that California is increasing scrutiny of employers’ use of artificial intelligence in workplace decisions and expects clear evidence that human judgment, not AI, drives those actions. The article suggests employers should ensure meaningful human review and maintain thorough documentation to demonstrate how decisions were made and to mitigate legal risk. View the full article here.
• In a Daily Journal Corporation article, LCW attorney Andrew Dorado explains a proposed rule that would require retirement plans to provide paper benefit statements even as electronic delivery becomes more common, creating new compliance considerations for employers. With changes tied to SECURE 2.0 expected to take effect for plan years after 2025, now is the time for employers to review and update their disclosure practices. View the full article here.
• LCW Partner Michael Youril discusses proposed changes to California’s PEPRA framework in a recent Law360 article, noting they could increase pension costs and limit employer flexibility. View the 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.
Question:
If an employee is offered a temporary modified duty position as part of the interactive process under the Fair Employment and Housing Act (FEHA), is the employee required to accept that position?
Answer:
No. Under the FEHA regulations, a reassignment to a temporary position is not considered a reasonable accommodation. But, an employer or other covered entity may offer, and an employee may choose to accept or reject, a temporary assignment during the interactive process. (2 Cal.Code Regs section 11068.)
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.
• California law prohibits an employer from seeking a credit check regarding an employee or applicant unless the position at issue is: 1) management-level FLSA exempt; 2) part of the state department of justice; 3) a sworn peace officer or other law enforcement; 4) one the law requires to pass a credit check; 5) requires being the employer’s signatory at a bank or authorized to enter into financial transactions for the employer; 6) involves regular access to social security numbers, date of birth, and bank or credit card information; 7) has access to some types of proprietary and confidential information; or 8) involves regular access to cash totaling $10,000 or more. (Labor Code section 1024.5).
benefits corner
Court Dismisses Challenge To Employer’s Health Plan Surcharge As Untimely Despite Violation.
Res-Care is a home- and community-based health services enterprise that serves individuals in need of specialized medical care. Res-Care offered its employees a health benefit plan. In January 2020, Res-Care began assessing a monthly $50 surcharge as part of the health benefit plan for employees who had used tobacco products within the previous six months (referred to as the “tobacco surcharge”). The tobacco surcharge increased to $100 per month if both the employee and their spouse/domestic partner used tobacco products. The purpose of the tobacco surcharge was to promote a healthy lifestyle and to provide an incentive not to use tobacco. Res-Care’s benefits catalogue explained that employees could avoid the tobacco surcharge by enrolling in and successfully completing a tobacco cessation program through Res-Care’s Employee Assistance Program.
Plaintiff Minda Wiederhold worked at Res-Care and was a tobacco user. During open enrollment, she was required to respond to a tobacco usage question before selecting a health insurance plan. The tobacco attestation form directed enrollees to indicate “yes” or “no” to whether they had “used tobacco products any time in the last six months.”
Wiederhold discovered the tobacco surcharge when she reviewed her earnings statement in January 2020. According to Wiederhold, she did not contest it because she had to have health insurance. She also did not read the specific language referring to a tobacco cessation program.
On January 8, 2024, Wiederhold filed a class action lawsuit challenging the lawfulness of the tobacco surcharge and seeking monetary reimbursement for all participants who paid the tobacco surcharge. She alleged the tobacco surcharge violated the nondiscrimination provision set forth in the Employment Retirement Income Security Act (ERISA) because it imposed a premium on plan participants based on their health status. ERISA contains a nondiscrimination provision prohibiting group health plans, such as that offered by Res-Care, from charging participants a greater premium based on any health status-related factor. (29 U.S.C. section 1182(b).) However, there is an exception. A group health plan is allowed to offer a premium discount or rebate in exchange for participation in a bona fide wellness program. In other words, ERISA prohibits plans from requiring individuals to pay health-statusrelated premiums unless such premiums are avoidable through adherence to a bona fide wellness program. For the exception to apply, the plan must disclose the terms of the wellness program in all plan materials.
In litigation, Res-Care did not contest that the tobacco surcharge constituted a violation of ERISA’s nondiscrimination provision. However, Res-Care claimed Wiederhold brought the lawsuit too late and that the statute of limitations had lapsed. While the District Court found that Res-Care’s tobacco surcharge violated the nondiscrimination rules, the District Court ultimately agreed with Res-Care on the statute of limitations issue. The District Court found that the undisputed record showed that Wiederhold had gained actual knowledge of the facts essential to her claim in January 2020, which triggered ERISA’s three-year statute of limitations, as opposed to ERISA’s longer six-year statute of limitations that applies when the plaintiff does not gain actual knowledge of the breach or violation. Since Wiederhold initiated the lawsuit one year after the three-year statute of limitations ended, the District Court rendered her claims untimely and granted Res-Care’s motion for summary judgment.
Wiederhold v. Res-Care, Inc. (S.D.Ind. Mar. 31, 2026)No. 4:24-cv-00003-SEB-TAB).
Note: While ERISA does not apply to governmental plans, such as health plans provided by public agency employers, there could be other legal risks with charging employees a surcharge or higher rate based on their health status. If a benefit is more costly for employees because of their health status, which could arise from a disability, there are risks of disability discrimination under the Americans with Disabilities Act and the Fair Employment and Housing Act.
LCW BENEFITS BEST PRACTICES
TIMELINE
Each month, LCW presents a monthly benefits timeline of best practices.
May:
• Prepare for the end of the fiscal year, including budgeting for employee benefits.
• Consider whether the agency 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.
Benefits Compliance Question
Question: Answer:
Is a tool allowance excludable from an employee’s gross income?
It depends on how the tool allowance is set up. When cash allowances are provided to employees for tools, the allowance is excludable from an employee’s gross income if it qualifies as a “working condition fringe benefit.” To set up a working condition fringe benefit for a tool allowance, employees need to verify to the employer that the payment is actually used for the tools needed to perform the job. Employees must submit receipts or other supporting documentation, and they need to return any unused allowances to the employer.
In 2005, the IRS issued Revenue Ruling 2005-52, which provided guidance that a tool allowance that was determined by estimates (instead of actual costs) was included in gross income (i.e., taxable). In Revenue Ruling 2005-52, employees were given an allowance based on an estimate of tool costs for the hours they worked. The employees were not required to submit receipts or other supporting documentation, nor were they required to return amounts in excess of substantiated expenses, which is why the IRS determined their tool allowance was taxable.
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