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August 2026

Briefing Room

Table Of Contents 03

Firm Victories

Discrimination

Labor Relations

Did You Know?

Workplace Safety

Consortium Call Of The Month

Contributors: Bryce Bakewell Graduate Law Clerk | Los Angeles Cynthia O’Neill Partner Emeritus | San Francisco

Juliana Pech Associate | Los Angeles

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Briefing Room is published monthly for the benefit of the clients of Liebert Cassidy Whitmore. The information in Briefing Room should not be acted on without professional advice. To contact us, please call 310.981.2000, 415.512.3000, 559.256.7800, 916.584.7000 or 619.481.5900 or e-mail info@lcwlegal.com.

Los Angeles • San Francisco • Fresno • San Diego • Sacramento

Partner Che Johnson And Associate Morgan Johnson Convince Court To Affirm 124-Hour Suspension. A police officer received a total of 124 hours of suspension from duty for two incidents: 1) his conduct during an officer-involved shooting; and 2) delaying his response to a call to issue a minor traffic ticket to a man who was known for filming police as they responded to calls. After the city council upheld the advisory arbitrators’ findings, the officer challenged his discipline in the California Superior Court. The officer argued that the discipline was disproportionate and violated his rights under the Public Safety Officers Bill of Rights Act. LCW successfully defended the city by arguing that the officer’s misconduct was supported by the facts and the facts supported the decision to suspend the officer. First, LCW convinced the court that the officer did not understand the danger he posed by firing behind the other officers in the officer-involved shooting, and that the officer had offered contradictory justifications for shooting from his location. Second, it was poor judgment to issue such a minor traffic citation while a call for service was pending. The citation also created a perception of retaliation against the subject. After independently reviewing the full administrative record, the court concluded that the weight of the evidence supported the city council’s decision to uphold the 124-hour suspension. Following oral argument, the court denied the officer’s petition, leaving the city’s disciplinary action intact.

Partner Elizabeth Arce And Senior Counsel Alison Kalinski Secure Sergeant’s Demotion. A police department demoted a sergeant to police officer after he accessed court records without an official purpose and failed to report another officer’s misconduct. A hearing officer upheld the demotion, and the former sergeant sued in superior court to challenge the hearing officer’s decision.

August 2026

firm victories During oral argument in the superior court, the former sergeant’s counsel argued that the discipline was unwarranted because the former sergeant could have obtained the information independently of the court system; and was unaware of his duty to report misconduct. LCW responded that the central issue was the employee’s continued failure to acknowledge any wrongdoing. LCW argued that supervisors in a law enforcement organization are held to a higher standard; and the department reasonably concluded the employee could no longer be trusted in a supervisory role. The court focused on the former sergeant’s lack of accountability and agreed that supervisors in law enforcement must meet higher standards. The court stated that the fact that reasonable disagreement existed over the appropriate penalty did not mean that the demotion was an abuse of the department’s discretion. The court ultimately denied the writ petition and upheld the city’s decision to demote the former sergeant.

Partner Geoff Sheldon And Associates Lee Heard, Jordan Carman, And Moriah Denton Secure Summary Judgment In Whistleblower Retaliation Case. A civilian director in a sheriff ’s department alleged she was subjected to whistleblower retaliation under Labor Code section 1102.5. She sued in California Superior Court and asserted multiple claims against the county and several individual supervisors. Through a series of successful challenges to her complaint at the pleading stage, the LCW team narrowed the case substantially, securing dismissal of the individually named defendants and eliminating all claims except the whistleblower retaliation claim on the narrow theory that she had been subjected to a “sham” investigation. The LCW team then moved for summary judgment. The civilian director alleged that she was subjected to a “sham” investigation into a complaint made against her by one of her subordinates alleging that the civilian director had retaliated against the subordinate. The

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investigation in question was a “supervisory inquiry,” which is a pre-investigation evaluation of a personnel complaint to determine whether it merits being sent to the sheriff ’s Internal Affairs Bureau for a complete administrative investigation. The department determined in the supervisory inquiry that there was probable cause to believe that a policy violation may have occurred, and therefore the case was referred to the department’s Internal Affairs Bureau for an administrative investigation. The civilian director claimed the investigation was a retaliatory adverse action because: 1) she was not interviewed in the supervisory inquiry stage of the department’s process; 2) the notice of investigation required her to notify her unit commander, as opposed to her direct supervisor, of her absences during the pendency of the investigation; and 3) a counter allegation the civilian director made against her supervisor allegedly went uninvestigated. LCW argued that: 1) the civilian director had insufficient evidence of any retaliatory motive; 2) the county had legitimate reasons for conducting the investigation, and 3) the fact that the county investigated, standing alone, was not an adverse action that could support a retaliation claim, particularly because no action was taken against her as a result. The court found that the civilian director provided no evidence to suggest that the investigation materially altered the conditions of her employment. She had no evidence that the changed process for reporting her absences impeded her ability to request them. Moreover, she provided no evidence that the department’s failure to investigate her claims altered her conditions of employment. Therefore, the court granted the LCW team’s motion for summary judgment in full and dismissed the case against the county.

Partner Paul Knothe And Associate Gabriella Kamran Persuade California Court Of Appeal To Affirm Dismissal In Union Retaliation Case. A fire engineer filed suit in the California Superior Court. He alleged his city employer retaliated against him for his union advocacy in violation of Labor Code section 1102.5, California’s whistleblower statute. During the court-required meet-and-confer process, LCW Attorney

Kamran warned the fire engineer’s counsel that these claims fell within the Public Employee Relations Board’s (PERB’s) exclusive initial jurisdiction. When the fire engineer persisted with the lawsuit, the city obtained a dismissal without leave to amend because the superior court lacked jurisdiction. The fire engineer appealed. He argued that he should have been permitted to pursue his claims in court because PERB could not adequately address his related whistleblower claims under Labor Code section 1102.5. LCW continued to argue that PERB has exclusive initial jurisdiction over his action for retaliation based on union activity, even if the same alleged facts could also support a Labor Code violation. The California Court of Appeal agreed with LCW and held that public employees who allege retaliation based on union activity must first exhaust their administrative remedies before PERB. The decision reinforces the jurisdictional framework governing public-sector labor disputes and provides important guidance for public employers facing claims that are rooted in union-related conduct.

Partner Brian Walter And Associate Olga Bryan Deliver Complete Defense Victory In Nurse’s Employment Case. A traveling nurse alleged race discrimination, defamation, and due process violations against one of LCW’s public hospital clients. The claims arose after the hospital reported concerns to the nurse’s staffing agency. Parents had repeatedly complained about the nurse’s handling of NICU infants, and the nurse had an unprofessional confrontation with the hospital’s supervisory staff. The staffing agency reassigned the nurse to another hospital, where he continued working at a higher rate of pay. LCW prevailed at every stage of the nurse’s litigation in both federal and state courts. The federal court denied the nurse’s attempt to withdraw deemed admissions, granted summary judgment on the federal claim, and remanded the remaining state law claims. LCW then renewed the hospital’s motion for summary judgment in state court, successfully opposed the nurse’s untimely efforts to reopen discovery, and won summary judgment on the remaining claims.

Los Angeles • San Francisco • Fresno • San Diego • Sacramento

August 2026

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Labor Relations PERB Defines Remedy For UC’s Faulty Response To Union’s Request For Information. AFSCME, Local 3299 submitted a request for information (RFI) to the University of California (UC). The RFI sought health and safety records about employees at Lawrence Berkeley National Laboratory (LBNL), a national research laboratory that UC operates. The U.S. Department of Energy (DOE) owns LBNL, but UC runs it under a contract with DOE. UC is the employer of all AFSCMErepresented employees at LBNL. AFSCME requested that UC provide six categories of records for the prior five years related to the health and safety of AFSCME-represented employees at LBNL. UC responded that 1) the RFI was overbroad and burdensome; 2) DOE owned the records; and 3) AFSCME must file a federal Freedom of Information Act (FOIA) request with DOE. AFSCME filed an unfair practice charge with PERB. The charge alleged that UC violated its duty to meet and confer under the Higher Education Employment Relations Act (HEERA) by failing to provide the records it requested. The ALJ sustained AFSCME’s claim and issued a compromise remedy intended to comply with the U.S. Privacy Act of 1974. Both parties filed exceptions to the ALJ’s order. PERB outlined the requirements an employer must follow to respond to an exclusive representative’s RFI. An employer generally must provide a representative with all information that is necessary and relevant to the right to represent employees regarding mandatory subjects of bargaining. Employers must respond with diligence and thoroughness, because an unreasonable delay is the same

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as an outright refusal to provide information. An employer must provide all information that is available to it, and not just information it owns. Once an agency receives a request for relevant information, it must either promptly and fully supply the information or timely and adequately explain its reasons for not doing so. If the RFI meets the necessary and relevant standard, the employer’s unjustified failure to provide that information is a per se violation of its bargaining duty, and a charging party is not required to show harm or prejudice as part of its prima facie case. If, as in this case, the employer believes that the RFI seeks confidential information, the employer must meet and confer in good faith to negotiate a potential accommodation, such as redactions of private information in the records or a confidentiality agreement. If the parties cannot reach agreement, then PERB will decide the remedy through the resolution of an unfair practice charge. If the employer raises a significant privacy interest, then a balancing test applies: the employer has the burden of showing that the privacy interest outweighs the representative’s interest in the information. When privacy rights do outweigh the union’s interest in the information, the sensitive information can be withheld and/or redacted. PERB remedied this case by directing a PERB compliance officer to: oversee the disclosure process; ensure prompt implementation of PERB’s order; and accommodate all legitimate competing interests. This decision details PERB’s analysis of the state and federal privacy laws involved in the RFI, the redactions of information within a record that would be required, and explains that AFSCME was not required to use a FOIA request to DOE. AFSCME v. Regents of the University of California PERB Decision No. 3034-H, July 1, 2026.

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Los Angeles • San Francisco • Fresno • San Diego • Sacramento

August 2026

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WORKPLACE SAFETY Release In Separation Agreement Did Not Waive Employer’s Right To Seek Workplace Violence Restraining Order. Three employees complained that Adelanto Elementary School District Superintendent Michael Krause engaged in a years-long pattern that included angry outbursts, intrusive text messages, unsolicited photographs, monitoring them at or near their homes and workplaces, and jabbing his finger at two of them. The employees sought mental-health treatment and feared retaliation. The District terminated Krause’s employment pursuant to the terms of a separation agreement and general release. The agreement included provisions that required Krause to stay away from the employees and the District to waive all employment-related claims against Krause. Next, Krause successfully ran for a seat on the District’s Board of Trustees. The District then sought a workplace violence restraining order (WVRO) against Krause. The California Superior Court issued a WVRO that prohibited Krause from harassing, contacting, or disturbing the peace of the employees and generally required him to remain 100 yards away from them and their workplace. The order permitted him to attend Board meetings under specified conditions. Krause appealed. Krause argued, among other things, that the District’s waiver of claims against him in the separation agreement barred the WVRO proceeding. The California Court of Appeal affirmed the WVRO with modifications. The Court held that an employer’s right to seek a WVRO on behalf of employees cannot be waived under California law because preventing workplace harassment and violence is not only an individual right, but serves a fundamental public purpose. The Court held that the District proved that there was a reasonable probability of future harassment due to Krause’s repeated conduct, renewed presence as a Board member, and lack

of insight or remorse. The Court modified the WVRO to accommodate Krause’s First Amendment rights, and shortened the four-year duration of the WVRO to three years so it would not exceed the statutory maximum. Adelanto Elementary School District v. Krause, 121 Cal. App. 5th 699 (2026).

Cal/OSHA Has Broad Subpoena Powers. An Uber Eats driver completed a delivery, fell down a flight of stairs, and died several days later. The California Division of Occupational Safety and Health (Cal/OSHA) sought records concerning the driver’s work status, the circumstances of the accident, and similarly situated drivers to determine whether the driver was an employee and whether Uber had complied with workplace-safety laws. Uber objected and produced no documents. Cal/OSHA petitioned the California Superior Court to enforce its subpoena, and the court ordered Uber to produce documents in all 20 requested categories. Uber appealed, arguing that under Proposition 22, Uber Eats drivers are independent contractors and therefore Cal/ OSHA had no jurisdiction. Uber also argued that Cal/ OSHA could issue a subpoena only in connection with an on-site workplace inspection. Uber also claimed the requests were overbroad and implicated confidential information. The California Court of Appeal rejected Uber’s principal arguments, holding that an administrative agency may subpoena records to determine whether a matter falls within its jurisdiction. Cal/OSHA was not required to prove that the driver was an employee before investigating whether the conditions for independent-contractor status under Proposition 22 were met. The court also held that Cal/OSHA’s subpoena authority was not limited to on-site inspections. However, the Court of Appeal concluded that the lower court had failed to adequately assess the

Los Angeles • San Francisco • Fresno • San Diego • Sacramento

August 2026

relevance and breadth of some of the requests, which could encompass records concerning customers and other unrelated users. The Court affirmed enforcement of the subpoena in principle, but remanded the case for the lower court to reconsider and narrow the requests. Division of Occupational Safety and Health v. Uber Technologies, Inc., No. B340734 (Cal. Ct. App. June 18, 2026).

Discrimination No Summary Judgment For Employer Who Terminated Employees After Their ProReligious Comments.

Two former Alaska Airlines flight attendants sued the airline and their union, alleging religious discrimination after being terminated for the comments they posted on Alaska’s internal employee network. The flight attendants had posted in response to Alaska’s post in support of the proposed Equality Act, which would expand federal protections involving sex, sexual orientation, and gender identity discrimination.

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Flight Attendant Marli Brown posted that the Act would endanger the Christian church, suppress religious freedom, and eliminate conscience protections. Flight Attendant Lacey Smith posted whether it was possible for a company to “regulate morality.” Alaska investigated both employees and terminated them for violating its anti-discrimination policies. The Association of Flight Attendants-CWA (AFA) participated in the investigations and disciplinary proceedings, and some union officials made statements that the flight attendants alleged could be interpreted as hostile toward the employees’ religious beliefs. Brown and Smith sued Alaska and AFA under Title VII of the Civil Rights Act of 1964 and Washington and Oregon anti-discrimination laws. They alleged

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that Alaska’s stated policy-based reasons for terminating them were a pretext for religious discrimination and that AFA attempted to cause, or knowingly acquiesced in, their terminations. The district court granted summary judgment to Alaska and AFA. The court found insufficient evidence that Alaska discriminated against them because of their religious beliefs. The U.S. Court of Appeals for the Ninth Circuit reversed, holding that the evidence created genuine disputes of material fact that should be decided by a jury. Brown’s statement was facially religious, and both Alaska and AFA understood its religious basis; a jury could therefore find that Alaska used its workplace policies as a pretext for terminating her because of her beliefs. Although Smith’s comment did not expressly mention religion, the majority

Did You Know?

concluded that Alaska investigated her together with Brown, knew that opposition to the Equality Act could involve religious concerns, and later characterized Smith’s brief question in terms a jury could find exaggerated or pretextual. The Court held that the AFA’s involvement and its officials’ disparaging statements could support a finding that the union attempted to cause or acquiesced in the terminations because of religion. The Court reversed the summary judgment and dismissal orders and remanded the case. Brown v. Alaska Airlines, Inc., 179 F.4th 707 (9th Cir. 2026).

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 Government Code section 1031 requires all peace officers to be free from physical, emotional, or mental conditions that could negatively affect their ability to perform their duties. • Employees generally have a right to privacy in their personal, off-duty activities. An employer should not take employment action based on off-duty conduct unless there is a clear connection—or “job nexus”—between the conduct and the employee’s job duties. A job nexus may exist if the off-duty activity affects job performance, creates a conflict of interest, violates the law, or undermines the employee’s or agency’s credibility with the public. An employer’s inquiry into off-duty conduct should be supported by a legitimate workplace need and narrowly limited to the relevant facts.

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August 2026

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: We have learned that our police department has added a physical fitness test to its police officer recruitment process. Is that legal?

Answer: At least two facts are needed to answer this question. First, has the department analyzed whether success on the physical fitness test predicts successful job performance? A recruitment test must be shown to be related to success on the job. Second, is the physical fitness test standardized in its administration? A recruitment test must be administered consistently so that each qualifying candidate is tested in the same manner and under the same conditions as all other candidates.

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