Client Update
firm victories
Associate Barbara Boktor Convinces Commission To Uphold Custody Officer’s Suspension.
A city imposed a 12-hour suspension without pay on a custody officer for failing to ensure adequate medical care for an inmate. The applicable policy stated that if a custody officer observes that an inmate needs medical treatment, the officer should call the watch commander and request paramedics to transport the inmate to the hospital.
In this case, the officer was the primary custody officer on duty when an individual was arrested for suspicion of DUI. After being in custody for nine hours, inmate’s condition did not improve; the inmate was still unable to answer questions or walk. The officer failed to request paramedics to transport inmate to the hospital. The officer appealed his 12-hour suspension.
Associate Boktor argued before the city’s civil service commission that someone with the officer’s experience should have recognized that there would be improvement in the level of sobriety during the course of nine hours. The fact that the inmate was still having difficulty maintaining balance and answering questions should have alerted the officer that the inmate had a medical issue that needed attention. The civil service commission sustained the suspension of the officer for failure to ensure adequate care of the inmate.
LCW Partner Alysha Stein-Manes And Associate Gabriella Kamran Win Extension Of City’s Workplace Violence Restraining Order.
In 2016, a fire engineer and his family members became the victims of intense and multifaceted stalking behavior. The perpetrator accused the fire engineer of sexual assault, but an investigation found no evidence to sustain those claims.
The city obtained a Workplace Violence Restraining Order (WVRO) on behalf of the fire engineer, but the perpetrator continued to contact and threaten the fire engineer after the order expired by making similar claims of sexual assault to other agencies throughout the region. The city obtained a second order on behalf of the fire engineer, his spouse, and child.
Eventually, the perpetrator began to contact the fire engineer’s parents in an attempt to circumvent the active WVRO. Associate Kamran convinced the California Superior Court Judge to modify the WVRO to include the fire engineer’s extended family, as well as their homes and workplaces.
Note: California law allows employers to seek WVRO’s on behalf of employees in certain situations. LCW attorneys have experience receiving, modifying, and extending these orders.
Partner Jennifer Rosner And Associate Anni Safarloo Defeat Officers’ Claim To Higher CalPERS Formula In Court Of Appeal.
Three city police officers sued their employer to seek greater retirement benefits. They became sworn officers after a change in the CalPERS retirement benefit formula was negotiated. Yet, they claimed they were entitled to the prior, more generous formula. The city denied their requests.
The officers challenged the city’s decision through petitions for writ, a CalPERS administrative appeal, and a California Superior Court lawsuit. In 2023, the city moved for summary judgment, asserting the officers’ claims had been fully litigated and decided in the previous proceedings. The trial court agreed, applied issue preclusion to the retirement classifications, and entered judgment. The officers appealed.
The California Court of Appeal affirmed the trial court’s judgment in full. The Court agreed that the officers forfeited their arguments for the failure to raise them in the trial court or support them with pertinent law and record citations. The Court also agreed that the officers failed to challenge rulings on their claims for breach of individual employment agreement or declaratory relief. The Court awarded the city its costs on appeal.
New Co-Managing Partners!
LCW is pleased to announce the appointment of Michael Youril as Co-Managing Partner of our Fresno office and Gage Dungy as Co-Managing Partner of our Sacramento office. Both will serve alongside Shelline Bennett, who continues in her role as Co-Managing Partner for each office.
This enhanced leadership structure reflects our commitment to providing strong, locally informed support to clients across the Central Valley and Northern California. Michael and Gage bring deep experience and a shared dedication to client service, which will complement Shelline’s ongoing leadership and guidance.
The new structure also allows Shelline to play a key role in supporting the growth of our expanding Investigations Practice Group, while remaining actively engaged in the management and success of both offices.
If you work with our Fresno or Sacramento teams, we encourage you to reach out and connect with them as they step into these new roles—we’re excited for what’s ahead and remain committed to delivering the highest level of service to our clients.
Public Official’s Activity
On Personal Social Media Accounts Was State Action.
Michelle O’Connor-Ratcliff and T.J. Zane (Trustees) were members of the Poway Unified School District (PUSD) Board of Trustees. In November 2014, while running for election to the PUSD, the Trustees created public Facebook pages to promote their campaigns. After winning, the Trustees used their pages to state they were government officials. They continued to use their pages to post content related to PUSD business.
O’Connor-Ratcliff also created a Twitter page related to her official duties. On those pages, the Trustees informed constituents about PUSD activities and Board actions, invited the public to attend Board meetings, and solicited input about Board decisions.
Starting in 2015, Christopher and Kimberly Garnier, whose children attended school in the PUSD, frequently posted comments critical of the Trustees and the Board. Between 2015 and 2017, the Trustees responded by hiding or deleting the Garnier’s comments. In 2017, the Trustees blocked the Garniers.
The Garniers sued under 42 U.S.C. section 1983 for First Amendment violations. They alleged that the Trustees’ social media pages constituted public fora and that, by blocking them, the Trustees violated their First Amendment rights. The U.S. District Court granted the Trustees qualified immunity defense to the damages claims. After a bench trial, the District Court found in favor of the Garniers on their section 1983 claim and ordered the Trustees to unblock the Garniers from their Facebook and Twitter pages. The Trustees appealed to the U.S. Court of Appeals for the Ninth Circuit.
Trustee Zane thereafter left the Board, mooting the case as to him. The Ninth Circuit applied the USSC’s test in Lindke v. Freed, 601 U.S. 187 (2024), for determining whether a public official’s social media activity constitutes state action for purposes section 1983.
Lindke held that a public official’s social-media activity constitutes state action under section
1983 only if the official: 1) possessed actual authority to speak on the State’s behalf; and 2) purported to exercise that authority when speaking on social media. Applying this test, the Ninth Circuit held that O’Connor-Ratcliff acted under color of state law as to the Garniers.
As to the first part of the test, the Ninth Circuit looked to the following sources to determine whether a public official possessed authority to speak on behalf of the State: statutes; ordinances; regulations; customs; or usage. The first part of the Linke analysis was met because both California law and the PUSD Board of Education bylaws established that a trustee has the authority to speak on the PUSD’s behalf.
O’Connor-Ratcliff argued that the first test was not met because she used her individual social media account, and not an authorized PUSD account. The Ninth Circuit did not bite. The Court said that the first part of the Lindke test focuses on the authority of the individual official, not the official character of the social media account. As a result, O’Connor-Ratcliff’s use of her authority to speak on behalf of the District can constitute state action even on social media pages that are not “official district social media platforms” as defined by PUSD.
As to the second part of the Lindke test, the Ninth Circuit found that the appearance and function of O’Connor-Ratcliff’s social media pages confirmed that she was using her authority to speak on behalf of the PUSD. In this part of the test, the court asks: is the social media account personal, official, or mixed-use? The Ninth Circuit found that the appearance and content of O’Connor-Ratcliff’s Facebook and Twitter accounts most closely resembled “official” accounts. She identified herself on both pages as the president of the PUSD Board of Education and as a “Government Official,” and provided her official PUSD email address as a means of contact. Also, her posts were overwhelmingly geared toward providing information to the public about the PUSD Board’s official activities and soliciting input from the public on policy issues relevant to Board decisions. She maintained a separate, private Facebook account for engaging with her family and friends in her personal capacity.
The Court found that O’Connor-Ratcliff’s conduct toward the Garniers on her social media accounts constituted state action in violation of the First Amendment under Lindke, and affirmed the judgment of the District Court as to O’Connor-Ratcliff.
Christopher Garnier v. Michelle O'Connor-Ratcliff, 2025 US App. LEXIS 11625 (9th Cir.) .
Note:
The Ninth Circuit advised that public officials can limit the risk of liability on social media by: keeping personal posts in a clearly designated personal account: including a disclaimer: or refraining from labelling their personal pages as official means of communication.
mandatedreporter
Child Abuse Victim Defeats
Summary Judgment Regarding
Cross-Reporting Requirement.
The Child Abuse and Neglect Reporting Act (CANRA) is a comprehensive reporting scheme aimed at identifying and protecting children who are being abused or neglected. Under CANRA, a person who meets the definition of “mandated reporter” must inform a law enforcement agency or a county welfare department whenever the reporter has knowledge of, or observes a child whom the reporter knows, or reasonably suspects, has been the victim of abuse or neglect.
Between 2006 and 2008, the parents of then 14-year-old Ryan Holman physically abused him. In May 2006, the County of Butte Health and Human Services Agency received a report of suspected child abuse from Holman’s teacher, who was a mandated reporter.
Holman’s teacher called intake social worker Bee Lee, who documented the information in an Emergency Response Referral Information form. Lee determined that the information did not meet the definitions of physical abuse or neglect and decided to “evaluate out” the referral. Lee made that decision because there was no evidence of “injury to the child” and no specific information regarding the alleged abuse.
Lee did not perform an in-person investigation. Lee completed the Emergency Response Referral Information form based on the information he received verbally from the mandated reporter and before he received the mandated reporter’s written report. The written report, however, included more details.
In 2020, Holman sued the County, alleging that it breached a mandatory duty under CANRA by failing to cross-report the allegations of abuse to local law enforcement and the DA’s office. The County filed a motion for summary judgment. The trial court ruled that the County met its burden of demonstrating that Lee “fulfilled his ministerial duties” and was exercising his discretion when he decided to “evaluate out” the report. Thus, even if Lee erred in his how he defined abuse, his decision was protected by discretionary immunity. Holman appealed.
On appeal, Holman argued the trial court erred in concluding that County social workers have discretion to decide whether a mandated report meets the statutory definitions of abuse. Holman argued that when social workers receive a mandated report of suspected child abuse, CANRA imposes a mandatory duty to crossreport the alleged abuse to law enforcement and other agencies. (Penal Code section 11166(j).)
The California Court of Appeal agreed with Holman. The Court concluded that there was a triable issue of fact as to whether the County breached that mandatory duty by failing to cross-report the May 2006 referral.
The Court noted that the California Supreme Court precedent unequivocally holds that determining whether a reported incident meets the definitions of abuse or neglect is a ministerial or operational function, not a discretionary activity. Accordingly, even if social workers are required to cross-report only those allegations that meet the definitions of abuse or neglect, there was still a triable issue of fact in this case as to whether the County violated a mandatory duty by failing to cross-report the referral.
Holman v. County of Butte, 2025 Cal.App.LEXIS 311.
labor relations
Court Finds Guild’s Three Grievances Were Not Arbitrable.
The Los Angeles College Faculty Guild is the exclusive bargaining representative for Los Angeles Community College District faculty. The parties had a collective bargaining agreement (CBA) which included a grievance and arbitration process. The Guild sought to arbitrate three grievances involving: safety-related construction projects; the termination of a faculty member; and the calculation of a faculty member’s retirement service credit.
The District denied arbitration. It claimed the grievances fell outside the scope of the CBA and the Educational Employee Relations Act (EERA). The Guild sued to compel arbitration.
The Superior Court granted the motion to compel arbitration for the retirement service credit grievance only as to whether the District owed backpay, but denied the motion for the other grievances. The court found that the grievances were beyond the scope of the CBA and were preempted by the Education Code and other statutes.
The California Court of Appeal affirmed the trial court’s ruling. It relied on precedent which holds that a grievance is not arbitrable if it conflicts with, or is preempted by, state laws. The Court held that the grievance related to the faculty termination was not arbitrable because it was preempted by the Education Code.
The grievance related to construction projects was not arbitrable because, while tangentially related to “safety conditions of employment,” it ultimately concerned the progress of projects the District was completing with funds pursuant to the Construction Bonds Act. Thus, this grievance was preempted as well.
The grievance related to retirement service credit was arbitrable only as to whether the faculty member was entitled to backpay because the Public Employees’ Retirement Law governed the reporting of service credits to CalPERS. The Court also denied the Guild’s request for injunctive relief because the CBA limited the arbitrator’s remedial power to backpay or an award of up to $2500. The CBA did not mention injunctive relief, so the arbitrator could not order it.
The Court concluded that the Guild failed to demonstrate that the grievances were within the scope of representation as enumerated by the EERA and affirmed the trial court’s mixed ruling.
Los Angeles College Faculty Guild, AFT Local 1521 v. Los Angeles Community College District, 110 Cal.App.5th 1201 (2025).
For more information on some of
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 obtain a workplace violence restraining order to protect employee(s) from harassment, unlawful violence, or a credible threat of violence. (Code of Civil Procedure section 527.8.)
• A public agency must present to its governing board the status of vacancies and recruitment and retention efforts during a public hearing at least once per fiscal year. (Government Code section 3502.3.)
• California employers may not include statements about the need for a driver’s license in job advertisements, postings, applications, and other employment materials unless: 1) the employer reasonably expects driving to be a job function of the position; and 2) the employer reasonably believes that the employee’s use of an alternative form of transportation would not be comparable in travel time or cost. (Government Code section 12940(q).)
Relax and enjoy the summer season without worrying about missing a newsletter. We will not have a July newsletter and will resume in August.
Mieko Failey is an Associate in the Los Angeles office of Liebert Cassidy Whitmore, where she provides advice and counsel to public agency clients on a wide range of matters from compliance to risk management.
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:
Can you ask an applicant information about medical conditions before making a job offer?
At the pre-offer stage, which includes any hiring activity that occurs prior to making a conditional offer of employment, including but not limited to, written job applications, employment interviews, background investigations, and decisions to hire, an employer may not make a “disability related inquiry.” A “disability related inquiry” means a question that is likely to elicit information about a disability.
A job applicant may be asked to describe or demonstrate how the applicant will be able to perform job-related functions. For instance, it is appropriate to ask “What are your qualifications and skills” and “This job requires that you be able to life 50 pounds, can you do that?”
However, it is unlawful to ask direct or indirect questions that are likely to elicit information about a disability. For example, “What prescription medications are you taking” and “Have you ever been treated for the following diseases and conditions” are not acceptable questions for an employer to ask an applicant.
benefits corner
Retaliation Claim For Termination Of Health Benefits During FMLA Leave Fails Due To Employee Not Paying Health Premiums.
Carol Kliskey was a Program Assistant at a non-profit corporation called Making Opportunity County (MOC) in Massachusetts. On March 15, 2022, Kliskey flew to Oklahoma to care for her daughter who had attempted suicide. A few weeks later, Kliskey requested Family and Medical Leave Act (FMLA). MOC approved her request to take 12 weeks of FMLA leave effective April 2, 2022.
Kliskey initially elected to use accrued sick leave to cover her FMLA leave. Kliskey also communicated that she was interested in requesting benefits under Massachusetts Paid Family Leave program (Massachusetts PFL). Kliskey never ultimately completed her application for Massachusetts PFL.
On June 17, 2022, Kliskey informed MOC that she would be unable to return to work at the conclusion of her FMLA leave. According to Kliskey, her supervisor told her that she would not be allowed to take any more time off and denied her request to use sick leave to extend her leave after she exhausted FMLA leave. Kliskey alleges her supervisor gave her an ultimatum to either return to work on July 1, 2022, or be terminated without the opportunity for rehire.
A few days later, Kliskey checked her bank account and realized she had not been paid during all of her FMLA leave. MOC had provided her with paid sick leave for some, but not all of her FMLA leave. Kliskey also claimed MOC terminated her health benefits June 27, 2022, during her FMLA leave. While it was undisputed
that Kliskey failed to pay any health insurance premiums during her FMLA leave, MOC contended it did not cancel her health insurance during her FMLA leave.
On June 30, 2022, Kliskey submitted a resignation letter. Thereafter, Kliskey filed a lawsuit alleging MOC had retaliated against her for exercising her FMLA rights. Amongst her many claims, she alleged that MOC terminated her health benefits during her FMLA leave. MOC denied cancelling her health benefits during her leave.
The U.S. District Court for the District of Massachusetts determined Kliskey’s claim failed as a matter of law because Kliskey failed to pay her health plan premiums, which was an obligation she bore during her FMLA leave. Under the FMLA, employees are required to continue paying for their share of health insurance premiums while on leave. Kliskey did not dispute that she did not pay her share of her health insurance premiums. The Court found that even if Kliskey’s health benefits were terminated during leave, it would not rise to the level of an adverse employment action for a retaliation claim if she failed to make the required premium payments.
Kliskey also contended that she was denied paid sick leave during her FMLA leave because MOC did not apply her sick leave. The Court found that MOC had provided Kliskey with at least 40 hours of paid sick leave during her FMLA leave, which met the requirements of Massachusetts paid sick leave law. Even though MOC did not provide Kliskey with more paid sick leave to cover the rest of her FMLA leave, the Court found that since Kliskey had indicated she wanted to apply for the Massachusetts PFL benefit on April 29, 2022, MOC was prohibited from compelling Kliskey to use more sick
leave under Massachusetts state law. Although Kliskey did not ultimately complete her Massachusetts PFL application, the state law’s prohibition on requiring her to use sick leave was triggered when she initially requested Massachusetts PFL benefits since it signaled her intent to pursue that avenue of compensation during her otherwise unpaid FMLA leave. The Court determined MOC was entitled to rely on Kliskey’s expressed intent to seek Massachusetts PFL instead of providing her with more sick leave pay.
Kliskey v. Making Opportunity Count, Inc. (D. Mass. Mar. 31, 2025, No. 22-cv-40123-MRG) 2025 U.S. Dist. LEXIS 60328; 2025 WL 959257.
Benefits Compliance Question:
Question: If our public agency does not provide Social Security coverage to some or all of our employees, does our agency have to give new hires Form SSA-1945 even after the Social Security Fairness Act (SSFA) repealed the Windfall Elimination Provision (WEP) and the Government Pension Offset (GPO)?
Answer: Yes, public agency employers must continue providing Form SSA-1945 to new employees when the agency does not provide Social Security coverage for those employees. Form SSA-1945’s main purpose is to inform new hires that their employment is not covered by Social Security. Even though the SSFA repealed the WEP and GPO so that public agency employees who
qualify for both Social Security and a government pension will no longer have their Social Security benefits reduced, the SSFA did not repeal the law that requires an employer to provide Form SSA-1945 (42 USCS § 1320b-13(d)). In March 2025, the Social Security Administration updated Form SSA-1945 to acknowledge that the WEP and GPO no longer reduce Social Security benefits. The updated form is located here: https://www.ssa.gov/forms/ssa-1945.pdf.
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 your agency needs or wants to revise its Section 125 cafeteria plan document. Prepare for any changes to ensure their timely adoption by December 31, before the next calendar year.
On The Blog
Keeping Employees Safe: How to Obtain a Workplace Violence Restraining Order
By: Alison Kalinski
Keeping employees safe is a priority for all California public agencies. Unfortunately, workplace violence is real. Data from the California Department of Industrial Relations reports that in 2021, 57 working people died from acts of workplace violence in California. The Department of Justice reports that in the United States, an average of 1.3 million nonfatal violent crimes in the workplace occurred annually from 2015 to 2019, and strangers committed about half of nonfatal workplace violence. The good news is that California law provides employers with the ability to petition for a Workplace Violence Restraining Order to protect their employees in the workplace. Read on to learn more!
Who can request a Workplace Violence Restraining Order (WVRO)?
Any employer in California.
What are the grounds for getting a Workplace Violence Restraining Order?
California Code of Civil Procedure section 527.8 allows an employer to request a restraining order to protect an employee “who has suffered harassment, unlawful violence, or a credible threat of violence from any individual, that can reasonably be construed to be carried out or to have been carried out at the workplace.”
Who can we protect employees from?
Anyone that is causing or threatening harm to employees. It can be another employee, a former employee, or a non-employee. It could be a current or former friend or family member of an employee. Alternatively, it may be a member of the public with whom the employee does not have a close relationship.
What kinds of behavior warrant protection for employees?
The statute allows employers to obtain a WVRO to protect employees from unlawful violence, harassment, and credible threats of violence. Unlawful violence would include any physical violence in the workplace. The statute defines “credible threat of violence” as “a knowing and willful statement or course of conduct that would place a reasonable person in fear for their safety, or the safety of their immediate family, and that serves no legitimate purpose.”
Similarly, the statute defines “harassment” as “a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose.” In addition, harassing conduct “must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress.”
The statute also provides the following examples of a “course of conduct”: “following or stalking an employee to or from the place of work; entering the workplace; following an employee during hours of employment; making telephone calls to an employee; or sending correspondence to an employee by any means, including, but not limited to, the use of the public or private mails, interoffice mail, facsimile, or computer email.” LCW has also obtained WVROs in response to someone sending threatening and offensive text messages, voicemails, and emails.
Does the employer need to identify the employees it is protecting?
Yes, when the employer petitions the Court for the WVRO, it will identify all employees for which is seeks protection. The employer will need to explain to the Court and present evidence why those employees will need protection. Initially, the employer does so by papers presented to the Court and providing written declarations from employees explaining their concerns for their safety. Later in the WVRO process, the employees seeking protection may need to testify live to explain to the Court why they are seeking protection.
Is there a limit on how many employees a WVRO can protect?
No, all employees that have experienced or been threatened with violence may be protected under the WVRO. In addition, if family members of employees are threatened or harassed, they can also be included and protected in the WVRO.
Can an employee get a WVRO on their own?
No, an individual employee cannot get a WVRO on their own. The employee can get other types of restraining orders on their own against the same person (e.g., Civil Harassment Restraining Order).
How does an employer obtain a WVRO?
The first step in obtaining a WVRO is to get a Temporary Restraining Order. This court order will prohibit the Respondent (person against whom the employer is seeking protection) from coming within a certain distance of the protected employees and order the Respondent to stay away from the employees’ places of work and other places, such as the employees’ homes or cars, based on the facts and circumstances of the threatening behavior.
In order to get a Temporary Restraining Order, the employer must show by reasonable proof there is unlawful violence or a credible threat of violence, and that irreparable harm could result if the order was not granted. This is accomplished by submitting declarations from the employees involved describing what happened and why they are fearful.
Generally, if granted, the Temporary Restraining Order will be in effect for 21 days, and the Court will schedule a hearing for the permanent WVRO. During this time, the Respondent has to be personally served with the Temporary Restraining Order and be provided notice of the Court hearing.
The second step is the Court hearing for the permanent WVRO. The Respondent may appear at the hearing, and the employees may need to testify to explain why they are seeking protection. The Court may issue a WVRO for up the three years “[i]f the judge finds by clear and convincing evidence that the respondent engaged in unlawful violence or made a credible threat of violence.” This WVRO would restrict the Respondent from approaching the protected persons or coming to the worksite.
Does an employer have to act quickly in seeking a WVRO?
Generally yes. Once there is actual violence, a credible threat of violence, or harassment, an employer should act swiftly to help obtain a WVRO to protect employees at the workplace. Violence can escalate quickly. In addition, by acting quickly, the employer shows the court it takes the threats seriously and protection is essential.
Getting a WVRO sounds important and helpful, but also overwhelming. Yes, but trusted legal counsel can help, and handle every step of the process including preparing employees to testify in court if necessary.
Read the full blog post here.
Liebert Cassidy Whitmore