Client Update
firm victories
Associate Attorney Tony Carvalho Defeats Police Officer’s Termination Appeal.
A police officer decided to stop two bicyclists who were leaving the city’s commercial district at 1:45 a.m. one night. One cyclist stopped as instructed, but the other continued. The officer followed and shouted commands from the patrol car for the cyclist to stop. The officer claimed he sped up to pass the cyclist, pulled to the curb, opened the patrol car door, and the then- riderless bicycle collided with the officer and into the opened patrol car door. The officer told the cyclist to sit on the curb, and once the cyclist complied, the officer turned on his body worn camera (BWC) and called for backup.
The cyclist was arrested for assaulting and resisting a police officer and possession of drug paraphernalia. The officer told his sergeant that the cyclist had assaulted him with his bicycle and that the officer had to use force to handcuff the cyclist. After the DA declined the case, the city’s police department initiated an IA into the officer’s actions.
The first seconds of the BWC footage showed the cyclist sitting on the curb saying: “Now you turn your camera on when you just got done beating me up.” The officer responds: “ I didn’t beat you up.” The cyclist profanely refutes the officer’s statement. The officer tells the cyclist to stop. The cyclist asks “Stop what?” The officer repeats “Stop.”
During his interviews, the cyclist consistently claimed that the officer had turned the patrol car into his bicycle, and then pummeled him with fists. During his IA interview, the officer denied both claims. The officer admitted only that he failed to immediately turn on his BWC or call dispatch.
After completing the IA and pre-disciplinary due process, the city issued the officer a notice of termination for: 1) use of unreasonable force and failure to de-escalate; and 2) giving false or misleading statements: a) to a supervisor, b) in a police report, and c) during an IA investigation. The officer appealed to arbitration.
Attorney Carvalho convinced the arbitrator to uphold the termination for two main reasons. First, the physical evidence showed a dent on the outside of the patrol car driver’s door at the same height as the bicycle handlebar. The BWC also showed the cyclist telling the officers at the scene that his handlebar hit the patrol car door. Second, the cyclist’s account was consistent during several interviews, while the officer’s account had unexplained discrepancies and was highly implausible.
The arbitrator agreed with Attorney Carvalho. The arbitrator found that officer’s expression of fear of the cyclist was especially implausible. The officer weighed 260 pounds, and was highly-trained in martial arts. The cyclist weighed 140 pounds. The arbitrator found that the officer falsely magnified his fear in order to justify the use of force that is shown on the BWC. The arbitrator also found that the officer told the cyclist to “stop” while his BWC was running and immediately went “hands on” with the cyclist so that the cyclist would not make any more statements that would incriminate the officer. The arbitrator found the officer’s version of events was a “total fabrication.” Therefore,
the arbitrator sustained the charges concerning the officer’s unlawful use of force and dishonesty, and affirmed the termination.
Associate Attorney Christopher Frederick Defeats Union’s Test Score Grievance.
A deputy sheriff took the Investigator Deputy promotional exam along with 1100 other deputies. The Sheriff’s Department administered the exam through its testing unit.
The deputy passed the first component of the exam, which allowed her to progress to the second component, which she did not pass. In 2022, the deputy (along with dozens of other deputies that failed the second component) filed an informal grievance with the testing unit and requested copies of her test results and scores. The Department granted the grievance to the extent that it re-reviewed the deputy’s score, but denied the grievance to the extent that it did not change the deputy’s score.
The deputy then filed a formal grievance with the department challenging her score on the second component and requested that she be re-examined and given a passing score. In the following months, the deputy met with the bureau that oversees the testing unit regarding her exam. Again, the Department reviewed her score, but her score remained the same.
The union then filed a formal grievance arbitration request, alleging improper scoring and violations of grievance procedures. At the same time, the union filed many similar arbitration requests for other deputies regarding exam scores. Almost a year later, the union and the Department reached an agreement allowing for
one final review of each deputy’s contested score. After this process, the union’s counsel withdrew all pending arbitration requests on the issue, including the deputy’s, without refiling. However, approximately 10 months after the union withdrew all arbitration requests, the union filed a second request for arbitration for the deputy, repeating the same claims as before, and based on the same original grievance she filed in 2022.
In the arbitration, Attorney Frederick argued that the deputy and her union failed to file their formal grievance arbitration request by the MOU deadline. He also argued that even if untimely filed, the deputy’s second grievance was already resolved because she: 1) previously sought out and received all available remedies provided under the MOU and testing procedures; and 2) failed to submit any specific evidence to support any change in her exam score.
The arbitrator found the formal grievance arbitration request was untimely. The deputy and the union knew that no changes would be made to her scores after her meetings with Department officials. The withdrawal of the first grievance in 2023 terminated the initial grievance process, and the MOU did not permit restarting or re-filing the same grievance months later. Also, the second grievance presented no new evidence or issues to justify reopening the case.
The arbitrator determined that the MOU’s clear language was silent on any exceptions to the stated grievance filing deadline. The arbitrator reasoned that if the parties had wanted to grant an exception to the filing deadline, then they would have so stated that in their MOU. The arbitrator had no authority to rewrite the MOU to extend the filing deadline. The arbitrator also found that even if the deputy had timely filed, she failed to raise any specific new issues with her exam score or procedural violations.
new to the Firm!
Stephanie S. Ponek, an Associate in the Los Angeles office, assists public and private sector employers with a wide range of workplace issues, including wage-and-hour compliance, discrimination and harassment claims, policy development, and litigation strategy.
expense reimbursement
Labor Code Expense
Reimbursement Requirements Do Not Apply To Public Employers.
After the pandemic began in March 2020, the Board of Trustees of the California State University (CSU) mandated remote instruction. Patrick Krug, a biology professor at CSU Los Angeles, followed CSU’s direction to teach remotely. Since he was denied access to his workplace office to retrieve his CSU-provided computer and printer, he absorbed the cost of replacing these items himself. But CSU denied his request for reimbursement.
California Labor Code section 2802 obligates an employer to “indemnify [an] employee for all necessary expenditures…incurred… in direct consequence of the discharge of his or her duties.”
Krug filed a class action complaint against CSU to seek section 2802 reimbursements for home-office expenses for himself and other CSU employees. Krug alleged that he incurred necessary business expenses for electricity, postage, internet service charges, use of personal phones for work related purposes, computers, and office supplies and furniture. CSU claimed that Labor Code section 2802 did not apply because the law infringed on its sovereign powers.
The Superior Court sustained CSU’s demurrer without leave to amend, reasoning that as a governmental agency, CSU was exempt from Labor Code section 2802 because that section did not expressly apply to public employers. Krug appealed.
The California Court of Appeal affirmed, holding that Labor Code section 2802 did not obligate CSU to reimburse employees for work-related expenses. The Court of Appeal found nothing in the law or its legislative history that indicates that section 2802 applies to public employers. The court also noted that applying Labor Code section 2802 to CSU would infringe on its sovereign powers under the Education Code to set its own equipment reimbursement policies.
The California Supreme Court granted review and remanded the case for reconsideration in light of its 2024 decision in Stone v. Alameda Health System. The Stone decision generally holds that public entities are not subject to Labor Code provisions unless the provision expressly applies to public entities.
The Court of Appeal concluded that the Legislature intended to exclude government employers from the terms of section 2802, based on its legislative history and a later amendment. Also, the court found that no prior case had applied the section 2802 reimbursement obligations to a public employer. Thus, the Court concluded that Labor Code section 2802 does not obligate public employers like CSU to reimburse employees for work-related expenses.
Patrick Krug v. Board of Trustees of the California State University, 2025 Cal.App. LEXIS 209 (April 1, 2025).
public records act
No Class Action Claims Allowed Under The California Public Records Act.
The City of Burbank’s website allows the public to submit requests for public records under the California Public Records Act. The City also maintains an email address where individuals can submit requests for public records. The City’s Department of Water and Power (DWP) maintains a separate website. The DWP’s website has a “Contact Us” button for the public to communicate with the DWP through either a phone number or a link to “Send us an Email.” The DWP website does not contain a link to the City’s website, nor any means to request public records.
A woman received a utility bill from DWP that she thought was in error. She accessed the DWP website to request her past bills under the California Public Records Act (CPRA). On January 9, 2023, she sent a records request via the “Contact Us” portal on the DWP website. She sent a second request on January 15, 2023, and a third request on March 3, 2023. She did not receive a response to any of her requests. On May 2, 2023, the woman posted a message on the social media application NextDoor complaining about the City’s failure to respond to her requests.
Thereafter, she received a phone call from a customer service representative, but the City did not send the requested records or an email extending its time to respond.
The woman sued on behalf of herself and similarly situated class members. Her lawsuit stated a single cause of action for violation of the California Constitution and the CPRA. The Superior Court concluded that the CPRA does not permit class claims and that the woman’s own claim was insufficient because the City provides a method for submitting CPRA requests through its main website. The woman appealed.
The California Court of Appeal agreed with the trial court that the CPRA does not allow for class claims because that law and the case law limit judicial relief to the person who requests the records. Also, the Court noted that permitting a class action in this case would not enhance public access to records because there was no indication that large numbers of people were being denied access to DWP public records. But, the Court of Appeal found the woman’s own claim was sufficient because she submitted a request for public records and the City failed to respond within the statutory period.
Di Lauro v. City of Burbank, 2025 Cal.App. LEXIS 265 (March 28, 2025).
What Labor Code Sections Apply to the Public Sector?
June 9, 2025
10:00 a.m. - 11:00 a.m.
2026 Public Agency Legislative Roundup
November 12, 2025
10:00 a.m. - 11:00 a.m.
Labor Relations Legislative Update: What Your Agency Needs to Know about New Legal Obligations for 2026
December 11, 2025
10:00 a.m. - 11:00 a.m.
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.
• When an agency denies a request for records under the California Public Records Act, in whole or in part, the denial must be in writing and set out the names and title or positions of each person responsible for the denial. Also, an agency must provide suggestions for overcoming any practical basis for denying access to the records or information sought.
• Public employees are not entitled to daily overtime under California or federal law. Public employees who do receive daily overtime most often receive it due to the provisions in a collective bargaining agreement.
• The Fair Employment and Housing Act prohibits an employer from including a statement in a job advertisement, posting, application, or other material that an applicant must have a driver’s license unless the employer: 1) reasonably expects driving to be one of the job functions for the position; and 2) reasonably believes that satisfying the job function using an alternative form of transportation would not be comparable in travel time or cost to the employer (Government Code section 12940(q).
To learn more about our program, please visit our website below or contact Anna Sanzone-Ortiz 310.981.2051 or asanzone-ortiz@lcwlegal.com.
Consortium Call Of The Month
Members of Liebert Cassidy Whitmore’s employment relations consortiums may speak directly to an LCW attorney free of charge regarding questions that are not related to ongoing legal matters that LCW is handling for the agency, or that do not require in-depth research, document review, or written opinions. Consortium call questions run the gamut of topics, from leaves of absence to employment applications, disciplinary concerns and more. This feature describes an interesting consortium call and how the question was answered. We will protect the confidentiality of client communications with LCW attorneys by changing or omitting details.
Question:
What are some considerations an employer should think about when determining whether to approve an employee for outside employment?
Answer:
Public agencies and employees must avoid outside employment that is inconsistent, incompatible, in conflict with, or inimical to an employee’s duties and role as a public servant. A public employee’s outside employment, activity, or enterprise may be prohibited if it:
1. Involves the use for private gain or advantage of local agency time, facilities, equipment and supplies; or the badge, uniform, prestige, or influence of local agency office or employment;
2. Allows the officer or employee to receive or accept any money or other consideration from anyone other than the local agency for the performance of an act which the officer or employee is required or expected to do in the regular course or hours of the local agency employment;
3. Involves the officer or employee doing something outside of their capacity as a local agency officer or employee if the act may later be subject directly or indirectly to the control, inspection, review, audit, or enforcement of any other officer or employee or the agency by which they are employed; or
4. Involves the time demands as would render performance of their duties as a local agency officer or employee less efficient.
benefits corner
Court Orders IRS To Refund ACA Penalty Payment To Employer Because HHS Did Not Provide Required Certification.
Faulk, a janitorial services company, stopped providing minimum essential health insurance coverage to its employees in 2019. On December 1, 2021, the Internal Revenue Service (IRS) issued a Letter 226-J to Faulk proposing an excise tax known as the Employer Shared Responsibility Payment (ESRP) for tax year 2019 because Faulk failed to offer its full-time employees minimum essential coverage under the Affordable Care Act (ACA). The Letter 226-J provided a preliminary calculation of the ESRP at $205,621. The Letter 226-J also purported to serve as “certification” that at least one of Faulk’s fulltime employees enrolled in health coverage provided by the Exchange.
Faulk disagreed with the proposed ESRP but paid the amount under protest. Faulk then sought a refund from the IRS but received no response. In June 2024, Faulk filed a lawsuit again the United States Department of Health and Human Services (HHS) and IRS (collectively the “Government”) for violating its due process rights. Specifically, Faulk alleged that the Government improperly categorized the Letter 226-J as a “certification” that at least one of Faulk’s full-time employees enrolled in health coverage provided by the Exchange. The Letter 226-J “certification” came from the IRS, whereas Fault argued it was required to come from HHS before the ESRP could be assessed.
The ACA requires applicable large employers (employing fifty or more full-time equivalent employees) to provide their full-time employees with minimum essential
coverage. The ESRP is triggered when: (1) an employer fails to offer substantially all of its full-time employees the opportunity to enroll in minimum essential coverage for any month; and (2) if “at least one full-time employee of the applicable large employer has been certified to the employer” under ACA section 1411 as having enrolled in the Exchange (i.e., Covered California in California) for such month. Based on the second requirement, the employer must receive certification of the failure to provide coverage before the IRS may assess an ESRP.
The issue in the lawsuit was which agency could issue the certification. HHS delegated authority to the IRS to issue the certification, which the IRS purports to do through Letter 226-J. However, Faulk argued that the certification must come from HHS based on the statutory language.
After considering multiple interpretations of the ACA, the Court agreed with Faulk. The Court interpreted the ACA as giving HHS the exclusive authority to issue the certification based on ACA section 1411 and Internal Revenue Code section 4980H. The ACA requires HHS to issue a certification notifying an employer that at least one full-time employee has enrolled in the Exchange before the IRS enters the picture and assesses the ESRP. As a result, HHS cannot delegate the certification requirement to the IRS.
Since the Court found that the IRS could not issue the certification, the IRS’s Letter 226-J did not serve as certification to Faulk, and therefore, not all of the due process requirements had been met before assessing the ESRP. The Court ordered the IRS to refund Faulk the entire $205,621 ESRP.
Faulk Company, Inc. v. Becerra, 2025 U.S. Dist. LEXIS 68580, 2025 WL1085080 (N.D. Tex. 2025).
Note:
This case brings into question whether any of the Letters 226-J the IRS has issued to applicable large employers assessing the ESRP are valid. While the Faulk case was in the Northern District of Texas, which does not hold precedent in a federal district court located in California, it brings forth an argument any applicable large employer could bring to challenge a Letter 226-J anywhere in the country. Based on this case, HHS and the IRS may modify their procedures so that certifications come from HHS before the IRS proposes and assesses the ESRP.
Benefits Compliance Question:
Question: If an employee is on Family and Medical Leave Act (FMLA) and California Family Rights Act (CFRA) leave for their own serious health condition and receiving State Disability Insurance (SDI) or some other form of paid disability benefits, can the employer require them to use their paid time off, sick leave, or vacation to make up the rest of their wages?
Answer: No, the employer cannot require an employee to integrate accrued paid leaves with paid disability benefits if the employee does not want to use such leave. When an employee is on FMLA/CFRA leave and is receiving paid disability leave through a shortor long-term disability leave plan, such as SDI, the employee is not considered to be on “unpaid leave.” (2 C.C.R. section 11092(b)(2).) As a result, the employer cannot unilaterally require the employee to use paid
time off, sick leave, or accrued vacation. The employee and employer may mutually agree to integrate accrued paid leaves with the paid disability benefits, but if the employee declines to do so, the employer cannot require it.
Please note that the answer differs when an employee is on FMLA/CFRA leave but not receiving any paid disability benefits. In that case, the employee may elect to use or an employer may require an employee to use any accrued vacation time or other paid accrued time off, or sick leave when the employee is otherwise eligible to use it.
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 its Section 125 cafeteria plan document. Prepare for any changes as soon as possible to ensure the timely adoption of any amendments before the start of the next plan year.
On The Blog
Planning for Juneteenth: Legal, Operational, and Cultural Considerations for California Public Agencies
By: Eileen O'Hare Anderson
Juneteenth commemorates a pivotal moment in U.S. history—the final enforcement of the Emancipation Proclamation in 1865. Celebrated on June 19, the day marks the end of slavery in the United States and serves as a time to reflect on freedom, justice, equity, and progress. Known in the federal service as Juneteenth National Independence Day, it has been recognized as a federal holiday since 2021, and has prompted many public agencies across the country to reevaluate how they acknowledge and observe this important day.
For California public agencies, the decision to observe Juneteenth brings both legal and operational questions—many of which remain relevant year after year.
Is Juneteenth a Required Holiday for California Public Employers?
While Juneteenth is an official federal holiday, California has not declared it a paid state holiday for state and local government entities employees. As a result, the observance of Juneteenth varies widely across jurisdictions:
• State government offices typically remain open unless otherwise directed.
• Local government entities (cities, counties, special districts) may adopt policies to observe Juneteenth as a paid holiday or provide alternate ways to commemorate the day.
• Educational Entities (school and community college districts and county offices of education)— after changes to the Education Code sections 45203 and 88203, effective January 1, 2023, districts added Juneteenth as a recognized, paid holiday for classified (but not certificated or academic) employees.
• Agency discretion plays a key role. Public agencies must assess whether to formally observe the holiday and how to align that decision with existing employment policies, collective bargaining agreements, and budgetary constraints.
Four Key Considerations for Agencies
1. Review Legal Obligations and Labor Agreements
Check whether your agency’s bargaining agreements, personnel rules, policies, or handbooks list Juneteenth as a holiday or allow for the addition of federal holidays. Your agency also has to comply with obligations to meet-and-confer with employee associations before changing holiday observance policies.
2. Analyze Operational Needs
Determine the impact a Juneteenth holiday would have on essential services, staffing levels, and scheduling. Consider whether alternative forms of observance, such as floating holidays or employee education programs, may be more appropriate.
3. Communicate Early and Clearly
Transparent communication is essential. Employees should understand whether Juneteenth is a working day, a floating holiday, or a paid closure. Clear guidance minimizes confusion and supports consistent application across departments.
4. Consider Voluntary or Educational Programming
Agencies that do not formally observe Juneteenth as a holiday may still recognize it through internal events, guest speakers, historical exhibits, or voluntary learning opportunities. These efforts can foster inclusion and awareness without impacting operations.
Creating a Long-Term Framework
Because Juneteenth is now a national holiday, public agencies may want to proactively develop a consistent, longterm policy. Questions to address include:
• Will Juneteenth be treated like other federal holidays? If not, why not?
• Should employee leave options be adjusted?
• How will the agency explain and document its approach for employees and the public?
Approaching Juneteenth with clarity, fairness, and consistency allows public employers to stay aligned with evolving norms and employee expectations while remaining operationally sound and legally compliant.
Juneteenth offers a meaningful opportunity for reflection and recognition, and public agencies are responsible to set the tone for its observation. Whether through formal closure, symbolic acknowledgment, or internal education, planning ensures that your agency is prepared—not only for this year, but for years to come.
For questions about implementing or modifying holiday observance policies, consult with your agency counsel or designated labor relations representative.
Read the full blog post here.
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