Client Update
firm victories
Associate Attorney Anni Safarloo Convinces Court To Uphold Termination Of City Employee For Workplace Violence.
In November 2022, a City employee became angry and grabbed his coworker. The City terminated the employee, and the employee appealed. The advisory arbitrator concluded that the employee’s conduct was not “workplace violence” under the City’s policy and recommended a one-month suspension. The City Council disagreed and upheld the termination, citing the need to maintain a safe, violence-free workplace. The employee then petitioned the Superior Court to review the City Council’s decision, alleging that the City abused its discretion in selecting the penalty of termination.
Associate Attorney Safarloo argued that the employee violated the City’s zero-tolerance policy against workplace violence by grabbing a coworker. In addition, the employee violated the City’s Personnel Rules, which prohibit threats and discourteous treatment of coworkers. The City had discretion to impose termination as the appropriate level of discipline, despite the advisory arbitrator’s suggestion.
The Court found that the City had not abused its discretion. It noted that even minimal physical contact in the workplace could be treated as a violation of workplace violence policy under a zero-tolerance framework. The Court emphasized that because reasonable minds could differ on the severity of the discipline, the City’s chosen penalty should stand.
Partner Morin Jacob, Along With Associate Attorneys Will Abramovitz And Cindy Allen, Secure Firefighter’s Termination.
A Fire District hired an outside investigator to review allegations about its Firefighter’s off-duty conduct. The investigator found that the Firefighter had ingested cocaine for many days, which caused him to hallucinate. During his impaired state, the Firefighter: believed that he was being followed by members of a SWAT team; ran across an interstate; tried to break into vehicles; grabbed a 10-year-old boy; and dragged the boy into a truck that did not belong to him. The Firefighter was eventually arrested for kidnapping and being under the influence of a controlled substance. The Firefighter was jailed and did not come to work, nor call to report his absence as required by District policy.
During the investigation, the Firefighter admitted to using cocaine for a period of time before the hallucinations. The investigation also revealed that the Firefighter claimed a permanent residence in a location over 250 miles away from the District in violation of District policy. Several months after these incidents occurred, the District terminated the Firefighter’s employment.
Partner Morin Jacob persuasively represented the District at a binding arbitration. The District argued that it had just cause to terminate the Firefighter for his egregious off-duty misconduct and violation of certain District policies. The District also argued that the penalty of termination was reasonable and was based on the Firefighter’s
admissions. Associate Attorney Allen thoroughly prepared the case for arbitration. Associate Attorney Abramovitz drafted a compelling closing brief.
The Firefighter argued that the District failed to demonstrate how his conduct impacted his work performance or disrupted the workplace. The Firefighter also argued that the District relied on his arrest record to support the termination, in violation of Labor Code section 432.7.
The arbitrator disagreed that the District had improperly used an arrest record. She found that the District did not terminate the Firefighter because he was arrested, but rather because of his behavior and his inappropriate interactions with the child. The arbitrator found that the Firefighter admitted most of his misconduct to the investigator.
The arbitrator also found that the District had just cause for terminating the Firefighter for District policy violations. First, District employees are required to contact their supervisor if they will be late for their shift, and if they are unable to perform their regular duties. The arbitrator found that the Firefighter’s failure to notify a supervisor when he was unable to report for work after his release from jail violated these policies. Second, the Firefighter violated the District’s residency policy by residing in a home 250 miles away from District HQ and not reporting it to the District. The arbitrator called the Firefighter’s credibility into question for misrepresenting that he lived within 250 miles of the District.
The arbitrator upheld the decision to terminate, finding that the Fire Chief did not abuse his discretion. The arbitrator found that the Firefighter’s conduct was so egregious, it violated not only the public’s trust, but the trust of all District employees.
Partner Alysha Stein-Manes
And Associate Attorney Gabi Kamran Win Workplace Violence Restraining Order.
A part-time IT employee brought a gun to work. He never brought the gun inside City Hall, but he told a co-worker that he had the gun in his car because he was distraught over a female employee who did not want
to talk to him. The co-worker immediately notified Human Resources. At about the same time, the IT employee’s father realized the gun was in his son’s car and came to City Hall to take the gun back.
The City called in the Sheriff’s Department, which later went to the IT employee’s house and secured additional firearms. The City’s investigation showed that the IT employee had been stalking the female employee for months. The IT employee resigned from the City a few days later.
Because some of the stalking had occurred in an unsecured parking lot where the female employee parked to go to work, the City sought a workplace violence restraining order to prevent the former employee from entering City Hall and the parking lot.
Attorney Kamran prepared two employees to testify, but the judge was ready to rule after hearing only the first witness. The judge ordered a three-year workplace violence restraining order against the employee from entering City Hall or contacting the female employee.
Partner Mark Meyerhoff And
Associates Olga Bryan And John LaCrosse Beat Fire Captain’s Disability Discrimination Claims.
A Fire Department discovered that one of its Fire Suppression Captains had a seizure disorder after he had a serious, off-duty vehicle collision. The Department ordered a fitness-for-duty evaluation. The evaluation restricted the Captain from working the continuous 24- to 48-hour shifts typical for his position, because the Captain needed 7 to 8 hours of sleep in every 24-hour period to reduce the risk of a seizure.
The Department promptly used an interactive process to assess whether the Captain could perform his essential duties with or without reasonable accommodation. After determining the Captain could not, the Department funded a vacant Administrative Captain position that accommodated the Captain’s work restrictions. This position carried the same rank, base salary, benefits, and promotional opportunities.
During the following months, the Captain repeatedly requested to return to his prior position. Yet, the
Captain also provided deficient physicians' notes, failed to sufficiently challenge the original fitness-for-duty determination, and outright refused to participate in the interactive process from time to time.
The Captain then sued the department, alleging disability discrimination and failure to engage in the interactive process. LCW demonstrated that the Department had acted lawfully at every stage: it immediately addressed the safety risk; relied on a valid medical evaluation; created reasonable accommodations that preserved the Captain’s pay and promotional opportunities; and consistently attempted to restart the interactive process even when the Captain refused. The Court agreed that the Captain’s change in position from a Suppression Captain to an Administrative Captain did not result in any adverse employment action and that the Department had completed the interactive process in good faith. By documenting the department’s proactive efforts and exposing the Captain’s failure to cooperate, LCW persuaded the court to grant the Department’s motion for summary judgment.
Developing Positive Partnerships and Leadership Excellence for Labor Relations Professionals
VIRTUAL CLASSES
The LCW Labor Relations Certification Program is designed for labor relations and human resources professionals who work in public sector agencies. It is designed for both those new to the field as well as experienced practitioners seeking to hone their skills. Participants may take one or all of the classes, in any order. Take all of the classes to earn your certificate and receive 6 hours of HRCI credit per course!
18 & 25 September
THE
PUBLIC
EMPLOYMENT RELATIONS BOARD (PERB) ACADEMY
This workshop will help you understand unfair labor practices, PERB hearing procedures, representation matters, agency shop provisions, employer-employee relations resolutions, mediation services, fact-finding, and requests for injunctive relief – all subjects covered under PERB’s jurisdiction. Join us and we share the insight on PERB!
Speakers: Adrianna E. Guzman & Peter J. Brown
16 & 23 October
04 & 11 December
TRENDS & TOPICS AT THE TABLE
Speakers: Jack Hughes & Peter J. Brown
COMMUNICATION COUNTS!
Speakers: Lisa S. Charbonneau & Peter J. Brown
INTERESTED?
Click here or visit our website: www.lcwlegal.com/lrcp
The use of this official seal confirms that this Activity has met HR Certification Institute’s® (HRCI®) criteria for recertification credit pre-approval.
First AMENDMENT
Public Works Director Who Resigned After Criticizing The Mayor Could Not Prove First Amendment Retaliation.
Kevin England, Mayor of Chubbuck, Idaho, appointed Rodney Burch to be the City’s Public Works Director in 2015. For the first six years of Burch’s tenure, he and Mayor England had a good working relationship. During that time, Burch communicated his concerns regarding City management directly to England without issue and ultimately developed a strategic plan to improve operations, which obtained the City Council’s approval.
By 2021, England and Burch’s relationship had soured. Burch, frustrated with England’s policies and performance, proposed changing the City’s management structure from a strong mayor system to a weak mayor system by creating a City administrator position. He criticized England for: failing to implement the strategic plan; mismanaging budgeting; reducing revenue through a utility credit program; and failing to support Public Works effectively. Burch argued that a City administrator would improve oversight and reduce waste. England ultimately rejected the proposal.
Councilmember Dan Heiner challenged England in the 2021 mayoral election. Burch placed a campaign sign for Heiner in his front yard. One of Burch’s neighbors informed England of Burch’s yard sign.
England won re-election. England spoke with the City’s legal counsel and human resources director about removing Burch for cause or requesting Burch’s resignation. England said that he no longer trusted Burch because of his City administrator proposal and the documents Burch created that sharply criticized England.
England met with Burch and asked him to resign. Burch refused. England then scheduled an executive session of the City Council to argue for Burch’s removal, but the Council declined and instructed the two to continue working together. By 2022, Burch resigned, claiming that England had cut Burch out of decision-making and that many of his duties had been reassigned to his subordinates.
Burch then sued the City and England, claiming that England had retaliated against him based on his protected speech under the First Amendment. Burch alleged that his duties and decision-making were reduced and that he was constructively discharged due to his: protected speech, which included criticisms of England’s policies and performance; advocacy for a City administrator position; and political yard sign supporting England’s opponent. The district court granted summary judgment to the City and England. Burch appealed.
The Ninth Circuit Court of Appeals affirmed. The Court found that Burch was not constructively discharged. Burch had complained that he was working 2.5 jobs, so the reduction in his duties and decision-making did not rise to the level of intolerable working conditions that would cause a reasonable person to resign.
As to the First Amendment issues, the Court reasoned that Burch’s criticisms of England’s policies and performance, and advocacy for a City administrator position, addressed matters of public concern, as did Burch’s yard sign. The Court found that Burch’s criticisms and advocacy were made as a public employee, and therefore, were not protected speech. But Burch’s yard sign was not displayed as part of his role as a public employee and thus was protected speech.
The Court concluded that Burch failed to establish a First Amendment violation because the City and England had adequate justification for their actions and would have taken the same actions regardless of the yard sign. The Court found that the Mayor and City had legitimate reasons for their actions, including Burch’s unprotected speech and the need to maintain effective City operations.
Burch v. City of Chubbuck, 146 F.4th 822 (9th Cir 2025).
new to the Firm!
John Louis Chiappe is an Associate in our Sacramento office, where he provides labor, education and employment law expertise to our clients.
Selena Farnesi, an Associate in Liebert Cassidy Whitmore's Fresno office, brings extensive litigation and policy experience to LCW’s public sector practice, with a focus on education, employment, and administrative law.
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. Visit the above links for more information.
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:
When is an employee "working" for Fair Labor Standards Act (FLSA) purposes when the employee is teleworking from home?
Overtime eligible employees who work from home are not considered to be working for FLSA purposes all the time they are at their home. Because it is difficult to determine the exact hours worked under a telework arrangement, the FLSA accepts any reasonable agreement of the parties that takes into consideration all of the pertinent facts.
In general, an employee’s workday on any particular day is the period between the time when the employee commences their first “principal activity” and the time on that day at which they cease such principal activity or activities. (Principal activities are activities which the employee is “employed to perform.”)
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.
benefits corner
New ACA Affordability Percentage For 2026 Is 9.96 Percent.
The IRS has set the new Affordable Care Act (ACA) affordability percentage to 9.96% for 2026. This new affordability percentage is 0.94% higher than the current 2025 affordability percentage (i.e. 9.02%). (Rev. Proc. 2025-25 (July 18, 2025))
While the Internal Revenue Code originally set the affordability threshold to 9.5%, the Internal Revenue Service (IRS) retains the authority to release an adjusted percentage each year. (See 26 U.S.C. section 36B(c)(2)(C)(i).) From 2015 to 2022, the IRS set an affordability percentage above 9.5%, going as high as 9.86% in 2019. For 2023, the IRS dropped the affordability percentage below 9.5% for the first time by setting it at 9.12% and then dropped it even lower at 8.39% for 2024. The new 2026 affordability percentage of 9.96% is the highest it has ever been.
Applicable large employers are advised to check whether their offers of employer-sponsored health coverage for 2026 are affordable using the 9.96% threshold. To determine whether an offer of health coverage is affordable, an employer must run an affordability calculation to determine whether an employee’s “Required Contribution” toward the premium for the lowest cost employee-only coverage exceeds or does not exceed 9.96% of the employee's household income for the 2026 taxable year. Since employers typically do not know the total household income of each of their employees, the ACA provides three affordability safe harbor options an employer may adopt and apply on a reasonable and consistent basis:
Under the Form W-2 Safe Harbor, coverage is affordable if the employee’s Required Contribution is less than or equal to 9.96% of the employee's wages reported in Box 1 of Form W-2.
• Under the Rate of Pay Safe Harbor, coverage is affordable if the employee's Required Contribution is less than or equal to 9.96% of the monthly wage amount for hourly employees (the hourly rate multiplied by 130 hours), or the monthly salary for salaried employees.
• Under the Federal Poverty Line Safe Harbor, coverage is affordable if an employee's Required Contribution does not exceed 9.96% of the Federal Poverty Line for a single individual.
Please note that there are additional factors, such as health flex contributions and cash in lieu, that can greatly impact the amount of an employee’s Required Contribution and the affordability calculation. For more information about how to run the affordability calculation and whether you need to revise the employer contribution to maintain affordable offers of health coverage, please reach out to us.
IRS Increases ACA Employer Mandate Penalties For 2026.
The IRS has announced the adjusted 2026 penalty amounts for violations of the Affordable Care Act’s employer shared responsibility provisions (otherwise known as the “ACA Employer Mandate”). The ACA Employer Mandate authorizes the Internal Revenue Service (IRS) to assess a penalty on applicable large employers under one of the following two circumstances:
Penalty A: The applicable large employer fails to offer “substantially all” of its full-time employees and their
dependents the opportunity to enroll in minimum essential coverage and any full-time employee receives a subsidy for coverage through Covered California (26 U.S.C. section 4980H(a)(1)); or
Penalty B: The applicable large employer offers coverage to full-time employees and their dependents that is “unaffordable” or does not offer “minimum value,” and a full-time employee receives a subsidy for coverage through Covered California. (26 U.S.C. 4980H(b)(1).)
The amount of the penalties changes year-to-year. For plan years beginning after December 31, 2025, Penalty A will be $3,340 per year ($278.33 per month) multiplied by the number of full-time employees employed by the employer less 30. Penalty B will be $5,010 per year ($417.50 per month) multiplied by the number of full-time employees who obtain subsidized coverage through Covered California. These penalty amounts for 2026 are higher than the amounts currently in place for 2025 ($2,900 per year for Penalty A and $4,350 per year for Penalty B).
Here are some examples of how Penalty A and Penalty B are calculated based on the penalty amounts for 2026:
Penalty A Example: If an applicable large employer has 200 full-time employees and fails to offer “substantially all” of its full-time employees and their dependents the opportunity to enroll in minimum essential coverage and at least one of those employees receives a subsidy for coverage through Covered California for 12 months, then the IRS could assess a Penalty A at $3,340 multiplied by 170 (200 minus 30 full-time employees), which is $567,800.
Penalty B Example: If an applicable large employer has 200 full-time employees and fails to offer coverage that that is affordable and provides “minimum value”, and 10 of those employees receive a subsidy for coverage through Covered California for 12 months, then the IRS could assess a Penalty B in the amount of $50,100 ($5,010 multiplied by 10 employees who obtain the subsidy).
While employers who intend to offer full-time employees and their dependents affordable minimum essential coverage hope to never face these penalties, it helps to be aware of the adjusted amounts year-to-year as part of staying up to date on the ACA. For more information, see IRS Revenue Procedure 2025-26.
Benefits Compliance Question.
Question: Should an employer keep requests for donated leave hours anonymous under a catastrophic leave donation program?
Answer: Yes, an employer should keep the identity of the employee who requests donated leave hours anonymous and keep the details of their medical emergency confidential. Employers have a duty to keep an employee’s medical information confidential, including information about why an employee is out on medical leave. Additionally, keeping the requesting employee’s identity anonymous will help an employer defend against any potential discrimination or disparate treatment claims should an employee feel like they received fewer donated leave hours than other employees based on a protected classification. IRS Rev Ruling 90-29 requires donating employees to donate leave hours to an employer-sponsored leave bank, rather than earmarking or designating donations to a particular employee. Since the donated leave hours are placed into one big employer-run catastrophic leave bank, it creates a wall of separation to keep the recipient employee’s identity private.
LCW BENEFITS BEST PRACTICES
TIMELINE
Each month, LCW presents a monthly benefits timeline of best practices.
September
• Determine whether the IRS’s new affordability percentage of 9.96% for 2026 will affect whether you offer affordable minimum essential coverage.
• Review and prepare all documents for open enrollment. If you use a Section 125 cafeteria plan, ensure employees are signing salary reduction agreements during open enrollment.
Liebert Cassidy Whitmore