Fire Watch
Cynthia
O’Neill Partner Emeritus | San Francisco
Ronni Cuccia Associate | Los Angeles
firm victories
LCW Partner Melanie Chaney And Associate Attorneys Gabriella Kamran And Anni Safarloo Convince PERB That Association Waived Bargaining.
Partner Melanie Chaney and Associate Attorneys Gabriella Kamran and Anni Safarloo brought these consolidated Public Employment Relations Board (PERB) charges to a successful conclusion. These cases arose from two separate sets of negotiations between a city and its fire association: 1) a city-driven change in the firefighter job description; and 2) a successor MOA. Each negotiation had a separate bargaining team.
After the city declared impasse in the MOA negotiations, the association refused to continue bargaining over job specification changes, asserting that its duty to bargain was “dormant” because of the impasse in the MOA negotiations. The city responded by filing an unfair practice charge alleging that the association’s refusal to bargain violated the Meyers-Milias-Brown Act (MMBA).
Meanwhile, the parties reached a tentative agreement on a successor MOA, without further discussing the job description issue. The city then implemented the job specification changes consistent with the city’s proposal. The association filed its own unfair practice charge alleging that the city unlawfully changed the job description without exhausting its bargaining obligations.
An ALJ held a consolidated hearing and dismissed both charges. The ALJ found that the association had not violated the MMBA in refusing to bargain and further concluded that the association had waived its right to continue bargaining over job specification changes, which served as a complete defense to its charge against the city.
On review, PERB determined the ALJ had adequately addressed the issues raised and that no errors existed that would change the outcome. PERB affirmed the ALJ’s conclusions and dismissed both unfair practice charges.
LCW Partners Adrianna Guzman And Laura Kalty, And Associate Attorney Barbara Boktor, Win Early Dismissal Of PERB Unfair Practice Charge.
An employee filed an unfair charge against his city-employer, claiming the city violated the Meyers-Milias-Brown Act (MMBA). The employee alleged harassment, being singled out, and possibly threatened by a supervisor. But the employee did not identify any facts that concerned any of the labor-relations matters under the jurisdiction of the Public Employment Relations Board (PERB).
PERB’s General Counsel noted that the charge contained time-barred allegations and did not include any of the elements necessary to state a case subject to PERB’s jurisdiction. The General Counsel issued the employee a warning letter that the charge would be dismissed if the employee did not include facts regarding MMBA-protected activities, such as discrimination because of labor activities, or interference with the employee’s labor activities. The employee amended the charge twice, but never alleged any MMBA-protected labor activities.
LCW attorneys highlighted both the untimeliness of the employee’s allegations and the employee’s failure to state a MMBA claim. PERB’s General Counsel ultimately dismissed the employee’s charges entirely on both grounds that LCW highlighted in the city’s position statement.
Partner Laura
Kalty Convinces PERB’s GC That Hard
Bargaining
Is Not Illegal Surface Bargaining.
A union filed an unfair practice charge alleging that a district violated the Meyers-Milias-Brown Act (MMBA) by surface bargaining. During reopener negotiations, the union proposed that the district increase its health insurance contribution by 31%. The parties met, and the district rejected the proposal without making a counteroffer. The district explained that it had increased its health insurance contribution in the previous negotiations; the current contribution allowed most employees to receive significant cash back; comparisons to other units were not valid; and the health insurance premium had only increased by 3 percent.
The union offered a second proposal for a reduced health insurance contribution. The district told the union it would take the second proposal to the governing board and did so. The district then notified the union that the board had declined the union’s offer, and the district would not make any counteroffer. The union filed an unfair practice charge.
Laura argued on behalf of the district that the ultimate question in surface bargaining claims is whether a party’s conduct, when viewed in its totality, was sufficiently egregious to frustrate negotiations. To bargain in good faith, a party must be willing to exchange reasonable proposals and try to reconcile differences. Parties must explain the reasons for a particular bargaining position with sufficient detail to permit negotiations to proceed based on mutual understanding. But hard bargaining is allowed. A party’s refusal to move from its position, if supported by rational arguments, can constitute permissible hard bargaining rather than a refusal to bargain. Failing to make a counterproposal does not necessarily violate the duty to bargain. When a party has previously objected to proposals in a way that makes it clear that a later proposal would likely be unacceptable, a counterproposal that offers a different response is not required.
PERB’s General Counsel agreed with the district’s argument that the Union did not state a prima facie case for surface bargaining and dismissed the Union’s charge.
Discrimination
Age Claim Was Viable Despite That The Employees Had Not Applied For The Promotion.
Three Dealer Business Managers (DBMs) were longterm employees at Circle K: Brian Caldrone (54), Joseph Celusta (56), and Kathleen Staats (57). Each had a history of strong performance evaluations, awards and wanted to advance to regional leadership roles.
In 2020, Circle K’s West Coast Regional Director position became vacant. In the past, Circle K had posted position openings internally or circulated announcements by email or intranet to encourage qualified employees to apply. This time, the company did not post or open the position for applications. Instead, Circle K’s senior management handpicked a younger employee, Miko Angeles, aged 45, to fill the position. Angeles had previously served as the Southeast Regional Director, though he had a mixed performance record in that role.
When the three DBMs learned of the promotion, they believed that the company had bypassed its normal process to promote a younger employee. They sued Circle K in California state court for age discrimination under both the ADEA and FEHA. Circle K removed the case to the U.S. district court.
The district court granted summary judgment for Circle K, holding that the DBMs could not establish age discrimination because they had not applied for the position. The court also found that, even if they could establish age discrimination, Circle K had provided a legitimate, nondiscriminatory reason for its decision, and the DBMs had not shown that this reason was pretextual.
The U.S. Court of Appeals for the Ninth Circuit reversed. The Ninth Circuit held that, when an employer does not announce a vacancy or solicit applications, employees are not required to show that they applied for the position to establish age discrimination. The Court also clarified that, although a ten-year age difference is the usual threshold for a “substantial” age gap, the DBMs could overcome a
smaller gap by providing evidence that age was a significant factor in the employer’s decision. The Court found that the DBMs had presented sufficient evidence to create a triable issue of pretext and remanded the case for further proceedings.
Caldrone, et al. v. Circle K Stores, 2025 U.S. App. LEXIS 25766 (9th Circuit 2025).
Artificial Intelligence
California Civil Rights Department Publishes New Regulations To Prevent Discrimination From Use Of AI Tools.
Artificial intelligence (AI) and other automated decision systems (ADS) have a growing role in public sector hiring. Resume screeners, video interview platforms, and other algorithmic tools promise efficiency, but they also create legal exposure.
On October 1, 2025, California’s new Fair Employment and Housing Act (FEHA) regulations took effect. They include a new regulation that defines terms (2 Cal. Code Regs. section 11008.1) and revisions to several existing regulations. They clarify how FEHA applies to AI and ADS in employment decisions. And, they aim to prevent discrimination in hiring and promotion practices based on protected characteristics such as race, gender, age, disability, religion, and other categories. The new regulations apply this protection to any AI or ADS tool used in recruiting, testing, evaluating, or promoting employees. Employers must treat automated tools the same way they treat human decisionmakers under the regulations.
Key Provisions:
• Disparate Impact Counts: Even when bias is unintentional, agencies can face liability if an automated system disproportionately excludes applicants from a protected group.
• Examples of Risk: Tools that rank candidates by schedule availability, measure reaction time, or evaluate facial expressions or speech patterns in video interviews may disadvantage applicants with disabilities, religious commitments, or language differences.
• Pre-employment Inquiries: FEHA limits what an employer can ask before hiring, and those limits apply equally to inquiries made by or through automated systems.
• Liability Extends to Agents: When a vendor or recruitment partner uses a discriminatory algorithm on an agency’s behalf, the agency remains responsible under FEHA.
• Recordkeeping Required: Agencies must retain records of ADS use for at least four years. This includes data inputs, selection criteria, and employment outcomes
• Bias Testing Encouraged: Although the regulations do not mandate bias testing, the Civil Rights Council encourages agencies to conduct self-audits and fairness evaluations. The timing, scope, and quality of these efforts can support a defense if a discrimination claim arises.
Steps Toward Compliance:
Public agencies can continue to use AI and automated tools under the new regulations, but they must manage those systems carefully to maintain FEHA compliance.
1. Inventory and Assess AI Tools: Identify every automated system involved in recruitment, hiring, promotions, and employment decisions. Determine whether each tool directly or indirectly screens or ranks applicants.
2. Audit for Bias: Test each system for disparate impact on protected groups. Request documentation from vendors showing validation studies and fairness testing.
3. Update Policies and Vendor Contracts: Require vendors to certify compliance with FEHA. Include shared responsibility and indemnification clauses in contracts. Specify that human review will supplement any automated recommendations or scores.
4. Strengthen Recordkeeping: Maintain ADS-related data, selection criteria, and decision records for at least four years. Document all compliance activities to create a clear record of diligence.
5. Train HR and Hiring Staff: Educate staff about the capabilities and limitations of AI tools. Train them to identify potential bias and to exercise independent judgment when reviewing automated results.
6. Ensure Transparency and Accessibility: Provide accessible hiring processes for applicants with disabilities. Offer reasonable accommodations or alternative methods for completing applications or assessments when needed, including for religious observances.
new to the Firm!
Talin Derohanessian's broad experience across legal operations positions her to play a meaningful role at LCW as she joins the firm’s management team as the Executive Operations manger.
Riley Jacobs is an Associate in the San Diego office of Liebert Cassidy Whitmore, where she advises clients on a variety of labor and employment and educational matters.
Meg Berkowitz joins our Los Angeles office, bringing extensive experience in complex litigation and regulatory matters. She has successfully led pre-suit investigations, negotiated settlements, and managed litigation.
First Amendment
Advisory Warning Public Of Prosecution For False Statements In Peace Officer Misconduct
Complaints Violates First Amendment.
California law requires law enforcement agencies to investigate misconduct complaints that the public makes against their peace officer employees. (Penal Code section 832.5.) Since 1995, Penal Code section 148.6(a): 1) makes it a crime to knowingly file a false allegation of misconduct against a peace officer; and 2) requires every person who files a complaint to sign an advisory that warns that submitting a false complaint may result in criminal prosecution. Section 148.6 advisory informs people they have a right to file a complaint, even if there is not enough evidence to warrant action on the complaint, but warns that it is against the law to make a complaint known to be false.
The City of Los Angeles did not require those who filed complaints against peace officers to sign the section 148.6 advisory. The Los Angeles Police Protective League (LAPPL) sued the City to compel it to require the advisory. The City relied on federal precedent for its arguments that the section 148.6 advisory violated the First Amendment protections for free speech.
The trial court ruled for LAPPL, relying on the California Supreme Court’s precedent. That precedent was at odds with the federal precedents the City cited, and had upheld the section 148.6 advisory. The Court of Appeal affirmed, holding that it was bound by California precedent
even though several federal courts had since found the advisory unconstitutional. The City petitioned for review and urged the California Supreme Court to reconsider its own precedent.
The California Supreme Court reversed and overruled its prior precedent, holding that the section 148.6(a) advisory violated the First Amendment. The Court decided that the advisory created a substantial risk of deterring truthful or well-intentioned complaints of peace officer misconduct.
Applying intermediate scrutiny, the Court recognized that the Legislature had a significant interest in preventing false accusations but held that section 148.6(a) was not narrowly tailored to that goal. The Legislature could have addressed false complaints through less restrictive means, such as adding a materiality or harm requirement, improving procedural safeguards for officers, or revising the advisory language. Instead, the statute imposed an uneven and speech-deterring burden on people while leaving other false statements unregulated. The Court concluded that the law’s structure and mandatory warning created an unconstitutional risk of suppressing speech critical of government officials.
As a result of this decision, law enforcement agencies may not use or enforce section 148.6’s advisory requirement on formal complaints of peace officer misconduct. Law enforcement agencies cannot seek criminal prosecution if they receive a complaint that may have been submitted with knowingly false allegations.
Los Angeles Police Protective League v. City of Los Angeles (Nov. 10, 2025, No. S275272) ___Cal. 5th___ [2025 Cal. LEXIS 7261].
For more information on some of our upcoming events and trainings, click on the icons:
Wage & Hour
Labor
Code Section 512.1’s Meal And Rest Breaks Do Not Apply To Charter Cities.
In 2022, the California Legislature added Labor Code section 512.1 to extend the meal and rest break rights that private sector health care workers have to public sector health care employees who are directly employed by: the state, political subdivisions of the state, counties, municipalities, and the Regents of the University of California.
A group of nurses who worked for the City and County of San Francisco (City) sued on behalf of themselves and similarly situated City-employed nurses. The nurses alleged that the City has failed to comply with section 512.1 since it took effect. The City is a charter city.
The City demurred on two grounds. First, the City argued that section 512.1 did not apply to charter cities. Second, the City argued that even if the Legislature had meant to apply section 512.1 to charter cities, the law would violate the constitutional home rule doctrine because the law “does not pertain to a matter of statewide concern” and “is not narrowly tailored to its purported goals.” The trial court sustained the City’s demurrer without leave to amend. The court found no clear indication that the Legislature intended section 512.1 to apply to charter cities. The nurses appealed.
The California Court of Appeals affirmed the sustaining of the City’s demurrer. The nurses argued that charter cities came within section 512.1’s broad definition of “employer.” The Court disagreed. The Court of Appeal found that none of the other aids to statutory interpretation supported the nurses’ argument. For example, the Court noted that in other statutes, the Legislature expressly stated both that a matter was of statewide concern and was not a “municipal affair” as that term is used in the “home rule” doctrine stated in Section 5 of Article XI of the California Constitution. The Court found that section 512.1 did not expressly apply this statute to charter cities.
The Court of Appeal concluded that the City’s home rule authority gave it sovereignty over its employees’ compensation. The Court declined to address constitutional home rule questions because the statutory grounds were available and dispositive. The Court declined to infer any legislative intent from section 512.1 to contravene the City’s constitutional home rule authority.
Levy v. City and County of San Francisco, 114 Cal.App.5th 997 (2025).
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:
Our agency provides ½ of a part-time employee’s health benefit, and the employee just went on CFRA leave. Can we still provide ½ of the benefit?
Answer:
Yes. CFRA requires an employer to maintain health benefits to the same extent and under the same conditions it would have if the employee were not leave. (Gov. Code section 12945.2(e)(2).)
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 public safety.
• The Bureau of Reclamation’s California-Great Basin Region, stretching from the forested slopes above the Shasta Dam to Kern County, is an essential force in wildfire prevention, applying strategic, science-based land and watershed management to reduce risk across California’s most fire-prone areas.
• The Staffing for Adequate Fire and Emergency Response (SAFER) Grant Program, administered by FEMA, funds fire departments to hire and retain frontline firefighters so communities can meet essential staffing and safety standards. Recently, in the City of Rocklin, for example, a $3 million SAFER grant will allow the city to add firefighters for a planned new station, which will expand local emergency response capabilities.
• A new high-capacity dip tank near Mammoth Lakes uses advanced rapid-refill technology to supply firefighting helicopters with water in five minutes, marking a significant innovation in wildfire response infrastructure.
Did you know? Premium Perks
Workplace Discrimination, Harassment and Retaliation Prevention Training for Fire Agencies
Tailored for Fire Agency Operations and Culture | Compliant with CA Law
Why It Matters:
Fire agencies have unique cultures, and for agencies and their personnel to be successful they must have a workplace environment that fosters trust, teamwork and harmonious relationships. Conduct that constitutes illegal discrimination, harassment or retaliation can undermine those relationships, can negatively impact public safety, and can lead to costly civil liability for agencies – and some employees - alike.
Our public safety employment law experts routinely represent fire agencies in a host of legal matters and are familiar with fire agency culture, operations and challenges.
This training has been designed with fire agencies in mind to best protect agency employees, preserve agency culture, to help agencies remain legally compliant and avoid costly lawsuits.
California Law Requires:
• 2-hours of training for supervisors every two years (or within six months of promotion)
• 1-hour for all non-supervisory employees every two years
What You’ll Learn:
• How harassment, discrimination, and retaliation laws apply
• The difference between unlawful conduct and “gray area” behavior
• Realistic, fire-specific case studies
• The responsibilities of fire employees throughout the chain of command, from firefighters to chiefs
• How to report, document, and respond to complaints or circumstances that could give rise to complaints appropriately
Schedule Your Training Today!
Contact Anna M. Sanzone-Ortiz at asanzone-ortiz@lcwlegal.com for live training.
For On-Demand training contact on-demand@lcwlegal.com.
Training Details:
• 2-Hour Supervisory Training
• 1-Hour Non-Supervisory Training
• Available Live (virtual or in-person) or On-Demand
• Certificates upon completion
• Meets all SB 1343 & SB 778 mandates under California Government Code section 12950.1
www.lcwlegal.com/harassment-prevention-training-services
Liebert Cassidy Whitmore