Fire Watch
firm victory
Partner Elizabeth Arce, Senior Counsel Patrick Skahan, And Associate Attorney Kelsey Ridenhour Win Summary Judgment In FLSA On-Call Case.
Two deputy sheriffs sued their county employer under the Fair Labor Standards Act (FLSA) to get compensation for their on-call time. They claimed that they were entitled to compensation for periods during which they alternated weekly on-call duties. The county’s potential exposure was estimated in the millions of dollars.
LCW attorneys analyzed the county’s defenses under the FLSA, marshalled the facts, and developed a litigation strategy. They moved for summary judgment on behalf of the county and opposed the cross-motion for summary judgment that the employees filed.
The court ultimately granted summary judgment in favor of the county, resulting in a complete victory for the county.
Partner J. Scott Tiedemann And Associate Attorney Nicole Powell Secure A Police Officer’s Termination.
A group of police officers arrested an armed suspect who appeared to be experiencing mental illness. During the arrest, a cover officer struck the suspect’s head and held his foot on the suspect’s neck for approximately 20 seconds while other officers attempted to restrain the suspect.
The city retained independent use-of-force experts who concluded that the officer’s tactics were unreasonable, inconsistent with department training, and violated the department’s use-of-force policies. The city provided the officer with his due process rights and terminated his employment. The officer appealed.
At the appeal hearing, both the city and the officer provided extensive expert testimony regarding police tactics, training standards, and the reasonableness of the force the officer used. The city presented evidence that its officers are: 1) trained to avoid strikes to the head and neck area; and 2) not trained to use boot strikes or foot restraints on prone subjects. The Hearing Officer ultimately credited the testimony of the city’s independent experts over that of the officer’s expert. The Hearing Officer found that the officer acted outside his training and used unreasonable force against a prone suspect.
The Hearing Officer further concluded that the evidence showed that the officer used deadly force without any imminent threat that justified that level of force under department policy. Although the suspect was actively resisting, that resistance did not present an immediate threat necessary to justify the use of deadly force, particularly because multiple officers were already restraining the suspect.
In upholding the termination, the Hearing Officer also found that the city provided all required procedural protections, including conducting an independent investigation and giving a pre-disciplinary Skelly conference. The Hearing Officer rejected the officer’s statute-of-limitations and procedural challenges under the Public Safety Officers Procedural Bill of Rights Act.
Based on the totality of the evidence, the Hearing Officer concluded that the city properly determined that the officer’s conduct posed a risk to the public service and recommended that the termination be sustained in full.
RELIGIOUS ACCOMMODATION
Health Care Employer Established Undue Hardship Defense.
Legacy Health (Legacy) adopted a COVID-19 vaccination policy for its eight Washington- and Oregon-area hospitals in August 2021. Legacy denied requests from employees for religious exemptions from the vaccination policy. Several current or former Legacy employees then sued Legacy for discrimination on the basis of religion in violation of Title VII.
Title VII requires employers to make reasonable accommodations for their employees’ religious beliefs unless doing so would cause “undue hardship” to the employer’s business. (42 U.S.C. section 2000e(j).) The U.S. district court granted summary judgment to Legacy on undue-hardship grounds, finding that the employees failed to dispute Legacy’s evidence that their requested vaccine exemptions would impose a substantial burden on Legacy’s healthcare business. The employees appealed.
The U.S. Court of Appeals for the Ninth Circuit used this case to announce its standard for the amount of hardship necessary for an employer to establish the undue hardship defense to Title VII religious accommodation cases. The U.S. Supreme Court held in 2023 that showing only more than a de minimis cost was insufficient to show undue hardship. But the Supreme Court did not specify how much more of a cost would be sufficient to show hardship. The Ninth Circuit decided that an employer establishes the undue hardship defense if the burden is substantial in the overall context of an employer’s business.
The Ninth Circuit analyzed the three types of risks that could occur if Legacy were to accommodate the employees’ vaccine exemption requests: 1) an employee becomes ill and creates a staffing issue; 2) other employees become infected; and 3) the transmission risk affects Legacy’s patients. Legacy’s expert opined that alternative safety protocols, such as masking, other personal protective equipment, and frequent testing, were all insufficient replacements for vaccination. Taken together, the Ninth Circuit agreed these three risks created a substantial burden on Legacy’s business of providing health care.
The employees argued that religiously-affiliated hospitals had granted vaccine accommodation requests. The Ninth Circuit reiterated that the inquiry centers on the particular employer at issue, and Legacy did not have a religious affiliation. The employees also argued that Legacy relied on pre-vaccine data to support its risk analysis, while post-vaccine data would have supported their request for a vaccine exemption. The Ninth Circuit found that an employer is entitled to rely on the data available at the time it makes a religious accommodation decision. The employees could not point to any contemporary data that supported their claims.
The Ninth Circuit affirmed the district court’s granting of Legacy’s motion for summary judgment.
Williams et al v. Legacy Health, No. 24-5977 (9th Cir. May 6, 2026).
Disability
Decision To Revoke Officer’s Fitness-For-Duty Certification Was Not A Nonreviewable National Security Judgment.
Roman Gonzales worked as a Security Police Officer (SPO) for Battelle Energy Alliance. Battelle contracted with the U.S. Department of Energy (DOE) to manage the Idaho National Laboratory, where the government stores spent nuclear fuel. Gonzales had a chronic back injury and had long used prescribed opioids while successfully performing his duties. Gonzales possessed the two certificates necessary to work as an SPO: the section 1046 fitness-for-duty certification and the Human Reliability Program (HRP) Q certification.
After new medical staff raised concerns about Gonzales’s medication use, Battelle temporarily revoked Gonzales’s HRP certification and assigned him to the badging office at a lower pay rate. Then, two events occurred at approximately the same time: 1) Gonzales sent an email to human resources to complain that his coworkers heard management say that Gonzales was losing his job for being an “opioid abuser”; and 2) Battelle revoked Gonzales’s section 1046 fitness-for-duty certification. Shortly thereafter, Battelle gave Gonzales a notice of intent to terminate that was based on the revocation of his section 1046 fitness-for- duty certification. Gonzales was eventually terminated.
Gonzales sued under the Americans with Disabilities Act (ADA), alleging discrimination and retaliation. At the close of evidence in the jury trial, Battelle filed a motion for judgment as a matter of law, arguing that its decision was a nonreviewable national-security judgment similar to a security-clearance determination. The district court denied Battelle’s motion and sent the case to the jury. The jury ruled in Gonzales’s favor, finding that Battelle treated Gonzales as impaired because of his opioid use even though his job performance and medication regimen had not materially changed. Battelle appealed the denial of its motion for judgment as a matter of law.
The U.S. Court of Appeals for the Ninth Circuit rejected Battelle’s argument, explaining that the revoked section 1046 fitness-for-duty certification involved medical fitness and job-performance standards rather than true security-clearance decisions. The Court distinguished the DOE’s HRP, which involves national-security and counterintelligence functions, from the ordinary medical fitness for duty certification at issue here. Since Gonzales was terminated based on the latter certification, the Court held that his ADA claims could be reviewed and affirmed the judgment in his favor.
Gonzales v. Battelle Energy Alliance, LLC, No. 25-1037 (9th Cir. Apr. 16, 2026).
new to the Firm!
Moriah Denton joins Liebert Cassidy Whitmore’s Los Angeles office as an Associate! She brings experience representing employers and companies in complex litigation matters involving labor and employment, antitrust, product liability, and class actions.
Alex Larrabee joins as Senior Counsel, focusing on complex employment litigation across FEHA, wage and hour class actions, and PAGA matters. He will be based in our Sacramento office.
Phillip Murray joins as Senior Counsel at the Sacramento office, bringing deep experience in employment law, litigation, and appellate advocacy.
First Amendment
Professor’s Parody Was Protected Academic Speech.
Stuart Reges is a Teaching Professor at the University of Washington (UW). In 2015, UW adopted an acknowledgement stating that certain indigenous peoples lived on the land where UW is located. UW recommended that instructors include UW’s “Indigenous Land Acknowledgement” in their course syllabi.
As a parody of UW’s recommendation, Reges stated in his syllabus that indigenous groups could claim ownership of “almost none” of the land that UW occupied. The statement sparked student complaints and media attention. UW initiated an internal disciplinary investigation. A UW administrator emailed Reges asking him to remove the statement from his syllabus “immediately” because it was creating a “toxic environment.” The administrator invited Reges to voice his opposition to the land acknowledgement in other contexts. Reges then posted his land acknowledgment on his email signature block and on his office door.
An administrator wrote Reges a letter to close the investigation and inform him that the committee found that he had likely violated UW’s EO policy and caused “significant disruption.” The letter warned Reges not to include his land acknowledgement in his future syllabi, or UW would proceed with the next steps. The letter noted that Reges’s merit pay would be released to him now that the investigation was concluded.
Reges sued UW officials under 42 U.S.C. section 1983, alleging First Amendment retaliation and other challenges to UW’s EO policy. The district court granted UW summary judgment, finding that although Reges spoke on a matter of public concern, UW’s interests in preventing disruption outweighed his speech interests.
The U.S. Court of Appeals for the Ninth Circuit reversed. First, the Court rejected UW’s argument that Reges’s parody land acknowledgment was not protected speech. UW had argued that because professors were required to distribute syllabi, Reges’s syllabus did not relate to his own scholarship or teaching, and should instead be considered “government speech” that UW could rightfully control. The Court held that Reges was speaking in his own capacity as a professor in his syllabus, and not on behalf of UW. The Court noted that UW syllabi were largely controlled by faculty and that academic freedom occupies a “special niche” under the First Amendment law.
Second, the Court found that Reges alleged an adverse employment action based upon UW’s actions to: open a disciplinary investigation (during which his merit pay increase was withheld); reprimand him; and threaten him with further discipline. As a result, Reges had stated a prima facie claim for protected speech.
The Court further held that UW could not defeat Reges’s First Amendment claim under the Pickering balancing test because UW could not show sufficient disruption to its legitimate administrative interests. Although students expressed distress, transferred sections, and complained, that discomfort and disagreement are inevitable features of academic discourse and cannot justify suppressing controversial viewpoints. The Court also found that UW’s evidence of disruption was speculative or unsupported.
Finally, the Court revived Reges’s facial overbreadth and vagueness challenges to UW’s EO policy. The Court explained that the EO policy’s prohibition on “unacceptable or inappropriate” conduct extended beyond unlawful discrimination, harassment, or retaliation. The case was remanded for further proceedings and the determination of appropriate relief.
Reges v. Cauce, No. 24-3518 (9th Cir. May 14, 2026).
Consortium Call Of The Month
Members of Liebert Cassidy Whitmore’s employment relations consortiums may speak directly to an LCW attorney free of charge regarding questions that are not related to ongoing legal matters that LCW is handling for the agency, or that do not require in-depth research, document review, or written opinions. Consortium call questions run the gamut of topics, from leaves of absence to employment applications, disciplinary concerns and more. This feature describes an interesting consortium call and how the question was answered. We will protect the confidentiality of client communications with LCW attorneys by changing or omitting details.
Question: Answer:
Must we allow an employee record their performance evaluation conference?
California Penal Code section 632 prohibits recording a confidential communication” without consent of all parties. A performance evaluation between a supervisor and employee will usually qualify as a “confidential communication” under Section 632 because it is a private one-on-one discussion and there is a clear expectation of privacy. Absent an agency practice or policy to the contrary, or a reasonable accommodation to an employee’s disability, a supervisor is not required to allow an employee to record their performance evaluation conference.
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.
The Ninth and Sixth Circuits for the U.S. Court of Appeals have held that employers may require a fitnessfor-duty exam if there is substantial evidence that an employee’s health condition is affecting their job performance.
• Courts generally support these exams if a reasonable person who has observed the employee at work would question whether the employee can safely and effectively perform essential job duties.
• The decision to require a fitness-for-duty exam must be based on objective job-related concerns rather than speculation.
• Only request a fitness-for-duty exam if the supervisor has observed and documented that the employee is having difficulty performing essential functions or other legitimate concerns, such as unusual absenteeism or sudden poor productivity.
Harassment Prevention Training for Fire Agencies
Protect Your Department. Empower Your Team.
Schedule Today: info@lcwlegal.com
Is your fire agency compliant with California’s harassment prevention training laws?
LCW’s tailored Harassment Prevention Training for Fire Agencies is built exclusively for fire service management and staff. With fire-specific scenarios, legal insights, interactive discussions, and practical tools, this training doesn’t just meet compliance—it fosters a culture of respect and accountability.
• Meets all SB 1343 & SB 778 mandates under California Government Code section 12950.1
• 2-Hour Supervisory & 1-Hour Non-Supervisory Options
• Fire-specific content delivered by attorneys who understand your world
• Available in-person or On-Demand, with certification and LMS compatibility
Labor Relations Certification Program
Developing Positive Partnerships and Leadership Excellence for Labor Relations Professionals
The use of this official seal confirms that this Activity has met HR Certification Institute’s® (HRCI®) criteria for recertification credit pre-approval.
2026 VIRTUAL CLASSES
All seven workshops include both traditional training and interactive simulations to develop skills helpful to labor relations professionals.
LCW 2026 Pre-Conference 21 January COSTING LABOR CONTRACTS
*In-Person event: San Francisco
12 & 19 February NUTS & BOLTS OF NEGOTIATIONS
12 & 19 March RULES OF ENGAGEMENT
16 & 23 April BARGAINING OVER BENEFITS
07 & 14 May PERB ACADEMY
04 & 11 June
TRENDS & TOPICS AT THE TABLE
Interested?
Start Earning Your Certificate at: https://cvent.me/qWm1W9
16 & 23 July COMMUNICATION COUNTS!
13 & 20 August RULES OF ENGAGEMENT
17 & 24 September NUTS & BOLTS OF NEGOTIATIONS 15 & 22 October PERB ACADEMY 03 & 10 December BARGAINING OVER BENEFITS
*Each class consists of two dates/parts. Participation in both dates/parts is required for certification.
*Participants in the LRCP program have a three-year timeframe to complete all seven classes.
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