Nonprofit News
Grace Chan Partner | San Francisco
Alison R. Kalinski Senior Counsel | Los Angeles
Hannah Dodge Associate | San Francisco
Whitney L. Tolar Associate | San Francisco
Firm Victory
LCW Obtains Workplace Violence Restraining Order On Behalf Of Nonprofit Private School.
LCW Partner Max Sank and Senior Counsel Alison Kalinski secured a workplace violence restraining order for a nonprofit client that runs a school, after a parent engaged in escalating, erratic, and threatening conduct toward staff. The parent attended school athletic events in erratic, aggressive, and threatening behavior for no apparent reason. The parent threw water bottles on the court, made offensive and inappropriate gestures towards attendees, engaged in belligerent arguments with both staff and parents, threatened to burn down the school, threatened to have an employee fired, and refused to leave the premises when directed to do so by school security. Based on this conduct, the nonprofit informed the parent that he was no longer permitted on campus. A few days later, the parent returned to campus despite being instructed not to do so. He spoke to an employee at the nonprofit in a threatening manner and with offensive language and threatened to kill him. On both occasions, there was no apparent cause for the parent’s escalating and threatening conduct and he did not apologize. The parent’s conduct made the school employees fear for their safety and for the school community. Shortly after LCW obtained an initial Temporary Restraining Order for the nonprofit client, the parent sent extremely violent and vulgar text messages to another school employee. LCW assisted the nonprofit in protecting additional employees and their families and obtained a Workplace Violence Restraining Order.
Workplace Safety
Keeping Employees Safe: How To Obtain A Workplace Violence Restraining Order.
Keeping employees safe is a priority for all California employers, including nonprofit employers. 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 it 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 to 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 that it takes the threats seriously and that 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.
Independent Contractors
Top 5 For AB 5: Legal Considerations For Nonprofits Working With Independent Contractors.
In 2020, a change in California law introduced a higher standard employers must meet in order to properly classify workers as independent contractors. Though that law (“AB 5,” codified in Labor Code sections 2776-2787) is now over five years old, it can still be challenging for employers to navigate, and violations can have costly consequences for nonprofits.
Though California enacted AB 5 largely in response to rideshare services and a growing “gig economy,” the law impacts other businesses as well, including nonprofits. For example, many nonprofits work with consultants, grant writers, or graphic designers. Depending on the nature of the organization’s programming, nonprofits may also hire tutors, musicians, or referees. Employers might assume that workers in these categories (and others) can be classified as independent contractors. But under AB 5, does your nonprofit actually need to hire these individuals as employees?
Answering this question requires a careful, thorough legal analysis, that should be conducted on a caseby-case basis. As a starting point, below are five key considerations for nonprofit employers to ensure compliance with AB 5.
1. A Properly Classified Independent Contractor Must Satisfy All 3 Prongs of California’s “ABC” Test
Prior to AB 5, California courts used the Borello test to evaluate whether employers had properly classified members of their workforce as independent contractors. The Borello test evaluated multiple factors to determine whether an individual was an
independent contractor, and not all of the factors had to be met in order to establish independent contractor status.
AB 5 codified a new, more stringent test for independent contractors, known as the “ABC test,” which was first adopted by the California Supreme Court in its 2018 Dyanmex Operations West v. Superior Court (2018) 4 Cal.5th 903. There, the Court held that workers are presumed to be employees, unless an employer can prove that all of the following are true:
(A) The worker must be free from the control and direction of the hiring entity, both under the contract and in fact;
(B) The worker must be performing work for the hiring entity that is outside the usual course of the hiring entity’s business; and
(C) The worker must be customarily engaged in an independently established trade, occupation, or business of the same nature as the work they are performing for the hiring entity.
2. To Satisfy the ABC Factors, Look for True Autonomy Across All Three Factors
What does “free from the direction of the hiring entity” mean for purposes of prong A of the ABC test? What qualifies as work “outside the usual course” of your nonprofit’s business to satisfy prong B? And what does it mean for a worker to be customarily engaged in an independently established trade or business under prong C?
When determining whether a worker meets the A prong of the ABC test, a nonprofit should consider whether it allows the worker to decide how to get their job done. In other words, if a manager or director
closely supervises and directs the worker in the performance of the tasks they were hired to complete, that weighs against the idea that the person is properly classified as an independent contractor. Independent contractors must retain autonomy, which should be reflected in their written contract with the nonprofit and in practice.
To satisfy prong B, which is in many ways the hardest of the three, a worker must legitimately perform functions that are not part of the nonprofit’s core operations. In other words, consider how integral the worker’s tasks are to your organization’s fundamental, regular services. If the individual’s work falls outside of those typical services, in the sense that they are truly working in a separate business, different from yours, that would be a positive fact for establishing prong B.
Prong C is the most objectively measurable aspect of the ABC test. Does the individual run their own business? Does the individual have business cards, a website, their own written contract, and a business license? Does the individual set their own rates? Do you generally get the sense that you are hiring a company, not just an individual person?
In sum, the stronger the evidence of autonomy in the workplace and independent business activity, the more defensible the independent contractor classification.
3. Specific Exceptions to AB 5 Exist, But they Do not Automatically Mean a Person is Properly Classified as an Independent Contractor Labor Code sections 2776-2783 carve out several exemptions for occupations and certain arrangements that remain subject to the Borello test instead of the ABC test for determining independent contractor status. For example, certain licensed professionals such as attorneys, architects, engineers, private investigators, accountants, and licensed landscape architects may still be evaluated using the Borello factors. Similarly, certain professional services providers such as marketing, human resources administrators, travel agents, graphic designers, grant writers, fine artists, freelance writers, photographers and photojournalists may be subject to the Borello test instead of the ABC test. Additionally, a “Business-to-Business” exemption to the ABC test allows contracting relationships between a “business service provider” providing contracted services to a “contracting business” to be governed under the Borello standards instead of the ABC test.
Note, however, that these exemptions do not automatically apply. To meet an exemption, the nonprofit organization seeking to rely on them must be able to prove that certain statutory requirements were met, such as showing that the contractor has a business location separate from that of the hiring entity, retains the ability to set their own hours, and sets or negotiates their own rates for the services performed.
4. Misclassification Can Be Extremely Costly
If an employer inadvertently misclassifies a worker as an independent contractor, the worker may bring a lawsuit against the organization and argue that the organization should have hired them as an employee instead of as an independent contractor. A plaintiff in this position may seek various forms of damages against the organization. The most common claims are wage and hour claims, where a worker claims unpaid wages, including overtime wages and premium pay for missed meal and rest breaks. These lawsuits are difficult to defend, are not typically covered by insurance, and can be extremely costly for an employer.
The Labor Commissioner can also bring claims for noncompliance and willful misclassification against employers. Other enforcement actions for misclassification may include actions for unpaid contributions to the unemployment insurance fund brought by the Employment Development Department, and penalties imposed by the Internal Revenue Service for payroll tax violations.
5. Nonprofits Should Audit Their Independent Contractor Positions to Mitigate Risk
In summary, navigating how to properly classify workers has always been difficult and AB 5 made it harder, even with the various exceptions enacted over the last few years. Accordingly, nonprofits working with independent contractors should regularly audit their contractor positions to identify potential misclassification issues. LCW attorneys are available to advise and assist with those sorts of audits and suggest approaches to mitigating risk, such as strategies for reclassifying workers as employees.
Accommodations
Court Clarifies That Reasonable Accommodation Is Required Under The ADA Even If Employee Can Perform Job Without It.
Angel Tudor worked as a teacher for Whitehall Central School District in upstate New York for approximately twenty years. Tudor suffered from severe post-traumatic stress disorder (PTSD) resulting from sexual harassment and assault by a supervisor in a previous job. Her PTSD symptoms were significant, including stuttering, vomiting from nightmares, and the need for psychiatric hospitalization. In 2008, in consultation with her therapist, Tudor requested and received a disability accommodation that allowed her to take a fifteen-minute break during each of her daily morning and afternoon prep periods when she was not responsible for overseeing students. These breaks enabled her to step off campus to manage anxiety symptoms, particularly because her symptoms were triggered by the workplace environment.
In 2016, however, following a change in administration, Whitehall implemented a blanket policy prohibiting teachers from leaving campus during prep periods. When Tudor attempted to take her previously approved breaks, she was reprimanded for insubordination. She explained that her breaks had been part of a long-standing accommodation, but school administrators said the documentation they had on file was insufficient. Rather than submit new documentation, Tudor took paid sick leave and then requested leave under the Family and Medical Leave Act. She ultimately returned in January 2017, at which point the School granted her a morning break and permitted an afternoon break only on days when a librarian was available to cover for her and watch her students. This partial accommodation continued through the 2017-18 and 2018-19 school years—whether this arrangement violated the Americans with Disabilities Act is the subject of a separate lawsuit.
At issue in this case was Tudor’s experience in the 2019-20 school year, when Tudor was scheduled for an afternoon study hall rather than a prep period and no staff were available to provide coverage during that time. Tudor nevertheless took afternoon breaks on 91 out of 100 school days, but did so without formal approval, believing she was violating policy. This added to her anxiety, and she later testified that she continued working “under great duress and harm.” Tudor sued, alleging that Whitehall’s refusal to provide a guaranteed fifteen-minute break during the afternoon constituted a failure to accommodate her disability in violation of the ADA.
The trial court granted summary judgment for Whitehall, reasoning that Tudor’s ability to perform her essential job functions—despite the stress—meant she could not establish a viable ADA claim. The trial court focused on the third element of the ADA failure-to-accommodate framework, which requires a plaintiff to show they could perform the essential functions of the job with a reasonable accommodation. It interpreted this to mean that if an employee could perform those functions without an accommodation, then no claim could survive. Tudor appealed. The Second Circuit Court of Appeals rejected that reading as inconsistent with the text and purpose of the ADA.
The Court of Appeals emphasized that the ADA explicitly defines a “qualified individual” as someone who can perform the essential functions of the job “with or without reasonable accommodation.” This, the Court explained, means that an employee’s ability to do the job without accommodation does not eliminate their right to a reasonable one. The ADA prohibits discrimination based on disability, which includes an employer’s failure to make reasonable accommodations unless doing so would cause undue hardship. The Court of Appeals further observed that accommodations can include modified work schedules or job restructuring, and that the law does not require such accommodations to be strictly necessary—only reasonable.
The Court noted that several other federal appellate courts have similarly concluded that an employee who works through pain or hardship is not disqualified from seeking an accommodation that could alleviate the
strain. It emphasized that the reasonableness of an accommodation is a fact-specific inquiry and that bright-line rules, such as the one applied by the trial court, are generally disfavored in disability cases. While the Court of Appeals vacated the judgment, it did not rule on whether Tudor’s request for an afternoon break was in fact a reasonable accommodation or whether Whitehall had other valid defenses, such as undue hardship. It left those questions for the trial court to consider on remand, noting that in a separate related case involving prior school years, the trial court had already identified genuine factual disputes regarding Tudor’s disability and the sufficiency of the School’s accommodation. The Court of Appeals concluded only that the ADA permits failure-to-accommodate
claims even where the plaintiff can perform the job without the requested accommodation, provided the accommodation could reduce disability-related harm and is reasonable.
Tudor v. Whitehall Cent. Sch. Dist. (2d Cir. Mar. 25, 2025) 132 F.4th 242.
Note:
This decision brings the Second Circuit Court of Appeals in line with other circuit courts, including the Ninth Circuit, where California is located. This case confirms that an employer’s duty to accommodate exists if an employee has a disability and is able to perform the essential functions of their job “with or without” an accommodation.
Investigations
Judge Rules Employer’s Investigation Was Too Cursory To Justify Groundskeeper’s Termination.
Ron Brown, an African American employee at Life University, a private chiropractic school in Georgia, alleged that he was fired in retaliation for complaining about racial discrimination and that Life University’s proffered reasons for his dismissal—timekeeping violations and inappropriate conduct toward a coworker—were not worthy of belief. One of the key events underpinning his claims involved Brown reporting that a temporary employee, Adamari Obregon, had falsified her timesheets. Obregon was terminated shortly thereafter. Brown also alleged that Obregon’s supervisor, Javier Cabanas, who was in a romantic relationship with Obregon, then retaliated against Brown by accusing Brown of falsifying his own timesheet. Cabanas’s accusation came just days after Obregon’s termination and ultimately led to Brown’s firing.
Brown filed suit, claiming that retaliation and race discrimination under Title VII and 42 U.S.C. Section 1981. The University filed a motion for summary judgment.
In their motion, Life University argued that Brown was terminated because he falsely claimed to have worked on a day he had called out sick and for allegedly berating another employee. The University claimed that its internal investigation, conducted by supervisors Colin Hilley and Lisa Ward, independently verified the timekeeping violation. However, the Court found that the investigation was minimal and failed to include basic follow-up, such as questioning Brown about whether anyone else had access to his timekeeping credentials. This was particularly noteworthy, because evidence in the record showed that someone else could have logged into the timekeeping system using Brown’s credentials, undermining the University’s assertion that it had conclusively verified he had falsified his timesheet. Moreover, the record showed that 24 minutes after Hilley and Ward spoke with Brown about the accusations, Hilley and Ward read from an already typewritten letter that said they were firing him, “effective immediately.”
The Court further emphasized that Brown, during the termination meeting, explicitly told Ward and Hilley that Cabanas had motive to retaliate against him, that Cabanas had access to his timekeeping login credentials, and that he had documented his sick day with his supervisor. The Court concluded that a jury could find that Ward failed to conduct a good-faith investigation and instead accepted a possibly retaliatory accusation at face value. Ward’s refusal to investigate further, even
after hearing Brown’s explanation, raised a triable issue of fact regarding whether the timekeeping violation was a pretext for unlawful retaliation.
In addition to the timekeeping issue, the University asserted that Brown was also fired for verbally abusing another employee named Chris. Hilley claimed to have personally witnessed Brown yelling and using profanity, which allegedly caused Chris to leave work in tears and ultimately resign. Brown, however, denied raising his voice or using profanity and claimed Chris did not cry or quit because of the interaction. According to Brown, Chris completed his shift, returned to work days later, and ultimately left the position for unrelated reasons. The Court determined that the conflicting accounts raised a credibility issue for a jury to resolve. If a jury found Brown’s version credible, it could conclude that Hilley fabricated or exaggerated the incident to justify Brown’s termination.
On the race discrimination claim, the Court found that a jury could reasonably infer that Ward and Hilley served as mere “rubber stamps” for Cabanas’s report and failed to conduct an adequate or independent investigation. This,
the Court reasoned, could support a finding that Cabanas’s alleged racial animus was the real cause of Brown’s termination. The Court rejected the University’s objection that the speed of the investigation was not evidence of insufficiency, noting that the investigation’s timing, cursory nature, and failure to pursue key information were all potentially relevant to pretext.
The Court concluded that Brown had produced sufficient evidence of retaliation and discrimination to survive summary judgment. It ordered the parties to mediation and stayed the proceedings pending the outcome.
Brown v. Life University, Inc., No. 1:23-cv-2487-MLB (N.D. Ga. Mar. 31, 2025).
Note:
This decision underscores the importance of conducting thorough and impartial investigations. Here, the court found that the University’s failure to ask basic questions or consider the employee’s explanation sufficient to support a claim that the employer’s stated reasons for termination might be pretextual for discrimination.
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 nonprofit 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. Among 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
BiMonthly Consortium Events!
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new to the Firm!
Kim Catacutan is an experienced human resources professional currently serving as a Classification & Compensation Consultant in the Sacramento office of Liebert Cassidy Whitmore.
Mieko Failey is an Associate in the Los Angeles office of Liebert Cassidy Whitmore, where she provides advice and counsel to nonprofit clients on a wide range of matters from compliance to risk management.
Jack Jackson is an Associate in the Fresno office of Liebert Cassidy Whitmore, where he provides legal counsel to nonprofits on a wide range of employment law matters.
Tavi Kessler is an Associate in the Los Angeles office of Liebert Cassidy Whitmore, where she represents nonprofits in labor, employment, and education law matters.
Jessica Lee is an Associate at Liebert Cassidy Whitmore, where she advises employers on labor and employment matters, including compliance, investigations, and workplace policies.
Stephanie S. Ponek is an Associate in the Los Angeles office of Liebert Cassidy Whitmore, where she provides advice and counsel on labor and employment law matters.
Nicole A. Powell is an Associate in the Los Angeles office of Liebert Cassidy Whitmore, where she provides advice and counsel on labor and employment law matters.
Ethan Wicklund is an Associate in the San Francisco office of Liebert Cassidy Whitmore, where he represents clients in labor and employment matters.
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Benefits Compliance Questions
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 short- or 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.
Question: When determining whether an employee is full-time for ACA purposes, what counts as an hour of service?
Answer: Under the ACA, an “hour of service” is: (1) each hour employee is paid or entitled to payment for performance of duties; and (2) each hour an employee is paid or entitled to pay during time for which no duties are performed (i.e. vacation, holiday, illness, incapacity, military duty, leave, jury duty, layoff). Please note that the ACA’s definition of “hour of service” differs from the Fair Labor Standards Act’s definition of “hour worked” for wage and hour purposes.
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cases we are watching
• President Trump has indicated that he will be revoking Harvard University’s tax-exempt status, citing concerns over the University's policies and management of its endowment. This action follows the freezing of $2.2 billion in federal research grants to Harvard and demands for the University to eliminate diversity, equity, and inclusion programs, overhaul its leadership, and enforce stricter student conduct policies. Harvard has rejected these demands, asserting they exceed legal authority and infringe upon academic freedom. The Internal Revenue Service is reportedly considering the revocation. In response, Harvard has filed a lawsuit against the Trump administration, arguing that the actions violate constitutional rights and threaten the University's ability to fulfill its educational mission.
• We have been watching a challenge to the Johnson Amendment, brought by the National Religious Broadcasters and two churches, against the Internal Revenue Service, challenging the constitutionality of the Johnson Amendment. The Johnson Amendment, also known as the prohibition on electioneering, is a provision of Internal Revenue Code section 501(c)(3) that prohibits nonprofit organizations with 501(c) (3) status from participating in political campaigns by taking positions for or against candidates for public office. On July 7, 2025, the parties to the case—including the IRS—filed a joint motion asking the trial court to enter a consent judgement, enjoining the IRS from enforcing the Johnson Amendment against the two churches “based on speech by a house of worship to its congregation in connection with religious services through its customary channels of communication on matters of faith, concerning electoral politics viewed through the lens of religious faith.” In this joint request, the IRS stipulated that “when a house of worship in good faith speaks to its congregation, through its customary channels of communication on matters of faith in connection with religious services, concerning electoral politics viewed through the lens of religious faith,” it does not engage in electioneering. The IRS further stipulated that this position is consistent with the First Amendment and IRS practice of not enforcing the Johnson Amendment against houses of worship for speech concerning electoral politics in the context of worship services. If the court grants the motion and enters the requested judgment, it would only apply to the two church plaintiffs, and would not on its own establish a new law or result in the wholesale repeal of the Johnson Amendment. However, the IRS’s position does suggest that at a minimum a narrow exception to the Johnson Amendment may exists for religious organizations, giving rise to questions about whether, when, and how this might apply to a particular religious organization, and if it will eventually apply to the broader nonprofit sector. We are closely watching this matter, including for updates on whether and if the court will grant the requested consent decree.
• Catholic Charities Bureau v. Wisconsin: We previously wrote about this case in our Winter 2025 Newsletter Wisconsin exempted from its state unemployment tax system certain religious organizations that are “operated, supervised, controlled, or principally supported by a church or convention or association of churches” and that are also “operated primarily for religious purposes.” The Catholic Charities Bureau of the Diocese Superior, Wisconsin, a nonprofit corporation, is the social ministry arm of the Catholic Church. Catholic Charities applied for an exemption from having to pay unemployment tax to cover their employees. The Wisconsin state labor commission denied the application on grounds that their activities were “not religious per se.” The Wisconsin Supreme Court agreed finding that Catholic Charities’ activities were mostly secular and noted it “did not proselytize, did not conduct worship services, religious outreach, or religious education.” On June 5, 2025, the United States Supreme Court reversed the Wisconsin Supreme Court's upholding. The Supreme Court determined that Wisconsin’s interpretation relating to “proselytizing” resulted in “denominational discrimination,” because it excluded some faiths and included others. This
denominational discrimination triggered strict scrutiny, and in applying the strict scrutiny framework, the Supreme Court concluded that Wisconsin’s interest in ensuring unemployment coverage for workers did not justify excluding Catholic Charites’ from coverage, which already operated its own robust unemployment system. Nor did Wisconsin explain how the exemption, which applied inconsistently across similar religious entities, was narrowly tailored to avoid entanglement in religious questions. The Court concluded that by conditioning the exemption on specific religious practices, Wisconsin had unconstitutionally favored certain forms of religious expression over others. LCW attorneys are closely monitoring developments in relation to this decision and are able to advise on the impact this could have on your organization.
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 California Civil Rights Council has released the final proposed regulations addressing the use of automateddecision systems in employment. The regulations clarify that employers using algorithmic tools—including artificial intelligence, machine learning, or data-driven software—to make employment decisions must comply with the Fair Employment and Housing Act (FEHA). Employers are prohibited from using automated systems that result in discrimination based on protected characteristics such as race, sex, age, disability, national origin, and pregnancy. The regulations require employers to avoid practices that produce disparate impacts or proxy discrimination, and emphasize that use of automated tools does not excuse compliance with state antidiscrimination laws. Employers, including nonprofits, must maintain records of algorithmic decisions, conduct anti-bias testing, and ensure that automated systems do not unlawfully screen out applicants or employees. The proposed regulations reinforce that employees may still pursue claims for discrimination, including related to hiring, promotions, and testing, even when decisions are made through automated technologies. After review by the Office of Administrative Law, the regulations were approved on June 27, 2025 and are set to go into effect on October 1, 2025.
• The California Civil Rights Department (CRD) has released its 2025 Pay Data Reporting Guidance, introducing a new race/ethnicity category, “Middle Eastern or North African” (MENA), aligning with recent federal changes. Employers (including nonprofit organizations) with 100 or more employees, including those hired through labor contractors, were required to submit pay data reports by May 14, 2025, detailing wages, demographics, and workforce data by race, ethnicity, and gender. Failure to comply may result in fines of up to $100 per employee for a first offense and $200 per employee for subsequent violations. CRD has published a Pay Data Reporting Handbook with helpful guidance and we are available to discuss with nonprofit employers if these requirements applied to them and how to come into compliance with these Pay Day Reporting requirements.
• The U.S. Equal Employment Opportunity Commission (EEOC) recently released two technical assistance documents—“What You Should Know About DEI-Related Discrimination at Work” and “What to Do if You Experience Discrimination Related to DEI Work”—to clarify how federal equal employment opportunity laws apply to workplace Diversity, Equity, and Inclusion (DEI) programs. The guidance provides that DEI initiatives must be implemented in a way that does not discriminate based on race, sex, or other protected characteristics. It also outlines how individuals can file a charge if they believe they have experienced discrimination related to DEI efforts. Read the full documents here:
What You Should Know About DEI-Related Discrimination at Work
What to Do if You Experience Discrimination Related to DEI Work
Featured Consortium Call
Members of Liebert Cassidy Whitmore’s consortiums are able to speak directly to an LCW attorney free of charge to answer direct questions not requiring in-depth research, document review, written opinions or ongoing legal matters. Consortium calls run the full gamut of topics, from leaves of absence to employment applications, student concerns to disability accommodations, construction and facilities issues and more. Each month, we will feature a Consortium Call of the Month in our newsletter, describing an interesting call and how the issue was resolved. All identifiable details will be changed or omitted.
Question:
The Director of Human Resources at a nonprofit organization reached out to LCW with a question about best practices for meal break waivers for non-exempt employees. The HR Director asked if employees should complete a waiver each time they waive their meal break, both when working less than six hours and when working 10-12 hours, or if the nonprofit should allow employees to sign a waiver annually?
Answer:
The LCW attorney advised that Labor Code section 512 defines when non-exempt employees can waive meal breaks, but that the statute itself does not say how often the meal break waivers should be completed.
Labor Code section 512 states that an employee can voluntarily waive a meal period if the employee’s workday is no more than 6 hours by mutual consent of the employer and employee. When the workday is longer than 10 hours but shorter than 12 hours, the second meal period may be waived by mutual consent of the employer and employee, as long as the employee has not waived the first meal break.
In situations mentioned above, where the employee is allowed to waive their meal break and wants to do so, nonprofit employers should require the employee to sign a written waiver for each waived meal break. LCW recommends this because it is the employer’s duty and burden to show the meal break was properly waived, if they employer later tries to claim they were denied timely meal breaks. Having employees only sign a meal beak waiver once a year increases the risk of not being able to prove the employee voluntarily waived the break each and every time.
Liebert Cassidy Whitmore