Lozano Smith's attorneys serve as labor and employment counsel to hundreds of public agencies across the State of California. The firm's expertise covers the full spectrum of labor and employment law; from hiring employees and drafting employment contracts, to collective bargaining, contract grievances and matters of discrimination, retaliation, and misconduct, to layoffs, discipline, and dismissals. We are well qualified to provide legal assistance on virtually any labor and personnel issue involving certificated, classified, and administrative employees.
Areas of Practice
The attorneys in Lozano Smith's Labor and Employment Practice Group provide the following services, among others:
Human Resources/Personnel Matters
- Legal counsel on major and minor discipline: counseling, warnings, reprimands, suspensions, demotions, and dismissals
- Legal counsel on reductions in force (layoffs), last chance agreements, severance and settlement agreements
- Legal counsel on fringe benefits issues for current and retired employees: health and welfare benefits generally and public pension benefits (CalPERS and CalSTRS)
- Legal counsel on wage and hour claims and concerns
- Legal counsel regarding subpoenas for employee records and employee testimony
- Legal counsel regarding an employee's request for defense and indemnity for workplace actions
- Legal counsel regarding issues of on-campus drugs, alcohol, firearms, child abuse, sexual misconduct, and other workplace safety concerns
- Legal counsel regarding employee privacy rights whether at the workplace, off-duty, or in on-line activities
- Legal counsel regarding leaves of absence, including FMLA, CFRA, PDL, ADA, industrial accident, differential, and catastrophic leave
- Training services required by AB 1825 for anti-sexual harassment and discrimination, as well as workplace bullying
- Conducting/overseeing workplace investigations, including complaints of sexual harassment, discrimination, retaliation, and whistleblowing
- Defense counsel in litigation regarding workplace discrimination, harassment, and retaliation
- Defense counsel in DFEH, EEOC, DIR, and OCR complaints including preparation of employer responses and a defense against claims
- Legal counsel regarding state and federal disability accommodations, including the interactive process and defending against claims
- Chief Negotiator, or advising and supporting the District's Chief Negotiator, on collective bargaining issues including, but not limited to, salaries and benefits, furlough days and salary rollbacks, work hours and work year, contracting out work, and the effects of non-negotiable decisions
- Legal counsel in PERB statutory impasse procedures, including mediation, factfinding, strike preparations, and post-factfinding implementation
- Defense counsel in contractual grievance arbitration
- Legal counsel in PERB litigation on unfair labor practice charges that include bad faith bargaining, contracting out, interference, and discrimination/retaliation
- Legal counsel regarding labor organizing, bargaining unit determination and modification, and employee representation rights
While a significant portion of our firm's efforts are dedicated to conducting labor negotiations and providing employment advice, our attorneys have
extensive experience at trial and appellate level employment litigation on behalf of public agency and school district clients. Our advice and advocacy has
been sought in numerous sensitive, high profile cases and our attorneys have argued before the California Courts of Appeal, the California Supreme Court,
and administrative agencies including the Equal Employment Opportunity Commission (EEOC), the Department of Fair Employment and Housing (DFEH), Office for
Civil Rights (OCR) and the California Public Employment Relations Board (PERB).
Our attorneys have handled discrimination and civil rights litigation from the filing of the complaint through the rendering of a jury verdict in both state and federal courts.
Our attorneys are experienced in personnel disputes related to disabled employees and employees returning from work-related injuries. We have devised and implemented an interactive process to assist staff in reviewing requests for accommodation from employees with disabilities including returning employees to work.
We have represented and defended public sector employers in matters involving all of the following state and federal labor laws:
- Title VII of the Civil Rights Act of 1964
- The Equal Pay Act of 1963 (EPA)
- The Age Discrimination in Employment Act of 1967 (ADEA)
- Title I and Title V of the Americans with Disabilities Act of 1990 (ADA)
- The Civil Rights Act of 1991
- Unruh Civil Rights Act
- The California Fair Employment and Housing Act
Investigations - Learn more
The inherent seriousness and sensitivity of workplace investigations often obligates an employer to hire an independent investigator to conduct a prompt and comprehensive investigation. Lozano Smith's Investigative Services Team, a specialist group within our Labor & Employment Practice Group, recognizes the challenges that come with investigations of employee, student, and parent complaints. These attorneys have expertly served as investigators and advisors to clients on a broad range of complaints and can help your district to navigate the investigations process. Working alongside K-12 school districts, community colleges, universities and other public agencies, the Investigative Services Team supports management in reviewing and responding to employee, student, and parent complaints in a fair, impartial, and legally compliant manner.
Title IX Impact Team
Title IX has taken center stage on a number of fronts. Long before the national attention, Lozano Smith’s Title IX Impact Team was formed as a specialized group dedicated to the pressing issues faced by school districts. From athletics to sexual violence, this team advises, trains, and educates clients on the various components of Title IX – from prevention and mitigation to investigation and response. The Title IX Impact Team draws from multiple practice groups and focuses to streamline advice and counsel. Areas in which the group provides advice and training include:
- Audit of athletic programs
- Audit of grievance procedures and policies
- Discipline of employees and students
- Sexual misconduct and harassment
- Student and employee protections
- Title IX Coordinator roles and responsibilities
- District and employee liability
- Interaction with law enforcement agencies
Training and Preventive Measures
The Labor and Employment Practice Group conducts a Legal Consortium for clients and countless in-service trainings and webinars each year. The seminars are
conducted throughout the state and also for individual clients, as requested. They provide in-depth information on a variety of topics to keep attendees
informed on latest legislation, case law and legal trends. Recent topics include Teacher Classification, Employee Discipline, Employee Evaluations and
Uniform Investigations and Complaint Processes.
The Labor and Employment Practice Group has expertly provided legal counsel to school districts and other public agencies in both high-profile disputes and everyday transactions. Our attorneys are acutely aware of the financial and practical constraints placed on school districts and other public agencies in the current economic climate and we work with our clients to explore all options toward achieving a practical, effective, and cost-efficient resolution of their concerns.
The firm encourages its clients to build strong institutional knowledge of best practices in personnel matters, to consider alternative dispute resolution (including mediation when feasible), and to be proactive in resolving issues before they become costly problems. When litigation is unavoidable, our attorneys have successfully defended clients and prosecuted their claims in administrative hearings and in the courtroom.
Lawmakers Okay Budget Bill Addressing Union Dues Collection and Communications about Membership Rights
June 2018 Number 29 California lawmakers have approved a budget trailer bill that imposes new obligations on public sector employers related to deducting union dues and fees from workers' paychecks. Governor Jerry Brown signed Senate Bill (SB) 866 on the same day the United States Supreme Court barred the collection of mandatory agency fees that cover unions' cost of providing services, which the Court deemed a violation of workers' First Amendment free speech rights. (See 2018 CNB No. 27...
This news brief is intended for public school districts, including community colleges. For the Janus news brief intended for municipalities and special districts, click here. June 2018 Number 27 Overturning a longstanding precedent, the United States Supreme Court has held in Janus v. AFSCME that public employees may not be compelled to pay mandatory agency fees, or "fair share" fees, to public-sector unions, because such fees violate the First Amendment. The Janus decision will hav...
Supreme Court Opinion on Wedding Cake for Same-Sex Couples Provides Cautionary Tale for Public Entities
June 2018 Number 24 On June 4, 2018, the United States Supreme Court decided theMasterpiece Cakeshop v. Colorado Civil Rights Commission case in a 7-2 decision. While this case had the potential to provide new guidance on the complex intersection between the rights of LGBTQ+ individuals and the rights of individuals to religious freedom, Justice Anthony Kennedy's opinion is narrow and leaves many questions unanswered. The Court's limited ruling is largely based upon the underlying facts o...
June 2018 Number 21 A school district consultant's services agreements may be void under Government Code section 1090, even though the consultant is not an officer or employee of the school district. Section 1090 prohibits conflicts of interest in the making of public contracts. InStrategic Concepts, LLC v. Beverly Hills Unified School District, the court ruled that a consultant's status as an independent contractor rather than an employee did not exempt her from the law's reach. The tria...
June 2018 Number 22 In Knight First Amendment Institute at Columbia University, et al. v. Donald J. Trump, et al., the United States District Court for the Southern District of New York ruled that President Donald J. Trump's act of blocking Twitter users who criticized his policies from the @realDonaldTrump Twitter account violated the users' right to free speech. The court recognized Twitter's "interactive space" as a "designated public forum" based on the President's use of the forum as...
May 2018 Number 20 In Dynamex Operations West, Inc. v. Superior Court of Los Angeles County (Apr. 30, 2018, No. S222732) ___ Cal.5th ___, the California Supreme Court adopted a new test for determining whether a worker should be considered an employee or an independent contractor for the purposes of wage orders adopted by California’s Industrial Welfare Commission (IWC). Under this new test—called the “ABC test”—a worker is presumed to be an employee unless ...
California Adds “Nonbinary” Gender Option to Identification Documents, Impacting All Public Entities
March 2018 Number 13 On October 15, 2017, Governor Jerry Brown signed Senate Bill (SB) 179, known as the "Gender Recognition Act," which adds a "nonbinary" gender option to state driver's licenses, identification cards, and birth certificates. Most of this bill's provisions are set to take effect on September 1, 2018, including a provision allowing an individual to petition a California court to recognize their gender as nonbinary, which would then allow them to subsequently request a new...
When Politics and Walkouts Come to the Workplace: Considerations for Teachers, Superintendents, and Governing Boards
March 2018 Number 8 The February 14 mass shooting at Marjory Stoneman Douglas High School has inspired a groundswell of political activism at K-12 schools across the country. Lozano Smith previously reported on considerations and implications of student activism surrounding this issue. (See 2018 Client News Brief No. 7.) School districts must also consider if and how to regulate and respond to employee speech surrounding the gun control debate and other controversial topics. Additionally,...
School District Policy Prohibiting Active Strikers from Entering School Grounds Violated the First Amendment
February 2018 Number 6 A public school district's policies prohibiting picketing and the display of signs and banners on District property violated the free speech rights of picketers and their supporters, the Ninth Circuit has ruled. (Eagle Point Educ. Ass'n. v. Jackson County School District No. 9 (9th Cir. Jan. 26, 2018, Nos. 15-35704, 15-35972) ___ F.3d ___.) Background Anticipating a teacher strike, the Jackson County School District No. 9 in Oregon adopted two resolutions th...
February 2018 Number 4 Governor Jerry Brown has suspended the 960-hour per year work hour limit for retired annuitants who assist California counties battling fires and mudslides. CalPERS announced Brown's suspension of the rule in a January 29 Circular Letter. Governor Brown issued a pair of executive orders lifting the work hour limit and other rules in an effort to expedite hiring of emergency workers and to streamline the recovery of communities devastated by the disasters. In addi...
|Lozano Smith represented the City of Los Angeles in one of the largest class action disability lawsuits in the country. In Willits, Mark, et al. v. City of Los Angeles, the plaintiff filed an Americans with Disabilities Act (ADA) complaint to install curb cuts and sidewalk repairs throughout the City, to enforce the ADA. This case involved extensive E-Discovery of the City and its various departments’ internal data management system. The recently negotiated settlement will allow the City to completely revitalize its public right-of-ways to assure that all of the residents and visitors are able to fully participate in all of the available programs and services offered by the City.|
|In Avila v. City of Los Angeles, et al., U.S.D.C. Central District of California, Case No. 2:11-cv-1326-SJO-FMO, Lozano Smith successfully defended the City of Los Angeles and Los Angeles Police Department in an employment case. Following testimony, Lozano Smith asked the judge to dismiss certain claims because the officer had not introduced sufficient evidence. The judge agreed in part, and the jury was only asked to consider the officer's claims concerning retaliation under the FLSA and due process violations. The City and the LAPD prevailed on the due process claim, and liability for the FLSA claim was limited to 1% of the damages sought by the plaintiff.|
|Shiell, et al. v. County of Los Angeles, et al., Los Angeles County Superior Court Case No. BC208582, Equal protection action claiming staff members of a non-profit, public benefit corporation were entitled to the same rights, salaries and benefits of County employees because they performed the same work. A dispositive motion was brought on 3 issues: 1) statute of limitations; 2) entitlement to civil service; and 3) entitlement to County retirement benefits. The motion was decided in the County's favor.|
|Hall, et al. v. County of Los Angeles, Los Angeles County Superior Court Case No. BC208583, Approximately 200 female attorneys of a non-profit, public benefit corporation brought a sex discrimination suit claiming they were not receiving the same salaries and benefits as male employees of the County, even though they were doing the same work. The County brought a dispositive motion on the grounds that plaintiffs were using improper male comparators and had not shown any indicia of discrimination. The motion was granted in the County's favor.|
|Chisom v. Board of Retirement of County of Fresno Employees' Retirement Association (2013) 218 Cal.App.4th 400. A recent published decision upholding a decade-old settlement agreement and rejecting a group of retired Fresno County employees' attempt to use parole evidence to advance an interpretation of the settlement agreement that would have allowed the former employees to pursue their claims for an "enhanced" non-service-connected disability retirement benefit.|
|McIntyre v. Sonoma Valley Unified School District (2012) 206 Cal.App.4th 170. Lozano Smith attorneys successfully defended the school district against employee challenge to status and nonreelection. The California Court of Appeal reaffirmed key legal principles by holding that the school district correctly classified the employee as a temporary employee and then properly converted her to a probationary employee and properly and timely nonreelected employee during her second year of probationary employment.|
|Hildebrandt v. St. Helena Unified School District (2009) 172 Cal.App.4th 334. Lozano Smith attorneys authored an amicus brief on behalf of the California School Boards Association (CSBA) and asserted arguments that were adopted by the Court of Appeal in regard to bumping rights in a certificated layoff. This important case established a school district's right to refuse to "split" an existing full-time certificated position during a certificated layoff to accommodate a more senior employee's desire to "partially bump" into a more junior employee's assignment.|
|In Rimando v. Alum Rock Union Elementary School District, et al. (9th Cir. 2009) 356 Fed.Appx. 989, Lozano Smith successfully argued that a California public school district is a "State employer" for purposes of the Uniform Services Employment and Reemployment Rights Act of 1994 (USERRA) and consequently suits against school districts under USERRA must be filed in state court. The Rimando decision is the first of its kind by the Ninth Circuit to address USERRA suits brought against California public school districts.|
|Atwater Elementary School Dist. v. Department of General Services (2007) 41 Cal.4th 227. Lozano Smith attorneys successfully represented a school district and convinced the California Supreme Court to issue a landmark decision holding that the four-year limitations period for a school district to bring dismissal charges against a teacher is not absolute. As a result, the Supreme Court adopted the school district's contention that the four-year period should be extended based on principles of equity to permit the District to introduce evidence of sexual misconduct that was discovered by the district many years after it occurred. This important case strengthens the ability of all public school districts to impose discipline against certificated employees.|