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.
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...
December 2017 Number 86 Effective January 1, 2018, the federal Department of Transportation (DOT) will require safety-sensitive transportation employees, such as county, city, and school district bus drivers, to be tested for prescription opioids in an effort to tackle opioid abuse. The DOT's final rule, which was published on November 13, 2017, amends the Code of Federal Regulations. Under the new rule, the DOT will require safety-sensitive transportation employees to be tested for th...
December 2017 Number 84 According to a recent court decision, "it depends." On November 15, 2017, a California appellate court held in Whitehall v. County of San Bernardino that paid administrative leave can constitute an adverse employment action in certain circumstances. Even though the plaintiff employee was placed on paid administrative leave during the pendency of an investigation into her alleged wrongdoing, the court found that under the particular facts presented, the leave was an a...
December 2017 Number 83 Senate Bill (SB) 285 prohibits public employers from deterring or discouraging their employees from becoming or remaining members of a union. In doing so, the bill closes a perceived loophole in California law regarding union rights and the employer/union relationship. The bill becomes effective on January 1, 2018. Existing law prohibits public employers from using state funds to assist, promote, or deter union organizing. According to the author of SB 285...
December 2017 Number 79 Governor Jerry Brown has signed three bills that significantly impact local agency obligations to the California Public Employees' Retirement System (CalPERS) and impose penalties on employers running afoul of the law. Each of these bills will take effect on January 1, 2018. Assembly Bill 1309: CalPERS May Fine Employers for Failing to Report Hiring and Payroll Data when Employing Retired Annuitants Under Assembly Bill (AB) 1309, CalPERS may now fine employer...
Asking Job Applicants about Criminal Conviction History: What You Need to Know about Assembly Bill 1008
December 2017 Number 80 Effective January 1, 2018, Assembly Bill (AB) 1008 amends the Fair Employment and Housing Act (FEHA) to restrict an employer's ability to make hiring decisions based on a job applicant's criminal conviction history. Background AB 1008 prohibits an employer from asking about criminal conviction history until the applicant has received a conditional offer of employment. After a conditional offer of employment has been made, an employer may conduct a criminal co...
November 2017 Number 76 School districts' part-time playground positions will join the classified service when Assembly Bill (AB) 670 becomes effective on January 1, 2018. Under the new law, part-time playground positions, including noon-duty aides, yard aides, noon-time assistants, and playground aides, will no longer be exempt from the classified service. The law will only apply to school districts that have not incorporated a merit system. AB 670 provides employees in part-time p...
|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.|