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
  • Employee use of personal devices for public business, social media, appropriate use of the internet, and bring your own device (BYOD) policies

Employee Relations/Negotiations

  • 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

Employment Litigation

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

Lozano Smith’s Title IX Practice Area is comprised of specialists dedicated to the pressing issues faced clients. From athletics to sexual violence, this team advises, trains, and educates clients on the various components of Title IX – from prevention and mitigation to investigations resulting in disciplinary action. Areas in which the group provides advice and training include:

  • Sex-based discrimination
  • Issues relating to transgender employees
  • Developing and auditing complaint grievance procedures and policies
  • Responding to reports of sexual misconduct and harassment
  • Investigating complaints of sexual misconduct and harassment
  • Title IX Coordinator roles and responsibilities
  • District and employee liability
  • Reporting obligations
  • Interaction with law enforcement agencies
  • Discipline of employees
  • Litigation
  • VAWA/Clery Act
  • Trainings
Read More

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.

Proactive Resolutions

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.

Sacramento, San Luis Obispo colsonmurphy@lozanosmith.com
Los Angeles, San Diego, Bakersfield dkameya@lozanosmith.com
Eric  Barba Senior Counsel
Walnut Creek ebarba@lozanosmith.com
Fresno, Sacramento, Bakersfield jbehrens@lozanosmith.com
Josh  Walden Senior Counsel
Joshua  Whiteside Senior Counsel
San Luis Obispo jwhiteside@lozanosmith.com
Walnut Creek, Sacramento, San Diego krezendes@lozanosmith.com
Kendra G. Tovey Senior Counsel
Fresno, Monterey mlerner@lozanosmith.com
Michael E. Smith Of Counsel
Sacramento, Fresno, San Luis Obispo msmith@lozanosmith.com
Robert A. Lomeli Senior Counsel
San Luis Obispo rlomeli@lozanosmith.com
Roya  Massoumi Senior Counsel
Sarah E. Fama Senior Counsel
Walnut Creek sfama@lozanosmith.com
Steve  Ngo Partner
Walnut Creek sngo@lozanosmith.com
Zee  Syed Senior Counsel

Recovery of Wage Overpayments by School Employers

By:Sarah Kaatz, Ricardo Rodriguez -

March 2024Number 13There have been two big changes in the last two legislative sessions regarding school districts’ recovery of wage overpayments under the Education Code. In 2022, Assembly Bill (AB) 185 established Education Code section 44042.5, allowing school districts to recover wage overpayments when certain procedures were followed. In 2023, Senate Bill (SB) 141 amended Education Code section 44042.5 by limiting employers’ ability to deduct overpaid wages from employees wit...

SB 531 Amends Fingerprinting Requirements for Student Work Experience Contracts

By:Arne Sandberg, Andrea Olivarez -

February 2024Number 12With Senate Bill (SB) 531, the California Legislature amended Education Code section 45125.1 to provide an exemption from criminal background check requirements when, subject to specific conditions, an entity contracts with a school district, county office of education, or charter school (LEAs) to provide student work experience opportunities.BackgroundEducation Code section 45125.1 requires a valid criminal records summary if an employee of any entity that has a contrac...

School Board Prevails Against PERB in For-Cause Dismissal of Union President

By:Megan Macy, Gabriela Flowers -

February 2024Number 8On January 9, 2024, California’s Fifth District Court of Appeal issued a unanimous published decision in Visalia Unified School District v. Public Employment Relations Board (2024) ___ Cal.Rptr.3d ___, finding that Visalia Unified School District (VUSD) terminated a permanent classified employee – who also served as the union president – for her ongoing poor performance and not in retaliation for engaging in protected union activity under the Educational...

New Law Modifies Post-Retirement Employment Limitations for CalSTRS Retirees, Making it Easier for Districts to Hire Retirees

By:Thomas Manniello, Angelique Cramer -

January 2024Number 7Senate Bill (SB) 765, signed into law on October 13, 2023, creates a temporary exemption from post-retirement earnings limitations under the CalSTRS system and makes it easier for Districts to hire recently retired teachers.CalSTRS Post-Retirement Earning LimitationsWhen a public employer hires a CalSTRS retiree to perform creditable service, the employer is required to compensate the retiree at a rate that shall neither be below the minimum nor exceed the maximum paid to ...

New Legislation Places Limits on Termination of Superintendents Without Cause

By:Wiley Driskill, Rebal Halabi -

December 2023Number 44On October 13, 2023, Governor Gavin Newsom signed Senate Bill (SB) 494, which limits the circumstances under which a school board can take action to terminate cabinet-level employees. First, SB 494 prohibits the governing board of a school district from taking action to terminate a superintendent or assistant superintendent without cause, at a special or emergency meeting of the board. Second, SB 494 prohibits the governing board from taking action to terminate a superin...

Substitute Teaching Days Extended and Paid Sick Leave Increased Under Two Recent Senate Bills

By:Selina Ayala-Patlán -

November 2023Number 41Senate Bill 141 – Education Omnibus Budget Trailer BillOn September 13, 2023, Governor Newsom signed Senate Bill (SB) 141 into law, which, among other things, temporarily extends the number of days a substitute teacher can teach in any one assignment. Pursuant to SB 141, any holder of a credential or permit issued by the Commission on Teacher Credentialing (CTC) that authorizes the holder to substitute teach in a general, special, or career technical education (CTE...

A Reminder that Mandatory Ethics Training for School Officials is Coming

By:Anne Collins, Adam Vasquez -

November 2023Number 39Starting January 1, 2025, officials in school districts, county offices of education, and charter schools must complete ethics training at least once every two years. Assembly Bill (AB) 2158, signed into law by Governor Gavin Newsom in September 2022 amends California’s Government Code to mandate ethics training for relevant educational officials, in alignment with the existing “AB 1234 Training” requirement in place since 2006 for officials in cities, ...

Starting in 2024, City, County, and Special District Temp Employees Must be Added to Bargaining Units Upon Union Request

By:Travis Lindsey, Jennifer Thompson -

November 2023Number 38On October 10, 2023, Governor Newsom signed Assembly Bill (AB) 1484 into law. AB 1484 requires public agencies subject to the Meyers-Milias-Brown Act (MMBA), upon the request of a recognized employee organization, to automatically add temporary employees (temps) to the bargaining unit if they are hired to perform the same or similar work performed by permanent bargaining unit employees. The MMBA only applies to cities, counties, and special districts. AB 1484 also requir...

Congress Expands Federal Protections for Pregnant Workers

By:Gabriela Flowers, Angela Okamura -

August 2023Number 33The United States Congress recently passed the Pregnant Workers Fairness Act (PWFA), a new federal law that requires covered employers to provide “reasonable accommodations” for a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer “undue hardship.”  The PWFA, which applies to public and private employers with fifteen or more employees, became effecti...

U.S. Supreme Court Clarifies the Standard for "True Threats"

By:Desiree Serrano -

August 2023Number 32In Counterman v. Colorado (June 27, 2023, No. 22-138) 600 U.S. __, the United States Supreme Court analyzed the First Amendment’s free speech protections in the context of “true threats.”  While previous case law had established that true threats are not protected speech (and therefore may be restricted), the Supreme Court has now clarified that for a statement to be considered a true threat and thus unprotected speech, the speaker must have had &ldq...

Representative Cases

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.