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
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.
Congress Expands Federal Protections for Pregnant Workers
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"
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...
California Supreme Court Clarifies What Constitutes a "Protected Disclosure" for Whistleblower Claims Under Labor Code Section 1102.5
June 2023Number 23On May 22, 2023, the California Supreme Court issued an opinion further delineating the analysis for retaliation claims under Labor Code section 1102.5. In People ex rel. Garcia Brower v. Kolla’s, Inc. (2023) 529 P.3d 49) (Kolla’s), the California Supreme Court held that “a protected disclosure under [Labor Code] section 1102.5(b) encompasses reports or complaints of a violation made to an employer or agency even if the recipient already knows of the ...
PERB to Employers: "Bargaining Costs Are Now on the Table as a Remedy"
June 2023Number 24On April 26, 2023, the California Public Employment Relations Board (PERB) issued a decision awarding a remedy against an employer that had, up to that point, been largely theoretical: recovery for increased costs incurred from bargaining and other acts of representation related to an employer’s alleged unlawful conduct (bargaining costs). (City and County of San Francisco (2023) PERB Decision No. 2858-M.) Although in recent years, PERB has acknowledged the...
2023 Updates: Annual Notice of Parental Rights and Responsibilities
April 2023Number 18As a reminder, school districts and county offices of education should update their parental annual notices (Annual Notices) for the upcoming 2023-2024 school year. The following is a summary of changes for updating Annual Notices, including four mandatory changes and other optional/advisable changes.Mandatory Annual Notice ChangesFirearm Safety and Safe Storage of Firearms Information (Assembly Bill 452 and Senate Bill 906)Beginning with the 2023-2024 school year, lo...
California Equal Pay Act: New Rules on Pay Transparency, Record-Keeping, and Pay Data Reporting
April 2023Number 17On September 27, 2022, Governor Newsom signed Senate Bill (SB) 1162 into law. SB 1162, effective January 1, 2023, imposes new record-keeping, disclosure, and data reporting requirements for job pay scales and pay data.Pay TransparencyPreviously, California law required employers with 15 or more employees to provide the pay scale for a position to an applicant upon request. Employers were also prohibited from asking applicants about their salary history during th...
New Excused Absence for Student Participation in Political or Civic Event and Other School Calendar Updates
March 2023Number 14There have been several recent updates regarding authorized student absences and school calendars. First, California Senate Bill (SB) 955 adds engagement in a civic or political event as an authorized excused absence for middle school or high school students, effective January 1, 2023.This bill modifies Education Code section 48205 and defines a civic or political event as including, but not limited to:votingpoll workingstrikespublic commentingcandidate speechespoliti...
Legislative Update: New Requirements for COVID-19 Testing Plans and New Rules for Supplemental Vision Services for Students
March 2023Number 13Two important bills, Senate Bill (SB) 1479 and Assembly Bill (AB) 2329, signed by Governor Newsom in September 2022, require school districts, county offices of education, and charter schools to have a plan for COVID-19 testing in schools and authorize local educational agencies (LEAs) to provide supplemental vision services for students, in addition to those already required by law.SB 1479: COVID-19 Testing Plan Requirements SB 1479 added section 32096 to the Education Cod...
Important Changes Regarding Liability to CalSTRS for Benefit Overpayment
January 2023Number 1Governor Newsom has signed Assembly Bill (“AB”) 1667, overhauling key parts of the CalSTRS benefit overpayment recovery process. AB 1667 stipulates that the party responsible for the error that caused a benefit overpayment must pay CalSTRS the full amount of the overpayment. AB 1667 also establishes a safe harbor for school district employers, where they can request an advisory letter from CalSTRS when reporting compensation. The full text of AB 1667 is located...
Legislation Roundup: Pre-Hearing Adverse Actions Against Classified Employees, and Recovery of Wage Overpayments
January 2023Number 3New Limitations on Pre-Hearing Disciplinary Action Against Classified EmployeesOn September 30, 2022, Governor Newsom signed into law Assembly Bill (AB) AB 2413, limiting the ability of school districts and community college districts to immediately impose adverse actions against classified employees who request a hearing on their pending discipline.Effective January 1, 2023, Education Code sections 45113 and 88013 will prohibit a school or community college district from ...
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. |
