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
Dana  Lui Associate
Los Angeles dlui@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
Joshua  Whiteside Senior Counsel
San Luis Obispo jwhiteside@lozanosmith.com
Kara R. Walton Senior Counsel
Walnut Creek, Sacramento, San Diego krezendes@lozanosmith.com
Kendra G. Tovey Senior Counsel
Fresno, Monterey mlerner@lozanosmith.com
Sacramento, Fresno, San Luis Obispo msmith@lozanosmith.com
Robert A. Lomeli Associate
San Luis Obispo rlomeli@lozanosmith.com
Sarah E. Fama Senior Counsel
Walnut Creek sfama@lozanosmith.com
Steve  Ngo Partner
Walnut Creek sngo@lozanosmith.com

Legislation Roundup: New Holidays, Extended Statute of Limitations for Mandatory Reporter Violations, and Health Benefits for Striking Employers

By:Gabriela Flowers, Crystal Pizano -

November 2022Number 52September was a busy month for Governor Newsom, who signed into law several bills which will have a significant impact on public employers.  Included in the new legislation are bills creating new State holidays; extending the statute of limitations for prosecution of mandated reporters for failure to report child abuse or neglect; and requiring continued health benefits for striking public employees.HolidaysOn September 29, 2022, Governor Newson signed both Assembly...

New Legislation Expands Employee Leave Rights

By:Michelle Cannon, Sochie Graham -

November 2022Number 51Assembly Bill 152 – COVID-19 Supplemental Paid Sick LeaveAssembly Bill (AB) 152 went into effect immediately and extended the requirement to provide eligible employees with supplemental paid sick leave (SPSL) through December 31, 2022.  This requirement was previously set to expire on September 30, 2022.  Please note, AB 152 does not expand the total number of hours of SPSL an employee is entitled to.  For example, an employee who has already exhaust...

Ninth Circuit Backs Fellowship of Christian Athletes Over Non-Discrimination Policy

By:Manuel Martinez, Josh Walden -

September 2022Number 42In a recently decided case, Fellowship of Christian Athletes v. San Jose Unified School District Board of Education (9th Cir. Aug. 29, 2022, No. 22-15827), the Ninth Circuit Court of Appeals reversed a federal district court and determined that the San Jose Unified School District’s use of its non-discrimination policy against the Fellowship of Christian Athletes (FCA) likely violated the First Amendment.  Consequently, the Ninth Circuit Court of Appeals orde...

California Supreme Court Affirms Public School Districts Cannot be Sued Under Unruh Civil Rights Act for Disability Discrimination

By:Steve Ngo, Jessica Serrato -

September 2022Number 43The California Supreme Court recently upheld a lower court ruling that a public school district is not a “business establishment” and therefore cannot be liable for disability discrimination under California’s Unruh Civil Rights Act (Unruh Act or Act).  (Brennon B. v. Superior Court of Contra Costa County (Aug. 4, 2022, S266254) __ Cal.App.5th __.)  The Court concluded that the Unruh Act, as currently written, cannot reasonably be interpreted...

New Law Mandates Schools to Annually Inform Parents of Safe Storage of Firearms and Expands Reporting of Middle School and High School Threats to Law Enforcement

By:Desiree Serrano, Joshua Whiteside -

August 2022Number 41On July 21, 2022, Governor Gavin Newsom signed Senate Bill (SB) 906, creating new obligations for local educational agencies (LEAs) designed to prevent firearm-related incidents at schools and addressing threats made by students in middle schools and high schools.  This bill takes effect January 1, 2023.Safe Storage of Firearms Information RequiredBeginning with the 2023-24 school year, SB 906 will require LEAs to include information in their annual notification to pa...

Ninth Circuit Holds Blocking Public from Officials' Social Media Accounts May Violate First Amendment

By:Anne Collins, Davis Adams -

August 2022Number 40New case law suggests social media accounts created by public officials may be considered public forums subject to constitutional scrutiny under the First Amendment.  In the recently decided case, Garnier v. O’Connor-Ratcliff (9th Cir. 2022, Nos. 21-55118, 2155157) __F.4th __ [2022 WL 2963453], the Ninth Circuit Court of Appeals discusses these principles, holding that it is a violation of the First Amendment for a public official to block members of the public ...

New Pathway to Diploma and Other AB 181 Impacts on Special Education

By:Jennifer Baldassari, Alyssa Bivins -

August 2022Number 39Assembly Bill (AB) 181, signed into law June 30, 2022, makes a number of changes to California special education laws impacting students, families, and local educational agencies (LEAs).  AB 181 became effective immediately.New Pathway to Diploma for Students Taking Alternate AssessmentsAmong other changes, AB 181 creates an alternate pathway to a high school diploma for students with significant cognitive disabilities.  With AB 181’s addition of section 51...

U.S. Department of Education Releases Guidance on Disciplining Students with Disabilities

By:Mark Waterman, Monica Batanero, Stephanie Holtz -

August 2022Number 38The U.S. Department of Education’s Office for Civil Rights (OCR) issued guidance reinforcing the obligations of public elementary and secondary schools to provide the services, supports, interventions, strategies, and modifications to policies, all to address disability-based behavior of students with disabilities, including behavior that could lead to discipline.  Considering the significant challenges students with disabilities have faced and will continue to ...

Updates Regarding CDPH Guidance for Schools and Student Vaccine Mandates Heading into the 2022-2023 School Year

By:Sloan Simmons, Alyssa Bivins, Davis Adams -

August 2022Number 37The California Department of Public Health (CDPH) recently updated its COVID-19 related guidance for K-12 schools for the 2022-2023 school year, which addresses and updates guidance on masking requirements, reporting, and paid leave.  In addition, there are several related updates on the student vaccines front: Senate Bill (SB) 871 was withdrawn; Governor Newsom’s vaccine mandate has been delayed until at least July 1, 2023; and vaccination requirements enacted ...

Assembly Bill 181 Includes Significant Changes to Independent Study Requirements for the 2022-2023 School Year

By:Ruth Mendyk, Kendra Tovey, Andrew Fausto -

July 2022Number 34Governor Newsom signed the Education Omnibus Budget Trailer Bill (AB 181) on June 30, 2022, which was effective immediately and includes significant changes to independent study requirements.  These changes directly impact board policies and independent study agreements between families and local educational agencies (LEAs), which must be legally compliant for the LEA to collect attendance apportionment for students participating in independent study.Below is a brief ov...

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.