Public Employers: Litigation

Our deep knowledge of wage and hour law enables LCW to remain on the cutting edge of wage and hour litigation to obtain successful outcomes in complex matters.  LCW has litigated over 250 wage and hour cases for public agencies in state and federal courts, including dozens of class and collective actions. In addition to litigation initiated by private attorneys, we have also defended public agency clients in administrative hearings and litigation pursued by administrative agencies. We have successfully litigated cases involving the regular rate of pay, overtime exemptions, off-the-clock work/unauthorized overtime, standby and waiting time, meal breaks and “donning and doffing.”  Most of the cases were class and/or collective actions and have included as many as 10,000 plaintiffs. We have also represented numerous public agencies in FLSA/wage and hour matters which were resolved through practical and innovative solutions before litigation was initiated.

Additionally, we have handled both individual and class grievances alleging violations of wage and hour provisions contained in applicable Memoranda of Understanding. When these claims are brought as class grievances we have been successful in having the class grievances decertified so that each grievance must be heard individually (the employees usually drop the grievances in such situations.)  For example, LCW litigated the case County of Los Angeles v. LA County Employee Relations Commission resulting in a significant published decision preventing the union’s ability to arbitrate wage and hour grievances on a class-wide basis.

At any given time, the firm defends dozens of discrimination lawsuits, many involving claims of discrimination under FEHA and whistleblower retaliation under both state and federal law. We understand all of the facets of representing public employers throughout the litigation process, including representing elected officials and board members, high-level managers and co-workers, and appearing before governing bodies.  We evaluate the lawsuit at every stage from both a cost and liability perspective so that our clients are continually informed of developments which may impact the litigation strategy and ultimate disposition of the lawsuit. We understand the importance of positioning a case from the outset for summary judgment, and we work with our clients throughout the process to realize the best possible outcome based on their goals.

Our practice is to establish immediate, open and collaborative communication with our clients to understand and assess the client’s goals in the litigation.   We understand that mediation and other forms of Alternative Dispute Resolution is a part of litigation practice, and we work proactively with clients to evaluate settlement when it is aligned with their goals and to position the case for the best possible resolution at the optimum time.  We regularly participate in mediations with employment law mediators throughout California and are skilled in selecting the appropriate mediator for the case, preparing for mediation, and negotiating the settlement.

Our firm is committed to professional litigation management so that all cases are handled efficiently and proactively. Our Litigation Manager works closely with the litigation team on compliance with ligation guidelines, budgeting and defense strategy. In addition, at regular intervals throughout the matter, a team of our litigators from across the firm convenes to share resources, insights, and strategies about each case.  These are value-added components provided by LCW for which our clients are not billed. We also have broad experience with experts, including jury consultants, economists, statisticians and vocational rehabilitation experts. Our Litigation Support Specialist and paralegals manage e-discovery and provide specialized trial support at a much lower rate than outside technical consultants.

At the outset of the litigation, LCW provides a detailed case analysis and plan outlining the initial case strategy, and communicates regularly with our clients on the execution of the plan.  We also create a detailed budget for each phase of the litigation and review and update this budget at regular intervals and discuss any necessary changes with the client.

On behalf of both employers and individually named defendants LCW defends complex (class and collective actions) and high-profile litigation through trial and the appellate process (when necessary) in state and federal courts.  We have successfully defended alleged violations of the Peace Officers Bill of Rights Act, the Firefighters Bill of Rights Act, the Fair Labor Standards Act, the California Labor Code, Title VII of the 1964 Civil Rights Act, the Fair Employment and Housing Act, the Americans with Disabilities Act, the Confidentiality of Medical Information Act, the Military and Veterans Code, the Uniformed Services Employment and Reemployment Rights Act, First Amendment Retaliation, Whistleblower Retaliation, and claims brought under the California and United States Constitutions.

Clients have prevailed in multiple published appellate cases that have helped public safety employers more effectively manage their employees.  Published decisions on behalf of public safety employers include, among others:

• Berndt v. City of Los Angeles et al. [621 Fed.Appx. 368] – Approximately 20 Police officers employed by the City of Los Angeles’ Police Department (LAPD) filed a lawsuit in federal court alleging various wage and hour violations under the Fair Labor Standards Act (FLSA) and provisions of state law. After the trial court granted the City’s motion to dismiss, the only remaining claims were allegations that (1) the City’s policy of paying police officers with compensatory time off (CTO) for non-FLSA hours worked violated the FLSA, and (2) the City should have paid overtime to the plaintiffs using a 40-hour overtime threshold for a seven-day period rather than the 171-hour overtime threshold for a 28-day period that the City adopted pursuant to the FLSA’s section 207(k) (also known as the 7(k) exemption). Regarding the 7(k) exemption, the plaintiffs argued they did not qualify for the exemption because they were purportedly no longer performing “law enforcement activities” when they were assigned to do administrative work pending internal investigations. The City successfully moved for summary judgment on both FLSA claim, and the plaintiffs appealed. The Ninth Circuit affirmed the District Court’s decision and held that the FLSA regulations expressly permit employers to compensate employees with CTO for “non-FLSA” overtime, and the Ninth Circuit also agreed that the City properly established the 7(k) exemption and that the police officers did not present sufficient evidence to demonstrate that it did not apply to any of them individually. Geoff Sheldon argued the City’s case to the Ninth Circuit Court of Appeals.
• Ellins v. City of Sierra Madre [244 Cal.App.4th 445] – LCW attorneys Laura Drottz Kalty and Danny Y. Yoo successfully represented the City in upholding its termination of police officer John Ellins for CLETS violations and insubordination.  The Court of Appeal confirmed that the City gave sufficient notice of the nature of the investigation prior to Officer Ellins’ interrogation pursuant to the Public Safety Officers Procedural Bill of Rights Act (POBR), and clarified that “reasonable” notice is required in order to allow an employee the opportunity to “meaningfully consult” with his/her representative. At the Court of Appeal, the issue was limited to whether the City had properly notified Ellins of the nature of the investigation “prior to” his interrogation under the POBR.  Ellins argued that he did not have a meaningful opportunity to consult with his attorney about the specific nature of the investigation.  The Court of Appeal disagreed and held that while an officer should be notified of the nature of the investigation “reasonably prior to” the interrogation, the agency can delay disclosure “if it has reason to believe that earlier disclosure would jeopardize the safety of any interested parties or the integrity of evidence under the officer’s control.”  However, after disclosure of the nature of the investigation – even if it is immediately prior to the interrogation – the agency must give the officer a meaningful opportunity to consult with his or her representative.  Although this was a case decided under the POBR, the application of this decision will also likely apply to the Firefighter Bill of Rights (FBOR). The FBOR was modeled after the POBR, and the language in Government Code section 3253(c) in the FBOR is virtually identical to Government Code section 3303(c) in the POBR.
• County of Los Angeles v. Association for Los Angeles Deputy Sheriffs, et al. [234 Cal.App.4th459] – LCW successfully represented the County in a case where after entering into MOUs, two public safety unions filed “class” grievances on behalf of approximately 10,000 current or former employees seeking MOU overtime pay for “donning and doffing” activities, as well as overtime for “off-the-clock” supervisory activities. After the County’s Employee Relations Commission granted the unions’ request for class arbitration, the County and its Sheriff’s Department sued the Commission and the two unions for declaratory relief, injunctive relief and a writ of mandate. The unions, in turn, filed a cross-complaint seeking to litigate their 10,000 members’ contractual overtime claims in a class action venued in Superior Court. Ultimately, the Court of Appeal issued a published opinion siding with the County/Sheriff’s Department, i.e., the Court of Appeal held that since the parties never contracted for “class” arbitration the only way the various overtime claims could be pursued was in individual arbitrations.
• Nakamura v. City of Riverside Police Department, et al. [WL 7761996], (Cal .Super.) (Trial Order) – Successfully defended the City of Riverside and seven individual defendants, from demurrer through trial and the final non-suit, in a case where a police officer alleged eight causes of action. After 2 demurrers, which resulted in the dismissal of 4 of the individual defendants and 3 causes of action, Plaintiff’s Third Amended Complaint alleged claims for: 1) Unlawful Search and Seizure; 2) Violation of the Public Safety Officer’s Procedural Bill of Rights; 3) False Imprisonment; 4) Conversion; and 5) Violation of 42 U.S.C. section 1983.  The Court granted summary adjudication as to all of Plaintiff’s causes of action except the third cause of cause of action for false imprisonment against the City and the three individual defendants.  The Court granted non-suit as to this cause of action after a nine-day jury trial.
• Wallace v. Stanislaus County [WL 10134357] (Cal.Super.) (Trial Order) – Represented the County in a 4-week jury trial and obtained a unanimous  defense verdict on both claims before the jury: failure to accommodate a disability and failure to engage in the interactive process. Deputy Wallace, who had filed 15 workers’ compensation claims while on duty, had a list of physical restrictions that were established by his doctor, and as a result was re-assigned to “light duty” as a bailiff. Wallace refused the re-assignment, and after saying that he did not agree with doctor’s restrictions, asked for a different assignment,  When his request was denied, he sued the County. Represented the County in the appeal of the 2013 verdict in favor of the County after jury trial.  The verdict and judgment entered in the County’s favor were successfully upheld on appeal.
• Association for Los Angeles Deputy Sheriffs v. County of Los Angeles, Los Angeles County Sheriff’s Department et al [166 Cal.App.4th 1625] – The California Court of Appeal held that pre-interrogation joint meetings by deputies involved in shootings have limitations.
• Maciel v. City of Los Angeles [569 F.Supp.2d 1038 (C.D.Cal)] – A federal District Court found in favor of the City on all claims after a seven-day bench trial. The Court found that Maciel failed to present credible evidence supporting his assertion that he worked overtime without reporting it, or that management either knew or should have known that he was not following the Department’s overtime reporting policy.  Finally, the Court found that Maciel was not entitled to overtime compensation for his donning and doffing activities because the time spent on those activities did not exceed the applicable threshold for overtime compensation.
• Benach v. County of Los Angeles [149 Cal.4th 836] – The Court held that removing a deputy from a special assignment as a pilot “without a concomitant loss of pay” is not a punitive action entitling the officer to a POBR administrative appeal.
• Claremont Police Officers Association v. City of Claremont [39 Cal.4th 623] – A case handled through the court of appeal – the California Supreme Court held that implementation of a racial profiling study by a police department was a management prerogative and was not a mandatory subject of bargaining under the Meyers-Milias-Brown Act.
• Steinert v. City of Covina [146 Cal.App.4th 458] – The Court of Appeal held that a peace officer was not entitled to the protections of the Act when asked questions by her supervisor in the ordinary course of duty where the supervisor did not suspect that the officer had engaged in serious misconduct.
• Gilbert v. City of Sunnyvale [130 Cal.App.4th 1264] – The Court of Appeal limited a police officer’s right to receive investigatory documents under both the Skelly due process procedures and the Act.
• Upland Police Officers Association v. City of Upland [111 Cal. App.4th 1294] – The Court of Appeal held that a peace officer’s right of representation under Government Code § 3303(i) is not unlimited. The Court of Appeal held that an officer could not delay an internal affairs interrogation by selecting a representative who was not reasonably available.