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Engquist v. Oregon Department of Agriculture (2008) – Prepared an amicus curiae brief on behalf of the League of California Cities and the California State Association of Counties for the United States Supreme Court case Engquist v. Oregon Department of Agriculture (2008) 553 U.S. 591, 128 S. Ct. 2146. There, the Court held that public employees cannot challenge employment actions as violating the Equal Protection clause under a “class of one” theory. Under such a theory, public employees could have argued that the United States Constitution’s Equal Protection clause required virtually all employment actions to have a “rational basis.” The Supreme Court’s holding foreclosed what could have been a far-reaching theory of liability for the plaintiffs’ bar.

Sanders, et al  v. County of Ventura, 87 F.4th 434 (9th Cir. 2023) Ventura County firefighters and law enforcement officers sued the County for failing to include a portion of their flex benefits in the Fair Labor Standards Act (FLSA) “regular rate” of pay.  The amount at issue was the “opt-out” fee, which applied only to those who received their health insurance through a non-County source, was never provided to the employees in cash, but was instead contributed back into the County health plans on behalf of the County employees who used the plans.  The LCW team won a motion for summary judgment in the U.S. District Court, and convinced the Ninth Circuit to affirm that the opt-out fee was properly excluded from the regular rate under the FLSA at 29 U.S.C. Section 207(e)(4), which excludes “contributions irrevocably made by an employer to a trustee or third person pursuant to a bona fide plan for providing … health insurance ….for employees.”

Alvarado v. City of Los Angeles (2018) – In 2004 and 2007, approximately 2,500 Los Angeles Police Department officers brought suit against the City of Los Angeles alleging violations of the FLSA for failing to pay the officers overtime.  The District court granted the City’s decertification motions, concluding that the officers were not similarly situated.  Sub-groups of the original collective action plaintiffs then instituted 28 separate lawsuits.  The City filed a motion to dismiss each lawsuit on the basis of misjoinder, which was granted, and all plaintiffs except for the named plaintiff were dismissed.  The plaintiffs appealed, and the Ninth Circuit upheld the district courts’ rulings, finding that plaintiffs’ claims were too factually disparate to arise out of the same transaction or occurrence, and that no district court abused its discretion in deciding to dismiss all but the named plaintiff.

Campbell v. City of Los Angeles, et al. (2018) – Successfully decertified two Fair Labor Standards Act (FLSA) cases brought by approximately 2,500 City of Los Angeles police officers seeking overtime pay for a 13-year period. The police officers claimed that the City’s Police Department knew or should have known that they were working uncompensated overtime.  The Department argued that it had no knowledge that its officers were not following its overtime policy. Following extensive discovery and exchange of information between the parties, the federal trial court granted the City’s motion to decertify these FLSA collective actions and dismissed the officers’ claims.  The officers appealed the decertification to the Ninth Circuit.  The Ninth Circuit decided that no reasonable trier of fact could conclude that the Department fostered or tolerated a tacit policy of non-compliance with the FLSA, given the Department’s overwhelming evidence of compliance with its valid FLSA overtime policy, and dismissed the officers’ two collective lawsuits.

Berndt et al v. City of Los Angeles et al. (2015) – 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 FLSA and provisions of the Labor Code. 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 claims, 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.

Siegmund v. County of Orange (2011) – 700 deputy sheriffs alleged that the County failed to pay overtime at the correct regular rate in violation of the FLSA. LCW obtained a summary judgment for the County, and the Ninth Circuit Court of Appeals affirmed the ruling for the County, finding that the deputy sheriffs failed to show that any employee was paid less than the FLSA requires for any pay period.

Former Fire Chief v. City (2023) – A city manager terminated the fire chief for comments made at a public meeting and on a podcast that lacked compassion, sensitivity or judgment regarding civil unrest after George Floyd’s murder.  The former fire chief sued in U.S. District Court for retaliation in violation of Labor Code section 1102.5, retaliation for exercising his right to free speech in violation of the First Amendment, and violation of the Firefighters Procedural Bill of Rights Act.  The LCW team won a motion to dismiss and then won a motion for summary judgment as to the remaining claims.

Rosario v. LA Department of Water & Power (2022) – Won a complete defense verdict for the City following a nearly three-week jury trial in which Plaintiff, a former electrician, alleged claims of disability discrimination.   During the trial, LCW proved that the City did engage in the interactive process with the Plaintiff following an on-the-job injury, was unable to accommodate him, and terminated his employment for legitimate reasons related solely to his need for excessive supervision.  Plaintiff sought over $1,000,000 in economic damages alone, and the jury returned the defense verdict only a few hours after closing argument.

Moreno, et al. v. City of Beverly Hills (2019) – Brian was co-lead counsel defending the City in a lawsuit brought against the City’s police department. The plaintiffs were three command staff and one civilian member of the Beverly Hills Police Department who alleged a variety of FEHA discrimination, harassment and retaliation claims. The plaintiffs collectively asked the jury for damages in excess of $23,000,000.  After a 21 day jury trial, Brian and the defense team obtained defense verdicts on all of the plaintiffs’ discrimination claims and defeated the harassment and retaliation claims, respectively, for two of the other plaintiffs. The jury awarded a total of $1.1 million in non-economic damages for all four plaintiffs, approximately 5% of what they requested and far less than any settlement offers made by plaintiffs, and no economic damages.  The court subsequently granted our Motion for Judgment Notwithstanding the Verdict in its entirety for one of the plaintiffs, thus reducing the awarded damages by another $250,000.

Scott v. Azusa Pacific University, et. al (2019) – A former employee of the University’s Campus Safety Department brought claims of wage and hour violations, wrongful termination, sexual harassment, retaliation, emotional distress, and workplace violence against the University.  Plaintiff claimed that he was entitled to overtime for time he spent doing the Chief’s homework and socializing with the Chief.  The firm obtained dismissal of the claim for sexual harassment on demurrer on the grounds that APU was exempt from the Fair Employment and Housing Act as a religious corporation.  The firm then initially obtained summary adjudication on all causes of action except the wage and hour claims.  On the wage and hour claims, the trial court found that while the employee was an exempt executive employee, a question of fact remained as to whether he was entitled to overtime compensation for the hours he was on-call, which the employee claimed was 24/7.  The firm sought a writ of mandate from the Court of Appeal on the basis that the employee was not entitled to any additional pay for on-call time once he was found to be exempt from overtime.  The Court of Appeal issued a coercive Palma notice to the trial court stating its intention to grant the peremptory writ of mandate.  In response, the trial court scheduled a further hearing and then granted summary judgment to APU in its entirety.

Fausto v. City of Ontario (2018) – LCW represented the City of Ontario in a disability discrimination, harassment and retaliation lawsuit.  The plaintiff was represented by an attorney who filed several different lawsuits against the City at about the same time on behalf of different employees.  The plaintiff was a utilities technician who sustained a variety of work injuries over his 11 years working for the City.  While the City was attempting to reasonably accommodate the plaintiff, the City discovered that he stole a street sign from the Public Works yard and terminated plaintiff.  LCW obtained summary judgment on behalf of the City and plaintiff’s supervisor.

Munroe v. County of Riverside (2016) – LCW represented the County of Riverside in a lawsuit brought by a former Deputy County Counsel for violation of the California Equal Pay Act, FEHA gender discrimination and retaliation, discrimination for use of medical leave under the California Family Rights Act, and whistleblower retaliation under Labor Code section 1102.5.  The plaintiff alleged that her male counterpart was paid significantly more even though she had more experience and was performing comparable work and that her termination was retaliatory.  LCW obtained summary judgment on all claims.

Miller v. City of Los Angeles, et. al. (2015) – In a whistleblower retaliation federal lawsuit, the former Independent Assessor for the City of Los Angeles’s Fire Commission brought a lawsuit against the City and several individual defendants, alleging FEHA, § 1983, and Labor Code 1102.5 violations.  The firm obtained complete summary judgment on all causes of action on behalf of the City, the Mayor, all five Fire Commissioners, and a Mayoral employee.

Sterling v. City of Riverside, et al. (2014) – A former deputy city attorney filed a federal lawsuit against the city, city manager, city attorney and her supervisor alleging that she was a whistleblower who was terminated in violation of her First Amendment rights, the Major Fraud Act, and the False Claims Act. Two of these claims were dismissed on summary judgment by the Court before trial. After a 4-day jury trial on the First Amendment claim, the jury returned a verdict in favor of all defendants after deliberating for less than one hour.

Bozzo v. City of Gilroy (2013) – Two Assistant Fire Chiefs claimed that they were improperly classified as exempt from overtime requirements during the time that they were furloughed due to the economic downturn.  In a case of the first impression regarding the DOL’s regulation on furloughs, LCW obtained summary judgment in favor of the City in federal court in the Northern District of California.

Berndt et al v. City of Los Angeles et al. (2013) – Approximately 20 police officers employed by the City of Los Angeles’ Police Department (“LAPD”) sued the City for violations of various provisions of both state wage and hour law and the federal Fair Labor Standards Act (“FLSA”). The operative complaint alleged that the City failed to properly compensate LAPD officers for missed meal and rest breaks, that the City improperly compensated officers with Compensatory Time Off (“CTO”) instead of cash for overtime worked, and that these officers were excepted from the 28 day, 171 hour FLSA overtime threshold the LAPD established for its police officers pursuant to 29 U.S.C. section 207(k). The United States District Court granted the City’s Motion to Dismiss the Plaintiff’s state law wage claims. Later in the case, the District Court disposed of the remaining FLSA claims when it granted the City’s Motion for Summary Judgment (“MSJ”). In granting the City’s MSJ, the District Court held that the City was entitled to summary judgment because (1) Plaintiffs could not proffer any evidence that they were somehow excepted from the partial overtime exemption for law enforcement employees the City established pursuant to 29 U.S.C. section 207(k); and (2) the City’s practice of paying officers with “non-FLSA CTO” in lieu of cash for non-FLSA hours worked (i.e., hours worked under the applicable 28 day, 171 hour FLSA overtime threshold) was not a violation of the FLSA.

Association for Los Angeles Deputy Sheriffs, et al. v. County of Los Angeles, et al. (2012) – Handled a Fair Labor Standards Act collective/class action case where the U.S. District Court granted a County law enforcement employer’s summary judgment motion. The lawsuit involved the “donning and doffing” claims of approximately 3,000 deputy sheriffs in two different, yet consolidated, collective action lawsuits filed against the County and its Sheriff (collectively “the County”). The district court also granted the County’s motion to decertify the remaining “off-the-clock” work claims. The district court’s rulings effectively ended two large collective/class action lawsuits after several years of litigation.

Rosales v. County of Los Angeles (2011) – This FLSA collective action sought compensation for unreported overtime and certification of a class of 700 IHSS social workers who evaluated IHSS recipients’ needs and made recommendations regarding the services to be performed by IHSS providers.  We successfully defeated plaintiffs’ attempt to certify the class and limited the case to just one social worker.  The case then settled for nuisance value.

Farris v. County of Riverside (2011) – 150 deputy sheriff plaintiffs filed a lawsuit claiming unpaid FLSA overtime related to donning and doffing and off the clock claims. Once discovery commenced, approximately 60 plaintiffs withdrew from the case, and approximately 90 plaintiffs were left at the time of trial. Judgment was entered in favor of the County for FLSA retaliation claims following the jury trial, and judgment entered in part for the County (and in part for the Plaintiffs) regarding FLSA unpaid overtime claims.

Nolan v. City of Los Angeles (2011) – 43 LAPD supervisors claimed that the LAPD violated the FLSA by failing to pay them overtime for pre-shift and post-shift work, missed meal breaks and donning and doffing of their uniforms.  LCW obtained a summary judgment for the LAPD on plaintiffs’ donning and doffing claim.  Following a seven-day jury trial on the claims of four representative plaintiffs, the jury returned a partial verdict for plaintiffs, but only awarded them less than 3% of the damages they sought.  The parties then resolved the remaining claims for the other plaintiffs based on the jury’s verdict.

Batts et al. v. City of Los Angeles, et al. (2010) – Successfully defended the City of Los Angeles, the Los Angeles Police Department, Chief William Bratton, and other high-level Police Department command staff in a retaliation action brought by nine police department sergeants who alleged they had suffered adverse employment actions because of their participation in a wage and hour litigation against the City. The alleged adverse actions included disciplinary investigations, relief from duty, suspension, transfer, and denial of promotion. Plaintiffs attempted to bring the matter as a class action, but the Court dismissed the class allegations. Following depositions of each Plaintiff, of Chief Bratton, and some individual defendants, LCW brought nine summary judgment motions, one for each Plaintiff. The Court granted all the motions, resulting in a defense victory on all claims.

Petersen Law Firm v. City of Los Angeles (2009 and 2013) – Represented City and individual defendants in an action in which they prevailed on an Anti-SLAPP motion in a case challenging investigation of police officers. After the matter was appealed and remanded, the trial court reconsidered the City’s motion for attorney’s fees and ruled that the City was entitled to recover the entire amount of attorney’s fees and costs it requested.

Maciel v. City of Los Angeles (2008) – A federal court found in favor of the City on all claims after a seven-day bench trial.  The plaintiff was an LAPD officer who claimed that the LAPD failed to pay him for overtime that he worked but did not report to his employer prior to his shift, during his meal breaks, and at home.  The court found that the plaintiff was unable to prove that he ever actually worked FLSA overtime hours without compensation.

COVID Screening Compensation: Avoid Costly Mistakes

Brian P. Walter was quoted in the April 6 issue of WorldatWork’s Workspan Daily section in a piece highlighting potential increases in lawsuits involving employees who spend “off the clock” time taking part in health screening and/or other tasks designed to help ensure a safe workplace. Learn more.

Best Practices to Avoid Employment Litigation Related to COVID-19
Western City Magazine

Partner Brian P. Walter and Associate Alexander Volberding authored the Western City article, “Best Practices to Avoid Employment Litigation Related to COVID-19,” discussing how public agencies can avoid costly litigation in the era of COVID-19. Read full article: https://bit.ly/2GkJr0P

State Guidance Issued for Elementary School Waivers, Extracurricular Activities, and FAQs for Reopening K-12 Schools
LCW Special Bulletin

On August 3, 2020, the California Department of Public Health (CDPH) issued new guidance for schools and school-based programs.  The latest guidance includes frequently asked questions from schools and provides information regarding the waiver process for in-person learning elementary education.

Governor Announces Restrictions On The Reopening of K-12 Schools For In Person Instruction And Issues New State Guidance
LCW Special Bulletin

Earlier today, Governor Newsom announced statewide restrictions on the reopening of K-12 schools, including private schools, and issued updated state guidelines and requirements regarding both in person and distance learning, as summarized in this bulletin.
A.       Restrictions on when Schools are...

The Long-Awaited FLSA Salary Basis Update Is Finally Here – What This Means For California Public Education Employers
LCW Special Bulletin

Today, September 24, 2019, the U.S. Department of Labor (“DOL”) announced a final rule modifying the weekly salary and annual compensation threshold levels for white collar exemptions to FLSA overtime requirements. The final rule will become effective on January 1, 2020.  It is critical for public...


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