Howard Liberman Joins Mastagni Hosltedt as Los Angeles Office Managing Attorney

Howard A. Liberman Managing Attorney, Los Angeles Office Office: 916-318-4601 Cell: 310-701-5582 WELCOME HOWARD "We are pleased to welcome Howard to our firm as our Los Angeles Managing Attorney; his experience will allow us to further service the firm's regional and statewide clients." -David P. Mastagni, Founding                 Partner With more than 65 attorneys and negotiators, Mastagni Holstedt, A.P.C. is the largest law firm representing law enforcement and firefighters in California and the U.S., dedicated to representing clients in the protection and advancement of public safety officers and their rights.  Mastagni Holstedt, A.P.C. has gained state and national recognition in the area of Labor and Employment as an AV-rated preeminent law firm by Martindale Hubbell, and is listed among the "Top Law Firms" in the Sacramento Business Journal, and has been recognized as a top law firm by Forbes and Fortune Magazines. MASTAGNI HOLSTEDT, A.P.C. ANNOUNCES THE ADDITION OF HOWARD A. LIBERMAN, ESQ.        IN ITS LOS ANGELES OFFICE, EXPANDING ITS SOUTHERN CALIFORNIA PRESENCE Mastagni Holstedt, A.P.C. is pleased to announce that Howard A. Liberman has joined the firm's Labor and Employment Practice as the Los Angeles Office Managing Attorney.  Howard has been practicing law since 1992 and began his legal career in the United States Navy as a member of the Judge Advocate General's Corps.  He served on active duty for five years as a defense attorney, prosecutor, and Assistant Staff Judge Advocate (in house counsel) to a two-star admiral.  Howard affiliated with the Navy Reserve serving as a defense attorney, legal assistance attorney, appellate defense counsel, and executive officer.  In 2014, he retired from the Navy with the rank of Commander. In 1997, Howard began practicing public sector labor law focusing his civilian practice on labor and employment, with an emphasis on public safety disciplinary defense and collective bargaining.  For nearly two decades, Howard has successfully litigated numerous appeals of administrative discipline in both the Superior Court and the Court of Appeal on behalf of police officers and firefighters wrongly accused of misconduct throughout California. Howard is a graduate of Bloomsburg University (1989) and Temple University School of Law (J.D. 1992). He is a native of Scranton, Pennsylvania and is an avid Philadelphia sports fan. Howard resides in the West L.A. area with his wife and two daughters.

Cash-in-Lieu of Health Benefits is Included in Rate Calculations Under FLSA

If you receive cash in lieu of healthcare benefits, you may be entitled to additional overtime compensation from your employer.  The Ninth Circuit Court of Appeal recently ruled that cash payments made to employees who declined medical coverage had to be included in the regular rate used to calculate the employees’ overtime compensation.

In Flores v. City of San Gabriel, the Ninth Circuit ruled the City of San Gabriel willfully violated the Fair Labor Standards Act (“FLSA”) by failing to include cash payments for unused medical benefits in police officers’ overtime calculations. The court also ruled that money the City paid out to third parties for officers’ benefits had to be included in their overtime rate. Under 29 U.S.C. section 207(e)(4), payments to third parties or trustees made pursuant to a “bona fide plan” for providing health insurance benefits could be excluded from the regular rate used to calculate overtime. The court found that the City’s plan was not a “bona fide plan” because approximately 40% of the City’s total contributions were paid directly to employees, rather than received as benefits.

Many public employers give employees a cash incentive for opting out of employer-provided medical coverage. The court’s ruling in Flores establishes that such incentives must be included in the regular rate used to calculate overtime for employees who receive them.  Not many employers do this.

If your agency offers cash in lieu of medical benefits, you may have a claim for unpaid overtime and liquidated damages in an amount equal to the unpaid overtime (e.g. double damages) under the FLSA. While your agency may fix this issue going forward, you will likely need to file a lawsuit to recover backpay. Under the FLSA, an employee can only recover damages for unpaid wages that occurred within the last three years. As such, it is important to pursue an FLSA claim immediately.

If you are represented by our office and your agency offers cash in lieu of medical benefits, you should call our office or your union immediately to discuss the matter.

Seventh Circuit Holds Class Action Waiver Unenforceable

The Seventh Circuit sided with the National Labor Relations Board (NLRB), creating a split with the Fifth Circuit, in holding an employer's arbitration agreement was unenforceable. (Lewis v. Epic Systems Corp. (7th Cir., May 26, 2016) No. 15-2997.) 

The employer, a software company, violated the National Labor Relations Act (NLRA) by imposing a mandatory arbitration agreement barring employees from seeking class, collective, or representative remedies to wage-and-hour disputes. The employer required certain employees to sign as a condition of employment. A technical writer who signed the agreement filed a putative class action arguing the employer had misclassified the technical writers as exempt from overtime. The employer moved to compel arbitration. The district court denied the motion.

The Seventh Circuit found "concerted activity" could include resort to class action remedies. The court then determined the arbitration agreement impinged employee's rights to engage in concerted activity. The employer argued the Federal Arbitration Act (FAA) trumped the NLRA and entitled it to enforce its class-action waiver. The Seventh Circuit disagreed, stating the employer's argument "put the cart before the horse." The first question was not whether the FAA "trumped" the NLRA, but whether the two statutes were in conflict at all. The FAA contains a saving clause that does not require a court to enforce agreements "upon such grounds as exist by law." Thus, the Seventh Circuit determined it was not required to enforce an illegal arbitration agreement that violated the NLRA.

The decision also questioned a Ninth Circuit opinion, which held a class-action waiver may be enforceable where the employee had the right to opt out without penalty. According to the Seventh Circuit, the Ninth Circuit's decision failed to defer to previous Board decisions reaching the opposite conclusion.

POBRA's One-Year Limitation Tolled By Internal Criminal Investigations

On May 24, 2016, the Third District Court of Appeal held the one-year statute of limitations under the Public Safety Officers Bill of Rights Act (“POBRA”) is tolled when a law enforcement agency conducts its own criminal investigation. (Department of Corrections and Rehabilitation v. State Personnel Board (Shiekh Iqbal)(May 24, 2016, No. C073865.)

Under POBRA, employers cannot take punitive action for investigations not completed within one year, except under certain circumstances. One such circumstance is that the statute of limitations is tolled while a criminal investigation into the same conduct by the same employee is ongoing. The question before the court was whether the statutory tolling of the limitations for “criminal investigations” applied when the agency conducts its own investigation, rather than having it done by an independent agency.

The court determined the language of the statute was clear and placed no restriction on who conducts the criminal investigation. The court dismissed a State Personnel Board decision that reached the opposite conclusion, finding the Board has misapplied prior case law. Looking to Legislative intent, the court reasoned that the Legislature knew there could be abuses by law enforcement employers who were conducting criminal and internal affairs investigations of their employees which is why it qualified the criminal investigation exemption provision with the language that the investigation had to be “concerned solely and directly with alleged criminal activities.”

            Ultimately, the court held the defendant was arguing a factual issue on whether the employer was conducting a criminal investigation only to toll the statute of limitations. The court found the allegation of delay had no traction because the Notice of Adverse Action (“NAA”) was served only three days past the one-year limitations period expired. Regardless, the court stated the limitations period had been tolled for the entire criminal investigation, and thus, the NAA was timely. 

Ninth Circuit Clarifies Standards for Reasonable Force

In Lowry v. City of San Diego, the Ninth Circuit clarified some of the standards for determining the reasonableness of the force used. In a 2-1 decision, the Ninth Circuit held a reasonable jury could find the San Diego Police Department’s (“SFPD”) K9 “bite and hold” policy was a severe use of force.  

After a night of drinking with her friends, the plaintiff, Sara Lowry, returned to her workplace and fell asleep on her office couch. Lowry unknowingly triggered the building’s burglar alarm when she got up to use the restroom.

SFPD were called to investigate. Sgt. Bill Nulton and his police dog, Bak, along with two other officers, found the door to Lowry’s office suite open. Sgt. Nulton yelled, “This is the San Diego Police Department! Come out now or I’m sending in a police dog! You may be bitten!” Nulton waited 30-60 seconds, but received no response. He repeated the warnings, but eventually released Bak “off lead” (without a leash). Bak made her way to Lowry’s office and bit Lowry’s lip. Nulton immediately commanded the dog to release her hold.

Lowry brought a § 1983 action against the City, alleging the City’s policy of training its police dogs to bite and hold resulted in a violation of her Forth Amendment rights.  According to the Ninth Circuit, a court must consider both the type of force used and the potential harm it may cause. The district court erred in only considering Lowry’s actual harm rather than the potential harm the K9 could inflict. As Sgt. Nulton told Lowry after the incident, “I just can’t believe that’s the only damage. You’re very lucky. She could have ripped your face off.”

The Ninth Circuit also considered whether other tactics would be appropriate in the circumstances. The court believed Sgt. Nulton could have kept Bak on lead to maintain control. While the court did find Nulton’s multiple warnings were helpful in showing the force was reasonable, it was only minimally so because Lowry did not hear the commands.

Law enforcement agencies may look to the Lowry decision when determining whether an officer used reasonable force in a disciplinary case.