Dealing with CA Agencies

Seyfarth Synopsis: The Trump Administration’s hard line on immigration has concerned undocumented immigrants who want to raise wage claims. The LWDA recently reaffirmed a commitment to protect workers regardless of their immigration status.

California has noticed the Trump Administration’s immigration initiatives. Here, as elsewhere, California charts its own path. The state’s labor law enforcement officials worry that the immigration crackdown has panicked undocumented workers, causing them to withhold complaints against their employers, for fear of deportation. Indeed, some undocumented workers reportedly have declined to accept unpaid wages owed to them, and have refused to cooperate with government investigations. There have been reports of ICE agents showing up at California Labor Commissioner proceedings to remove undocumented workers who are appearing to prosecute their labor claims against their employers.

On May 1, 2017, the LWDA reaffirmed its commitment to worker protections regardless of their immigration status:

Just because the federal administration has changed, our laws and policies have not. … We will not tolerate the use of immigration status as a tool of retaliation against workers who are pursuing their rights under California law. … The California Labor and Workforce Development Agency and its partner departments reiterate that we never ask for – nor do we collect – the immigration status of any worker who files a health and safety or wage theft claim with our offices. It has been longstanding state policy that our labor laws apply to all workers, regardless of immigration status, and that the immigration status of a worker is unnecessary information to enforcing our laws.

The full press release appears here.

Thus, regardless of what the Trump Administration does, the LWDA is making it clear that California’s labor protections apply to all employees – regardless of their immigration status – and that the LWDA will ensure that immigrant workers know that California workplace protections apply to them.

The LWDA’s statement reminds California employers that they can still be subject to liability, fines, and investigations for Labor Code violations no matter what the federal government does. Immigration status remains, in the view of the LWDA, irrelevant to the enforcement of California wage and hour laws. Thus, employers should not treat immigrant workers differently because of their status.

California wage and hour law can be difficult to navigate. If you would like to review your policies for compliance, you may contact one of Seyfarth Shaw’s attorneys for assistance.

Edited by Michael Wahlander.

Seyfarth Synopsis: The DLSE enforces California labor laws. In two recent enforcement actions, the DLSE collectively recovered over one million dollars, so California employers should read on to find out more about this robust administrative agency.

What Is The DLSE And Why Should Employers Care?

The California Division of Labor Standards Enforcement (aka the DLSE or the Labor Commissioner’s Office) is a recurring character in our blog. Usually we discuss new guidance the DLSE has offered. But the DLSE serves another function as well: it enforces the statutory provisions governing wages, hours, and working conditions of employees, and enforces the wage orders promulgated by the Industrial Welfare Commission. The DLSE’s mission is to “ensure a just day’s pay in every workplace in the State and to promote economic justice through robust enforcement of labor laws.”

To carry out its mission, the DLSE has free access to “all places of labor.” The Labor Commissioner can issue subpoenas to compel the attendance of witnesses and parties or the production of books, papers, and other records. And if employers do not comply with the subpoena, the DLSE can go to court to force compliance. In a nutshell, the DLSE has broad authority to inspect workplaces for wage and hour violations, investigate retaliation complaints, adjudicate wage claims, and prosecute actions on behalf of employees in civil court.

So How Does That Work?

The DLSE executes its mission through various mechanisms. During the 2015-16 fiscal year, the DLSE inspected over 2,400 worksites and issued citations for 2,100 violations. Most citations were for failure to carry workers comp insurance or to issue an itemized wage statement. The inspections led to over $18 million in penalties.

The DLSE also conducts payroll audits, to identify wage violations based on misclassification of employees or misreporting of time. Last year DLSE audits resulted in over $25 million in wage and civil penalty assessments.

What Are The DLSE’s Priorities?

Given the breadth of the DLSE’s authority, and the number of penalties it assesses, it has a wide array of enforcement priorities. We focus here on cases that the Labor Commissioner has deemed significant enough to highlight on the DLSE website.

On June 27, 2017, the DLSE announced it recovered over $48,000 in back wages for a convenience store clerk after the DLSE hearing officer found the clerk was owed minimum wage and premium pay for overtime work. The clerk, acting without an attorney, filed a wage claim in March to seek $14,520 in unpaid regular wages. The hearing officer, finding the clerk was actually owed much more, awarded him $42,980—$22,162 in regular and overtime wages, $14,707 in liquidated damages, $3,586 in interest, and $2,524 in waiting time penalties. The Labor Commissioner noted: “This case shows that when workers exercise their labor rights and come forward to report wage theft, they can do so on their own without an attorney, they can receive the wages they are owed, and in some cases even more.”

The DLSE has also recently defended a judgment it won for five truck drivers on the basis that they had been misclassified as independent contractors and were entitled to reimbursement for expenses and unlawful deductions. The defendant appealed the administrative award, arguing that the Labor Commissioner lacked authority because the claim was preempted by the Federal Aviation Administration Authorization Act. The trial court rejected that argument and found all five drivers were misclassified as independent contractors. The judgment in their favor was for $958,660 plus attorney’s fees and costs.

These cases highlight a few important reminders:

  • An employee does not need an attorney to prosecute claims for wage and hour violations.
  • The DLSE focuses on adjudicating wage and hour claims and is not afraid to pursue these claims in court.
  • California employers should ensure their wage and hour practices remain compliant and that any potential misclassification issues are properly reviewed—or risk judgment by the DLSE and the payment of attorney’s fees and costs if an adverse ruling is appealed and the DLSE succeeds in court.

Please contact your favorite Seyfarth attorney for assistance with remaining compliant with California’s labor laws.

Edited by Michael Cross.

Seyfarth Synopsis: On July 17, 2017, the California Fair Employment and Housing Council (FEHC) heard public comments on its proposed regulations covering national origin discrimination under the FEHA. Discussion centered on employer-imposed language restrictions, English proficiency requirements, and immigration-related employment practices. Look for final regulations later this year. 

The FEHC kicked off its third meeting of the year, this time in San Francisco. Prominent on the agenda: the proposed and rapidly advancing national origin discrimination regulations. As stated in the FEHC’s notice of the meeting: “The overall objective of the proposed amendments is to describe how the [FEHA] applies to the protected class of national origin in the employment context, primarily by centralizing and codifying existing law, clarifying terms, and making technical corrections.”

A call to enact these regulations first came from Legal Aid at Work (an employee-oriented legal services organization formerly known as the Legal Aid Society, Employment Law Center), during the FEHC’s August 31, 2016 hearing. The FEHC quickly created a subcommittee and drafted regulations, which we previously reported on here, that largely mirrored the EEOC’s guidance on national origin discrimination.

At the July 17 hearing, public comments revolved around (a) language restrictions (“English only” rules), (b) employer requirements for English language proficiency, (c) discovery as to an individual’s immigration status during the liability phase of any lawsuit or other proceeding to enforce the FEHA’s prohibition of national origin discrimination, and (d) expanding the definition of what constitutes harassment on the basis of national origin. The only public comments received at the hearing were from employee-leaning individuals and groups.

English only. The draft regulations would make it an unlawful employment practice for an employer to adopt a policy that creates an “English only” rule, unless (1) the rule is job-related and consistent with business necessity, (2) the rule is narrowly tailored, and (3) employees get effective notice of when and where the rule applies and what consequences result from a violation.

The regulations would also provide that an English-only policy would not be valid simply for promoting business convenience or reflecting customer preference. Representatives of Legal Aid at Work emphasized at the hearing that the latter should be amended to state a co-worker preference, not the customer’s.

Further, the regulations would explicitly presume that English-only rules violate FEHA unless the employer can prove “business necessity”—defined narrowly as “an overriding legitimate business purpose” that is necessary to the safe and efficient operation of the business, where the policy effectively serves that purpose, and where there is no alternative to the language restriction that would serve the business purpose as well, with less discriminatory impact. One commentator at the hearing argued that the FEHC should expand this presumption to find a violation if there is no effective employee notification about the language restrictions. Legal Aid at Work also called for the FEHC to draft a new section to address how an English-proficiency requirement relates to an employee’s ability to perform the job. These folks would like CA to distinguish itself from the reasoning of Garcia v. Rush-Presbyterian-St. Luke’s Medical Center, in which the court approved an employer’s requirement for verbal and written English proficiency in part because English was the dominant language in the area.

Discovery of Immigration Status. The FEHC also heard public comments to clarify the complex rule about when discovery into an individual’s immigration status is allowed during the liability phase of a proceeding. The proposed regulations would permit such discovery “only when the person seeking to make the inquiry has shown by clear and convincing evidence that such inquiry is necessary to comply with federal immigration law.” The commentators argued that mere possession (or lack) of a driver’s license would not constitute “clear and convincing evidence,” as all California residents are eligible to receive a license, regardless of immigration status.

Expansion of “harassment.” A representative of the California Employment Lawyers Association (a group of plaintiffs’ lawyers calling themselves an employee-rights group) called for expansion of the harassment portion of the regulations, to include specific reference to banning creation of a hostile work environment on the basis of national origin. Speakers also asked that the FEHC expand what would constitute as per se harassment to include deportation threats against an individual’s blended family members (i.e., step-parents, step-aunts and uncles, and step-children).

The comment period for the proposed regulations closed at 5 p.m. on July 17th. We anticipate the FEHC will consider all comments before issuing a final statement of reasons and potentially revising the proposed regulations.

We will keep you apprised of what the FEHC opines next on the topic of national origin regulation. For advice on how these regulations may affect your business, reach out to your favorite Seyfarth attorney.

Edited by Colleen Regan.

Seyfarth Synopsis: California’s Department of Fair Employment and Housing has just issued its Annual Report on civil rights complaints during 2016. Here are some highlights.

The DFEH hails as the largest state civil rights agency in the country, with 220 full-time employees operating out of five offices throughout California. Its annual report makes clear that its core work is litigation. It sues chiefly under the Fair Employment and Housing Act, California’s more expansive version of federal anti-discrimination law, and also sues under the Unruh Civil Rights Act, the Disabled Persons Act, and the Ralph Civil Rights Act.

The annual report comes in the DFEH’s fourth year as an active litigant. Beginning in 2013, the DFEH gained power to file lawsuits to pursue violations of the state’s anti-discrimination laws. No longer is there administrative adjudication of claims by the Fair Employment and Housing Commission (now defunct). The DFEH now has broad authority to sue California employers, housing providers, and other entities for unlimited compensatory damages, as well as attorney fees and costs. Moreover, the DFEH can launch state-wide class or representative actions for systematic or large-scale violations of state civil rights laws. And, like its big sister, the federal Equal Employment Opportunity Commission (which has always been able to sue in court), the DFEH may go beyond monetary damages and demand certain forms of “affirmative relief,” such as employee retraining, redrafting and posting of policies, and regular monitoring to ensure compliance. In short, the DFEH is now a fully operational litigation shop, employing investigators, litigators, paralegals, and mediators.

A Tidal Wave of Complaints. The DFEH received more than 23,000 general administrative complaints and inquires in 2016. The amount was on par with 2015, and significantly more than the 19,000 filed in 2014. About 93% of 2016 complaints were employment-related, 6% were housing matters; the rest involved claims under the Unruh, Ralph, and Disabled Persons Acts. About 17,000 complaints resulted in formal charges filed with the DFEH. Most of the formal charges (12,242) requested an immediate right to sue, thus bypassing the DFEH’s investigation process.

A plurality of the 2016 formal charges (6,614, or 38%) originated out of Los Angeles County. Next in order were Orange, San Diego, and San Bernardino Counties (7%, 6%, 4% respectively). Together, these four counties created most of the DFEH’s 2016 workload: SoCal employers beware! Surprisingly, Sacramento County—not San Francisco County—accounted for most charges filed in Northern California (Alameda County was the most active in the Bay Area). Placer County, with 120 formal charges, was the most litigious in 2016 in proportion to its population size.

In terms of demographics, little is known about the 2016 class of DFEH complainants. The DFEH tracked only race and national origin, on the basis of the complainants’ self-reporting. Only 51% of complainants identified their race, and 65% identified their national origin. Of those who self-reported, Caucasian individuals topped the list with 35% of complaints; American or U.S. national origin was most reported, at 52% of complaints. Individuals identifying as Hispanic or Latino filed 28% of complaints in 2016, and those identifying as African American filed 22%. The DFEH did not collect data on the complainants’ sex, gender, age, religion, marital status, household income, or other demographic information.

Most Complaints Did Not Settle. The DFEH investigated 4,799 complaints in 2016. The DFEH settled a total of 1,036 complaints (21%), and referred 118 to the Legal Division, which brought 31 civil actions. The remaining 3,700 complaints were presumably withdrawn by the complainant, settled without the DFEH’s participation, dismissed by the DFEH, or consolidated into a single lawsuit.

Moneywise, the DFEH’s Enforcement Division resolved 573 complaints for a total of $2,635,979, which was the most settlements for any division (averaging $4,600 per settlement). The Dispute Resolution Division, which conducts mediation when the parties voluntarily agree to mediate, brought in the highest dollar amounts via 417 settlements with $7,385,372 ($17,710 average). The Legal Division raised $1,553,800 by settling 46 complaints ($33,778 average). In total, the DFEH conducted 783 mediations in 2016 (up considerably from 632 in 2015 and 590 in 2014).

The DFEH Carefully Selects Which Cases To Try. Less than 1% of 2016 complaints resulted in litigation. Of the 4,799 claims the DFEH investigated, it referred only 118 (2%) to the Legal Division, which then brought only 26% of that total to litigation. As noted above, the DFEH filed 31 lawsuits for 75 complainants during 2016, while filing 36 lawsuits for 57 complainants during 2015.

One-half of the 118 complaints referred to the Legal Division were housing-related. Employment claims made up 40%, followed by Unruh Act claims at 6%, Ralph Civil Rights claims at 3%, and Disabled Persons Act claims at 1%. Substantially more employment claims had been referred to the Legal Division in 2015 (73 of 130 complaints, or 56%).

Housing-related complaints were statistically the DFEH’s priority in 2016. The annual report does not specify the total number of housing complaints, but nearly 70% of complaints involved claims for FEHA housing violations. This percentage is markedly higher than in 2015, where only 36% complaints related to housing issues. Employment complaints were king in 2015 comprising 59% of complaints, but that number decreased in 2016 to 25%. Overall, the DFEH was consistently more focused in 2015 and 2016 on FEHA violations—including employment and housing claims—than with complaints regarding the Unruh, Ralph, and Disabled Persons Acts.

Disability discrimination was the claim most frequently asserted by the DFEH in 2016 in litigated matters (as it was in 2015), appearing seven times in the employment context and 11 times in the housing context. Race and ancestry discrimination were asserted only once, sex/gender discrimination only twice, and sexual harassment only four times. Retaliation was asserted seven times against employers and five times against housing providers.

Lessons For 2017 And Beyond. The DFEH is evidently hand-picking the few complaints it takes to court each year. Only a small percentage of claims make their way to the DFEH’s Legal Division, which is the final stage before a lawsuit is filed, so employers and housing providers should consult with litigation counsel if they find themselves in that unfortunate position (or earlier).

The data and public filings, consistent with our experience with the DFEH, indicate that the DFEH did not target any particular industry or size of entity in 2016: public entities, such as high schools and cities, as well as small non-profit organizations found themselves in the DFEH’s crosshairs. And the DFEH hauled into court businesses in virtually all industries, including banking and financial services, food and agriculture, real estate, retail, hospital and healthcare, insurance, commercial carriers/airlines, manufacturing, and entertainment. Many cases were brought on behalf of multiple individuals, and we can expect that trend to continue as the DFEH appears to find multiple-complainant litigation an efficient way broaden its enforcement reach. Inasmuch as the EEOC has used systematic litigation for years as way to grab headlines and pressure employers to change their policies, we can expect the DFEH to follow suit. The DFEH went to trial on some cases, although verdict results are not summarized publicly (the DFEH has not issued any press releases of DFEH jury wins from 2016).

Finally, in that the DFEH’s focus on litigation in 2016 (and 2015) was on disability and retaliation issues in employment and housing, California companies would be wise to review policies and practices on disability accommodation over the next year. Our firm is available to assist in that process and provide recommendations on how to best avoid DFEH scrutiny, and defend any civil action by the DFEH if necessary.

Edited by Colleen Regan.

Seyfarth Synopsis: On March 30, 2017, the California Fair Employment and Housing Council (“FEHC”) considered proposed regulations on transgender employees. The FEHC also discussed draft regulations on national origin discrimination in the workplace.

Transgender Identity. On March 30, 2017, the FEHC, convened in Sacramento for its second meeting of the year, voted unanimously to adopt proposed regulations on transgender identity and expression, which will go to the Office of Administrative Law for approval. We expect a final text in July. The FEHC first proposed these amended regulations in 2016, which we covered here.

Some highlights: the amended proposed regs would

  • prohibit employers from requiring applicants to disclose their sex, gender, gender identity or expression,
  • protect transitioning employees by expanding the definitions of gender identity and expression,
  • ensure that employees are addressed by their preferred name, gender, and pronoun, and
  • require employers to provide equal access to comparable, safe, and adequate bathrooms, locker rooms, and similar facilities.

Employers can familiarize themselves with the approved regulations now to anticipate questions that may arise in this context.

The FEHC heard public comment over a perceived conflict in bathroom signage required by the proposed regulations and pre-existing Cal-OSHA regulations. The proposed FEHC regulations, consistent with recently enacted legislation (discussed here), require that single-user bathrooms have gender-neutral signage. But the Cal-OSHA regulation, which predates both the FEHC regs and the recent legislation, calls for single-user bathrooms to be for a single gender. The conflict is one of perception only, as the Department of Industrial Relations has clarified that Cal-OSHA will not enforce its rule, and instead will follow the gender-neutral requirement found in the statute (and the proposed FEHC regs). We expect that other agencies may adopt the DIR’s approach, favoring transgender protections over conflicting pre-existing regulations.

Kevin Kish, Director of the Department of Fair Employment and Housing, confirmed the DFEH would consult with the Labor and Workforce Development Agency and Cal-OSHA to ensure consistency in the implementation and enforcement of the regulations.

National Origin Discrimination. The FEHC has also drafted proposed regulations regarding national origin discrimination in the workplace, following recommendations by Legal Aid at Work. The proposed regulations are still in their early stages; as yet, there has been no formal notice of the proposed regulations or a public hearing.

The proposed regulations largely track the EEOC’s new guidance on national origin, which we summarized in our Employment Law Lookout blog here. The draft FEHC regulations address these issues:

  • Defining national origin to include place of birth or ancestor’s place of birth, association or perceived association with a person of a national origin group or ethnicity, Native American Tribe, language, and accent.
  • Harassment and retaliation against undocumented workers.
  • Discrimination based on immigration status, accent, or English proficiency.
  • Workplace language restrictions.

Public comments have addressed the proposed provisions that would curb employer inquiry into an individual’s immigration status. The proposed regulations would permit such an inquiry only where clear and convincing evidence shows the inquiry is needed to comply with federal law. Based on further comment by Legal Aid at Work, we anticipate that further modifications may provide guidance on workplace language policies.

What’s Next? We expect to see more activity from the FEHC in the months ahead. The FEHC will likely revise its proposed regulations on national original discrimination before it issues formal notice of proposed action of the regulation. The FEHC also plans to expand its outreach efforts, seeking further comment from the public and civil rights groups to shape the FEHC’s future agenda. We will continue to monitor and report further developments.

Edited by Colleen Regan.

Seyfarth Synopsis: The Office of the California Labor Commissioner (aka the DLSE) recently issued an opinion letter explaining how employers should calculate sick pay for commissioned employees. Somewhat surprisingly, the letter counsels that the rate of sick time pay for these employees must be calculated using one of the schemes applicable to non-exempt employees—even if the commissioned employees qualify as exempt outside salespersons or as “commissioned employees.” 

On October 11, 2016, the DLSE issued an opinion letter regarding California’s Healthy Workplace Healthy Families Act of 2014.  As is usual with opinion letters, the DLSE was responding to a request for guidance from a cautious employer seeking to cure uncertainty about how to interpret a statute.  Opinion letters are binding only on the particular employer who asked the question, but the rest of the California employment world generally pays attention; the letters the DLSE choses to publish provide general insight into the DLSE’s approach.

The employer here wanted to know the correct way to calculate the rate of pay for sick leave taken by commissioned employees.  The  statute provides three alternative methods:

(1) Paid sick time for nonexempt employees shall be calculated in the same manner as the regular rate of pay for the workweek in which the employee uses paid sick time, whether or not the employee actually works overtime in that workweek.

(2) Paid sick time for nonexempt employees shall be calculated by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.

(3) Paid sick time for exempt employees shall be calculated in the same manner as the employer calculates wages for other forms of paid leave time. Labor Code section 246(K)(1)-(3).

Based on this plain language, it would seem reasonable for California employers to use the scheme of section 246(k)(3), as commissioned employees are often exempt from overtime under applicable standards. But the DLSE has a different view. The opinion letter explains that the term “exempt,” as used in in this section, refers only to those employees who satisfy both the salary and duties tests of the professional, executive, or administrative exemptions.  By this reading, the term “exempt” does not include those employees who are exempt from overtime under the outside sales exemption or commissioned employee exemption.

To qualify as an outside salesperson, an employee must “customarily and regularly work more than half the working time away from the employer’s place of business selling tangible or intangible items or obtaining orders or contracts for products, services or use of facilities.”  “Commissioned employees”  are persons working in the “Retail Industry” who earn more than one-half their compensation from commissions and whose  total compensation exceeds 1.5 times the minimum wage for each hour worked during the pay periodFor these employees, the DLSE says, employers should calculate sick time using one of the two sections applicable to nonexempt employees, even if they are actually exempt.

Workplace solution:  While the guidance may seem counter to the statutory language, the good news is that we now have some guidance.  To act consistently with the DLSE’s latest opinion, California employers should look to Labor Code sections 246(k)(1) or (2)—which articulate the two methods used to calculate sick pay for non-exempt employees—when determining how to appropriately calculate sick time for employees who receive commissions, even if they qualify as exempt from overtime as either an outside salesperson or a “commissioned employee.”

By: Kristina Launey and Courtney Bohl

On June 11, 2014, Northern District of California Judge Jon S. Tigar ruled that the California Department of Fair Employment and Housing (“DFEH”) has neither standing nor statutory authority to enforce Title I of the Americans with Disabilities Act (“ADA”).  The decision made clear that while the DFEH has had authority—since January 1, 2013 (as we noted here and here)—to bring enforcement actions directly in state and federal courts, that authority does not extend to federal claims of employment discrimination under Title I of the ADA.

In early 2014, the DFEH filed suit against WinCo Foods in the United States District Court for the Northern District of California, asserting multiple claims for disability discrimination and failure to accommodate under both the California Fair Employment and Housing Act (“FEHA”) and Title I of the ADA.  WinCo moved to dismiss the Complaint because (1) the DFEH’s enabling statute does not empower it to sue under Title I of the ADA, and, even if that authority did exist, (2) the DFEH lacks standing to bring ADA claims. 

Judge Tigar, in granting WinCo’s motion, extensively analyzed the FEHA and other applicable provisions of the California Government Code. Judge Tigar concluded that no law empowers the DFEH to enforce Title I of the ADA.  Judge Tigar reasoned that the FEHA is the exclusive source of the DFEH’s authority over employment claims and sets forth the full range of prosecutorial powers granted to the DFEH.  Since the FEHA does not expressly authorize the DFEH to prosecute Title I ADA claims, the DFEH lacks authority to do so. 

Judge Tigar rejected the DFEH’s argument that it has implied authority to bring ADA claims under Section 11180 of the California Government Code.  Section 11180 is incorporated into the FEHA and authorizes the head of each state department to prosecute actions concerning matters relating to the business activities and subjects under the jurisdiction of the department.  Judge Tigar held that the DFEH’s broad interpretation of Section 11180 would render redundant the 2013 legislation, that grants the DFEH authority to sue in state and federal courts.  

Judge Tigar also rejected the DFEH’s other arguments.  He reasoned that the FEHA’s grant of authority to sue in federal court is a venue provision only; it does not, as the DFEH argued, authorize the DFEH to prosecute federal claims.  He also rejected the DFEH’s reliance on the California Code of Regulations and a Worksharing Agreement between the DFEH and EEOC.  Only the DFEH’s enabling statute (the FEHA) can authorize the DFEH to prosecute federal claims—not the agency’s own actions—and the FEHA does not do so.  

Finally, Judge Tigar held that the DFEH lacks standing to bring Title I ADA claims under either traditional Article III standing or the doctrine of parens patriae (a rarely invoked doctrine that confers standing upon states to protect quasi-sovereign interests under certain circumstances).   Judge Tigar found that the DFEH cannot show the necessary injury in fact to establish traditional standing, reasoning that since the DFEH lacks statutory authorization to prosecute Title I ADA violations, it has no legally protected interest that could be invaded.  The Court also held that the DFEH cannot stand in the shoes of the “State” to assert parens patriae standing on behalf of the State of California to enforce the ADA claims because State of California did not give the DFEH this authority. 

Dealing with administrative agencies in California can be daunting, especially now that the DFEH is able to bring actions seeking attorneys’ fees, costs, and damages in federal or state court.  Employers can take heart that the DFEH’s authority is not without limits, and courts will not be afraid to enforce those limits when the DFEH attempts to overreach.

Edited by Chelsea Mesa

By Michael Wahlander and Charles O. Thompson

Last week, California’s Employee Development Department (“EDD”) released California’s most recent unemployment figures, for March 2014 (8.1%) (See here). This number remained unchanged from February 2014 and was a decrease from 9.2% in March 2013.  While these numbers seem encouraging, it still means that many Californians are out of work.  This got us thinking about a common predicament facing employers, whether or not to appeal an award on unemployment benefits.

You’re fired!  That’s good-bye, right?  It is a situation that employers often face — finally reaching the last straw with a problematic employee, terminating him for misconduct, breathing that sigh of relief, and then receiving notice that the same employee filed a request for unemployment benefits with the EDD (See here). In response, you fill out a notice with the myriad reasons this guy couldn’t remain employed, with full confidence he won’t get any benefits based on his nefarious deeds.  But lo and behold, the next thing you know, here comes a surprise notice from the EDD: “Please be advised that the EDD has awarded your former employee, Mr. Slacker Uptonogood, unemployment benefits!”

So what’s your next move?  Once the steam leaves your ears, you have the option to appeal the ruling (See here). Alternatively, Continue Reading The WORST Former Employee Just Got Unemployment Benefits – Should I Appeal?

By Joshua M. Henderson

Consider this not-so-hypothetical example.  An employer in California receives a citation from Cal/OSHA for a relatively minor safety violation involving no employee injuries.  Maybe the citation was for inadequate training on a particular workplace hazard.  The citation carries with it a penalty of $500.  The employer could appeal the citation, and spend perhaps thousands of dollars to challenge the citation through a hearing before an Administrative Law Judge; or, it could write a check for $500, agree to fix the violation, and be done with it.  In this light, the former response may seem extravagant, while the latter response could be seen as a rational business decision.  

Now, fast forward two years from the date that the employer spent $500 to make that previous violation go away.  The employer abated the prior violation by adequately training its employees shortly after paying the penalty.  A newly-hired employee, however, failed to receive training on the same workplace hazard and suffered a serious injury when exposed to the hazard.  After its investigation, the Division of Occupational Safety and Health (the investigative and prosecutorial arm of Cal/OSHA) cites the employer for a “repeat” violation.  A “repeat” violation carries with it a significant increase in penalties: that $500 penalty now transforms into a serious, repeat violation  with a penalty of up to $36,000.  If the untrained employee had been killed, the employer would face a repeat penalty amount of up to $50,000, and the employer (and the responsible managers) would face potential criminal liability.

This is not a fanciful scenario.  Under Cal/OSHA, employers are required to have an Injury and Illness Prevention Program (IIPP) in place to identify and respond to particular hazards in a workplace.  In addition, the IIPP regulation mandates that employers train their employees on the hazards in the workplace.  Yet, employers may be lulled into settling a Cal/OSHA citation by a short-term cost-benefit analysis of a particular citation and its accompanying penalties.  But, except perhaps where an employer is in financial distress, the penalties should not be an employer’s chief concern.  Instead, the focus should be on answering these questions: Continue Reading Cal/OSHA Considers Changes to Its Policy on “Repeat” Violations — With Significant Implications for Employers

While the Stakes At Issue In Actions Before the DLSE Continue to Grow, So Do The Deterrents And Obstacles to Pursuing Appeals of DLSE Orders in Court

By John R. Giovannone

Last week, the DLSE dropped a bomb.  On April 3, 2014 the California Division of Labor Standards Enforcement (“DLSE”) issued a News Release on its website with the tag line “California Labor Commissioner orders Southern California Company to return over $336,000 to janitorial workers for unpaid wages.”  The order, which also imposed over $33,000 in penalty assessments, addressed claims of wage and meal/rest break violations on behalf of roughly 115 hourly workers over a three year period.  Setting aside the merits of the action, a liability finding of that magnitude in court would ordinarily result in the employer running to appeal.  But, the chances of an appeal are considerably lower here because the liability finding was issued by the DLSE.     

Why don’t more employers appeal adverse DLSE Decisions?  Historically, employers facing adverse orders, decisions, or awards of from the DLSE wouldn’t appeal those decisions in court for reasons that have little to do with the merits of their would-be de novo appeal, such as: Continue Reading Wait — If I Want To Appeal, I Have To Come Up With How Much How Fast?