Dealing with CA Agencies

Seyfarth Synopsis: The California Department of Fair Employment and Housing issues a yearly report describing its complaint and litigation trends. Below is the Reader’s Digest™ version.

The DFEH recently issued its 2017 Annual Report covering its fifth year in active litigation. In 2013, the California Legislature authorized the DFEH to file lawsuits under

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

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

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

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

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

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

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

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,
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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:
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