Dealing with CA Agencies

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?

This week’s post is the first in a four-part blog series entitled Dealing with California Agencies.  Here, we highlight recent developments at the California Department of Fair Employment and Housing (“DFEH”). 

DFEH 2.0: How to Deal with the Rebooted DFEH

By Kristina Launey and Courtney Bohl

The DFEH recently received an “update” to its authority to enforce the California Fair Employment and Housing Act (“FEHA”).  As we previously reported, effective January 1, 2013, the Fair Employment and Housing Commission was eliminated, as well as its ability to adjudicate claims.  Instead, the DFEH is now authorized to file cases directly in court, seek damages, and to collect attorneys’ fees and costs.  The DFEH has made very clear it intends to use every “byte” of its  authority to prosecute suspected and “systemic” violators, and seek fees, costs, and damages.  

Employers beware.  The DFEH’s promise to flex its newly-found muscle brings an increased need to tread cautiously with the DFEH.  Below is a brief look into the “new and improved” DFEH as well as few tips to help employers deal with DFEH 2.0.

The Background:

The DFEH’s new authority came on the heels of two game changing decisions — Wal-Mart Stores, Inc. v. Dukes (which we blogged about here and here) and DFEH v. LSAC (which we blogged about here and here).  

Emboldened by the LSAC decision, the DFEH has expressed an intention to file class actions challenging systemic discrimination under the FEHA.  To help it carry out its mission, it upgraded its systems to include:
Continue Reading Dealing with CA Agencies Blog Series – DFEH 2.0: How to Deal with the Rebooted DFEH