In our September 8, 2016 monthly webinar, special guest speaker Senior Staff Counsel IV Phoebe P. Liu from the California Department of Fair Employment & Housing (“DFEH”) provided an overview of DFEH and recent trends in employment. This month’s webinar was a Worthy Cause® Webinar with all net proceeds donated to Court Appointed Special Advocates for Children (“CASA”).

Here are a few highlights:

Equal Pay Act-Labor Code section 1197.5
California Fair Pay Act, effective April 1, 2016, amends the Equal Pay Act requiring equal pay for employees who perform substantially similar work when viewed as a composite of skill, effort and responsibility. The amendment replaces a comparison of “equal work” with a comparison of “substantially similar work.”

Department of Fair Employment and Housing Overview
DFEH is California’s civil rights agency. The Mission of DFEH is to protect Californians from employment, housing & public accommodation discrimination and hate violence. DFEH receives, investigates, conciliates, mediates, and prosecutes complaints in employment, housing and public accommodations. State laws enforced by DFEH include Fair Employment and Housing Act, Unruh Civil Rights Act, Disabled Persons Act and the Ralph Civil Rights Act.

In 2015, DFEH received a total of 20,505 employment discrimination claim cases. The top three employment claim categories filed were retaliation, disability harassment/discrimination (which include mental, physical and medical condition) and color/race harassment/discrimination.

DFEH is the State equivalent to the EEOC for employment discrimination complaints. DFEH, like the EEOC, provides right to sue letters. Getting a right-to-sue letter from DFEH will effectively exhaust administrative remedies and allow the Complainant to proceed directly to civil court. If a Complainant does not want DFEH to investigate, DFEH will issue a right-to-sue letter immediately without investigating the claims.

For those who do not want to immediately go to court, DFEH will investigate the claims. If DFEH finds that there is no violation of the law – a “no merit” finding – the Complainant is still issued an automatic right-to-sue letter and can proceed with his or her own lawsuit. If there is a merit finding, DFEH is required to do mandatory dispute resolution before filing a lawsuit.

Ms. Liu provided some practical advice for working with DFEH:

DFEH Administrative Discovery
DFEH is entitled to serve administrative discovery in cases where information is not received from respondent employer. Respondents should respond promptly to an initial notice of filing of the complaint and give DFEH the documents they need so DFEH does not need to go through administrative discovery, thereby saving everyone time.

DFEH Investigative File
After the investigation is closed, a redacted copy of the investigation file is available. This is a good way for attorneys and/or the parties to get free discovery.

Tolling Agreement
Tolling agreements extend the time for DFEH to bring the lawsuit and provides DFEH with more time to investigate. Not signing the agreement may result in moving forward on incomplete information if looks like there might be a violation of the civil rights law.

Mediation
DFEH is required to do mandatory dispute of resolution prior to filing a civil lawsuit. Cases that settle at mediation are confidential. There is no guarantee of confidentiality of the settlement if a lawsuit is filed. Settlements at this point are only between the Respondent and Complainant. Settlement offers at mediation typically are not revived after a civil case is filed.

If no lawsuit has been filed, DFEH is not a party to the lawsuit and does not seek attorney’s fees at the mediation. However, if DFEH files a civil lawsuit, it will seek attorney fees at market rate and costs.

Real Party in Interest
If DFEH files a lawsuit, DFEH is the plaintiff in the lawsuit. The Complainant is a real party in interest and is not a party to the case. Therefore, the Complainant is not subject to the normal discovery of a party in the case. Also, DFEH as a plaintiff is entitled to part of the settlement.

Biggest Mistakes that an Employer can make in Responding to DFEH Complaint or Request for Information
The biggest mistake that an employer can make is ignoring the request! Ignoring the request slows the investigation down and makes the investigation one-sided because only the complainant is providing the information. Failure to respond speeds up the administrative process and results in immediate discovery steps. DFEH will serve discovery requests on the employer and will seek the court’s help to enforce subpoenas and other requests.

When responding to a DFEH complaint, an employer should reply with candor and be cooperative. The investigation is a neutral and objective process; DFEH does not take a position and is only gathering information. An employer should reply with its position and provide documents that would be helpful to the investigation, such as personnel files, policies, employee handbooks, and whether an internal investigation was done and its conclusion. The more information provided, the more objective the investigation will be.

THE NEXT SHLC MONTHLY WEBINAR
Join us on October 4th for our next monthly webinar. We will welcome special guest Jason Gabhart, Director of Government Affairs for CalSHRM to discuss California Employment Legislation and New Laws in 2017.
Please visit https://suttonhague.com/events/ to view our entire 2016 webinar series. CDs and MP3 recordings of our webinars are available for purchase for $30! For more information you can email mailto:events@suttonhague.com.