A DYNAMIC, FAST PACED COURSE…

Packed with SKILL BUILDING and SPECIFIC “HOW TO” STRATEGIES that you can use immediately

Managers and supervisors face many challenges, but few are as unwelcome and emotionally charged as the difficult and awkward conversations we must have with employees who require re-direction, correction or firm confrontation about the quality of their work or their behavior on the job.

Much of effective management is setting expectations, assigning work, giving performance feedback, delegating, recognizing good work, reprimanding, and progressive discipline. Each of these management functions requires us to communicate with precision and honesty and to do so in such a way that others can clearly understand without feeling defensive or attacked, especially if what we are communicating includes something negative.

The focus in this workshop is on ‘what to say’ during these “difficult ” conversations related to employee performance. We will also discuss the issues you must take into account and provide a model for each type of conversation. Learn how to be direct and appropriately firm, but remain supportive and motivate your employees at the same time.

This webinar will give strategies for how to talk with others about awkward and difficult topics in ways that gain their cooperation and reduce stress and anxiety for you.

Among the problems that Managers need to addressed are…

–an employee’s failure to complete work in a timely manner

–lack of initiative

–criticism or antagonism directed at co-workers

–reluctance to take advice and direction

–a person’s work is unsatisfactory, but the employee doesn’t agree there is a problem

Topics include:

• Coaching as conversational format for managing employee performance
• How the coaching approach takes the difficulty out of the performance conversation
• Why Supervisors and Managers need to learn coaching skills as a Core Competency
• What coaching is not
• Finding the balance between hands off vs. micromanaging
• Build time in for coaching into your schedule with five minute coaching
• Setting clear expectations for employees
• Addressing performance gaps
• Eliminating victim mentality
• Defensive producing vs. supportive statements
• Countering defensive behavior
• Strategies for giving constructive feedback
• Four stages of progressive coaching

ACCORD Mediation Services is an employee relations consulting and training firm that provides continuing education and professional development training in negotiation and conflict management, including management training and development as well as skill building workshops for departments and work groups.

Gina Rae Hendrickson, CEO, is a highly acclaimed trainer and teaches Core Competency Workshops. Her areas of specialty include negotiation, conflict management, change management, ending the blame culture, creating learning organizations, team development; and management training. As a negotiation coach, Gina Rae assists managers and supervisors with developing negotiation and leadership skills. She provides professional development programs for University of California at Santa Barbara, College of the Canyons, and Ventura Community College District.

Gina Rae shares her trade secrets as a professional negotiator and mediator who has successfully resolved over 1,700 workplace disputes. Her clients include the US Postal Service, US Forest Service and the State of California. Gina Rae has appeared on National Public Radio, CNN and various regional talk radio programs.

Thousands of participants in Gina Rae’s classroom join in hearty unison to say that her trainings transformed their lives and raised the bar for their negotiation skills exponentially as they meet their challenges with confidence.

Ms. Hendrickson is a graduate of the Harvard Program on Negotiation and a Certified Practitioner in Neuro Linguistic Programming, which is the study of communication and how people receive information and organize their thinking for learning.

Dear Participants:

I know what a tough job management is, particularly in dealing with employee performance. Sometimes managers just need more of the ‘HOW TOs’ – of what to say to an employee with a performance problem.

I know that your time is extremely valuable so I promise to make this a worthwhile use of your day. If you want to become a more effective, skilled manager, then please attend this workshop. My goal is to make your life easier, sending you out with a set of tools that you can easily use when you return to your organization. Gina Rae Hendrickson/course instructor

Employers continue to evaluate whether to even have that party and associated expense.  We recommend you reinvent the office party concept and try something new like a lunch event, group outing to an amusement park or volunteer activity with a local charity.

And the formal party isn’t always what employees enjoy the most.  At YPP, the CEO’s have cooked lunch for our employees for the last several years, and that’s been just as much fun as when we did more elaborate evening parties – and far less risky since we don’t serve alcohol.

However you choose to celebrate the holidays with your employees this year, we want you to have a bright and “HR Safe” holiday season.  We have a few tips to help our employers avoid the biggest holiday party danger zones, alcohol and sexual harassment.

Alcohol

The following tips were prepared by the U.S. Department of Labor, Working Partners for an Alcohol and Drug Free Workplace in an attempt to assist employers in minimizing negative consequences of alcohol consumption at their holiday parties.

• Be honest with employees. Make sure your employees know your workplace substance abuse policy and that the policy addresses the use of alcoholic beverages in any work-related situation and office social function.
• Post the policy. Use every communication vehicle to make sure your employees know the policy.  Prior to an office party, use break room bulletin boards, office e-mail and paycheck envelopes to communicate your policy and concerns.
• Make sure employees know when to say when.  If you do serve alcohol at an office event, make sure all employees know that they are welcome to attend and have a good time, but they are expected to act responsibly.
• Make it the office party of choice.  Make sure there are plenty of non-alcoholic beverages available.

• Eat…and be merry!  Avoid serving lots of salty, greasy or sweet foods which tend to make people thirsty.  Serve foods rich in starch and protein which stay in the stomach longer and slow down the absorption of alcohol in the bloodstream.
• Designate party managers.  Remind managers that even at the office party, they may need to implement the company’s alcohol and substance abuse policy.
• Arrange alternative transportation.  Anticipate the need for alternative transportation for all party goers and make special transportation arrangements in advance of the party.  Encourage all employees to make use of the alternative transportation if they consume any alcohol.
• Serve none for the road.  Stop serving alcohol before the party officially ends. Employers are encouraged to review their company policies regarding alcohol consumption and furthermore, to enforce their policies at all company celebrations.

Sexual Harassment

With or without too much alcohol a holiday party or holiday events such as “secret santa” or gift exchanges can become the opportunity for sexual harassment claims.  As a California employer you must know that State law forbids sexual harassment under FEHA and Government Code section 12940.

The California Fair Employment and Housing Commission (FEHC) enforces FEHA law and has found sexual harassment to include:

• Verbal harassment, such as epithets, derogatory comments, or slurs;
• Physical harassment, such as assault or physical interference with movement or work; and
• Visual harassment, such as derogatory cartoons, drawings, or posters.

As an employer what can you do to help minimize the risk?  The following tips can help you avoid holiday party harassment liability:

• Remind employees beforehand that their liability for sexual harassment applies at all times, including during the party.

• Make sure your supervisors’ sexual harassment training is up to date, and you may want to redistribute the company’s sexual harassment and substance abuse policies to everyone a week or so before the party.

• If you know or suspect someone in your organization is putting you at risk for a sexual harassment claim take steps now to address it now, don’t wait until it is too late.

YPP HR Managers can help you in planning an “HR Safe” holiday celebration.  We want you to enjoy the season knowing you have done everything possible to avoid a post holiday legal hangover.

“All people want to talk about is the stupid 1BY form,” Martin commented at the 2011 professional development conference of the American Society of Safety Engineers’ Sacramento chapter. “Nobody cares about that.” Instead, she urged safety professionals to pay close attention to what she says is the “heart” of the 2010 law that changed the way DOSH cites employers for serious violations: the “rebuttable presumption.” That’s the provision that makes it far easier for Cal/OSHA to cite for a serious violation than under the previous rules.

She also admitted that the much-ballyhooed law isn’t written very well. It’s a prosecutorial admission every defense attorney will be delighted to hear – and use against DOSH’s cases. She went on…

AB 2774 establishes a “rebuttable presumption” that a serious violation exists if DOSH can show a “realistic possibility” that death or serious physical harm could result from the workplace hazard. Under the former California Labor Code definition, a serious violation could only be upheld if DOSH could show a “substantial probability” of death or serious harm from the violation, a bar the Division said was almost impossible to meet.

DOSH has issued more than 1,600 serious violations under the AB 2774 rules in 2011. The cases are winding their way through the process. Many will end up before the Cal/OSH Appeals Board. But Martin urged employers to become very familiar with the new rules:

“You should sit down and read [AB 2774] very carefully,” she told the ASSE audience, “Why? Because it’s not clear.”

The prosecutor noted that the term “realistic possibility” is defined nowhere, and ultimately it will be up to the Appeals Board to decide how it is applied. The phrase was crafted by a coalition of stakeholders, including Cal/OSHA, employer representatives and labor unions. “We made it up,” she admitted. The law and language was shepherded through the process by former Chief Len Welsh who negotiated the deal between the stakeholders.

But she also noted that the law codified an “affirmative defense” for employers. An employer may rebut a serious allegation by demonstrating that it did not know and could not have known of the violation with reasonable diligence. It also requires the employer to show it took “all the steps a reasonable and responsible employer in like circumstances should be expected to take.”

As for the “stupid” 1BY forms, which DOSH must issue before actually issuing a serious citation, giving the employer a chance to make its case that it doesn’t deserve a serious violation, Martin said DOSH does not have data on the percentage of such forms that actually dissuaded Cal/OSHA from serious citations. “I know that communication is happening,” though, she said. She disputed allegations from one employer-allied defense attorney that Cal/OSHA inspectors and even district managers are actually are ignoring the form and consider it useless. “They are not ignoring it,” Martin said, but not until after she said “nobody cares about it.”

On October 10, 2011, the Office of California Governor Jerry Brown announced that Governor Brown had signed AB 22, legislation that adds a new provision to the California Labor Code and amends the state’s Consumer Credit Reporting Agencies Act (CCRAA)¹ to restrict the discretion that private and public sector employers have to use “consumer credit reports”² for hiring and personnel decisions. Together, the new laws, which take effect on January 1, 2012, limit when employers lawfully can use consumer credit reports and impose notice and disclosure obligations on employers who intend to do so.

AB 22 is similar to the laws in six other states: Hawaii, Washington, Oregon, Illinois, Maryland and Connecticut. Given that several other states and the federal government are considering comparable legislation, it is likely this trend will continue. In fact, the Equal Employment Opportunity Commission (EEOC) is actively investigating use of credit reports by employers and presently is litigating disparate impact lawsuits against employers in federal court in Maryland and Ohio. Employers who use credit reports for employment purposes in any of these seven states therefore should review, and, if appropriate, modify their policies for compliance, and all employers should continue to stay abreast of additional developments in this dynamic area of employment law.

New Labor Code Section 1024.5

New Labor Code section 1024.5 limits when private and public sector employers, except for financial institutions, lawfully can use consumer credit reports in connection with hiring and personnel decisions. Specifically, employers are permitted to use consumer credit reports only if the individual is applying for or works (or will work) in the following positions:

• a managerial position (as the term elsewhere is defined by California law);
• a position in the State Department of Justice;
• a sworn peace officer or law enforcement position;
• a position for which the employer is required by law to consider credit history information;
• a position that affords regular access to bank or credit card account information, Social Security numbers, or dates of birth, provided, however, that the access to this information does not merely involve routine solicitation and processing of credit card applications in a retail establishment;
• a position where the individual is or will be a named signatory on the bank or credit card account of the employer and/or authorized to transfer money or authorized to enter into financial contracts on the employer’s behalf;
• a position that affords access to confidential or proprietary information; or
• a position that affords regular access during the workday to the employer’s, a customer’s or a client’s cash totaling at least $10,000.

Labor Code section 1024.5 does not establish an independent remedy for violations of the statute. It would appear, however, that a remedy (civil penalty) may be provided by the California Private Attorneys General Act of 2004 (PAGA).³ Claims for PAGA penalties, which are subject to a one-year statute of limitations, cannot be filed in court without first providing notice to the California Labor Workforce Development Agency (LWDA).

Amended Civil Code Section 1785.20.5

The CCRAA, like its federal counterpart, the Fair Credit Reporting Act (FCRA),⁴ is triggered when an employer orders a consumer credit report from a vendor (commonly known as “consumer reporting agencies”) for employment purposes.⁵ Both statutes generally require: (1) advance consent from the individual to order the credit report; (2) notice to the individual of the intended use of the report; and (3) notice to the individual if the report’s contents negatively impact his or her employment opportunities (commonly known as “adverse action letters”).

Section 1024.5, as amended by AB 22, imposes an additional notice obligation on employers that use consumer credit reports to screen job applicants and employees. Specifically, before ordering a consumer credit report concerning a job applicant or employee, the employer must notify the individual in writing of the basis under Labor Code section 1024.5 for permissibly using the consumer credit report (e.g., because the individual is applying for or holds a managerial position, etc.).

Civil Code section 1785.31 provides a remedy for “negligent” and “willful” violations of the CCRAA. An individual who suffers damages as a result of the violation can recover actual damages, including attorney’s fees and court costs, as well as punitive damages up to a maximum amount of $5,000 for willful violations.

² The CCRAA states in pertinent part: “‘Consumer credit report’ means any written, oral, or other communication of any information by a consumer credit reporting agency bearing on a consumer’s credit worthiness, credit standing, or credit capacity, which is used or is expected to be used, or collected in whole or in part, for the purpose of serving as a factor in establishing the consumer’s eligibility for: . . . employment purposes . . . .” Cal. Civ. Code § 1785.3(c). AB 22 states that the term consumer credit report “does not include a report that (A) verifies income or employment, and (B) does not include credit-related information, such as credit history, credit score, or credit record.”

³ Cal. Lab. Code § 2699 et seq.

⁴ 15 U.S.C. § 1681 et seq.

⁵ The companion statute to the CCRAA, the California Investigative Consumer Credit Reporting Agencies Act (ICRAA), regulates the use of information other than credit reports, including criminal background check reports. Cal. Civ. Code § 1786 et seq.

Summary and Important Points

1.     Before January 1, 2012, employers operating in California that use consumer credit reports for employment purposes should evaluate whether they are subject to Labor Code section 1024.5, and, if so, which provisions, if any, they can invoke to justify the screening.

2.     Multi-state employers also should evaluate compliance with the laws in the six other states that regulate the use of credit history information by employers: Hawaii, Washington, Oregon, Illinois, Maryland and Connecticut.

3.     All employers also should continue to monitor efforts in Congress to regulate the use of credit history information and advisory guidance from, and litigation initiated by, the EEOC.

4.     Employers also should evaluate the sufficiency of the paperwork they use in conjunction with their screening procedures (e.g., consent forms) and modify the paperwork as needed to incorporate the notice mandated by Labor Code section 1024.5. Regarding consent forms, employers should be aware of a related and modest amendment to the CCRAA’s companion statute, the Investigative Consumer Reporting Agencies Act.

5.     Effective January 1, 2012, employers that order background reports other than consumer credit reports (e.g., criminal background reports, motor vehicle reports, etc.) must notify job applicants and employees of the Internet website address of the consumer reporting agency, or, if the agency has no Internet website address, the telephone number of the agency where the individual can find information about the agency’s privacy practices (see Cal. Civ. Code § 1786.22).

6.     Due to a recent and significant spike in class action litigation under the federal law, the Fair Credit Reporting Act (FCRA), employers also are advised to evaluate their compliance with the FCRA.

Legal Update

This update is provided by Gary W. Bethel and Littler Mendelson in order to review the latest developments in employment law. This update is designed to provide accurate and informative information and should not be considered legal advice. © 2011 Littler Mendelson. All rights reserved.

By
Gary W. Bethel

October 2011

California Governor Jerry Brown recently signed sweeping legislation aimed at affording pregnant women certain employment and insurance protections. Two sets of companion legislation, SB 299 and AB 592, along with SB 222 and AB 210, attempt to ensure that all pregnant women maintain their insurance benefits while on pregnancy-related leaves. The new laws may significantly impact small and large employers alike. Small employers may be impacted by potential increased costs under their health care plans. Larger employers may also be impacted due to the increased period of time that health benefits must be provided to an employee on pregnancy-related leave.

SB 299 and AB 592

Previously, California law only mandated that an employer maintain health benefits for an employee while on a pregnancy disability leave (“PDL”) to the same extent health benefits were maintained for employees on other medical or disability-related leaves. Now, SB 299 and AB 592 have amended the California Fair Employment and Housing Act’s pregnancy disability provisions to mandate that employers provide pregnant employees the same level of insurance benefits during their pregnancy-related leave as they were provided prior to taking the leave. Under the law, the employer may provide greater benefits, for example, providing benefits for more than the four-month period of time the employee is allowed leave under the Act. However, in no event may the employer maintain the health benefits for a period of time less than the four-month period. The amendments take effect January 1, 2012.

At first blush, this may not appear to be that significant of a change in the law.  Specifically, if an employer is covered by the federal Family and Medical Leave Act (FMLA) and the employee is eligible for such leave, then the first 12 weeks of insurance benefits must already be afforded at the pre-leave level under that law. However, the expanse of the new law is much greater.

First, an employee who begins a PDL, but does not become eligible for leave under the FMLA and/or the California Family Rights Act (CFRA) sometime after the PDL has begun, may nevertheless be eligible to receive continued health benefits coverage for a maximum period of seven months – up to four months under the new law and up to 12 weeks under the FMLA and/or the CFRA. This situation could happen when the employee receives health benefits coverage under the new law, then becomes eligible for FMLA, which requires that leave (and related benefits) start when one becomes eligible for FMLA no matter whether the employer voluntarily or under state law provided leave to the employee in question prior to that time.

Second, California’s pregnancy disability leave law applies to employers with five or more employees. Hence, this amendment requires small employers to provide continued health benefits to individuals on pregnancy-related disability leave. This is significantly different from the FMLA, which only requires that such benefits be provided by employers with 50 or more employees within a 75-mile radius of where the employee requesting the leave works.

Third, California’s pregnancy disability leave laws apply to all employees, regardless of tenure with the employer. Again, this is significantly different from the reach of the FMLA, which requires at least one year of employment and 1,250 hours of work within that year for an employee to be eligible for the benefit.

Equally disconcerting, especially for small employers that may not believe they can afford health benefits coverage including maternity-related benefits, is the apparent mandate that the employer maintain the insurance coverage. While the amended statute contains language that the employer must afford the benefit at the same level as was provided prior to the leave, it is clear that the intent of the legislation is to ensure that all employees have medical insurance benefits that cover maternity-related events. Hence, this statute is mandating that all employers that offer health insurance to their employees, including small employers with five or more employees, maintain and pay for medical insurance for pregnant employees who have elected coverage under their employer’s health plan.

Under certain circumstances, the employer may recover the amounts paid for the benefits now required under the amendments. First, the employer may recover the amounts paid if the employee fails to return to work for reasons other than taking additional leave afforded under the CFRA. For better or worse, however, in most circumstances, the additional leave taken by an employee will be “bonding leave” after recovery from the pregnancy-related disability, and thus afforded under the CFRA. In that situation, the employer would not be able to recover the amounts paid for benefits. Second, if the employee does not return to work for reasons other than taking protected leave, and the reason for not returning was within the employee’s control (such as finding another job or electing not to retun to the workforce), the employer may recover the amounts paid.

From the legislative history, it is evident that the amendments were proposed, in part, to alleviate the concern that pregnancy-related medical costs can be expensive, and should be insured. In order to “guarantee” this, additional legislation was also enacted related to insurance companies.

SB 222 and AB 210

Signed at the same time as SB 299/AB592, SB 222 and AB 210 became law. These two bills amend the California Insurance Code to mandate that all individual health insurance policies must provide coverage for maternity services for all insureds covered under the policy. Under existing law, if a health insurer provides maternity coverage, it may not restrict inpatient hospital benefits. The change in law, however, actually mandates that the maternity coverage be provided. This law takes effect July 1, 2012.

Read together, the new laws mandate that insurance companies provide maternity/pregnancy benefits and employers, in turn, maintain that insurance for their employees who have chosen coverage under their employer’s health plan.

This “one-two” punch change in law is akin to the changes made in 2005 regarding domestic partnerships. Then-California Governor Arnold Schwarzenegger signed into law the California Insurance Equality Act and the California Domestic Partner Rights and Responsibilities Act. Read together, those laws mandated that insurance companies that offer to employers insurance policies containing spousal benefits provide the same level of coverage to registered domestic partners and their children. Because employers could not, by law, find an insurance policy that would not cover domestic partners, if an employer chose to provide insurance benefits to its employees’ spouses, it would have to cover domestic partners. Similarly, under SB 222 and AB 210, all California employers who provide health insurance to employees must, by law, cover maternity/pregnancy benefits under that health insurance plan.

Summary and Important Points

1. The passage of these pregnancy-related insurance coverage amendments will have a significant impact on all employers, particularly employers with fewer than 50 employees, especially in these troubling economic times.

2. All employers will need to update their employee handbook leave of absence policies to address the changes mandated by this legislation. For employers with 50 or more employees the employee handbook changes will be needed for both the FMLA eligible and non-FMLA eligible employees medical leave of absence policies.  For employers with less than 50 employees the employee handbook changes will be needed in the medical leave of absence policy.

3. Remember, you can no longer treat pregnancy disability leave, like an industrial (workers’ comp) or non-industrial medical leave of absence when it comes to continuation of healthcare insurance continuation. You will need to educate HR or whoever handles these issues within your company. Employers should discuss any questions regarding the impact of these changes with employment law counsel.

4. You will need to update your employee handbook for 2012 to address this change.

Legal Update

This update is provided by Gary W. Bethel and Littler Mendelson in order to review the latest developments in employment law. This update is designed to provide accurate and informative information and should not be considered legal advice. © 2011 Littler Mendelson. All rights reserved.

By
Gary W. Bethel

“Welcome to Heaven,” said St. Peter. “Before you get settled in though, it seems we have a problem. You see, strangely enough, we’ve never once had a Human Resources Manager make it this far and we’re not really sure what to do with you.”

“No problem, just let me in,” said the woman.

“Well, I’d like to, but I have higher orders. What we’re going to do is let you have a day in Hell and a day in Heaven and then you can choose whichever one you want to spend an eternity in.”

“Actually, I think I’ve made up my mind, I prefer to stay in Heaven”, said the woman “Sorry, we have rules…” And with that St. Peter put the executive in an elevator and it went down-down-down to hell.

The doors opened and she found herself stepping out onto the putting green of a beautiful golf course. In the distance was a country club and standing in front of her were all her friends – fellow executives that she had worked with and they were well dressed in evening gowns and cheering for her.

They ran up and kissed her on both cheeks and they talked about old times. They played an excellent round of golf and at night went to the country club where she enjoyed ! an excellent steak and lobster dinner. She met the Devil who was actually a really nice guy (kind of cute) and she had a great time telling jokes and dancing. She was having such a good time that before she knew it, it was time to leave. Everybody shook her hand and waved goodbye as she got on the elevator.

The elevator went up-up-up and opened back up at the Pearly Gates and found St.Peter waiting for her. “Now it’s time to spend a day in heaven,” he said.

So she spent the next 24hours lounging around on clouds and playing the harp and singing. She had great time and before she knew it her 24 hours were up and St. Peter came and got her.

“So, you’ve spent a day in hell and you’ve spent a day in heaven. Now you must choose your eternity,” The woman paused for a second and then replied, “Well, I never thought I’d say this, I mean, Heaven has been really great and all, but I think I had a better time in Hell.”

So St. Peter escorted her to the elevator and again she went down-down-down back to Hell. When the doors of the elevator opened she found herself standing in a desolate wasteland covered in garbage and filth. She saw her friends were dressed in rags ! and were picking up the garbage and putting it in sacks. The Devil came up to her and put his arm around her.

“I don’t understand,” stammered the woman, “yesterday I was here and there was a golf course and a country club and we ate lobster and we danced and had a great time. Now all there is a wasteland of garbage and all my friends look miserable.”

The Devil looked at her smiled and told…

” Yesterday we were recruiting you, today you’re an Employee. ..”

By
Gary W. Bethel

California DFEH’s New Procedural Regulations Will Facilitate the Claims Process for Employees

The following article is by Littler attorney Margaret Gillespie.

Please see my Summary and Important Points below.

September 2011

In early 2010, California’s Department of Fair Employment and Housing (DFEH) proposed a series of new procedural regulations to govern the receipt, investigation, and conciliation of administrative complaints received by the department. Following a series of public hearings and a public comment period, the final regulations now have been approved by the Office of Administrative Law and filed with the Secretary of State. They will go into effect on October 7, 2011, and are codified at Title 2, California Code of Regulations, sections 10000 through 10066.

According to the DFEH, these new regulations were meant to “capture and replace” its directives on the handling of administrative complaints, so as to formally adopt its procedures. In fact, however, these new regulations will change the DFEH’s administrative procedures in several significant respects. The new procedures are part of a broader effort by the current head of the DFEH, Phyllis Cheng, to redirect the department’s limited resources away from individual complaints and towards “high impact” cases of systemic discrimination.

Statutory Requirements for Filing an Administrative Complaint with the DFEH

Pursuant to California Government Code section 12960, a person claiming a violation of California’s Fair Employment and Housing Act (FEHA) first must submit a complaint to the DFEH and exhaust his or her administrative remedies before filing a lawsuit in court. Once the claimant has exhausted his or her administrative remedies, the DFEH issues a “right-to-sue” letter permitting the claimant to proceed with a lawsuit.

By statute, the administrative complaint filed with the DFEH must be: (1) verified; (2) in writing; (3) comprised of facts that would give rise to a violation of FEHA; and (4) filed within one year of the date of the alleged violation.

Each of these basic statutory requirements is affected by the DFEH’s new procedural regulations. Although the DFEH has no authority to modify statutory requirements, its new procedural regulations make it much easier for claimants to satisfy them. As a result, employers should expect more claimants to exhaust the administrative process with little, if any, DFEH involvement.

DFEH’s New Procedural Regulations Ease the Way for Claimants

The changes lower the bar on exhausting administrative remedies. The new procedural regulations will make it much easier for claimants to file a complaint to initiate a DFEH investigation. Additionally, once a complaint is accepted, the issuance of a right-to-sue letter is automatic upon request, thereby permitting individuals to, in effect, bypass the administrative process. Changes to the claim filing process and administrative procedures include:

• Verification: Despite the statutory requirement that a complaint be “verified,” the DFEH will no longer require the claimant to sign the complaint. Instead, the complaint may be signed by the claimant’s attorney or any other person whom the claimant has designated to sign on his or her behalf. In order to “verify” the complaint, the claimant need only submit an “oath or affidavit” confirming the truth of the allegations. It is unclear what form this oath or affidavit must take. But if the claimant is unable to sign the complaint, it raises the question of whether he or she would be able to sign a written oath or affidavit. As a result, it is possible that an oral oath or affidavit may be deemed sufficient.

• Unsigned Complaints: The DFEH now will accept an unsigned complaint when neither the claimant nor an authorized representative is able to sign it before the statute of limitations expires. Notably, California’s Fair Employment and Housing Commission (FEHC), which conducts hearings and issues administrative decisions in cases brought before it by the DFEH, objected to this proposed regulation as being inconsistent with the statute’s requirements. The FEHC argued that a complaint must be signed in order to qualify as being verified and in writing, but the DFEH disagreed, stating that “[n]owhere in the statute does it provide that the complaint must be signed in order to be filed.” See Updated Final Statement of Reasons, Summary and Response to Comments Received During the Initial Notice Period of February 19, 2010 through May 26, 2010, Fair Employment and Housing Commission memo dated 5/26/10, Comment C2d.

• Liberal Construction: The DFEH now has codified its liberal construction of complaints to extend to all claims that are or could have been asserted based on the facts alleged. Thus, where the facts are alleged to support a discrimination claim but also could support a retaliation claim, the DFEH will construe the complaint to include both a discrimination claim and a retaliation claim – even though the claimant did not assert a retaliation claim. As a result, employers may have more difficulty in obtaining dismissal of civil claims not expressly asserted in the administrative complaint, which previously would have been dismissed for failure to exhaust administrative remedies. See e.g., Okoli v. Lockheed Technical Operations Co., 36 Cal. App. 4th 1607 (1995) (where administrative complaint only asserted discrimination claim, claim for retaliation properly dismissed for failure to exhaust administrative remedies).

• Timeliness: Despite the clear statutory language that “no complaint may be filed after the expiration of one year” following the alleged violation, the new DFEH regulations provide that “where there is doubt about whether the statute of limitations has run,” the complaint will be accepted and timeliness “investigated and analyzed” during the investigation. As a result, it is likely that fewer complaints will be rejected as untimely; rather, they simply will be deferred to the investigator to determine timeliness.

Summary and Important Points

1.  With the number of DFEH complaints already on the rise as a result of current economic conditions, employers should expect these new procedural regulations to result in even more administrative complaints being accepted for filing. Moreover, the ability to receive an automatic right-to-sue letter once a complaint is accepted fast-tracks a dispute to litigation, further increasing costs.

2.  In short, these new procedural regulations will make it much easier for an employee to essentially bypass the administrative process and yet still be found to have exhausted his or her administrative remedies. It remains to be seen how this will affect the volume and substance of FEHA litigation.

Background Information On The DFEH & FEHA

1. The laws enforced by the Department of Fair Employment and Housing (DFEH) protect applicants and employees from illegal discrimination and harassment in employment based on:

• Race

• Color

• Religion

• Sex (pregnancy or gender)

• Sexual orientation

• Marital status

• National origin (including language use restrictions)

• Ancestry

• Disability (mental and physical, including HIV and AIDS)

• Medical condition (cancer/genetic characteristics)

• Age (40 and above)

• Denial of family and medical care leave

• Denial of pregnancy disability leave or reasonable accommodation

2.     Complaints against employers may be filed with the DFEH in any of the foregoing areas.  All such complaints will be subject to the new administrative procedures set forth above.

3.     The California Fair Employment and Housing Act (Part 2.8 commencing with Section 12900 of Division 3 of Title 2 of the Government Code) and the Regulations of the Fair Employment and Housing Commission (California Code of Regulations, Title 2, Division 4, Sections 7285.0 through 8504):

• Prohibit harassment of employees, applicants, and independent contractors by any persons and require employers to take all reasonable steps to prevent harassment. This includes a prohibition against sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions.

• Prohibit employers from limiting or prohibiting the use of any language in any workplace unless justified by business necessity. The employer must notify employees of the language restriction and consequences for violation.

• Require that all employers provide information to each of their employees on the nature, illegality, and legal remedies that apply to sexual harassment. Employers may either develop their own publications, which must meet standards as set forth in California Government Code Section 12950, or use a brochure from the DFEH.

• Require employers with 50 or more employees and all public entities to provide sexual harassment prevention training for all supervisors.

• Require employers to reasonably accommodate an employee or job applicant’s religious beliefs and practices.

• Require employers to reasonably accommodate employees or job applicants with a disability in order to enable them to perform the essential functions of a job.

• Permit job applicants and employees to file complaints with the DFEH against an employer, employment agency, or labor union that fails to grant equal employment as required by law.

• Prohibit discrimination against any job applicant or employee in hiring, promotions, assignments, termination, or any term, condition, or privilege of employment.

• Require employers, employment agencies, and unions to preserve applications, personnel records, and employment referral records for a minimum of two years.

• Require employers to provide leaves of up to four months to employees disabled because of pregnancy, childbirth, or a related medical condition.

• Require an employer to provide reasonable accommodations requested by an employee, on the advice of her health care provider, related to her pregnancy, childbirth, or related medical conditions.

• Require employers of 50 or more persons to allow eligible employees to take up to 12 weeks leave in a 12-month period for the birth of a child; the placement of a child for adoption or foster care; for an employee’s own serious health condition; or to care for a parent, spouse, or child with a serious health condition. (Employers are required to post a notice informing employees of their family and medical leave rights.)

• Require employment agencies to serve all applicants equally, refuse discriminatory job orders, and prohibit employers and employment agencies from making discriminatory pre-hiring inquiries or publishing help-wanted advertising that expresses a discriminatory hiring preference.

• Prohibit retaliation against a person who opposes, reports, or assists another person in opposing unlawful discrimination.

If you have any questions concerning this email or any other employment law related issues please do not hesitate to contact me by either replying to this email or by telephone at either 559-244-7500 or 805-934-5770 or my assistant Ms. Nanci Berry at this number.

This update is provided by Gary W. Bethel and Littler Mendelson in order to review the latest developments in employment law. This update is designed to provide accurate and informative information and should not be considered legal advice. © 2011 Littler Mendelson. All rights reserved.

Today, with more than 800 attorneys and 52 offices in major metropolitan areas nationwide, Littler Mendelson is the largest law firm in the country exclusively devoted to representing management in employment, employee benefits, and labor law matters. Littler is dedicated to being the world leader in employment law. Littler has 8 California offices:
Fresno, Los Angeles, Orange County, Sacramento, San Diego, San Francisco, Walnut Creek, and San Jose

as well as offices in the following states for your convenience:

AL, AR, AZ, CA, CO, CT, D.C., FL, GA, IL, IN, MA, MI, MN, MO, NC, NJ, NV, NY, OH, OR, PA, RI, SC, TX, VA, WA, WI

The regulations specify three categories of qualified trainers:

1. Attorneys admitted to the bar of any state for two or more years whose practice includes employment law under the California Fair Employment and Housing Act (FEHA) and/or Title VII of the federal Civil Rights Act of 1964; or
2. Human Resource Professionals or Harassment Prevention Consultants with a minimum of two years with practical experience in one or more of the following:
   • a. Designing or conducting discrimination, retaliation, and sexual harassment prevention training; or
   • b. Responding to sexual harassment complaints or other discrimination complaints; or
   • c. Conducting investigations of sexual harassment complaints; or
   • d. Advising employers or employees regarding discrimination, retaliation and sexual harassment prevention.
3. Professors or instructors in law schools, colleges, or universities who have a post-graduate degree or California teaching credential and either 20 instruction hours or two or more years experience teaching about employment law under FEHA or Title VII at a law school, college, or university.

In our opinion, a business owner or employee who does not have these qualifications cannot be “certified” to handle your training.  In addition, we don’t believe it is sufficient to claim qualification under #2 unless that person regularly engages in those activities since the purpose is to ensure the trainer has sufficient knowledge in this area.   Very few businesses “regularly” engage in these areas, unless they have a larger employee base.

We recommend you use truly qualified professionals to conduct your training, so you are not subject to challenges about whether you met the state requirements.    YPP provides training that meets these requirements.

• Online searches can produce “results” on hundreds or thousands of people with the same name as your candidate.  For that reason, extreme care has to be used to be sure that the search result you rely on is actually the same person as your candidate.
• Some search engines, such as Google, are so large that you may need to go through dozens of pages to verify that there is nothing adverse about your candidate.
• Facebook and other similar sites allow the person posting a page to block access to their site.
• These searches will often produce information that is not allowed to be used in the screening process, including protected classes under the federal anti-discrimination law.
• Sites such as the Megans Law site for registered sex offenders cannot be accessed for employment screening purposes.  If you do so, you are violating the law.

Because we recognize the value of social media searches and how essentially it is to do them right. YPP has partnered with a new company to provide these for our clients.  This new service enables employers to navigate the complicated legal landscape of social media with clear, consistent, and insightful results. Using a combination of automated and manual review processes, this social media check ignores information that is not allowable in the hiring process, such as the “protected class” characteristics defined by federal anti-discrimination law (race, religion, national origin, age, sex, familial status, sexual orientation, disability status, and other qualities that are not allowed to be used as decision points).

There are 3 levels of reports available through YPP:

Basic Report – $20

Hiring Basic provides an employer with a report on a candidate’s publicly available online content.  With the Hiring Basic report, the first time information that matches the pre-defined employer criteria is found, a report is generated.  This report includes redaction of the protected class and other information that is not relevant to the position.

Comprehensive Report – $40

Hiring Comprehensive provides employers with a complete detailed view of all of a candidate’s user-generated information that matches the pre-defined employer criteria.  With Hiring Comprehensive employers also have the option to search for “positive criteria” on candidates.  Like Hiring Basic, this report also includes redaction of the protected class and other information that is not relevant to the position.

Executive Report – $75

Hiring Executive is a detailed report that contains all information that is found online on the candidate.  Hiring Executive accounts for non-user generated content such as media hits in addition to the already included pre-defined employer criteria.  With Hiring Executive, employers receive a 360-degree view of their candidate’s online profile.  For an additional cost, Hiring Executive can also include analysis on known affiliates of Sr. Executives, insuring that an organization is making the best hire possible for their leadership roles.

As with all screening tools, social media searches should not be relied on exclusively for your decision about the candidate;  all of the screening information should be evaluated within the scope of the position.

For more information about this service, please contact YPP.