California courts face an extremely challenging budget situation that may significantly slow the resolution of employment law related (and other civil) claims. For attorneys handling, or litigants dealing with, employment law claims, there are some alternatives to resorting to court to get claims resolved. These include the California Labor Commissioner’s Office (for wage and hour claims), and for harassment/discrimination claims: the California Department of Fair Employment and Housing (DFEH) and the U.S. Equal Employment Opportunity Commission (EEOC). As access to the Courts becomes increasingly limited, attorneys handling employment claims will need to become well versed in the array of alternatives that exist.
Resolving Wage and Hour Claims
An employee or former employee can take wage and hour claims (for example, unpaid overtime, missed meal breaks, mishandled vacation pay, etc.) to the California Labor Commissioner’s Office, specifically the Division of Labor Standards Enforcement (DLSE). After a claim is made, the Deputy Labor Commissioner assigned to the case will determine how to proceed. Within 30 days of the filing of the complaint, the Deputy will notify the parties if the claim will be dismissed, if a conference is scheduled, or if the claim will proceed to a hearing without a conference. Throughout the DLSE process, the parties have the ability to discuss settlement options with the Deputy Labor Commissioner.
In most cases, a conference will be scheduled. The purpose of the conference is to attempt to resolve the claim without a hearing. The parties must appear, though they are not required to prove their case at the conference, nor will they be under oath. The parties should be prepared, however, to discuss the claim with the Deputy Labor Commissioner, and should bring any and all supporting documents with them to the conference. If the parties do not resolve the matter, a hearing will be scheduled for each party to prove their cases, under oath, much like a bench trial in Superior Court.
Resolving Harassment and Discrimination Claims
Even before an employee or former employee may bring a claim in Court for employment discrimination, harassment, or certain types of retaliation, the potential litigant must first exhaust his or her “administrative remedies.” To do so, the claimant must file a complaint with the California Department of Fair Employment and Housing (DFEH) or the U.S. Equal Employment Opportunity Commission (EEOC). Both the DFEH and the EEOC have developed comprehensive ADR programs to facilitate resolution of these claims and therefore assist in the reduction of the backlog of these claims. If the matters are not resolved at mediation, both the DFEH and EEOC may continue to help claimants pursue their claims. The following is an overview of the in-house mediation programs offered through the EEOC and DFEH.
Mediation at the DFEH
The DFEH is the California agency charged with enforcing, among other things, the California Fair Employment and Housing Act (FEHA). Generally, the FEHA prohibits harassment and discrimination in employment. Every year, the California DFEH handles approximately 20,000 claims of discrimination, harassment and/or retaliation in some way. In many of those cases, complainants file a complaint and request an immediate “Right To Sue” notice in order to proceed directly to Court. In those cases, the DFEH does not do much more than take in the Complaint, and process the Right To Sue notice. However, because of the Court situation, Complainants (and their attorneys) may begin to choose to spend more time in the DFEH process rather than bypassing the DFEH to get to Court, particularly in light of the DFEH’s in-house mediation program.
According to her article in the May 2012 CA Labor & Employment Bulletin, Phyllis W. Cheng, DFEH Director, reflected that in 2009 to 2011, due to California’s staggering budget deficits, the DFEH staff was subject to furloughs, budget cuts of approximately 16 percent, and freezes on hiring and spending. However, during that same time period, the DFEH focused on, and excelled in, service, outreach, advocacy and being a resource. With respect to alternative dispute resolution/resources, Director Cheng noted that the DFEH established its in-house Mediation Division, and that Division has greatly expanded settlement services. Indeed, the Mediation Division settled $2.6 million worth of cases in its first full year of operation. According to Director Cheng, “[t]hese free mediation services save both victims and businesses significant expenses by helping them settle cases out of court, while improving employment and housing practices.” (Cheng, 2012).
At the DFEH, mediation is typically available at three stages: (1) pre-investigation mediation, (2) post-investigation/pre-accusation, and (3) post-accusation.
(1) Pre-investigation mediation: The first time mediation is offered (or can be requested) is when the Respondent is notified that an employment complaint has been filed against it. If all parties agree to participate in this free pre-investigation mediation, the Respondent need not file a position statement and response to the Complaint until after mediation concludes unsuccessfully. A representative of the DFEH’s Enforcement or Legal Divisions does not attend pre-investigation mediation conferences. Parties may have counsel if they choose, but attorney representation is not required. This pre-investigation mediation can take place quickly and, if successful, it can result in complaints being closed sooner rather than later. This process is certainly much quicker than going to Court, particularly in light of the further cutbacks California Courts are facing in these difficult economic times.
(2) Post-investigation/pre-accusation mediation: If the parties choose not to participate in pre-investigation mediation, or if no resolution is reached, the DFEH also offers post-investigation/pre-accusation mediation. A representative of the DFEH’s Enforcement Division attends post-investigation/pre-accusation mediation sessions. That representative may be the investigating office’s assigned legal staff counsel. If a resolution is not reached, the Legal Division will not assign the same staff counsel to issue and prosecute the accusation.
(3) Post-accusation mediation: Mediation conferences conducted after an accusation is issued are attended by the member of the DFEH’s Legal Division who issued the accusation or who was subsequently assigned the case. If settlement is not reached, the same staff counsel who issued the accusation and participated in the post-accusation mediation may prosecute the case.
The main benefits for parties who mediate their claims via the DFEH’s Mediation Division are: potentially quicker resolution, more cost-effective process than private mediation and/or winding through the Superior Court process, and the potential for more creative or individually tailored resolutions. Many employers, however, may be concerned that easy, quick, and cost-free mediation programs may encourage disgruntled employees to file seemingly frivolous complaints, and/or if the company agrees to mediation too early, it is showing weakness. Thus, while there may be some benefits to early mediation, each case and situation is different and must be considered individually. Nonetheless, the DFEH Mediation Division has created an exceptional process and opportunity for parties to resolve their differences long-before diving into the Court quagmire.
EEOC Purview and Initiation of a Charge
The DFEH’s federal counterpart is the U.S. Equal Employment Opportunity Commission (EEOC), which enforces Federal laws prohibiting employment discrimination . These laws protect against employment discrimination when it involves:
- Unfair treatment because of the employee’s race, color, religion, sex (including pregnancy), national origin, age (40 and older), disability or genetic information.
- Harassment by managers, co-workers or others in the workplace because of the employee’s race, color, religion, sex (including pregnancy), national origin, age (40 and older), disability or genetic information.
- Denial of a reasonable workplace accommodation that the employee needs because of his or her religious beliefs or disability.
- Retaliation because the employee complained about job discrimination, or assisted with a job discrimination investigation or lawsuit.
All of the laws enforced by the EEOC, except for the Equal Pay Act, require the employee to file a Charge of Discrimination with the EEOC before they can file a job discrimination lawsuit against their employer. In addition, an individual, organization, or agency may file a charge on behalf of another person in order to protect the aggrieved person’ identity.
No Need to File with Both DFEH and EEOC
As stated above, California has its own anti-discrimination laws and an agency (DFEH) responsible for enforcing those laws. If an employee files a charge with the DFEH, it will automatically be “dual-filed” with the EEOC if federal laws apply; the employee need not file with both agencies.
Mediation Offered Soon After Charge is Filed
Once the charge is filed, the parties may be asked to try to settle the dispute through mediation. The EEOC evaluates each charge to determine whether it is appropriate for mediation considering such factors as the nature of the case, the relationship of the parties, the size and complexity of the case, and the relief sought by the charging party. Charges that the EEOC has determined to be without merit are not eligible for mediation.
The decision to mediate is completely voluntary. While it is not necessary to have an attorney or other representation in order to participate in EEOC’s Mediation Program, either party may choose to do so. If both parties agree to mediate, the EEOC will schedule a mediation that will be conducted by a trained and experienced mediator. The EEOC utilizes a combination of contractors, pro bono mediators and internal mediators. The mediation is available at no cost to the parties and is confidential- all parties sign an agreement of confidentiality. Information disclosed during the mediation is not revealed to anyone, including other EEOC investigative or legal staff. As further precaution, a firewall exists between the EEOC ADR program and the EEOC Investigation and Legal units.
If either party turns down the mediation, or if the mediation does not resolve the charge, the charge will be given to an investigator. If an investigation finds no violation of the law, the employee is given a Notice of Right to Sue. This notice gives the employee permission to file suit in a court of law. If a violation is found, the EEOC will attempt to reach a voluntary settlement with the employer. If they cannot reach a settlement, the case will be referred to the EEOC legal staff (or the Department of Justice in certain cases), who will decide whether or not the agency should file a lawsuit. If the EEOC decides not to file a lawsuit, the EEOC will give the employee a Notice of Right to Sue.
Process for Federal Agencies is Different
Federal employees and job applicants have similar protections but a different complaint process through the EEOC. In addition, many federal agencies have developed their own internal dispute resolution process.
Resources to Utilize Before An Issue Is Brought to the Labor Commissioner, DFEH or EEOC
Ideally, employees and employers have opportunities to investigate and resolve their disputes or complaints long before resorting to the Labor Commissioner, EEOC, DFEH or Court.
Employees should take advantage of employer-provided avenues to bring complaints, including company toll-free numbers, open door policies, internal complaint procedures, communication with human resources department and/or supervisors or ombudsmen (if available). Employers should of course ensure that these avenues exist and that the workforce is informed with regard to these internal processes and procedures. Employers should also educate all levels of management, including human resources personnel, on the handling of such complaints and the importance of conducting thorough and unbiased investigations. Of course, training for all levels of the work force regarding equal employment and wage/hour practices is critical so that such complaints can be avoided in the first place.
Employment cases can be highly emotional and the stress of having them drag on for years can cause a lot of problems for the participants- be it emotional, physical or financial stress. What is important for participants in employment related cases to remember is that there are a host of options for alternative dispute resolution- available through the DFEH, EEOC or private mediators.
For over 15 years, James Y. Wu has focused his practice on employment law and HR issues. James continues to provide day-to-day counseling to employers and employees and he provides strategic litigation services. James is a member of the CCCBA Board of Directors, and in 2008, James was the president of the Employment Law Section of the CCCBA and served on that Board from 2007 to 2012. Please contact James at firstname.lastname@example.org and www.jameswulaw.com.
Michelle Regalia McGrath is an employment attorney who dedicates her practice to workplace investigations across the state of California. Issues for investigation can include but are not limited to: sexual harassment, bullying, violence, and any type of discrimination. Previously, Michelle worked as a litigator and advisor for 12 years, with the last 7 as in-house employment counsel for the U.S. Postal Service. Michelle can be contacted at email@example.com and www.mcgrathinvestigations.com.
 The EEOC enforces Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex and national origin; the Age Discrimination in Employment Act, which prohibits discrimination against individuals 40 years of age or older, sections of the Civil Rights Act of 1991; the Equal Pay Act; Title I of the Americans with Disabilities Act, which prohibits discrimination against people with disabilities in the private sector and state and local governments; and Section 501 of the Rehabilitation Act of 1973, prohibiting disability discrimination in federal government and employment.
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