• NEW LAWS FOR 2015

    The following is a quick summary of the most significant changes in the law impacting California businesses.

    Paid Sick Leave for All California Employees – Effective July 15, 2015, employers doing business in California must provide paid sick days to almost all employees. Full-time and part-time employees will accrue 1 hours of paid sick leave for every 30 hours worked. California’s paid sick leave begins accruing as soon as the employee starts to work , although an employer can prohibit an employee from using accrued paid sick leave in the first 90 days of employment. Employers may “limit an employee’s use of paid sick days to 24 hours or three days in each year of employment.” Unused paid sick days carry over to the following year, but employers can place a 6-day(48-hour) cap on the paid sick day accrual. Some cities have ordinances that allow a higher cap, and employers have to comply with whichever laws are most favorable to employees. Employers must also provide written notice of the accrued and used sick leave, either on the pay stub or in a separate document, with every paycheck.

    City Paid Sick Leave Ordinances –San Francisco, Oakland and San Diego passed city-wide ordinances requiring paid sick leave for certain employees. The city ordinances are similar to California’s new paid sick leave law, but typically provide additional benefits for employees working within city limits.

    Federal Regulations Regarding Companions Goes Into Effect – Although the Department of Labor has said it will not enforce the new regulations until mid-year, effective January 1, 2015, companions will be entitled to overtime when they work more than 40 hours in a week, unless otherwise exempt from the Fair Labor Standards Act. While some personal attendants may still be exempt if the household owner employs the companion directly and the duties are limited to providing companionship and protection, caregivers employed by third-party employers and caregivers that provide care in addition to companionship and protection are now covered by the FLSA. Although personal attendants in California have been entitled to overtime after 9 hours in a day or 45 hours in a week, Californians using caregivers may need to pay weekly overtime after 40 hours in a week.

    Additional Protections Under the Fair Employment and Housing Act –

    Unpaid Interns Are Protected from Unlawful Harassment – Effective January 1, 2015, the Fair Employment and Housing Act extends protection to unpaid interns. Keep in mind that the Labor Commissioner and the Department of Labor only allow unpaid interns in a few limited situations, typically when the intern is receiving school credit and the employer receives very little benefit from the work. If you use interns, now is a good time to examine whether the interns are actually entitled to wages.

    Anti-Bullying Module for Sexual Harassment Prevention Training – All employers with 50 or more employees are required to provide 2 hours of sexual harassment prevention training to all supervisory employees every 2 years. Although “bullying” is not strictly prohibited by law, AB 2053 now requires the sexual harassment prevention training include a module on anti-bullying.

    No Discrimination Against Workers with Special Drivers Licenses – The DMV must issue an original driver’s license to California residents even if the person cannot lawful residence in the United States.  AB 1660 prohibits discrimination against an individual because he or she holds or presents a driver’s license issued under these provisions, or to require a person to present a driver’s license, except in specific situations. Additionally, FEHA’s definition of “national origin” now includes discrimination on the basis of possessing a driver’s license granted under Section 12801.9 of the Vehicle Code.  The new laws do not alter an employer’s rights or obligations regarding obtaining proof of lawful residency prior to employment. Any action taken by an employer that is required by the federal Immigration and Nationality Act (8 U.S.C. Sec. 1324a) is not a violation of law. Driver’s license information obtained by an employer must be treated as private and confidential, is exempt from disclosure under the California Public Records Act, and can not be disclosed to any unauthorized person or used for any purpose other than to establish identity and authorization to drive.

    Employers Using Third-Party Employers Are Liable for Wages and Workers’ Compensation Insurance – Labor Code section 2810.3 requires a “client employer” to share with a “labor contractor” all civil legal responsibility and civil liability for all workers supplied by that labor contractor for the payment of wages and the failure to obtain valid workers’ compensation coverage.  In other words, if your company receives workers through a contracting agency, and that agency fails to pay the worker or fails to maintain valid workers’ compensation coverage, your company could be responsible for any unpaid wages or workers’ compensation claims. Employers can still include indemnification language in their contracts, but they cannot avoid liability by hiring the worker through a third-party employer.

    Longer Statute of Limitations for Liquidated Damages and Failure to Timely Pay Final Wages – Existing law provides for criminal and civil penalties for certain wage violations and authorizes the Labor Commissioner to recover liquidated damages for minimum wage violations. AB 1723 expands Labor Code section 1197.1 to allow the Labor Commissioner to issue citations and seek penalties for the willful failure to timely pay wages of a resigned or discharged employee (e.g., waiting time penalties).

    Several Cases Cause Employers to Reconsider Mandatory Arbitration Provisions – For years employers had difficulty requiring employees to agree to resolve all dispute through arbitration. Recent U.S. Supreme Court and California court decisions make it easier for employers to require binding arbitration for some employment law claims. Employers should evaluate whether binding arbitration is the right decision for their business. There are many pros and cons to resolving cases through binding arbitration, and employers must still be careful when drafting arbitration agreements. Just because you find an arbitration agreement on line does not mean it will be enforceable.

    Minimum Wage Increase By Various Cities – Several cities passed their own ordinances requiring a higher minimum wage for employees working within certain geographical limits:

    City Rate Effective
    Berkeley $10.00$11.00 1/1/1510/1/15
    Menlo Park $10.30 7/1/15
    Oakland $12.25 3/2/15
    Richmond $9.60 1/1/15
    San DiegoRepealed/delayed by voter action $9.75 1/1/15
    San Francisco $11.05$12.25 1/1/155/1/15
    San Jose $10.30 1/1/15
    Sunnyvale $10.30 1/1/15

    We expect to see more cities adopt similar legislation, and California legislators are trying to pass a higher California minimum wage by the end of the year (currently slated to increase to $10.00 per hour on January 1, 2016).

    Employers need to update their employment handbooks and their policies to comply with the new laws. There is no better time to review your policies and practices with a knowledgeable employment attorney. The New Year affords employers the opportunity to start the year in compliance, and avoid potentially costly mistakes.

    If you have any questions about the new laws, or any employment-related matter, contact our office and speak with one of our attorneys. Let us help you figure out how to employ your workers correctly, so you can focus on growing your business.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     
    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.
     
    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • Guest Post: Holiday Parties: How Businesses Can Avoid Sexual Harassment Lawsuits

    Jessica Hawthorne, an employment attorney with the California Chamber of Commerce, has some good suggestions regarding holiday parties and preventing sexual harassment lawsuits.

    As holiday decorations start to go up around the office and everyone is full of seasonal cheer, many businesses may find that work parties, along with a more relaxed environment, can lead to sexual harassment claims.

    Much too often especially if the event is off-site and the alcohol flows freely the office holiday party becomes a breeding ground for this sort of behavior. It seems that some employees can get the impression that professional behavior isn’t necessary at the festivities.

    But that’s not the case. If its a work-sponsored event, workplace etiquette applies. And unfortunately for employers, liability can be the unexpected Christmas delivery if things aren’t handled properly.

    Every year, claims and lawsuits over sexual harassment problems cost companies millions of dollars. In 2007, for example, the Equal Employment Opportunity Commission received nearly 25,000 sex-discrimination complaints and fined businesses more than $135 million for violating these workplace protections, the highest level since 2002.

    But businesses can protect employees against legal turmoil by taking simple steps to prevent harassment from occurring at the office holiday party or anywhere else:

    Advise employees of all relevant policies, such as harassment, dress code and appropriate workplace behavior.
    Make sure all supervisors have received sexual harassment training.
    Make sure everyone knows how to report unwanted or unwelcome behavior.
    Remind all employees that the company’s sexual harassment policies will be in full force and effect during the event.

    Despite training and preparation, sexual harassment claims could arise, so employers should also be aware of how to mitigate the situation. Its important to act swiftly if there are any complaints to determine what happened and how best to deal with the claim. That way, you will have done your harassment prevention due diligence if any legal situation arises later.

    The best way to accomplish this and follow California law is to conduct proactive employee training and awareness against all forms of harassment.

    All organizations, and that includes businesses, government agencies and non-profits, with 50 or more employees are required to train all supervisory personnel in sexual harassment prevention. Employers must prove that all of these employees take an interactive, two-hour harassment prevention course within six months of hire and every two years thereafter.

    So keep in mind that while sexual harassment prevention is relevant all year round, now is a good time to give your office a refresher course. Your business should enjoy this festive time of year by keeping employees aware and preventing sexual harassment before it starts.

    Jessica Hawthorne is an employment attorney the California Chamber of Commerce.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • DFEH Allows Employees To Obtain Immediate Right-To-Sue Online

    Several months ago the California Department of Fair Employment and Housing (DFEH) updated its website to allow employees to make an online appointment to lodge a complaint of employment discrimination or harassment. Now the DFEH allows employees to obtain immediate right-to-sue notices online. The website (www.dfeh.ca.gov) instructs that “Persons represented by counsel, who wish to proceed directly to court on employment discrimination, harassment, and retaliation complaints, can now request a right-to-sue letter online.”

    Employees filing a claim of discrimination with the DFEH can choose to forgo an investigation and ask for an immediate right-to-sue. The right-to-sue is the employee’s “ticket” to sue the employer in court. By choosing the immediate right-to-sue route, the DFEH will not investigate the claim, and the employee can immediately sue the employer in court. If during the initial interview the DFEH determines a case has no merit, it will allow the employee to request an immediate right-to-sue. The DFEH website repeatedly warns the employee that obtaining an immediate right-to-sue should only be done after consulting with an attorney.

    The new “online” route to obtaining an immediate right-to-sue notice can streamline cases where an attorney wants to file a lawsuit. It may also lead to an increased number of discrimination or harassment lawsuits because the employee can obtain the right-to-sue from the comfort of their own home.

    It will be interesting to find out if the number of discrimination and/or harassment lawsuits increase as a result of the new online procedure.

    You can download an audio version of this article here: California Employment Lawyer Netcast for June 27, 2008.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • Exceptional Performance May Mean Higher Attorneys’ Fees Award

    An April 21, 2010 U.S. Supreme Court decision can increase employer exposure to enhanced attorneys’ fees in contingency cases filed in Federal Court. The decision, Perdue v. Kenny A., 08-C.D.O.S. 4896, held that the plaintiffs’ lawyer’s performance, a key factor once used only to set the amount of the attorney’s fees, may now also be used to enhance or multiply those fees.

    Prior to this decision, certain factors such as attorney performance, risk, and expense advancement, were used by Courts to calculate reasonable attorney’s fees in contingency cases. Those fees are referred to as Lodestar fees. Under the Lodestar method, the Court multiplied the number of hours a lawyer worked by the prevailing hourly rates in the lawyer’s area, to determine the reasonable attorneys’ fees. However, in extraordinary circumstances, a Court could then use other factors to enhance the attorneys’ fee, for example, multiplying the fee by two.

    In this case, however, the Court held that attorney performance, a factor previously limited to calculating the Lodestar fee, could also be used in enhancing that fee. The Court reasoned that in extraordinary circumstances, Lodestar calculation factors might not adequately take into account the justification for enhanced fees, and should not, therefore, be per se subsumed in fee calculation only.

    This case opens up the possibility that numerous other factors, such as an extraordinary result, advancement of expenses, or delay caused by defendants, could be used to increase the size of the plaintiff’s attorneys fees beyond the ordinary Lodestar calculation.

    Employment related legal issues can present significant exposure to employers.  Employees and employers should consult with an attorney to ascertain their rights.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Rutger J. Heymann, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • Customers Can Sue For Sexual Harassment: The Story of Mark & Susan

    A new case (Hughs v. Pair, 07 CDOS 10973, 9/10/07) helps define the parameters of a little known section of the Unruh Civil Rights Act (Civil Code Section 51.9) that makes business, service or professional providers liable in damages if they sexually harass their clients or customers. It also extends potential liability to administrators, executors or trustees of estates.

    Susan and Mark were married and had a son, Alex. The marriage ended in a contentious divorce. Mark died leaving his minor son, Alex, the only beneficiary of Mark’s $400 million estate. Susan had a contentious relationship with Pair, one of three trustees, having sued the estate seven times in four years.

    Susan requested reimbursement from the trust for a two-month rental of a Malibu beach home for Alex, age 14, (yeah, right) at the cost of $80,000 a month. The trustees approved only one month expressing the opinion, among others, that the rental was for Susan’s, not Alex’s, benefit.

    After three years of not speaking to her, Pair called Susan to invite her and her son to a King Tut exhibit. During that conversation he remarked how much he loved Alex and “you in a special way,” and that he could be persuaded to give her more time “if you would be nice to me.” When Susan responded that this was crazy talk, Pair said, “how crazy do you want to get?” Susan did not accept Pair’s invitation.

    Susan and Alex ran into Pair and his son at the exhibit. Within earshot of both boys Pair said, “I’m going to get you on your knees and [expletive deleted] you one way or another.” Susan testified at her deposition that Pair’s statements caused her to suffer from discomfort, worry, anxiety, upset stomach, concern, and agitation in the form of her heart racing. But she also suffered these symptoms to a lesser degree because of the other litigation involving the trust.

    Pair filed motion for summary judgment to dismiss the case on several grounds, the first one being of interest here: i.e., that since Susan was not a beneficiary of the trust there was no relationship between her and Pair that would bring section 51.9 into play. What does 51.9 cover? Let’s see.

    First, there must be a business, service or professional relationship between the plaintiff and the defendant. Second, the defendant makes sexual advances, solicitations, sexual requests, or demands for sexual compliance to the plaintiff or the defendant engaged in verbal, visual, or physical conduct of a sexual nature or a hostile nature based on gender. Third, the conduct of the defendant was unwelcome and pervasive or severe. Fourth, the plaintiff was unable to easily end the relationship with the defendant. Fifth, the plaintiff suffered or will suffer economic loss or disadvantage or personal injury or the violation of of a statutory or constitutional right as a result of the defendant’s conduct.

    Was there a “”business, service or professional relationship ” between Susan and Pair within the meaning of the Act? The Act itself contains a list that is expressly made non-exclusive. In other words, the list is for the purpose of illustration only and there could be other relationships not listed that are governed by the Act. The express list includes:

    Physicians, psychotherapist, dentist, attorney, holder of a master’s degree in social work, real estate agent, real estate appraiser, accountant, banker, trust officer, financial planner, loan officer, collection service, building contractor, escrow loan officer, executor, trustee or administrator, landlord or property manager, teacher or any relationship that is substantially similar any of the above.

    Was Susan’s relationship with Pair substantially similar to any of the above relationships? She was not beneficiary of the trust and by its terms could never expect any financial gain from the trust. However, the court held that her relationship with Pair fell within the intended reach of section 51.9.

    “Susan is Alex’s mother and guardian, and in those capacities, she must deal with the trust on Alex’s behalf, even if she is not a beneficiary. The language of section 51.9 does not limit its scope to a relationship between a trustee and beneficiary. Instead, the statute is more expansive, applying to a relationship between ‘a plaintiff and a person including . . . a trustee.’ (section 51.9, subd. (a)(1)(C).) The law also applies to any relationship that is ‘substantially similar to those listed above.’ (section 51.9, subd. (a)(1)(F).) Susan, acting on Alex’s behalf, does not have the ability to ‘easily terminate the relationship’ with Pair as trustee. (citations omitted.) Susan has a sufficient ‘business, service or professional relationship’ with Pair as a trustee to qualify her for protection from sexual harassment under section 51.9.”

    The case was ultimately dismissed on other grounds.

    The court held that Section 51.9 sexual harassment will be analyzed the same way courts analyze sexual harassment in the employment context under the California Fair Employment and Housing Act and Title VII of the Civil Rights Acts. The court then found that the isolated incidents described by Susan, while course and vulgar, were not sufficiently pervasive or sever to cause Susan to suffer economic loss or personal injury within the meaning of those laws. Since the relationship did not change and had always been contentious, Susan failed to establish that she had been the victim of quid pro quo sexual harassment (where some benefit is conditioned upon the granting of sexual favors.)

    Had the case gone forward Pair would have faced the possibility of a judgment for actual damages including emotional distress, punitive damages an attorneys fees.

    We are all familiar with the laws prohibiting sexual harassment in the work place. Hughs confirms that those laws are operative in the business relationships not involving employment. Take heed, be prepared, be informed.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Phillip J. Griego of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • Responding to EEOC Charges

    At this year’s Labor & Employment Law Section of the State Bar’s Annual Conference, William R. Tamayo provided helpful insight regarding what to do when the EEOC contacts you about a claim of harassment or discrimination.

    Mr. Tamayos is the Regional Attorney for the EEOC San Francisco District (Northern California, Northern Nevada, Oregon, Washington, Alaska, Idaho and Montana). Here are:

    TAMAYO’S TOP TEN TIPS FOR RESPONDENTS

    1. Short Trip v. Long Trip: If you’ve just been served with a charge of discrimination from the EEOC, it could just be the beginning of a long trip or the beginning of a short trip. What you did before the charge and what you do afterwards will determine the length of the trip.

    2. DON’T RETALIATE: If an employee complains about discrimination, do not retaliate against her, her witnesses, co-workers and HR staff. Any employer action that may serve to “chill out” the charging party (e.g. suspension, demotion, termination, harassment, isolation, threat of deportation, etc.) and dissuade her from pursuing her case violates Title VII and an employer can be liable for damages including compensatory and punitive damages. Retaliation is a separate cause of action under Title VII. If the retaliation is severe and could serve to thwart the EEOC investigation, EEOC can seek a preliminary injunction in federal court barring the retaliatory activity. The existence of a federal investigation into your company and the company’s attempts to thwart the investigation become a matter of public record when a lawsuit is filed.

    3. DON’T DESTROY EVIDENCE: Under federal law, once you know a charge has been filed, you must maintain your records. Destruction of evidence and failure to maintain records violate Title VII. Courts don’t like it!!

    4. Cooperate: If we ask you for information, please give it. The EEOC has broad powers under Title VII of the Civil Rights Act of 1964, to ask for all relevant information, documents, access to witnesses, visits to worksites, etc. If you don’t cooperate, we will issue an administrative subpoena. If you don ‘t comply, EEOC can file a lawsuit in federal court to enforce the subpoena. The existence of a federal investigation into your company then becomes a matter of public record. If the court orders the company to comply with the subpoena (99% success rate) we may issue a press release stating that the company was refusing to turn over information in a federal investigation of civil rights violations but the federal court has ordered the company to comply.

    During the investigation, cooperate with the EEOC investigator and provide the necessary information. If you need more time to compile the information, you can ask for an extension but don’t abuse it. Remember, the investigation stage is your chance to get the company’s version before the EEOC. The EEOC works as a fact finder at that stage. The EEOC only finds “cause” in about 10% of the charges filed nationwide.

    5. Use Conciliation: If the EEOC issues a finding of discrimination (Letter of Determination) seriously consider the invitation to conciliate the case. Conciliation is the last chance to settle a matter with the EEOC confidentially and without a lawsuit. Make a serious offer. Remember most cases settle when they reach conciliation. The money, attorneys’ fees, time, anguish and pressure spent in litigation will outweigh the amount spent in conciliation. Don’t blow the deadline or disregard the EEOC. Don’t ask for mediation as a substitute for conciliation. If the case doesn’t settle in conciliation, the case is forwarded to the Regional Attorney for litigation review.

    6. Charging Party Can Still Sue: If the EEOC finds “insufficient evidence” of a violation or if the EEOC found “cause” but did not sue, the trip might not end there. The charging party can still file suit in state or federal court. She has 90 days to file suit in federal court after receiving the Notice of Right to Sue. Case law states that she has one year to file suit on her state claims in federal court. When charging parties file suit or intervene in the EEOC’s lawsuit, the company could be liable for private attorneys fees. The EEOC also has authority to intervene in a charging party’s lawsuit.

    7. Press: A lawsuit by the federal government against an employer is announced through a press release and/or a press conference. It can be embarrassing. There are several reporters who have followed EEOC cases (especially in agriculture) and will do an excellent job. Your employees, customers, family members, community, and competitors will know about the lawsuit. In cases of egregious behavior by management, you can almost always be sure that other victims will come out of the woodwork. This could result in more charges being filed, or more victims for whom the EEOC will try to get money. The EEOC is authorized by law to get relief for class members who did not file charges and who surface during the investigation or during the lawsuit.

    8. Try to Settle: After the lawsuit is filed, use every opportunity to settle the case. This can come through early neutral evaluation (ENE), early mediation, settlement conferences, or private mediation. But make a serious not a token offer to settle which includes something for compensatory damages, punitive damages, back pay, front pay and training for management. Settlement authority rests with the Regional Attorney. All the posturing doesn’t score points with me nor does it move towards resolution. The mediators and judges have seen it all.

    9. The EEOC sues in the public interest: While we are suing on behalf of a specific charging party or parties, the EEOC directs the litigation and settlement authority. All settlements are a matter of public record, generally resolved through a Consent Decree that is filed with the Court. A press release is issued announcing the settlement.

    10. Training, training, training: Train your staff regularly on the laws against employment discrimination. How much training you provided or didn’t provide and how much training you received or didn’t receive especially in harassment lawsuits, will generally be an issue. Make sure top managers and all supervisors take these laws and the training seriously, EEOC has recovered large settlements when top managers are involved in the harassment and/or completely ignore the complaints of harassment. When several women complain of harassment by top managers, you can be sure that many more victims will come out of the woodwork. Those are easy cases to prove. Many of the harassment cases could have been prevented if management conducted training, held managers accountable and disciplined the harassers.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.