ADR for Employment Disputes

ADR for Employment Disputes

What do you do if you have an employment dispute?

The California State Court System is faced with deeper and deeper budget cuts, staff reductions, and slow-moving dockets. An article titled “Court Funding and the Impact of Budget Cuts On Access to Justice” in the August 2012 issue of the Contra Costa Lawyer magazine complies some of the recent news articles about the dire situation. The August 2012 issue also contains several articles geared towards ADR – Alternative Dispute Resources.

I, along with a colleague, Michelle Regalia McGrath, wrote about ADR geared towards employment claims, including wage and hour, discrimination and harassment. We provide analysis of how employers and employees can avoid disputes in the first place, and some alternatives to Court, including the Labor Commissioner’s Office, the California Department of Fair Employment and Housing, and the U.S. Equal Employment Opportunity Commission. I invite you to read our article and let us know of other alternative dispute resources you or your employer have taken advantage of to avoid a lengthy court case.

Employers and HR Professionals: Invitation to Attend Webinar By DFEH Director Phyllis Cheng

As you may know, I am one of the Board Members of the Northern California Employer Roundtable (NCERT), revived by the California Department of Fair Employment and Housing. I want to extend an invitation to you for our next webinar presented by the Director of the DFEH, Phyllis Cheng. She will be discussing workplace retaliation, protections under the Fair Employment and Housing Act, potential defenses and limits to liability, recent trends and case law, and best practices for employers. Director Cheng will also provide a 2012 updated on the DFEH.

The webinar is set for Wednesday, June 13, 2012 from Noon-1:00p.m. You can participate from the comfort of your own home or office. The nominal fee is $25.00 and MCLE and HRCI credit is provided. Please see this flyer for more information. Follow this link to register (powered by the technology at Littler Mendelson).

Some of the services NCERT provides include the following:

  • Seminars (live and webinars) and conferences regarding discrimination, harassment and retaliation in employment
  • Information on DFEH activities and new policies/procedures
  • Counseling and other assistance to employers
  • Special projects in response to public educational needs
  • Technical advice and input to DFEH on its procedures.

Please feel free to contact me should you like to learn more about NCERT, and/or to get involved.

Small Firm Advantages – A Slam Dunk!

Small Firm Advantages – A Slam Dunk!

Small firm advantages are numerous.

Recently, former VP/Global Head of Legal at eHarmony, Antone Johnson, tackled the question: “Why Are Lawyers So Expensive Even With The Excess Supply Of Lawyers?” Mr. Johnson’s focus was on why large law firms charge their very high rates. Significantly, and not surprisingly, top-notch work quality, dedication, and responsiveness (three important aspects of my practice) were not listed.

Classic lose-lose situation. Mr. Johnson dissected how most large law firms are obsessed with rankings, have huge overhead, and grapple with other aspects of the legal industry that cause their fees to skyrocket. He also reflected that many companies are “fed up with large firms’ endlessly escalating billing rates and cost insensitivity.” As he pointed out, the result is that the legal services industry now has overpriced lawyers sitting around doing nothing, and clients not getting served because they can’t afford those rates. Classic “lose-lose” situation.”

Obvious win-win or slam dunk. Importantly, Mr. Johnson acknowledged that there are alternatives. He noted that “many talented, experienced lawyers hav[e] left big firms [], and technology mak[es] it easier than ever to set up shop as a new solo practice or small firm…” Indeed, business models like mine provide a better alternative for clients who no longer want to (or can no longer afford to) pay large firms for everything except top-notch work quality, dedication, and responsiveness. Mr. Johnson calls such business models “such an obvious win-win — or slam dunk.”

  • If your company still depends on large law firms for employment/HR related issues, I personally invite you to discuss with me how large law firm “escapees,” like me, are able to provide top-notch service without worrying about firm overhead, rankings on the AmLaw100, or carrying the dead-weight of an under-performing practice area.
  • If your company still believes great lawyers are too expensive, and thus, unaffordable, I personally invite you discuss with me how I can help your company at rates much lower than you might think.

Whatever situation your company is in, do not overpay for, or put-off getting, the legal services your company needs. For example, there is usually no good reason to pay (or to delay in fear of) large firm rates to have your company’s Handbooks, policies and employment/severance/confidentiality agreements updated and compliant. Do not overpay for, or put-off, getting advice on tricky employment/HR issues, getting and keeping your company in compliance with wage and hour laws, dealing with social media in employment issues, and getting mandated training done for your employees. And certainly, do not overpay, or go unrepresented, when your company must defend against claims brought before administrative agencies and courts. Indeed, I will be the first one to tell you if your matter would be better served by having a large law firm on your side (perhaps, for example, in defending class actions).

Mr. Johnson’s article in Forbes can be found here.


The Future of the California Fair Employment and Housing Commission

The Future of the California Fair Employment and Housing Commission

The California Fair Employment and Housing Commission is being absorbed into the Department of Fair Employment and Housing.

Today I was one of a small group of attorneys who participated in a conference call with Anna Caballero, California’s Secretary of State and Consumer Services, and Phyllis Cheng, Director of California’s Department of Fair Employment and Housing (DFEH). One of the purposes of the call was to inform stakeholders of the future of the California Fair Employment and Housing Commission (FEHC) and the DFEH. In essence, as the way things are headed, soon the FEHC will no longer exist, and its role will be incorporated into a shielded division within the DFEH. The actual impact on employees and employers may be relatively minor, but this structural change is fairly significant. If you have any questions, input and/or feedback you would like me to pass along to Director Cheng, please let me know.

Here is a summary of the information discussed during the conference call (I thank Director Cheng for providing me this summary and for allowing me to share it):

Governor’s 2012/13 Proposed Budget:

  • The State of California continues to face a $9.2 billion structural deficit.
  • The Governor’s proposed budget plan includes important reforms. It improves government efficiency and pays down debt. It reorganizes state government to make it more efficient and saves tax dollars by consolidating or eliminating functions.
  • The Governor proposes to eliminate the [FEHC]. The Budget includes a decrease of $579,000 ($459,000 General Fund) and 2.5 positions as a result of the elimination of the stand-alone [FEHC] that handles adjudication of employment and housing discrimination cases. Adjudication of employment and housing discrimination cases would be handled by a separate and distinct division of the [DFEH] effectively eliminating the stand-alone [FEHC] and consolidating workload. The DFEH would receive 1.5 positions from the FEHC consolidation as well as the portion of the Attorney General’s cost for defending writ actions. The Department would absorb the rest of the [FEHC’s] functions. The savings to the State would be: $391,000 in 2012/13; and $784,000 in 2013/14 and ongoing.
  • A trailer bill from the Department of Finance with specific language to carry out the Governor’s plan is forthcoming.

Possible Implementation Plan for the Governor’s Proposal:

  • Adjudicatory Function: The [DFEH] currently operates a “separate and distinct division” in its Mediation Division that is behind a firewall and shielded from the rest of the DFEH. To employment the Governor’s proposal, the DFEH would put the [FEHC’s] adjudicatory function behind the confidential firewall of this Division and would rename it the “Hearing and Mediation Division.”
  • Regulatory Function: Under its existing authority, the [DFEH] could establish a permanent DFEH Advisory Committee that would be codified in its procedural regulations. The proposed Advisory Committee would consist of a balanced group of plaintiff and defense attorneys with expertise in fair employment and housing law, along with representatives from the EEOC and HUD, to advise the DFEH on promulgation of regulations that interpret the FEHA, Unruh Civil Rights Act, Disabled Persons Act and Ralph Civil Rights Act.