Cal-Peculiarities: How California Employment Law is Different 2022 Edition

20 | 2022 Cal-Peculiarities ©2022 Seyfarth Shaw LLP  www.seyfarth.com In the FEHC’s place is a Fair Employment and Housing Council (new FEHC), located within the DFEH. The new FEHC consists of seven volunteer members appointed by the Governor, with the power to issue regulations but without the power to adjudicate. The DFEH, meanwhile, can file lawsuits to seek all remedies, including attorney fees, after it first engages in mandatory dispute resolution through its internal Dispute Resolution Division, which offers its services free of charge. The Legislature has also established a Fair Employment and Housing Enforcement and Litigation Fund to hold attorney fees and costs awarded to the DFEH in civil actions, which can be used to help defray its costs. The DFEH can file class actions challenging systemic discrimination. It obtained a favorable state trial court ruling concerning the workplace rights of transgender individual s. 4 B ut the DFEH’s attempt to enforce Title I of the federal ADA was struck down by a federal district court judge, because the DFEH had acted in excess of its authorit y. 5 Regulations interpreting FEHA prohibit discrimination and harassment based on gender identity or gender expressio n 6 o r national origin , 7 prohibit discrimination against persons who hold the special driver’s license that can be issued to undocumented persons , 8 prescribe course content and require recordkeeping for harassment- prevention trainin g, 9 p rescribe content and require distribution of discrimination and harassment policies , 10 a nd assert authority for the DFEH to pursue “non-monetary preventative remedies” against an employer, even in the absence of evidence of discrimination or harassmen t. 11 O n August 4, 2020, the DFEH announced it was providing free on-line anti-harassment training for both supervisors and non-supervisory employees pursuant to the mandates of Government Code section 12950.1. 1.2 The Labor and Workforce Development Agency (LWDA) The Labor and Workforce Development Agency emerged from a 2002 consolidation of various state departments—the Department of Industrial Relations (DIR), the Employment Development Department (EDD), the Workforce Investment Board, the Employment Training Panel, the Public Employment Relations Board, Business Investment Services, the Unemployment Insurance Appeals Board, and the Agricultural Labor Relations Board (ALRB). The LWDA was organized to provide more efficiency in California’s workforce training programs, and to coordinate enforcement and worker disability programs operated by DIR and EDD . 12 The LWDA is perhaps best known among California employment lawyers as the agency to which plaintiffs seeking to file civil claims under the Private Attorneys General Act (PAGA), must first submit their PAGA claims before filing in court. (See § 5.15.) In response to the Covid-19 pandemic, the LWDA has placed resources on its website— www.labor.ca.gov— for employers needing guidance on Covid-related issues. 1.3 Department of Industrial Relations (DIR) The DIR exists to improve working conditions and advance employment opportunities in California. The DIR oversees the Division of Workers’ Compensation, Cal/OSHA, the Industrial Welfare Commission (see § 1.4), the Division of Labor Standards Enforcement (see § 1.5), and the Division of Apprenticeship Standards. The DIR has formed a Labor Enforcement Task Force to combat the underground economy in California, with the goal of reducing the prevalence of underpaid wages and taxes. The Task Force includes representatives of many government branches, such as the DIR, the EDD, the Contractor’s State Licensing Board, the Bureau of Automotive Repair, the California Attorney General, and the Department of Insurance.