California Workplace Harassment and Discrimination Protection For Small Businesses

Avoiding harassment in the workplace is vital to protect your employees, but also to shield yourself. Despite your best efforts, however, harassment can occur beyond your control, or employees can bring claims against you for perceived or invented slights. This article explains how you can protect yourself against such claims, including: 

• The policies and procedures you should put in place to protect yourself from discrimination claims. 
• How to handle discrimination or harassment claims under California law.
• The possible resolutions for a discrimination or harassment claim and how to avoid the worst ones. 

What Policies And Procedures Should Be In Place To Protect My Company From Allegations Of Workplace Discrimination And Harassment?

Preventing harassment in the workplace is vital for the success of your business, but protecting yourself from accusations and claims of harassment and discrimination is also essential. To do so you must very carefully ensure that you comply with all state and federal regulations and laws. 

The first thing you’ll need is an accurate and complete harassment, discrimination, and retaliation policy. The policy must contain:

• A definition of unlawful harassment, discrimination, and retaliation – with examples. 
• A mechanism to complain to the management other than the alleged harasser without fear of retaliation. 
• Finally, it must provide for a thorough, neutral (unbiased) investigation that provides due process to the accused during which:
  • Findings must be made, 
  • Appropriate corrective action commensurate with the offense, if found, must be taken.

For serious complaints of misconduct, a professional third-party investigator should be used. That can be very expensive. For less serious allegations, depending on the facts and circumstances, the investigation can be done in-house by an owner or management with the advice of skilled and experienced lawyers on how to do a proper workplace investigation. 

How Should California Employers Handle Workplace Investigations?

Serious allegations of workplace misconduct need to be handled effectively and confidentially while ensuring compliance with labor laws. To do so, you should hire a professional third-party investigator to conduct the investigation and draft the investigation report.

They will be able to ensure that all the requirements for a legally compliant investigation will be met: a thorough and unbiased investigation that provides due process to the accused.

Workplace investigations can be one of the hardest things that a lawyer can do, second only to a jury trial. The investigator’s responsibility is to gather all facts and then come to a conclusion and a determination of whether the alleged harassing conduct occurred. In all cases, the investigator must apply general standards applicable to the credibility assessment of witnesses, particularly the complainant and the accused. 

Essentially, the investigator acts as the jury to make factual findings and the judge to decide whether company policy has been violated and, if so, what punishment or correction is required.

What Are The Options For Handling Employee Grievances And Disputes Under California Labor And Employment Law?

There are several ways an employment case can be resolved within the framework of California law. To begin with, it is important to understand what authorities the employees will turn to and the procedures involved in each. 

Administrative Procedures For Wage Claims

The first option is an administrative process – if it is a wage claim, the employee may file a claim with the California Labor Commissioner, Division of Labor Standards Enforcement (DLSE). The DLSE will hold a settlement conference first, and if the case does not settle, then they will set the matter for a hearing before an administrative law judge. 

It is almost always preferable to reach an agreement at the settlement conference because it usually is not cost-effective to go through a hearing. You should only go to a hearing before the DLSE if your lawyer believes there is a very good chance you will win, AND the cost of the defense is significantly less than the size of the claim against you. Employees also have the choice of filing wage claims in superior court rather than before the DLSE.

Discrimination Claims Under California’s Civil Rights Department

If an employee has a claim for discrimination under the Fair Employment and Housing Act (FEHA), then they must file a complaint with the California administrative body called the Civil Rights Department (CRD). The CRD may then conduct an investigation into the employee’s claims or issue an immediate right-to-sue letter (usually requested by the employee’s counsel). Once the CRD issues a right-to-sue letter, the employee may proceed with filing a civil complaint in superior court.

Dealing With Employee Claims In Superior Court

Most other employment claims may be filed in a California superior court. Such claims include wrongful termination claims not based on the FEHA, whistle-blowing claims, and employment torts such as defamation/slander. 

As mentioned, it is best to settle before the claim arrives at this stage, depending on the circumstances. 

What Is The Best Course Of Action To Handle Employee Claims And Complaints?

Most cases start off when you receive a request for documents and a “demand letter.” A demand letter is not a complaint. Rather, it is a formal letter received from an employee’s or ex-employee’s lawyer laying out the facts and laws, which asserts the employment or wage claims against you and demands money by a certain deadline. Some demand letters do not request money but instead request that you contact them to discuss the matter by a certain deadline, under threat of filing a complaint in court.

The vast majority of the time, experienced, knowledgeable, and reasonable lawyers will be able to settle such employment and labor-related lawsuits. If the parties do not resolve the case through counsel, the alternative is mediation or, arbitration or a trial by judge or jury, all of which require more time and expense. 

On average, 99% of cases are resolved via settlement. Thus it almost always makes sense for a small business to explore early settlement rather than to litigate. Once a small business owner has been sued, they have already lost. After all, even if they win, they will end up having to pay their own lawyers, and if they end up losing, they have to pay the employee’s lawyer fees and costs for most employment and labor-related claims.

How Effective Is Mediation Or Arbitration For Resolving Employee Claims?

Another way employment cases are resolved is through “alternative dispute resolution,” either called mediation or arbitration, depending on the procedure.

Mediation is a process both you and your employee agree to. You’ll choose a neutral third party, usually a retired judge or attorney, to help the parties settle the case. This mediator has no power to impose a settlement on either party, however. They are just there to facilitate negotiations.

Arbitration is more like a trial but without a jury. As with the mediator, you will usually have to agree upon a third party, usually a retired judge, to hear and rule on the case. An arbitration is like a “bench trial,” which is a trial in court without a jury, where only the judge hears and rules on the case. Arbitration is private, unlike a trial in a superior court, which is a public affair. Arbitration decisions are binding, however, and can be confirmed through the superior courts.

In either case, should you need to go through such a procedure, it is important to have a skilled and experienced lawyer on your side to handle the negotiations.

What Are The Deadlines For Action If An Employee Has Filed A Claim?

If an actual administrative complaint or civil lawsuit has been filed, it is important to find an experienced and knowledgeable employment and labor law firm immediately. There are deadlines associated with every type of claim and complaint, and failure to comply can result in you losing the case by default. 

If you have been served an Entry of Default, that’s bad. It means you were served a summons and complaint (lawsuit) and failed to respond within the 30-day deadline. If the default is actually entered by the court, then a money judgment can be filed against you without any opportunity for you to defend yourself.

That is why it is imperative that you a) prepare yourself to maximize compliance and reduce the risk of claims and complaints, and b) work with a skilled and experienced attorney who will never let things get so out of hand. For more information on Workplace Grievances & Disputes In CA, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (855) 534-1490 today.