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Private Employers (Non-Union) Lawsuit Defense The firm has successfully defended literally hundreds of lawsuits filed in State and Federal courts, by former employees, seeking damages from private employers for the alleged wrongful termination of his/her employment, or discrimination, and/or harassment (sexual and non-sexual). Claims have been resolved through trial, motions to dismiss, arbitration, mediation and informal settlements. California Department of Fair Employment and United States Housing and Equal Employment Opportunity Commission: The discrimination laws in California (e.g. age, race, gender, marital status, disability, pregnancy, etc.) require exhaustion of administrative remedies before pursuit of a claim in state court. The California Department of Fair Employment and Housing is the administrative agency responsible for investigation and prosecution of discrimination claims. California has a dual filing system whereby filing with DFEH automatically constitutes filing with the U.S. Equal Employment Opportunity Commission. Unless a claimant intends to bring a discrimination claim solely based on a federal statute, the claim is initially presented to the Department of Fair Employment and Housing. A substantial volume of DFEH claims have been handled by the firm, including the defense of direct prosecutions by DFEH. Unless the claimant insists upon a “right to sue” letter when filing the DFEH complaint, the DFEH will send notice to the employer of the complaint and solicit a detailed response. The employer can be asked to produce employment records, manuals, policies (both those which are required by state law and those which are voluntarily adopted by the employer) and provide responses to specific questions arising out of the facts of the complaint. Experience has shown that a strong, detailed response to the DFEH complaint has resulted in favorable dispositions of the DFEH claims at the administrative level, with no subsequent civil court action. The assembly of documents and preparation of responses to the DFEH inquiry provides an extremely valuable “dress rehearsal” or “dry run” for defense of the ensuing lawsuit. In those instances where it appears the employer may have some exposure, settlements have been successfully negotiated for nominal sums, thereby precluding any further prosecution by the administrative agency, as well as any subsequent civil prosecution by the claimant. The result is a substantial savings in expenses to the employer and the permanent foreclosure of any future exposure on the claim. Division of Labor Standards Enforcement: Commonly known as the “Labor Commissioner,” the DLSE administers California's wage and hour laws. The most common claims are for unpaid vacation and overtime. If ignored or treated lightly, these types of claims have the potential to expand into civil complaints for discrimination or wrongful termination of employment. Legal representation is not required for an employee to pursue a claim and the forum is generally favorable to employees. It is, therefore, very important that an employer attending a Labor Commissioner hearing be prepared. With “loss prevention” in mind, the firm targets successful resolution of employee claims as an effective means of minimizing legal exposure to new and different claims while resolving the wage issue. Injured Worker Claims (Not Covered by Worker's Compensation Insurance) California law requires all employers to be insured for industrial injuries. Employees injured in the course of employment have statutory protection from discrimination arising out of the injury or a claim for injured worker benefits. In most cases, if the employer has obtained the required insurance, legal representation will be provided by the insurance carrier at no additional cost to the employer. In two situations, insurance is not applicable to claims presented against an employer an injured worker. Labor Code section 132a prohibits an employer from taking any discriminatory action against an employee who has been injured and intends to or actually has filed a claim for worker's compensation benefits. Frequently, employers are served with Discrimination Penalty Petitions and find out that neither the defense of the claim nor the penalties for discrimination are covered under the employer's worker's compensation insurance policy. Costs of legal defense and payment of any award or settlement must be paid by the employer. Labor Code section 4553 authorizes an injured worker to seek additional benefits, as a penalty, against employers whose “serious and willful misconduct” created unreasonably unsafe workplace conditions which contributed to the injury. Numerous penalty claims have been defended and successfully resolved, many times for no settlement payment to the injured employee. Insurance Defense of Claims Lawsuits against employers are sometimes covered by insurance. Whether you are a business entitled to insurance defense and looking for legal representation, or an insurance carrier in need of local or conflict counsel for your insured, the firm is familiar with the standard reporting and billing requirements of all major insurance carriers. We have handled all aspects of tort litigation for a wide variety of insurance carriers. Employee Handbooks and Administration of Leaves of Absence California employees have numerous "time off" rights, the violation of which can subject an employer to potential liability. Currently, the trend in the law is toward increasing "time off" rights and careful employers can benefit from the firm’s extensive experience counseling with employers when evaluating requests for leave, particularly when the reasons for the request initially seem unfamiliar. On a voluntary basis, many employers have adopted policies permitting "time off" for a different situations, making it critical that personnel policies are updated from time-to-time. Periodic review of employee handbooks will ensure employees are receiving correct guidance regarding their rights and assist the employer with its "loss prevention" goals. Terminations As part of its loss prevention counseling expertise, the firm can advise employers on the significant factors to consider before terminating employment, how best to respond to Unemployment Insurance Benefits Claims and the strategic use of Separation of Employment Agreements (Release of Claims) to head off potential lawsuits. |
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