5 Big Mistakes California Employers Make

A plaintiffs’ attorney point of view

Jathan Janove, J.D. By Jathan Janove, J.D. May 7, 2019
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​Workplace compliance mistakes can lead to costly litigation for California employers and continue to make the state golden for employment lawyers. So what are employers doing wrong? Here are five big mistakes that employee-side attorneys say businesses make when it comes to preventing lawsuits.This is the paragraph text I’d like to style.

1. Failing to Empower HR

"Employers end up with lawsuits when they don't empower human resource professionals to fix toxic work environments," said Jean Hyams, an attorney with Levy Vinick Burrell Hyams in Oakland. "When employees go to HR, they are trying to solve problems, not create them."

Hyams thinks employees should be rewarded for speaking up. "I'm a great believer in human resource professionals," she said. HR leaders should refuse to compromise their professional standards when conducting investigations, making factual findings and coming up with remedies, she said. "Of course, HR professionals can only do their job if they are vested with real authority."

2. Conducting Terse Terminations

"If California employers want to see fewer claims brought by people like me, the most important thing they could do is handle terminations differently," said David Lowe, an attorney with Rudy, Exelrod, Zieff & Lowe in San Francisco who represents employees and also works as a mediator in employment cases.

"A common reason employees tell me that they decided to call a plaintiffs' lawyer is that they feel they were treated unfairly when they were fired," he explained. "This feeling of unfairness frequently arises because the termination decision is communicated tersely, with a scripted message."

Furthermore, an employee may be abruptly escorted out of the building, even if he or she has done nothing to suggest a security risk and may not be offered a severance package to help ease the transition. "Employees, most of whom view themselves as having been loyal and hardworking, tell me that this experience is traumatizing and makes them feel like a criminal," Lowe said.

While there's no law against treating someone coarsely during the termination process, "once the wounded employee is motivated to discuss the situation with a plaintiffs' attorney, that conversation does sometimes illuminate other potential legal claims … including potential discrimination claims or wage and hour violations," he noted.

Kindness, respect, honesty and compassion during the termination process are critical, he said.

3. Contesting Unemployment Benefits

Fighting unemployment benefits is like "kicking a person while she is down," said Toni Jaramilla, an attorney in Los Angeles and a former chair of the California Employment Lawyers Association. "Not only is the employee without a job and income, now she is deprived of her only source of financial survival while she looks for a job. She may be a single parent or the sole breadwinner or have a spouse or child with a disability."

A jury may view an employer as "cruel" or "heartless" for fighting a discharged worker's claim for benefits, Jaramilla said.

4. Denying Additional Leave

Another decision that may land an employer in court is refusing to extend an employee's protected leave time under the Family and Medical Leave Act (FMLA) or its state equivalent, the California Family Rights Act (CFRA) as a reasonable accommodation under disability laws.

Employers mistakenly think they can simply fire an employee once the 12-week protected leave period is exhausted if the employee is unable to return by that time, Jaramilla said. "Not true."

[SHRM members-only toolkit: Managing Family and Medical Leave]

Employees can request an extension of time under the FMLA or the CFRA as a form of reasonable accommodation for the disability or restriction that placed them on leave in the first place.

Furthermore, the employer must engage in a dialogue with the employee (which is called a good-faith interactive process) to determine if an extension of leave time or some other form of accommodation can be reasonably provided.

5. Conducting Shoddy Investigations

Failing to properly or promptly investigate employee complaints is another problem that may lead to a lawsuit.

"So many times, I've heard employees tell me their complaints were either completely ignored or were investigated in a way that made it obvious that the outcome was already decided before the inquiry started," observed Supreeta Sampath, an attorney in San Francisco and a former board member of the California Employment Lawyers Association. "Neither approach is good for the employer and certainly ensures my phone keeps ringing."

Matters can be made worse if a supervisor who is accused of misconduct is told who made the complaint but hasn't been trained on anti-retaliation laws, Sampath added. "More times than not, the real problem for the company is not necessarily the underlying complaint, but the retaliation which flows from that complaint." For example, the employee who complained might be excluded from meetings, given negative reviews or micromanaged.

Sampath recommended giving supervisors a laundry list of examples of the ways in which they might knowingly or unknowingly retaliate against subordinates who have filed a complaint with HR. "The same patterns of retaliation repeat themselves across various industries."

Properly investigating employee claims and using a practical approach to prevent retaliation can lead to "greater humanity in the workplace and fewer problems down the road in litigation for the company," she added.

William Waldo, an attorney with Bononi Law Group in Pasadena, sees the problem as being less about slipshod investigations of formal complaints and more about the absence of complaints.

Particularly in sexual-harassment situations, employees may be afraid to complain. So the employer's first opportunity to investigate the complaint and take appropriate remedial action may be when the lawsuit is filed. Be careful, because under California law employers are liable for supervisors' sexual harassment—even if the employee never made an internal complaint and regardless of whether the employer knew about the harassment.

Employers should examine their culture and find improvements that can be made to encourage employees to come forward with concerns, Waldo said.

[Visit SHRM's resource page on Workplace Harassment Prevention.]

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