A Bird’s-Eye View of the DFEH: An Interview with Patti Perez

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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From defining accommodation provisions for assistive animals to calculating pregnancy disability leave, the matters addressed by California’s Department of Fair Employment and Housing (DFEH) regulations are extensive. In this interview, we chat with Patti Perez, Esq., SPHR, president and CEO of Puente Consulting, and member of the DFEH’s Fair Employment and Housing Council. As the leader of a human resources consulting firm, Perez provides training on employment issues and conducts workplace investigations. She also serves as a councilmember on the DFEH’s Fair Employment and Housing Council, drafting and clarifying employment and housing regulations that affect Californians throughout the Golden State.

AMENEH ERNST: How has your role evolved since the elimination of the Fair Employment and Housing Commission and the creation of the Fair Employment and Housing Council?

PATTI PEREZ: Previously, a big role that the Commission served was adjudicative. The cases that the DFEH decided to prosecute would go through the administrative process. If the case didn’t settle, eventually it would be heard by an administrative law judge (ALJ) at an administrative hearing. The members of the Commission would look at the ALJ’s proposed decision and either agree with it or go through a process to allow for additional argument and eventually make changes to the proposed decision. As a Commission we would issue decisions, some of which are deemed precedential. Under the new organizational structure, the DFEH can take cases straight to court. (The administrative adjudicative process has been abolished.)

The other role that the Commission played was to draft and implement regulations on all of the civil rights laws that we oversee. That includes not only the Fair Employment and Housing Act (FEHA), but also the Unruh Civil Rights Act, and the Ralph Civil Rights Act (regarding hate violence).

We drafted regulations, but that was a role that we played while we were also adjudicating matters brought by the DFEH. (The Commission was an entity completely separate from the DFEH.) The regulatory process was therefore slower, since we had additional duties and since the Commission had a limited staff and budget (as compared to the DFEH). For example, it took four years for the disability and pregnancy regulations to go through the entire process. They were enacted in December of 2012.

So with these changes, the Council primarily inherited the Commission’s regulatory powers. Our primary task now is to draft regulations, either clarifying or, in some cases, amending existing regulations, and in other cases drafting regulations from scratch.

ERNST: What are some examples?

PEREZ: We have been in existence for a year and we’ve already introduced and gone through the first phase of two different regulatory projects. The one getting the most attention right now, because it is furthest along in the process, entails making significant changes to the California Family Rights Act (CFRA) regulations.

I didn’t sit on that subcommittee but, as a Council, we adopted a version of the amendments and we’ve already had two sets of public hearings. So we have accepted public comment—both orally at two hearings, and also in written comments.

I believe 1995 was the last time these regulations were amended. In the interim, not only have there been changes to California law, but the federal Family and Medical Leave Act (FMLA) has been amended. A lot of information needed to be changed, clarified, and updated.

We are now at the stage with those regulations where we are going to go back and look at the universe of public comments we have received and start digesting and voting on whether we will make changes to the version we adopted.

ERNST: Does the Council go through every comment that it receives?

PEREZ: We are required to go through every single comment. And, we address every single comment. Our next meeting is in October in San Diego. That’s when we will, if necessary, hold the next set of hearings. So we have a four-month period to go over all of these comments, reply to them, and if we feel it’s necessary, make any changes.

Anyone who has commented will get an opportunity to see the new version (assuming there is a new version) and an additional chance to comment. Some aspects of the timing for final adoption are out of our control but, hopefully, in the near future we will have enacted a set of regulations for the CFRA that is up-to-date.

[Note: Some clarifications in the proposed regulations include making clear that same-sex spouses are covered under the CFRA and that the FMLA regulations apply to CFRA leave "to the extent not inconsistent" with CFRA regulations. In addition, the proposed regulations require a California employer to maintain an employee's group health benefits for the entire time the employee is on pregnancy disability leave and FMLA/CFRA leave (and not just up to 12 weeks).]

ERNST: How else does the Council clarify regulations for employers?

PEREZ: There are many issues because the CFRA is, in some instances, significantly different from the FMLA. So our regulations also contain sample forms for employers to use.

Usually, the most significant thing that an employer that is out of state but has locations in California needs to know is that it can’t ask for a prognosis or a lot of details on a medical diagnosis. Employers are much more limited in terms of privacy rights and what they can ask employees.

Some employers might use a nationwide form that works for the FMLA, but not the CFRA. So we are trying, as a department, to put out as many helpful forms or summaries that can hopefully help both employees and employers. Doing this for purposes of compliance with the CFRA (providing clear regulations, summaries, and forms) is one of the many projects where the Council is doing this.

Look for part two of our interview where Patti Perez talks about proposed changes to sexual harassment regulations and FEHA section 12940 (k), which addresses employers’ obligations to take reasonable steps to prevent discrimination and harassment.

Note: This article was published in the July 2014 issue of the California eAuthority.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

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