Preventing Disability Discrimination Disasters: In the Intersection of California Workers' Comp and FEHA. This program is designed for brokers and insurance carriers to sponsor directly for your clients and prospective policyholders. We customize the program for the specific industries and interests of your clientele. We include your logo prominently reflecting your sponsorship on the handout materials.

Workshop Description
If you're an employer with five or more employees in California — you're at risk. The only question is: How are you going to minimize it — and protect your company?

Are your managers, supervisors and HR professionals aware of the staggering changes to California law that have made disability discrimination the newest "bet the company" litigation? Are they prepared to enact and enforce key policies to protect and defend the organization? Will they properly handle return to work and reasonable accommodation decisions properly Do they have the skills to develop defensible documentation? Will they recognize potential legal landmines before they explode into lawsuits?

The changing legal climate in California requires informed business leaders. Here's why:

• The California Fair Employment & Housing Act (FEHA) broadens the definition of "disability" — way beyond the Federal law. Impact: many more employees now qualify as "disabled," and can sue for discrimination or harassment based on their disabilities.


• FEHA has also broadened the employers' responsibilities to consider reasonable accommodations, and defines a very specific "interactive process" for communicating with an employee when considering a "reasonable accommodation." The process must be explicitly followed and documented. Impact: Failure to conduct this process correctly will result in enormous liability — even if there was no accommodation that could be made.


• Amendments to the workers' compensation laws replaced Vocational Rehabilitation with a Supplemental Job Displacement Benefit Voucher. Your company now has only 10 days to tell an injured worker he's eligible for a voucher and then 30 days to find modified work. Result: Many more injured workers must be evaluated for modified duty — and must be provided with the "interactive process" under FEHA. And, your workers' compensation insurer has no responsibility to help you with this process.


• In five cases in the last year alone, juries have assessed awards to individual employees of $2.26 million (Wysinger v. Auto Club), $1.2 million (Snider v. Laquer, Urban), 1.679 million (Leuzinger v. Lake County) $5.2 million (Alberigi v. Sonoma County) and $6.5 million (Welch v. Anaheim) because of similar process failures that violated FEHA. The California Department of Fair Employment & Housing reported over 3,000 complaints for disability discrimination and retaliation in the last two years. Applicants' attorneys and employment lawyers have made this a litigation hotbed.


• California courts are increasingly scrutinizing evidence of communications and actions, including email. Result: the roles, responsibilities, action, inaction and words of senior leaders, line supervisors and HR specialists can make or break the company's defense.

Drawing upon many years' experience in the courtroom and the boardroom, and unique insights from consulting with employers on discrimination and controlling workers' compensation claims, Patricia S. Eyres takes you step-by-step through the maze of ever-expanding legal risks you face today. You can protect your company and gain peace of mind, when you pay attention to prevention, follow consistent procedures, and know what to do when trouble strikes.

Participants Will Learn To:

Understand, in plain English, the maze of legal risks facing California employers, by focusing on their critical roles in their organization's response to modified duty decisions and workplace assignments for disabled employees; whether following a workers compensation leave or at the request of an employee who has a non work-related disability.

Identify areas where policies and procedures must be updated to assure compliance with FEHA and regulatory requirements. This includes essential procedures for conducting the "interactive process," to prevent crippling claims and lawsuits.

Identify the triggers for the interactive process (return to work decisions following a leave of absence, triggers during performance management or after disciplinary actions, observed barriers to performance);

Appreciate how the company can be "right" that no accommodation is available and still lose a FEHA lawsuit if it doesn't conduct an appropriate interactive process, and document the results.

Recognize the essential roles for executives and HR specialists during and following every "interactive process," to prevent successful discrimination, harassment or retaliation charges.

Follow the nine principles of effective documentation, so that business communications work for you — not against the organization — in a legal dispute.

Materials for Turning Principles into Practice
SBA provides substantive handout materials, which include explanatory information, checklists, copies of the slides from the visual presentation and case studies for discussion. The handout materials serve as both the presentation materials and an on-going aid which each of the attendees takes with them when the program is over. (Broker and carrier logo and contact information included on the cover).

Lessons Learned: with civil litigation even when you "win," you don't.
Obviously, the cost of defending your employment decisions can be quite high — just the pre-trial process of gathering documents (including months or years worth of email) and taking deposition testimony can consume hundreds of hours. Putting your company's case in the hands of a jury can be even costlier. Why? Because every action your attorney takes to defend your company results in a counter-action by the opposing party's attorney. Legal fees can mushroom quickly — on BOTH sides. The more vigorously you defend your company, the more you risk in an award of damages for your opponent's attorneys' fees at the end of the game — If you lose.

The better prepared you are with complete, compelling documentation and credible company leaders (who will be your key witnesses) the greater your chances of achieving an early resolution or an effective defense at trial. What you spend in preparation may be nickels on the dollar if a courtroom verdict has you paying your own attorney — and your opponent's advocate too.

Broker Sponsorship: Why Invest in this Presentation for Your Clients?
Many California employers — of varying sizes — have lost disability discrimination cases under FEHA through lack of awareness of misunderstanding of the law. In the closing days of 2007, a California Appeals court has upheld a jury verdict in excess of $2.5 million against the Auto Club, solely because it failed to comply with FEHA's obligation to engage in this interactive process. In fact, in the last two years alone there have been more than twenty cases with challenging results for California employers.

In the first quarter of 2008, five cases have further expanded the already broad duty to interact with employees and make timely, appropriate reasonable accommodation decision. At the same time, employers who are aware and proactive have successfully defended themselves against FEHA claims. By being proactive, brokers and carriers who sponsor this presentation help their clients focus on managing, not litigating, in this increasingly challenging legal climate.