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TURNING EMPLOYER WRONGS INTO EMPLOYEE RIGHTS

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DFEH Under Fire – Part 3

The Department of Fair Employment and Housing’s new online system of complaint filing, known as HoudiniEsq came with more troubles than perhaps it was worth. Faced with budget cutbacks, investigator attrition, furlough days and a demand for increases in efficiency, DFEH’s Director, Phyllis Cheng instituted the program more than two years ago.

Though she still staunchly defends her decision, she has recently announced that the Department will implement a few changes starting on September 1st.

The Department will begin interviewing claimants at the beginning of their filing process, rather than wait for the system to kick files down to them (a process which never seemed to work). Helping complainants put together their requests for an investigation will, more than likely, lead to fewer complaints and the ones that do make it through will be more coherent. Until now, many of the complaints that made it through made little sense, due to conflicting and hard to understand directions and prompts from the system.

Until now, the online system was more confusing than it needed to be, especially for users with limited English skills and/or no experience with employment or discrimination laws.

“We’re tweaking the system. It’s still going to be paperless,” Fahizah Alim (spokeswoman for the Department) said. “But now (claimants) will have a consultant to help them.”

Some office duties that consultants had complained cut into their time to investigate cases will be shifted to office technicians, Cheng said in the telephone call.

Cheng, who has led Fair Employment since 2008, has been under pressure for several years. As budgets shrank and staff dwindled, she drew ire from employees for closing offices around the state and launching the Houdini system in 2012 as a way to automate some functions that were time-intensive, including fielding initial claims and deciding which allegations required action.

She was confronted by investigators in early August. They were concerned that there were too many cases being closed and/or ignored.

“(W)e believe we run the risk of closing cases with potential merit because even a minimal investigation was not done,” the investigators wrote in a signed Aug. 13 follow-up memo to Cheng.

Another change that bothered investigators was that under the old system complainants had time to retract their complaints in instances where they had second thoughts. In those cases where the employee had a change of heart, the cases were set aside without the federal government being notified and without employers finding out.

That is the case no longer. The Department now forwards those complaints, even if the person who filed them wants to retract. While this may lead to additional federal funds, it can put the complainant in a precarious position. The law is unclear as to the protections that may be given to employees who are retaliated against after withdrawing a complaint.