The DFEH has denied a request to expedite the appeal of a decision denying class certification in Activision v. Blizzard, and CWA filed an intervention against the settlement agreement reached by Activision and Blizzard.
The DFEH’s attempt to expedite their petition of intervention was rejected, and they must now adhere to the standard timetable (left). The CWA has filed a second petition of intervention, arguing that the EEOC’s settlement deal has many flaws (right).
While the judge’s rejection of the DFEH’s application doesn’t say much, it does recognize that the issue is becoming so tangled that it shouldn’t be hurried. The EEOC’s opposition to the DFEH’s objection has sparked a series of arguments between the state and federal agencies about who has jurisdiction and what information is actually confidential. The DFEH has filed an objection to the EEOC’s opposition, claiming that the DFEH and EEOC agreed to share confidential information and personnel without ever ceding authority to the EEOC. To say that the situation is chaotic is an understatement.
The DFEH’s response to the EEOC’s objections to the DFEH’s intervention alleges that the EEOC utilized private papers in its case (left) and that the two agencies agreed to share confidential information and people.
Meanwhile, the Communication Workers of America (CWA) has entered the fray by submitting its own objection to the settlement, noting 31 areas where they believe the deal is inadequate. Many of them read as the union wanting to be engaged in the process and supervision outlined in the settlement, even though they aren’t a party to any of the cases, so it’s unclear how much participation is within their jurisdiction to begin with. Nonetheless, the majority of the queries merely ask for a more detailed explanation of the ideas, which is perfectly acceptable.
1. Why were workers not contacted prior to the proposed Consent Decree’s approval? Before entering into any proposed Consent Decree, these EEOC requirements for Consent Decrees necessitate consultation with workers who are impacted by the Decree.
2. Waivers are included in the Consent Decree. We haven’t seen any possible waivers, and we’re worried that they’ll be confined to the complaint’s specific claims and won’t impact any private right of action or claim under state, federal, or other laws or regulations.
3. The 18 million dollar settlement sum seems to be grossly insufficient. Only 60 employees would get the maximum compensation. If a large number of employees got the maximum amount allowed by federal law, there would be little left for many other workers who would be harmed. We are worried about how the EEOC arrived at that figure and how it thinks money will be allocated equitably. Please elaborate.
4. This proposed Consent Decree seems to be an effort to circumvent the Department of Fair Employment and Housing’s similar lawsuit under California law. California law allows for additional remedies, and the DFEH seems to be far more ready to pursue lawsuits vigorously and successfully. Please explain why this Consent Decree was entered into and became operational so quickly after the DFEH’s complaint was filed. Do you intend to consult with the DFEH? Why wasn’t this done in conjunction with the DFEH?
5. Employees must be given notice under the Consent Decree. Please submit any planned notification since we have not seen that form or notice.
6. “Retaliation” is mentioned many times throughout the Consent Decree. We are worried that retaliation will extend to claims brought under state law as well as claims brought under federal law, such as the National Labor Relations Act. Please describe how you plan to restrict any Title VII waiver to retaliation.
7. “Activision Publishing and its associated subsidiaries and businesses,” according to the Consent Decree. 18. See p. 1: We don’t know what the Consent Decree means when it says “connected subsidiaries and businesses.” Please elaborate.
8. We are worried that non-admissions provisions are included. See pp. 2:1-9 and 5:17-19 of the Consent Decree. We don’t understand why the EEOC granted these Defendants a pass on non-admissions provisions, given the extent, breadth, long-term nature, and severity of the accusations. Please elaborate.
9. “Defendants, as well as their parents, subsidiaries, officers, directors, agents, successors, and assigns,” according to the Consent Decree. p. 2:15-16 of the Consent Decree Is this Consent Decree therefore sufficient to release the people from future responsibility? Please elaborate. How will they be notified in order to ensure compliance?
10. According to the Consent Decree, everyone who receives a settlement will be forced to sign a waiver or release of some kind. Please provide us a copy of any such release or waiver so we may verify that it is confined to the particular claims of the complaint and the EEOC’s jurisdiction. We want to make sure it doesn’t waive any additional claims under federal, state, or other laws.
11. No copy of any claim form has been provided to us. Please provide a copy of any suggested claim form to us. We’d want to double-check that it’s clear and correct.
12. We’d want to have a say in who gets hired as a “EEO Consultant.” We want to make sure that the consultant is objective, competent, and active.
13. We’d also want to know how the EEOC would decide whether someone is a “eligible claimant” under the Consent Decree’s definition. Please describe how you plan to compile the “possible claimant list.” 4:20-21 of the Consent Decree. What about employees who are misclassified under state or federal law? As I previously said, CWA communicates with a huge number of people. Many people are in touch with the DFEH. How do you plan to include any persons we know about, former workers, and anybody else who has been harmed by Defendant’s unlawful activities in order for them to be eligible to file a claim form?
14. Please provide us a copy of charge number 480-2018-05212 so that we can determine the extent of any release. “Nothing in this Decree represents, nor should be interpreted as constituting, the imposition of any punishment on Defendants,” according to the proposed Consent Decree. 5:20-21 of the Consent Decree. Given the heinous nature of the behavior, we are baffled as to why that phrase is included in this Consent Decree. The Consent Decree, as well as the monetary penalty attached to it, should be regarded as a punishment.
15. We oppose the Consent Decree’s automatic expiry. It should only be allowed to expire if the court approves it, and all affected claimants should be notified. See p. 6:21-24 of the Consent Decree.
16. We are concerned that the Consent Decree allows the Defendant’s lawyers to be present when the EEOC questions “any individual who has privileged knowledge about the subject of the interview.” 8:1-2 of the Consent Decree. Many of the workers will have “privileged information,” according to the Defendants, which gives them the right to have any counsel present. Employees have a right under Section 7 of the National Labor Relations Act to not have a business representative present. Those interviews will be frightening and almost worthless as a result of this. Furthermore, the clause makes no mention of the interviews taking place during paid work time.
17. The prospective Claims Administrator has a lot of leeway under the Consent Decree. 10:2-11:2 of the Consent Decree. We believe that the EEOC should negotiate tighter rules and/or keep stricter control over the claims administrator’s responsibilities, and we believe that the EEOC should negotiate stricter standards and/or maintain stricter control over the claims administrator’s duties. We want a say in who the Claims Administrator is chosen, or it should be a public procedure.
18. We are worried that the Consent Decree restricts the quantity of information that will be made accessible on the Internet and via recorded messages. 11:13-14 of the Consent Decree. Please clarify why there is a restriction in place. Workers have the right under Section 7 to publish limitless information about their working circumstances, and this may limit that freedom.
19. We’d want to see any proposed “Notice of Settlement” and “Claim Form” as described on page 12:11-13 of the Consent Decree. We’d like to hear from you in any of these ways.
20. Claimants who did not receive initial mailings will be contacted as part of the claim process. We’d want to know whether the EEOC would disclose the information of individuals that the EEOC was unable to find at the outset so that the CWA may give any further information to help locate more claimants.
21. The Equal Employment Opportunity Commission (EEOC) plans to create “generic standards for evaluating allegations submitted via Claim Forms.” See p. 13:26-27 of the Consent Decree. We’d want to hear how the Equal Employment Opportunity Commission plans to establish those “general criteria” and evaluate allegations. We’d want to be a part of that process in order to ensure a fair allocation and just remedies. We want an open approach that does not jeopardize any privacy issues.
22. The EEOC agreed a fee of $450.00 per hour for an Eligible Claimant to visit a private attorney for one hour. 15:3-8 of the Consent Decree. That is completely insufficient. It is not the going rate in Southern California or other regions where the workers work for experienced and competent lawyers who specialize in these areas. Furthermore, any competent attorney cannot examine the Consent Decree and the facts of each individual employee’s case in one hour. No lawyer would consent to such a restriction because it would be considered malpractice. This seems to be a total disregard for what would otherwise be a valuable consultation paid for by the Defendants.
23. The Consent Decree calls for a “Equal Employment Opportunity Consultant” to be hired. CWA would want involvement into that decision (see Consent Decree p. 20:20-23:8). Is there a list of consultants recommended by the EEOC? Is it possible to assess them?
24. We share the same concerns regarding the internal EEO Coordinator’s hiring. 23:9-25:8 of the Consent Decree. Do we have any say in who the internal coordinator is hired and/or approved? Why just one?
25. The Defendants are required to provide “Workplace Policies and Procedures” under the Consent Decree. p. 27-28:4 of the Consent Decree Any such policies should be provided to us in writing. Employees have the right to see the policies and procedures in place. When will we be able to view them, assess them, and provide feedback on whether they are legal and fulfill the Consent Decree’s goals? We want to ensure that they don’t infringe on Section 7 rights, the freedom to organize, or state legislation.
26. The Consent Decree establishes an Internal Complaint Investigation Procedure.” 30:4-5 of the Consent Decree. CWA would want to receive a copy of any such process to ensure that it is fair and does not infringe on other federal and state rights, particularly those guaranteed by the National Labor Relations Act.
27. The Consent Decree states, “To the greatest degree feasible, the complaint, complainant, and inquiry must be kept private.” p. 32:1-4 of the Consent Decree We are worried that this might be interpreted as prohibiting workers from discussing illegal behavior, harassment, or investigations with one another. Section 7 of the National Labor Relations Act protects this kind of behavior.
28. According to the Consent Decree, the Defendants have provided information regarding training programs and will conduct “Compliance Trainings.” See pp. 33:6-34:37-13 of the Consent Decree. We are concerned that such trainings are sufficient, and that they include training for both workers and supervisors on employee rights in the workplace. Section 7 rights under the National Labor Relations Act, as well as other rights under state and federal law, must be considered. Employees should be informed of their right to form a union in order to avoid future discrimination. Why isn’t this being handled with the National Labor Relations Board’s General Counsel?
29. Training “Human Resources (“HR”) employees” for two hours is grossly insufficient. See p. 34:17-23 of the Consent Decree. It should be compulsory every two years, and employees should be permitted to attend.
30. As part of the Consent Decree, employees should be trained on how to react to the unlawful and inappropriate behavior described in the Complaint. This should contain instruction on how to report retaliation and the Consent Decree’s scope. 31. Workers should be forced to hear a summary of the Consent Decree from employer representatives. We anticipate receiving a quick answer to these questions. We anticipate to get more questions about this as we engage with workers about the scope and impact of the Proposed Consent Decree. Please refrain from taking any further action until CWA has had a chance to respond. Please notify this office if there are any further filings or actions in this case, as I requested.