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According to a proposal made by the federal Department of Labor (DOL), the agency intends to revise how independent contractors are classified under law. The proposed rule would significantly alter the most recent definition, which was finalized in 2021. Should the DOL’s newest proposal be implemented, it will significantly reduce the number of workers who can be classified as independent contractors nationwide. 

For many workers, this would be a net benefit. However, it is still a significant change. It is in your best interest as an independent contractor to understand how the update could affect you and what it may mean for your future. 

How the New Rule Could Change Federal Law

Currently, independent contractors are defined based on the DOL’s 2021 rule. This rule outlines five factors, including two “core” factors, that are used to determine if a given worker is an independent contractor. The core factors are:

  • The amount and type of control the worker has over their work
  • The worker’s opportunity to make a profit or loss depending on their skills

If a worker has significant control over how, where, and when they do their work, and if they stand to gain or lose depending on the quality of their work, the DOL’s current rule states there is a substantial likelihood that they are a contract. If there is still doubt, the DOL considers the other three factors:

  • The amount of skill the work calls for
  • The permanency of the working relationship
  • Whether the work is “part of an integrated unit of production”

Under these rules, “gig economy” workers are generally considered independent contractors due to the core factors test. However, the DOL has determined that the current rule is inconsistent with current judicial precedent and the Fair Labor Standards Act (FLSA).

The proposed rule is intended to resolve these issues. It would institute a new collection of six factors, which are intended to be given equal weight. These factors include:

  • Whether the worker’s managerial and negotiative skill impacts their opportunity for profit or loss
  • Whether the employee is making independent investments into their work
  • The permanency of the working relationship
  • The amount of control the worker has over their work
  • Whether the work they perform is integral to the employer’s business
  • Whether the worker needs specialized skill and initiative to advance their business

These new factors are more specific and place a much heavier emphasis on the entrepreneurial spirit of the worker. The intention of this rule is to ensure that workers who genuinely wish to run their own businesses can remain independent contractors, while preventing employers from misclassifying workers to cut down on benefit and overtime costs.

How the New Rule Compares to California Laws

If the DOL finalizes the independent contractor rule, it will go into effect nationwide. However, it may not have as much of an impact in California as it will in other states. This is because the state has implemented a number of laws in recent years to restrict how companies may classify their workers. 

First, Assembly Bill (AB) 5, which was implemented in 2020, codified the ABC test to determine whether a worker can be classified as an independent contractor:

  • “The worker is free from the control and direction of the hiring entity in connection with the performance of the work.”
  • “The worker performs work that is outside the usual course of the hiring entity’s business.”
  • “The worker is customarily engaged in an independently established […] business of the same nature as that involved in the work performed.”

This law is stricter than the current federal rule, but the DOL’s proposed rule would tighten the definition further. 

In addition, the passage of Proposition 22 added a major loophole to AB 5, allowing “app-based drivers” to continue to be classified as independent contractors despite the ABC test. If the DOL implements its proposed rule, this loophole would be closed, and California gig economy workers would finally be considered employees, not contractors.

How Will the New Law Affect You?

The DOL rule is not intended to force entrepreneurs to accept W-9 employment if they don’t want it. If you are satisfied as an independent contractor and do not want the possible restrictions of being a standard employee, the possible change should not affect you. However, the law will benefit many workers currently classified as contractors.

Independent contractors are not protected under the federal Fair Labor Standards Act (FLSA). These workers are considered to be their own employers, and the people paying them are their clients. As such, they are responsible for providing their own health insurance and negotiating contracts that provide them with fair pay. In return, they are supposed to receive the flexibility to pick and choose their clients, negotiate their rates, and get their work done on their own schedule.

Unfortunately, many gig workers currently receive all the drawbacks of independent contractorhood without the benefits. They may only be able to work for one or at most two companies, they cannot negotiate the rates at which they are paid, and they are restricted to working when demand is high. If the new DOL rule is implemented, though, this would change. They would receive the rights guaranteed eny employee, including health insurance, overtime pay, and minimum wage. 

Expert Legal Assistance to Fight Employment Misclassification

While the DOL hasn’t finalized its new rule, it is likely that a version of the regulation will be implemented in the next year. In the meantime, many independent contractors around California can still rely on AB 5 to help them pursue fair employment. 

If you believe you have been misclassified as an independent contractor, you can get help to pursue fair employment under the FLSA and AB 5. At Le Clerc & Le Clerc LLP, we can help. Learn more about how our California employment law firm can help you protect your employee rights by scheduling your free consultation today. 

California has one of the best social safety nets in the nation. One benefit many workers are unaware of is the California Paid Family Leave (PFL) program, which is specifically designed to provide workers with income if they need to take time off work to care for a family member. This program provides invaluable support for people who need to step away from work responsibilities to care for loved ones.

Unfortunately, many employees are hesitant to take time off, even with pay, because they worry the time away may impact their employment. However, it is illegal for employers to retaliate against workers who have taken leave or received government benefits. Here’s what you need to know about PFL in California and what to do if your employer penalizes you for taking leave. 

California’s Paid Family Leave Program

Paid Family Leave is managed by the California Employment Development Department as part of the State Disability Insurance (SDI) program. While PFL is not the same as disability insurance, it has many similarities. The benefits are funded by SDI contributions deducted from W-2 employees’ paychecks and contributions to the Disability Insurance Elective Coverage (DIEC) program. 

These funds provide eligible workers with up to eight weeks of partial wage replacement if they need to take time off to care for a family member. PFL currently covers 60-70% of your weekly pay based on your highest quarterly income in the past year, up to a limit of $1,620 per week. These funds are intended to help you cover bills and maintain your quality of life while you take care of your loved ones. 

PFL only applies if you take time off to care for someone else. If you need to take time off work because you are injured or ill, you must apply for disability insurance coverage instead. 

Eligibility for Paid Family Leave

If you receive a W-2 in California, you are likely eligible for PFL. As long as you have received at least $300 in pay from which SDI has been deducted during your “base period,” you have contributed to the program and could receive benefits. Your base period consists of 12 months, beginning 18 months prior to when your time off begins. For example, if your leave starts on February 1st, 2023, your base period would be November 2021 to October 2022. 

In addition to contributing to SDI through your paycheck, you must also meet the following criteria to be eligible:

  • You are employed or actively looking for work when you need to care for someone.
  • You are unable to do your customary work.
  • You are:
    • Bonding with a new child within one year of their birth, adoption, or foster placement; OR
    • Providing care for a seriously ill family member whose illness incapacitates that person to the point that they require assistance with performing regular daily activities or attending subsequent treatment or inpatient care; OR
    • Participating in events related to a family member’s military deployment to a foreign country.
  • You can provide supporting documentation regarding the medical needs of the family member.

How to Take Paid Leave

If you meet the requirements above, you’re eligible to receive benefits from the state while you take time off work to help your family. To request wage replacement benefits, you apply directly through the state SDI portal

However, you cannot receive PFL if you are currently receiving wages. You must take time off from your job if you’re currently employed. If you currently have a job and want paid family leave, the best solution is to request unpaid time off from your employer, then apply for PFL through the state. 

The requirements for requesting PFL overlap with the requirements for unpaid leave under the federal Family Medical Leave Act (FMLA) and the California Family Rights Act (CFRA). These laws require covered employers to provide workers with 12 weeks of unpaid leave if they have worked at least 1250 hours for them in the past 12 months. 

During CFRA leave, your employer must continue to provide your benefits but will not pay you. They must also allow you to return to your job at the same hours, location, rate of pay, and benefits when you return to work. They may not retaliate against you in any way for requesting this time off. If they do, you may have grounds to take legal action against them. 

What to Do If Your Family Leave Impacts Your Employment in California

If you are eligible for both CFRA and PFL programs, you have every right to take time off work to care for your family. However, unscrupulous employers may attempt to discourage you from taking this time off or retaliate against you for inconveniencing them. Examples of this retaliation include:

  • Refusing to grant you unpaid CFRA time off despite meeting the eligibility requirements
  • Threatening you with adverse employment action such as termination or demotion for taking leave
  • Firing you, refusing to promote you, withholding raises offered to other employees or otherwise taking adverse action against you during or after your leave
  • Refusing to maintain your benefits during your time off
  • Deducting PFL from your benefits during or after your time away

All of these actions are illegal, but they still occur. If you have been retaliated against for taking protected family leave in California, you have grounds to take legal action against your employer. At Le Clerc & Le Clerc LLP, we are dedicated to helping clients like you stand up for your right to take family leave in California. We can help you address workplace discrimination and retaliation and seek justice and compensation for your losses. Learn more about how we can help you by scheduling your consultation today.

Congress has spent several months working on an omnibus spending package to cover the following year. The $1.7 trillion package significantly boosts spending on issues like child care and worker protections. Critically, it included two bills specifically intended to provide pregnant and nursing workers with more support: the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act and the Pregnant Workers Fairness Act, which were included with bipartisan support. 

These two acts significantly improve the rights of workers who are or have recently been pregnant nationwide. As federal laws, they apply to a wide variety of employers in every state, California included. Here’s what you need to know about the bills, how they compare to California laws, and what you can do to defend your new rights as a pregnant employee. 

The Pregnant Workers Fairness Act (PWFA)

The PWFA is one of the broadest federal protections for workers enacted in years. The PWFA provides workplace protections to pregnant workers nationwide. Inspired by the Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA), the PWFA requires all employers with 15 or more employees to provide reasonable accommodations to pregnant workers.

According to the PWFA, covered employers must “make reasonable accommodations for employees and job applicants with known limitations related to pregnancy, childbirth, or related medical conditions, enabling them to continue working while maintaining a healthy pregnancy.”

This is a significant step forward for much of the nation. Previously, there were no federal protections for pregnant workers with health concerns. Under the PWFA, workers can request accommodations for the duration of their pregnancy to ensure that they remain healthy while carrying it to term. 

However, California workers already receive all of the protections above. The state has classified pregnancy-related medical conditions as disabilities eligible for accommodations under FEHA. Workers who experience medical conditions that make doing their jobs more difficult are permitted to request reasonable accommodations such as altered schedules, modified duties, time off for medical appointments, and transfers to less strenuous roles. 

However, this does not mean that the PWFA is not useful for California employees. It grants protections to employees who work for wide-reaching businesses that may not have five employees in California but have more than 15 workers nationwide. It also provides protections at the federal level for employees who may not qualify under California’s laws due to residency. 

The PUMP Act

Nursing employees have been protected under federal law since 2010 when the Break Time for Nursing Mothers Act was first passed. This bill granted covered employees rights such as:

  • Reasonable break time to pump breastmilk
  • Access to private, non-bathroom spaces in which to take lactation breaks

However, the original bill only covered about three in four breastfeeding employees. It excluded most exempt (salaried) workers, allowing their employers to continue requiring them to work without breaks. Unfortunately, exempt positions frequently pay better and offer more benefits than hourly roles. This means that the Break Time bill may have contributed to pushing mothers out of higher-earning roles.

The PUMP Act is intended to change this. This law is based on California’s pre-existing Labor Code to the extent that it provides almost identical rights. It expands coverage to all employees, with exemptions for airlines, railways, and small businesses who experience hardship meeting the requirements of private spaces. It also extends coverage to the first year of the child’s life, allowing nursing parents to continue breastfeeding for twelve months without risking retaliation. 

This is important for both parents and children. Breastfeeding is less expensive than formula, so providing employees with protection to pump can assist them with the costs associated with newborns. It also offers new parents greater flexibility when returning to work since they do not need to worry about risking their roles as exempt employees if they need to take time to pump. Finally, it may provide better outcomes for the children themselves, as breastfeeding may be linked to more robust immune systems and healthier babies. 

Defending Your Rights as a Pregnant Employee

The PUMP Act and the PWFA are critical steps to protect workers who can become pregnant. They demonstrate that federal legislators have begun to pay attention to the needs of parents. However, the new legislation does not mean that all companies will automatically comply. The laws give you the right to take legal action if you face employment discrimination for being pregnant or breastfeeding; it is up to you to take action. 

The process is more straightforward than you may think. You can make the most of California protections for pregnant workers by:

  • Documenting the discrimination. Keep records of when you face discrimination, such as having your request for accommodations denied, having your hours cut, or being fired. 
  • Talking to an employment law attorney. An experienced lawyer will help you determine if you have a case and guide you through protecting your rights. 
  • Filing a complaint with your employer. Your lawyer may recommend that you file a complaint with HR to document your complaint. This may be enough to resolve the problem if it is simply a lack of awareness. 
  • Notifying the California Civil Rights Department. If a complaint doesn’t solve the issue, you can inform the state about the discrimination.
  • Taking legal action. After notifying the necessary parties, your attorney will help you take legal action to protect your right to work while pregnant or breastfeeding. 

Make the Most of California Pregnancy Protections

The last time you want to lose employment is when you’re preparing for or welcoming a new child into your home. Today, both state and federal pregnancy protections are in place to help California workers maintain their jobs throughout their pregnancies. At Le Clerc & Le Clerc LLP, we are dedicated to protecting the rights of expectant and new mothers in the workplace. We pride ourselves on providing skilled legal representation to clients like you who need to defend their rights. Learn more about how we can help you protect your right to fair employment while pregnant by scheduling your consultation today.

The U.S. Equal Employment Opportunity Commission (EEOC) has sued a Kentucky grocery store for refusing to hire someone who would not change their religious hairstyle. The lawsuit alleges that this decision is a form of religious discrimination in the workplace. 

The lawsuit was filed on behalf of Matthew Barnett, who applied to the Williamsburg Hometown IGA and received an interview. During the meeting, store management informed him that he would have to remove his dreadlocks to work at the location. Barnett is a longtime adherent of Rastafarianism, for which dreadlocks are a meaningful spiritual component. He refused to shave his head on religious grounds, and management ended the interview immediately. 

The EEOC stated that it only filed a lawsuit after “exhausting its conciliation efforts to reach a voluntary pre-litigation settlement.” The agency worked with Hometown IGA to find other non-litigious methods of resolving Barnett’s claim, but a satisfactory resolution was not reached. No, the agency is taking the matter to court to set an important precedent regarding religious hairstyles nationally. 

Hair has been the subject of much controversy over the past decade. There remain no national laws that specifically protect hairstyles as racial or religious expression. However, states like California have begun implementing regulations to prevent situations like Barnett’s. Here’s how California protects religious expression in the workplace, the potential impact of the EEOC’s lawsuit on California residents, and how to fight back if your employer prevents you from wearing your hair according to your religious principles.

California Laws Offering Hairstyle Protections 

California has long been one of the forerunners in expanding civil rights in the United States. This is just as true in hairstyle discrimination as it was in gay marriage. The state’s Fair Employment and Housing Act (FEHA) is responsible for providing these protections, and legislators regularly amend it to clarify what is protected under the bill. 

For hairstyles, two primary amendments have increased protections for workers. The first is the California Workplace Religious Freedom Act (WRFA). This 2012 bill states that all sincerely held religious beliefs must be accommodated in the workplace. In particular, it named “religious dress practice” as an example of protected behavior. This includes wearing or carrying religious items, head and face coverings, and, broadly, hairstyles as well. 

The other law guarding the rights of employees to wear their hair in specific ways is the 2020 Creating a Respectful and Open Workplace for Natural Hair Act (CROWN Act). Under the CROWN Act, the definition of racial features protected from discrimination has been expanded to include traits “historically associated” with race. This specifically includes hair texture and “protective hairstyles” such as dreadlocks, twists, braids, and other styles that protect tightly coiled hair from breaking. 

Under these laws, employers may not discriminate against workers for wearing dreadlocks due to their religion or race. This includes requiring employees to change their hairstyle to remain employed, refusing to hire people with these hairstyles, or penalizing workers with these styles. 

Impact of the EEOC Case on California Employees

As a federal agency, the EEOC acts as the national government’s enforcement arm for employment discrimination claims. Because California already has the CROWN Act and WRFA on the books, the EEOC case may not have a noticeable effect immediately. However, it is an important reminder to many workplaces that discriminatory “grooming” policies that bar religious and racial hairstyles can have serious consequences. 

Some employers discriminate against current or potential employees without realizing that it could have penalties. Barnett’s lawsuit may discourage this behavior by demonstrating that workers can and will fight back. Furthermore, the case may give California’s Civil Rights Department additional license to respond to similar claims filed by state workers, with the understanding that the federal government’s interpretation of anti-discrimination laws is similar to California’s. 

How to Push Back Against Unfair Grooming Policies

If your workplace has grooming or dress code policies that primarily apply to people of certain races or religions, it is likely against the law in California. These restrictions on freedom of religion or discrimination based on race are explicitly unlawful in the state. You may have grounds to sue your employer if they have forced or threatened you with consequences for wearing your hair per your religious principles. You can take action by:

  • Collecting proof of discriminatory policies or harassment: In some cases, proving a policy is discriminatory is as simple as taking home a copy from work. If a policy bans protective hairstyles or specific religious expression, it violates your rights. In other cases, you may need to gather communications such as emails or texts that threaten you for wearing your hair in protected styles.
  • Talking to colleagues: A policy that only impacts people of certain races or religions is likely also illegal. You can discuss your experiences with coworkers to determine if the policy affects everyone or is only enforced with certain people.
  • Demonstrating adverse employment action: If you have been fired, denied a promotion, or lost a job opportunity like Matthew Barnett, document the incident and its causes. You may have a stronger case if you can show that you have excellent performance reviews or have been harassed for your hair in the past. 
  • Consulting with a skilled attorney: An experienced workers’ rights attorney will help you gather all the information above and build a strong case. They will also help you file claims with the appropriate agencies and represent you if you need to take the matter to court. 

At Le Clerc & Le Clerc LLP, we are dedicated to protecting your rights as an employee in California. Do not hesitate to get in touch and discuss your religious hairstyle harassment with our skilled attorneys. We are prepared to help you pursue fair employment and justice for the discrimination you have faced.

California has been taking significant legislative steps to improve conditions for workers over the past two years. Earlier this year, the state chose to expand the California Family Rights Act (CFRA), but it didn’t stop there. This past fall, Governor Gavin Newsom signed into law improvements to both the Paid Family Leave (PFL) and State Disability Insurance (SDI) programs that will give lower-paid workers more support. 

These programs are invaluable for allowing workers to receive a portion of their regular wage if they need to take time off to care for their families. While CFRA will enable workers to take unpaid time off work to care for family members or themselves and protect their jobs, many lower-paid employees hesitate to take time off because of the impact on their finances. 

The updates to PFL and SDI will make it easier for these workers to take the time they need to care for themselves or those they love. Here’s what you need to know about the updates to these programs and how you can request CFRA leave and PFL or SDI compensation.

Understanding California Paid Family Leave and State Disability Insurance

Governor Newsom made waves when he signed Senate Bill (SB) 951, which adjusts both the Paid Family Leave and State Disability Insurance programs. PFL is intended to provide up to eight weeks of wage replacement benefits to eligible workers if they need to take unpaid time off work for qualifying reasons, which include:

  • Caring for seriously ill children, parents, spouses and registered domestic partners, siblings, grandparents, or grandchildren. 
  • Bonding with a new child through birth, adoption, or foster placement.
  • Qualifying exigencies related to a family member’s military service. 

These cases directly correlate with almost all qualifying reasons to take time off under the CFRA. The exception is for injuries, illnesses, or conditions affecting the worker themselves. This is because SDI is in place to cover those situations. You can apply for SDI to receive wage-replacement benefits if you are an eligible employee who cannot work due to a non-work-related illness, injury, or pregnancy. This neatly covers most of the remaining reasons why CFRA may be used. 

Revisions to PFL and SDI

SB 951 significantly adjusted how PFL and SDI payments will be calculated. Currently, the programs allow workers to receive up to 70% of their regular wages while they qualify. However, this places many lower-earning workers below the minimum wage, which can significantly impact their ability to support themselves and their families. As such, these workers may opt not to take time off because even a 30% cut to their wages is too much to justify taking time off to care for loved ones. 

That’s why SB 951 was written. Under the bill, a new benefit calculation will go into place starting in 2025. The new calculation considers the state’s average wage when determining the benefits eligible workers will receive. Any worker who receives 70% or less of California’s average wage would be eligible to receive 90% of their average pay instead of 70%. This significantly reduces the impact of taking unpaid leave, as lower-paid workers will only take a 10% cut to their earnings instead of 30%. 

How to Pursue CFRA Leave and PFL Compensation

While it will be several years before the updates to PFL and SDI kick in, you can still receive wage-replacement benefits if you take time off. Even 70% of your earnings can be invaluable if you or a loved one is ill and you must stay home from work. First, however, you should ensure you can take that time off to heal or care for your family under CFRA. 

Only eligible employees can take CFRA leave. You’re eligible if:

  • Your employer has five or more workers or is a public agency
  • You have worked for your employer for at least 12 months
  • During the past 12 months you’ve worked for your employer, you have worked at least 1250 hours for them
  • You have not yet taken 12 weeks of CFRA leave in the preceding 12-month period

If you meet these conditions, you can take leave for all the reasons that make you eligible for SDI or PFL payments. You may need to provide your employer with proof that you or your loved one is sick with a doctor’s note or that you have a new child by showing them documentation of the birth, foster placement, or adoption. 

If your request for CFRA leave is unfairly denied, this can impact your ability to request PFL or SDI. Voluntarily quitting a job may affect your eligibility for these programs, and you cannot receive payments from either if you continue working. In that case, taking action against your employer may be necessary to have your request for leave granted. 

This may be as simple as notifying HR that your request was unfairly denied and explaining your reasoning. However, if your complaint is ignored, or if you have been fired or otherwise retaliated against for requesting your state-protected leave, you may need legal help.

Legal Assistance for Unfairly Denied CFRA Leave Requests

When you believe your request for CFRA leave has been denied, your first step should be to consult with an experienced employment law attorney. Your employer does not have the stress of an illness or lost income impacting its ability to fight your claim. If you want the best possible chance of receiving protected CFRA leave and PFL or SDI payments, you need to have knowledgeable experts on your side. 

That’s where the attorneys at Le Clerc & Le Clerc LLP can help. We are dedicated to protecting your employee rights and have years of experience acting as legal counsel to California workers. Learn more about how we can help you negotiate or litigate your denied CFRA claim by scheduling your free consultation.

Many people assume that racism, sexism, and other forms of discrimination in the workplace need to be overt before they can be addressed. This isn’t true. Under Title VII of the Civil Rights Act of 1964, employers may not discriminate against workers because they are part of a protected class. The bill says nothing about whether that discrimination must result from conscious bias. 

Today, most employment discrimination is actually caused by unconscious bias. While this can be harder to prove, it’s no less damaging to its victims. Learn how to identify unconscious bias in your workplace, how it can harm workers, and what you can do to stop it. 

What Is Unconscious Bias?

Unconscious bias is prejudice for or against someone because of aspects of their identity that isn’t done purposefully. In contrast, conscious bias is deliberately taking discriminatory actions against someone because of a trait like skin color, religion, or gender. 

This difference is critical because unconscious bias is far more widespread. Even people who believe they are “color-blind” or otherwise accepting may have subconscious biases that they don’t recognize. This makes it far more challenging to address the effects of unconscious prejudice than conscious racism, sexism, or other biases. 

Subconscious prejudice is the result of uncritical acceptance of stereotypes. For example, someone can consciously believe that sexism is wrong but may have internalized the idea that women are bad at math. If this unconscious bias isn’t noticed and accounted for, they may be less likely to hire or promote women into roles that require a lot of math despite their qualifications. 

The problem with unconscious prejudice is that it can lead to organization-wide inequities without any one person actively trying to harm or push out minorities. One recruiter or manager with unexamined biases can impact the careers of everyone below them. If these biases are found throughout the organization, it can quickly shape a company’s culture to be hostile to women, people of color, religious minorities, and other protected classes. 

The Impact of Unconscious Biases on Workers

While unconscious bias isn’t as blatant on a case-by-case basis as active harassment, it can still seriously harm workers. It is just as harmful to refuse to promote someone because of an unconscious assumption that they’re lazy as it would be to withhold a promotion because they’re Black. Some of the most significant impacts this type of prejudice has on workers include:

  • Reduced Job Opportunities: Minorities often struggle to receive the same opportunities and pursue the same jobs as white and male colleagues. Studies have shown that the same resume with an “anglicized” or gender-neutral name is significantly more likely to be considered for an interview than identical resumes with non-European or feminine names. The subconscious bias of the hiring teams often prevents workers from getting jobs in the first place. 
  • Stalled Career Growth: These biases can make it difficult for victims to continue growing their careers. For instance, women often struggle to receive the same promotions and raises as their male colleagues, particularly if they are mothers, due to the unconscious assumption that they are less dedicated to their jobs. 
  • Hostile Workplaces: If management has internalized negative stereotypes about specific demographics, the entire organization can develop toxic attitudes towards those groups. Minorities who are hired and promoted may feel uncomfortable, excluded, and unable to report harassment or microaggressions for fear that they will “support” the stereotypes management believes.

Standing Up to Workplace Bias

It should not be your responsibility to fix your employer’s unconscious biases. However, making them aware of these tendencies may fall to you. If that doesn’t lead to change, you may need to take legal action to receive the fair treatment you deserve. Here’s how you can stand up to workplace bias and fight against trends harming your career.

  • Talk to your colleagues. The most effective way to determine if unconscious bias is at play in the workplace is to talk with your coworkers. If management consistently appears to discriminate against people of a certain race, religion, or gender, your colleagues have likely noticed as well. Talk to them about their experiences and see if they have noticed anything you may have missed. 
  • Document trends of discrimination. When you do find trends, document them. For example, collect organization charts for your company and note the relative diversity across the organization and between different levels of authority. Who has been promoted, and who has been fired or forced to resign? These trends are some of the best evidence you have of systemic discrimination
  • Notify Human Resources: Even if you don’t believe it will make a difference, you should still communicate your concerns with the person or department in charge of hiring at your company. This demonstrates that you’re acting in good faith and may occasionally be enough to spur your employer to take anti-bias action. 
  • Talk to an experienced lawyer. If your concerns are dismissed, it’s time to get help. Consult with a qualified workplace discrimination attorney about your circumstances. They will help you find the best path forward, whether that’s negotiating with your employer or taking legal action. 

Pursue Equitable Treatment With Expert Legal Counsel

Because unconscious bias, by definition, is not done on purpose, it can be hard to prove. That’s why it’s critical for you to consult with an experienced employment law attorney if you suspect you and your colleagues are suffering from discrimination caused by subconscious prejudices. At Le Clerc & Le Clerc LLP, we understand how stressful it can be to lose out on opportunities at work because of your identity. We have a strong track record of success helping clients like you pursue compensation for the discrimination they’ve faced at work, no matter the reason. Call 415-445-0900 or contact us online to learn more about how we can help you.

Becoming pregnant is a life-changing experience. For many workers, it’s also a career-ending change. Despite multiple laws on the books intended to protect pregnant people from discrimination and allow them to continue working, pregnant people around the country struggle to receive the job accommodations they need.

That’s why the Pregnant Workers Fairness Act (PWFA) is being considered by Congress. It’s already been passed by the House with strong bipartisan support, and the Senate Health, Education, Labor, and Pensions Committee has approved it. Should the bill be signed into law, it could grant workers significantly more rights to pursue accommodations during pregnancy around the country. Here’s how the bill works, how it compares to extant state laws, and what it may mean for California workers like you. 

What You Need to Know About the Pregnant Workers Fairness Act

The PWFA would update the federal Pregnancy Discrimination Act of 1978 (PDA). The PDA made it illegal for employers to discriminate against workers because of pregnancies, childbirth, or related health conditions. It specifies that pregnant people have the right to receive equal treatment “not so affected but similar in their ability or inability to work.” 

The problem is that this leaves some holes when the law is interpreted narrowly. If an employer would not provide accommodation for a non-disabled person to perform a job because they need it, the PDA allows them to refuse pregnant people similarly. This is because an “ordinary” pregnancy, or a normal pregnancy without significant medical complications, is not considered a disability under the Americans with Disabilities Act (ADA). 

Therefore, under the PDA, companies may not discriminate against workers for undergoing labor or significant medical complications of their pregnancy. However, if those conditions impede their ability to work but do not fall under the ADA, companies can refuse accommodations just as they could a non-disabled person. As it stands, workers need to demonstrate that they are actively being discriminated against because of their gender or that their pregnancy meets ADA standards to receive accommodations for pregnancies. This forces many people out of the workforce with little justification. 

The PWFA would close this loophole. It would require companies to provide workers with the accommodations they need to continue working regardless of whether their pregnancy meets ADA standards. This would allow workers in many states to continue working by requiring companies to provide simple aids such as stools for retail workers or schedule changes to avoid morning sickness. 

How Does the PWFA Compare to State Laws?

Thirty states already have laws similar to the PWFA. These states require companies to provide accommodations to pregnant workers, but they differ in each state. Furthermore, twenty states do not have any law requiring these accommodations, forcing people to choose between a healthy pregnancy and keeping their jobs. 

California’s Fair Employment and Housing Act (FEHA) covers some of the same considerations as the PWFA. Under FEHA, a person is considered “disabled by pregnancy” if something they experience because of their pregnancy prevents them from performing essential duties or puts themselves or their unborn child at undue risk. Under FEHA, pregnant people are considered disabled and must be granted the same accommodations as disabled persons with similar restrictions. 

This means that in California, workers can already pursue reasonable accommodations at their jobs if they demonstrate that they would otherwise be at risk or unable to perform their duties. However, they may need to provide a doctor’s note explaining why they cannot perform their current responsibilities. Should the PWFA pass, it may remove this requirement, allowing workers to request reasonable accommodations and work with their employers to find solutions without needing to attend an additional appointment. 

Pursuing Fair Treatment as a Pregnant Worker in California

Until the PWFA passes, California workers must rely on the state’s existing pregnancy protections. These laws are generally strong, though the requirement for a doctor’s note may still be an imposition on some employees. If you’re a pregnant worker in California, you have the right to leave and accommodations throughout your pregnancy, childbirth, and after your child is born. If you aren’t granted these, you may be suffering from discrimination. 

Examples of discrimination against pregnant workers under FEHA include:

  • Refusing to allow schedule or shift changes to help the worker continue to do their best work
  • Failing to provide seating for pregnant workers when possible
  • Requiring pregnant workers to continue doing significant physical labor instead of granting light duty
  • Ordering workers to take paid or unpaid time off instead of providing accommodations for their pregnancy

Your rights may have been violated if any of these issues sound familiar. You can start the process of fighting back by taking the following steps:

  • Document your request and condition: You need to inform your employer that you would like an accommodation before they must grant it. Keep records of any messages you’ve sent to Human Resources or your supervisor regarding your request to show you’ve made an effort.
  • Save communications: Keep copies of anything your employer sends you regarding your requested accommodations and employment status. This can help you prove your request was unfairly denied or that you were discriminated against because of your pregnancy. 

Most importantly, you should reach out to an experienced employment law attorney if you’ve suffered pregnancy discrimination in the workplace. 

Legal Assistance for People Facing Pregnancy-Based Discrimination in the Workplace

As an expectant parent, you have enough to worry about. Don’t let workplace discrimination become another problem. If your employer is refusing to grant you accommodations for your pregnancy or has fired, demoted, or cut your hours because of your pregnancy, you need legal help.At Le Clerc & Le Clerc LLP, we’re ready to help. We have years of experience advocating for clients who have suffered pregnancy discrimination in the workplace, and we understand how to help you resolve your claim. Schedule your consultation today to learn how we can help you take a stand against discriminatory practices and remain in the workforce today.

The Equal Employment Opportunity Commission (EEOC) has released a new poster that must be displayed prominently by all covered employers. The new poster, titled “Know Your Rights: Workplace Discrimination is Illegal,” replaces the previous “EEO is the Law” version and provides updated guidelines for employees to understand their rights in the workplace. 

The updated poster demonstrates a shift in the EEOC’s attitude toward workers’ right to be informed. Learn why EEOC posters matter, how the new guidelines may affect you, and how to take action if your rights are violated at work. 

Why EEOC Posters Matter

The EEOC is responsible for ensuring that employers and employees alike understand their rights and responsibilities in the workplace. One way the EEOC has accomplished this is by mandating that covered employers clearly post government-approved notices regarding workers’ rights on work sites. The EEOC develops posters that cover these rights to ensure that all relevant employers display the same information and do not leave out critical details. 

Covered employers generally include organizations with 15 or more employees. These companies must ensure the posters are displayed in a prominent location that is easily accessible to people with disabilities at each work site. They are also encouraged to post them on their online workers’ portal. This is intended to ensure that every worker has the opportunity to read and understand their rights, particularly in large organizations that may have more resources to oppose disputes with employees. 

The Impact of the New EEOC Guidelines

The updated “Know Your Rights” poster significantly improved from the previous version. The current version includes the same information as the “EEO is the Law” poster but changes the format and adds additional resources for workers. Information carried over from the previous poster includes an explanation of workplace discrimination law regarding:

  • Race
  • Sex
  • Age
  • Disability
  • Genetic information
  • Equal pay
  • Retaliation for filing charges or otherwise opposing discrimination

This information is rewritten and restructured in the “Know Your Rights” poster. While the “EEO is the Law” poster covered all of these subjects, it did so in dense text without an easy-to-follow structure. The new version has been written with straightforward language and formatted to include bullet points, making it easier to read at a glance. 

In addition, the new poster clarifies that:

  • Discriminatory actions because of pregnancy, sexual orientation, and gender identity is a form of sex discrimination
  • Harassment is also considered discrimination
  • Contractors are also due equal pay, though under different guidelines than traditional employees

Finally, the poster adds a QR code that allows workers to access a webpage explaining how to file a discrimination charge against their employer. It is available in English and Spanish, with new translations available in the future. 

Employers must acquire the “Know Your Rights” poster and use it to replace the previous version as soon as possible. If the new poster is not hung in a reasonable timeframe, covered employers may be subject to fines based on how long they have delayed. 

Determining If Your Rights Are Being Violated

The EEOC poster is a valuable resource for anyone concerned about workplace discrimination. The poster should be easy to find and read if you work for a covered employer. If not, your employer may be violating your rights. To determine if your employer is failing to meet EEOC standards, ask yourself the following questions:

  • Is your employer covered? If the company has 15 or more workers, the answer is almost certainly yes. Smaller organizations may also be covered if they meet specific standards, such as being a public or government institution.
  • Is there a poster anywhere on the property? Covered employers must physically post the notice on the property. It may not only be provided by email or through a website. 
  • Is the poster easy to access? The notice must be posted prominently, typically in a break room, next to a timecard machine, or in other locations where employees spend their time. This means it can’t be in an area inaccessible to certain workers, such as an executive lounge.
  • Is the poster accessible to people with disabilities? The notice must be accessible to disabled people, so it cannot be posted somewhere a person in a wheelchair or with other restrictions would be unable to see.

If your employer has not met these criteria, they violate EEOC regulations. 

What to Do If You Are Suffering Discrimination

EEOC regulations are among the most basic requirements covered employers must meet. If your workplace has not posted the new freely available EEOC notice, it may be a sign that your rights are being violated in other ways. You should consider whether you suffer from discrimination, such as unequal pay, harassment, lack of disability accommodations, or other problems. 

If so, you can take action:

  • Document the discrimination: Collect evidence that you suffer from unfair workplace treatment because you are part of a protected class. This can include writing down instances of harassment or saving communications that show you are being treated poorly. 
  • Consider notifying your workplace: If the discrimination is primarily performed by one person, you may be able to notify Human Resources and request that they take action against the person abusing you. 
  • Talk to an experienced employment law attorney: If you feel uncomfortable discussing the matter within your company, or if your employer does not respond to your complaints, you should consult with a qualified lawyer and discuss filing an EEOC complaint or a civil lawsuit.

Legal Assistance for Workplace Discrimination

The new EEOC poster clearly demonstrates that the EEOC is putting workers’ needs first. By making the information easier to read and clarifying essential details, the Commission has taken an important step to ensure all employees actually understand their rights. At Le Clerc & Le Clerc LLP, we have years of experience advocating for workers in California. We understand how to protect your rights in the workplace, whether through negotiation or litigation. Schedule your consultation today to learn how we can assist you.

California has long been at the forefront of cannabis legalization. As of September 2022, the state has gone a step further by passing a new bill to protect cannabis users from discrimination by employers. Assembly Bill (AB) 2188 was signed into law by Governor Newsom and will begin protecting off-the-clock cannabis users from employment discrimination in 2024. 

This is an invaluable win for workers around the state. Recreational cannabis has been legalized in California since 2016 and for medical use since 1996. Adults over 21 may consume cannabis just like they may drink alcohol. However, employers have been permitted to require drug tests and discriminate against workers who were found to have cannabis metabolites in their blood.

AB 2188 will change that once it goes into effect. Keep reading to learn more about this bill, when it will kick in, and your current rights regarding workplace drug testing.

What You Need to Know About Assembly Bill 2188

Assembly Bill 2188 will prevent employers from penalizing or discriminating against workers who consume cannabis or THC products when off the clock and not at work. Specifically, AB 2188 will not let employers make employment decisions based on the presence or absence of non-psychoactive cannabis metabolites in a worker’s hair or urine. The only exceptions are the construction and building industries, employers that receive federal funding, and organizations that are required to maintain “drug-free” workplaces. The law will go into effect on January 1st, 2024.

The bill was considered necessary due to critical differences in how the body processes alcohol and cannabis. Alcohol intoxication is usually determined by blood alcohol concentration (BAC) with a breath or blood test. Your body can reduce your BAC by about 0.015 g/100ml per hour, so you can go from 0.09 g/100ml – above the legal limit to drive – back to 0 in just six hours. When the standard tests identify that someone has consumed alcohol, it’s usually because they are still actively intoxicated. That’s reasonable grounds for penalizing an employee since intoxication will likely impact their ability to do their job.

That’s not how cannabis testing works, though. Tests for cannabis use typically look for THC metabolites, not the psychoactive substance itself. These metabolites can remain in your body for weeks or months, long after you are no longer intoxicated. If you show positive for cannabis use in a hair or urine test, it doesn’t mean you’re high at work. However, before AB 2188, employers could still use these test results to discriminate against employees. The new bill will change this and allow workers to use legal recreational substances in their downtime without risking their jobs.

Current Employer Drug Testing Laws in California

Until 2024, employers may still use cannabis drug tests to make employment decisions. However, these tests must follow state testing guidelines and laws to be valid. 

California permits companies to require their employees to submit to drug tests as a condition of employment. However, these tests cannot be discriminatory. If an employer discovers details about an employee identifying them as part of a protected class, the employer cannot discriminate against them. For example, if a test reveals that a worker is pregnant or takes medications for a disability, the employer cannot alter how they treat that person.

In addition, California law has placed the following restrictions on employment drug testing:

  • Tests must be equitable. Companies must test universally if they want to check workers for substance use. They may not discriminate based on race, age, or other protected statuses.
  • Most workers must be given notice before a required test. California prohibits random drug tests except in high-responsibility or safety-based public positions. Unless you work as a law enforcement officer, bus driver, or similar critical role, your employer must give you notice about upcoming drug testing. 
  • Tests may not be unnecessarily intrusive. Various methods are used to test whether someone has consumed intoxicating substances. Companies must use the least invasive testing method that achieves a reliable result. For example, companies cannot require witnessed urine or blood tests if a breathalyzer test would work.

In addition to these restrictions, employers may not discriminate against workers who are being treated for substance abuse disorders. These disorders are classified as disabilities under California’s workplace discrimination laws, so employers must provide reasonable accommodations for workers receiving treatment for them. 

Certain alcohol or drug abuse treatments may result in drug tests delivering positive results. If an employer is aware that an employee is undergoing these treatments, taking adverse employment action based on the results is considered discriminatory. 

Examples of Unlawful Drug Tests

Companies can’t use the results of unlawful drug testing to make employment decisions. If you’ve been forced to take or penalized after an illegal test, you may be able to pursue compensation. Here are some common examples of potentially discriminatory or illegitimate testing practices that you may have experienced in your workplace:

  • Your employer requires you to take drug tests, but not coworkers in similar positions.
  • You’re forced to take unnecessarily invasive tests, and your employer doesn’t explain why they’re required.
  • Your employer requires random drug tests for low-responsibility roles.
  • Your employer used the results of a test to discriminate against you for a disability.

Exercise Your Rights Under California Employment Law

You have the right to use cannabis in your downtime in California. As of 2024, most employers won’t be permitted to penalize you for using this legal recreational substance. 

In the meantime, you may still have options if you’re facing unfair or discriminatory drug testing. At Le Clerc & Le Clerc LLP, we strongly advocate for our clients in workplace discrimination cases. If you believe you’ve been unfairly discriminated against through a drug test, we can help. Schedule your consultation today by calling 415-445-0900 or reaching out online to learn more. 

As of September, the California Family Rights Act (CFRA) has officially been expanded. Under Assembly Bill (AB) 1041, the state has widened employees’ rights to take leave to care for their families as of January 1st, 2023. 

Starting in the new year, employees may be able to use their CFRA leave to care for a “designated person,” which is a significantly broader ruling than the CFRA’s previous provisions. In addition, Governor Newsom signed AB 1949 into law in September, adding bereavement leave to the CFRA.

These changes may sound small, but they demonstrate California’s continued dedication to protecting and expanding workers’ rights. Keep reading to learn how the CFRA impacts you and what to expect from these new bills.

What Is the CFRA?

The CFRA is California’s state equivalent of the federal Family and Medical Leave Act. The Act is designed to give workers access to time off necessary to care for their families without risking their jobs. Under the Act, eligible employees may take up to 12 weeks of unpaid, job-protected time off in any 12-month period. The Act covers workers who need to take time off due to:

  • Serious health conditions: This includes any mental or physical health problem, surgery, or injury that requires inpatient care, more than three days away from work, or ongoing medical treatment for incurable conditions. Employees may be required to provide a medical note to their employer to take leave.
  • Pregnancy and delivery: Pregnancy is specifically covered by the CFRA, allowing mothers to take time off without losing their employment to recover from labor.
  • Child bonding leave: Parents may also use the CFRA to take time away from work to bond with a newborn, adopted, or foster child within 12 months of joining the family.
  • Qualifying exigencies for active duty military: An employee may take time away for specific reasons related to their own or an immediate family member’s active duty military service.
  • Caring for a family member: The CFRA allows workers to take time away to care for their family if they face serious health problems.

The bills signed in September make two critical changes to the Act. First, AB 1041 expands the family members workers may request time off to care for. Currently, you can take time to provide care for your children, parents, grandparents, grandchildren, or spouse or registered domestic partner. In January, this will be changed to allow workers to care for a “designated person.” This person can be “any individual related by blood or whose association with the employee is equivalent to a family relationship.” You will be permitted to designate the person when you request leave.

In addition, bereavement leave will be protected. AB 1949 will guarantee workers the right to take up to five days off following the death of a family member. This bereavement leave is separate from standard CFRA or sick time. Bereavement leave will cover immediate family only.

During this time, your employer may not terminate your job. When you come back to work, you’re entitled to return to the same or an almost identical position. Your pay and other benefits will also remain the same when you return. 

Are You Eligible for CFRA Leave?

Before requesting CFRA leave, you must ensure you’re eligible under state law. As of last year, the Act applies to companies with five or more employees and all public institutions, so your employer is most likely held to this law. They are required to provide you with CFRA time off if:

  • You’ve been employed by the company for at least 12 months before the start of your requested time off
  • During that time, you’ve worked at least 1250 hours for your employer, or a minimum of 24 hours a week.

It’s important to note that you can only receive 12 weeks of time off under the Act. Suppose you have already taken 12 weeks and you have another qualifying event. In that case, you are not eligible to take additional time off without your employer’s approval, and your job will not be protected. 

What to Do If Your Employer Denies You Leave

If you meet the qualifications to take CFRA time off, your employer cannot deny you that time. If they deny your claim, terminate your position, retaliate against you for taking leave, or otherwise violate the CFRA, you have the right to take action. 

  • File a complaint with HR: Notify your HR department that your rights have been violated. They may help you receive the leave you’re owed or return to your vacated role. If not, filing the complaint demonstrates that you attempted to resolve the situation internally before taking other action. 
  • Consult an experienced attorney: Next, talk to a lawyer about your situation. Qualified employment law attorneys will help you determine if your rights have been violated and build your case. 
  • Notify the CRD: Your attorney will help file a report with the California Civil Rights Department (formerly known as the Department of Fair Employment and Housing) to ensure they are notified of any violations.
  • Take legal action: Your lawyer will also help you determine if you need to take legal action and how to approach the situation to protect your employment and receive compensation for your losses.

Pursue Equitable Leave With Expert Legal Counsel

The CFRA is already one of the most flexible state-mandated leave programs in the country. In 2023, it will become even more valuable, allowing people to take the time they need to care for their loved ones, no matter who they might be. You have the right to take CFRA leave as long as you meet the appropriate criteria, and your employer may not penalize you for it.

If you’re struggling to have your CFRA request acknowledged, if your request has been unjustly denied, or if you’ve suffered from retaliation for taking leave, get help. At Le Clerc & Le Clerc LLP, we can help you receive the time you’re owed. Schedule your consultation today to learn how we can help you exercise your right to care for your family and protect your employment. 

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