SAN FRANCISCO EMPLOYMENT LAW BLOG
Pregnancy and related health and childcare concerns have historically been among the biggest barriers women have faced while trying to enter the workplace.
Up until the Pregnancy Discrimination Act (PDA) of 1978, just 45 years ago, it was still perfectly legal for companies to fire workers because they became or could become pregnant. Only this year, in 2023, did the federal government finally require employers to provide pregnant workers with reasonable accommodations in the Pregnant Workers Fairness Act (PWFA).
Laws like the PWFA show that conditions for expecting and new mothers continue to improve. However, states like California already guaranteed pregnant people the protections included in the PWFA and other federal laws. For example, Governor Gavin Newsom significantly expanded nursing mothers’ workplace rights back in 2020. Today, every California employer must grant employees time to express milk in clean and private surroundings. Failing to do so violates their workers’ rights and is a common example of discrimination against working mothers.
In other words, you have the right to take breaks at work to pump. Here’s what you should know about these rights, who’s covered by the state’s laws, and signs that you’re not getting the nursing time you’re owed under the law.
Legal Requirements for California Lactation Breaks
California’s Labor Code is extremely specific about what employers must provide for nursing mothers. There are several criteria that employers need to meet to respect employees’ rights, including:
- Time: All employers must give workers breaks to pump breastmilk if necessary. This must be a “reasonable amount of time,” and it must be granted every time pumping is needed. This includes giving workers more break time than they would normally receive if necessary. However, employers do not need to pay for this extra time, and they can require workers to use their normal breaks concurrently with breastfeeding time.
- Privacy: Employers must provide a room or other private location shielded from view and not subject to intrusions or interruptions where employees can pump. This room must have a place to sit, a surface on which to place necessary supplies, and access to electricity. It must be near the employee’s workplace, and there must also be an accessible sink and refrigerator nearby to clean pumping devices and store the milk.
- Cleanliness: The room provided by the employer cannot be a bathroom. It must be clean, safe, and free from hazardous materials.
- Freedom from harassment: Employers cannot require a doctor’s note or other proof that workers “need” to express breastmilk. They also may not harass or retaliate against workers who request or take lactation breaks.
Furthermore, all employers must implement written policies regarding lactation accommodations. These policies must be provided to workers when hired and when they inquire about, take, and return from parental leave.
Who Is Eligible for Nursing Breaks in California?
All employers in California are held to the standards listed above for lactation breaks. That means all employees have the right to take time to pump if necessary, regardless of gender. However, there are a few potential restrictions that are typically decided on a case-by-case basis.
First, workers may only take lactation breaks to pump breastmilk for their own infant children. There is no strict time limit on how long this period lasts, but it is unlikely to extend past their child’s third birthday. Furthermore, employers are not obligated to offer this time if a worker is no longer lactating or feeding their children with the milk.
Second, employers with fewer than 50 employees may be exempt from some requirements if they can prove they pose an “undue hardship” on the business. They must still provide the break time and make a reasonable effort to provide a safe and sanitary environment other than a toilet stall. However, these small businesses may not be required to provide a separate space with access to a seat, surface, electricity, privacy, or freedom from interruption.
Signs You Aren’t Getting the Nursing Breaks You’re Due
Of course, just because an employer is legally obligated to give workers lactation breaks doesn’t mean they will actually do so. If any of the following issues sound familiar, your employer may be violating your right to take nursing breaks:
- You are not informed of your right to take lactation breaks, or your employee manual has no written policy.
- You’re required to get a doctor’s note or otherwise prove that you “need” to take these breaks.
- You aren’t permitted to take breaks as necessary.
- The only place you can pump is in a bathroom stall.
- You are instructed to pump somewhere without the necessary equipment.
- You are not permitted or able to store your breastmilk on-site.
- You have to travel a significant distance to get to the approved pumping location.
- You are harassed or face penalties because you need to take time to pump.
Each of these situations violates your right to take breaks and pump in a safe and sanitary environment. You may have the right to file a claim against your employer to receive the breaks you’re owed and compensation for the time you’ve been denied,
What to Do If Your Employer Doesn’t Grant Breastfeeding Breaks
Breastfeeding is a natural part of human existence. If your employer refuses to offer you the breaks you need to pump and feed your child, it violates your rights under California law.
You don’t have to accept this mistreatment, though. You can put your health and your baby’s nutrition first by holding your employer accountable for its unlawful behavior. The skilled pregnancy discrimination lawyers at Le Clerc & Le Clerc LLP can help. Our experienced employee advocates are prepared to protect your rights as an employee and a mother in court, if necessary. Schedule your consultation to discuss your working conditions and discover if you may have a claim.
A recent survey found that up to 91% of US workers have experienced workplace discrimination. Just 9% of employees did not report discriminatory behavior from employers or colleagues because of their race, gender, religion, or other identifying characteristics.
The survey, run by the major hiring website Monster, explored a wide range of topics related to discrimination in the workplace, including the types of bias harming people, when this bias is most commonly experienced, and how many people are willing to report discriminatory behavior to their employer.
The results were largely negative. 50% of all surveyed workers reported having experienced ageism while applying for jobs, while 40% reported racism. Other reported issues included gender, disability, and religion-based discrimination.
This is despite strong laws in the US intended to allow workers to fight against discriminatory workplaces. The struggle is that most respondents do not feel comfortable reporting this behavior to their employers.
The survey found that just 44% of people were comfortable reporting discrimination to an anonymous reporting source if their employer provided it. That number drops even further once they can no longer be anonymous. Only 33% of people would feel comfortable making a report to HR about something they had experienced or witnessed, and just 21% felt comfortable reporting it directly to a manager.
There appear to be two factors contributing to this discomfort with making reports. First, many people worry that reporting abuse will make them a bigger target. Second, people are not always clear on what behavior constitutes unlawful discrimination.
The best way to protect yourself against abusive and discriminatory behavior at work is to be confident you can recognize it. Below, we discuss what constitutes workplace discrimination, how to identify it, and what you can do once you’re spotted it.
Definition of Workplace Discrimination
As defined by the US Equal Employment Opportunity Commission (EEOC), discrimination is treating someone differently or less favorably for some reason. This can include harassing and treating you unfairly, denying reasonable requests, asking invasive questions, or retaliating against you for doing the right thing.
People discriminate for many reasons, but US employment law focuses on protected categories. These include:
- Sex, gender identity, sexual orientation, and pregnancy
- National origin
- Genetic information
Under laws like the Civil Rights Act and the Americans with Disabilities Act, all residents have the right to freedom from discrimination in the workplace due to these characteristics. Furthermore, the law protects workers from discriminatory or retaliatory action because they participated in protected activity like requesting or taking time off under the Family and Medical Leave Act (FMLA).
Subtle Signs of Workplace Discrimination
Good studies about the prevalence of discriminatory behavior rarely ask, “Do you think you’ve faced workplace discrimination?” Instead, they ask respondents about specific types of behavior or treatment without mentioning abuse or discrimination. This approach is because most people are unaware of how much supposedly normal behavior constitutes abuse.
There are many subtle and lesser-known types of workplace abuse, harassment, and bias that may constitute discrimination. Some of the most common include:
Unequal Treatment and Opportunities
Some people consider talking about your pay or performance reviews rude, and many employers discourage it. However, this can make it hard to identify the most common type of discrimination: unequal treatment. Talking about these matters is crucial to determining if you are treated fairly. If a company routinely offers white or male workers more money than other people with similar performance records, they are discriminating.
The same goes for growth and promotion prospects. If the company routinely grooms certain types of people for leadership positions but doesn’t offer others the same opportunities, it discriminates against them.
Microaggressions and Biased Language
Microaggressions are minor instances of bias that can add up over time. One of the most common types of microaggression is biased language, such as texts that assume all employees are men or dress code policies that fail to account for religious apparel or Black protective hair styles.
They can also extend into stereotyping, offensive remarks, insensitive questions, and failing to respect your bodily autonomy. For example, jokes about a person’s accent, education, gender, or race are often microaggressions. So is touching a pregnant person’s stomach or a Muslim woman’s hijab without permission. Even if they are “just” jokes, if these behaviors continue after you ask them to change, they are a form of discrimination.
Isolation and Exclusion
Discrimination is often missed when it looks like exclusion. Your exclusion could be discriminatory if you aren’t invited to important planning meetings, social gatherings, or networking events. It may constitute barring you from equal opportunities, which is explicitly unlawful.
Ostracism and isolation may also be discriminatory. If your colleagues or manager fails to include you in email threads, talk over you, or generally ignore your contributions in favor of people with other characteristics, you may face discrimination.
Legal Recourse and Remedies for Workplace Discrimination
Subtler examples of discriminatory behavior can be easy to miss. However, once you spot them, you have options. The first step is to notify your HR department or management about what you’re experiencing. Ideally, this will resolve the issue. If it doesn’t, or if you face retaliation for reporting the behavior, it’s time to get help.At Le Clerc & Le Clerc LLP, we are there for you. We have years of experience helping California victims of workplace discrimination hold their workplaces accountable for the harm they suffered. We can help you file reports with the EEOC or the California Civil Rights Department. Our expert workplace discrimination attorneys will help you negotiate a settlement or represent you in court. Learn more about how our firm can support you by scheduling your consultation today.
Being a mom is already hard enough. Unfortunately, many working mothers find that their employers make it even more difficult by discriminating against them because they have children. In fact, full-time working moms are paid 26% less on average than full-time working dads.
That’s a clear sign that discrimination is at hand. However, addressing the issue under current laws is more complicated than it might seem. While California has some of the strongest worker protections in the country, they aren’t perfect. Here’s what you need to know about your rights as a working mother and when your employer’s actions cross the line into illegal discrimination.
Are Parents a Protected Class?
California residents are protected by both the federal Civil Rights Act and California’s Fair Employment and Housing Act (FEHA). These laws define protected characteristics employers may not use to discriminate against workers. FEHA is more comprehensive than the Civil Rights Act and names the following protected classes:
- Race, color
- Ancestry, national origin
- Religion, creed
- Age (40 and over)
- Disability, mental and physical
- Sex, gender (including pregnancy, childbirth, breastfeeding, or related medical conditions)
- Sexual orientation
- Gender identity, gender expression
- Medical condition
- Genetic information
- Marital status
- Military or veteran status
Being a mother is not itself a protected characteristic. However, gender, pregnancy and labor, marital status, and sexual orientation are. These characteristics often overlap with parenthood, so many situations in which a mother faces discrimination may also be due to their membership in a protected class.
When Does Discrimination Against Parents Cross the Line?
Since California is an at-will employment state, employers may technically hire, fire, and promote or demote workers for almost any reason, including whether someone has kids. However, they cannot make these decisions based on protected characteristics.
That is an important distinction. An employer can choose not to promote someone because they have children and are concerned they will not have time to do the job. It has to make this decision consistently, though, instead of giving people different opportunities along the lines of gender, marital status, or ability to become pregnant. Here’s how your employer’s behavior can cross the line and become illegal:
Women earn 83% of what men do when looking at people with full-time employment. So why does the gap expand when looking at parents? It’s because mothers earn less than childless women, while fathers make more than childless men. In other words, employers appear to penalize women who become parents while rewarding men.
The root of the issue appears to be twofold. First, employers may have negative biases associated with mothers, assuming they prioritize childcare over their work performance. Second, many employers seem to have positive biases toward fathers, assuming they are more reliable and dedicated to their jobs. As a result, women receive fewer opportunities while men are given more.
If this occurs within your company, it is a blatant form of discrimination. Your employer is treating people differently based on sex, barring women from receiving equal opportunities for raises and promotions granted to men.
California explicitly defines pregnancy and childbirth as protected medical conditions. They are treated similarly to disabilities.
Under FEHA, employers must grant pregnant workers reasonable accommodations such as altered shift lengths and schedules, stools, or modified duties for the duration of the pregnancy as long as it will not cause “undue hardship.” Furthermore, employers must grant eligible workers up to four months of pregnancy disability leave in addition to the twelve weeks of leave guaranteed under the CFRA.
Your employer can require a doctor’s note regarding any accommodations or leave you request. However, it cannot deny your request as long as you provide a valid medical reason. Failing to do so, or retaliating against you for your request, is considered discriminatory.
Protected characteristics are the only grounds for discrimination claims in California. However, there are other types of protected activities employers must respect: namely, protected leave.
California’s Family Rights Act (CFRA) guarantees up to 12 weeks of protected unpaid leave to eligible workers to care for themselves or others. Similarly, California Labor Code Section 230.8 permits eligible employees up to 40 hours of protected unpaid lead for school activities.
If a parent requests or takes time off under these laws and their employer punishes them, that is unlawful. While it is not technically considered discrimination, it is considered retaliation and a violation of the worker’s rights directly connected to their status as a parent.
What to Do If You Face Unlawful Workplace Discrimination
While California’s worker protection laws are strong, they do not prevent employers from discriminating against you. Instead, they give you the tools to fight back against discriminatory behavior.
If you have experienced workplace discrimination for being a mother, it is your responsibility to take a stand. Here’s what you can do about retaliatory or discriminatory actions in the workplace:
- Document the problems: Most types of discrimination result from ongoing behaviors and attitudes within a company. Collect evidence of discriminatory actions, such as emails from a manager complaining about your request for unpaid leave or performance reviews that negatively mention your status as a parent.
- Talk to your colleagues: If you face discrimination, your coworkers likely do as well. Talk to them about pay, opportunities, and promotions to learn more about your employer’s decision-making.
- Report the issue to HR if possible: If you feel safe doing so, report discriminatory behavior to HR. Ideally, the department will fix the problem. If not, your report begins a paper trail documenting your concerns.
- Consult with an experienced employment attorney: As with any discrimination, you should discuss your case with a dedicated California employment lawyer before taking legal action. Your lawyer will advise you on whether you have a claim and represent you in court if necessary.
Don’t let your employer make motherhood even harder. If you’re in a discriminatory workplace, you can get help from Le Clerc & Le Clerc LLP. Our experienced attorneys are prepared to advocate on your behalf and ensure your rights are protected. Learn more about how we can help by reaching out to our San Francisco employment law firm for mothers today.
Have you been fired for standing up for your rights at work? Were you let go during a layoff targeting only people over 40? Were you forced to resign after making a whistleblower report? If any of these issues sound familiar, you may have experienced wrongful termination.
However, wrongful terminations can be difficult to prove. Before filing a claim, you must understand when a dismissal is unlawful. Below, we’ve broken down elements of wrongful termination into a simple checklist to help you determine if it’s time to talk to an employment lawyer about your claim.
Understanding Wrongful Termination
California is an at-will employment state, meaning employers and employees can end a working relationship for almost any reason. However, that’s a big “almost.” Laws like the Civil Rights Act (CRA), the Americans with Disabilities Act (ADA), the Whistleblower Protection Act (WPA), and California’s Fair Employment and Housing Act (FEHA) all bar employers from firing workers for certain reasons.
These laws define protected activities and characteristics that cannot be considered when making “adverse employment” actions like firing or demoting someone. If someone is fired for a protected reason, it is wrongful termination.
Some of the most common examples include firing people for:
- Whistleblowing retaliation: Reporting illegal activity or regulatory violations is a protected activity. If your employer fires you because of it, that is unlawful.
- Disability accommodations: As long as you can do your job with reasonable accommodations, your health or disability cannot be used to make employment decisions.
- Gender, racial, or religious bias: Firing someone because of their race, gender, religion, or another protected characteristic defined under FEHA is unlawful in California.
Additionally, if you have an employment contract or collective bargaining agreement that sets terms for termination, your employer must follow them. If they did not, such as by firing you without notice or for a reason prohibited in the contract, that is another form of unlawful dismissal.
Potential Remedies for Wrongful Terminations
If you have been wrongfully terminated, you may have the right to receive compensation from your employer. Potential remedies include:
- Reinstatement of employment
- Compensation for lost wages and benefits
- Damages for emotional distress or reputational harm
In other words, you could get your job back as well as back pay, benefits, and additional compensation for the stress and hassle of filing a lawsuit.
The Three-Point Checklist for Wrongful Termination Issues
Before you can file a claim, you should be certain that your case meets the requirements for wrongful dismissal under federal or state laws. The following three-point checklist can help you determine if you might qualify.
1. Did You Lose Employment?
A wrongful discharge case requires you to have lost your job. Typically, this means that you were fired or laid off. However, it can also include being forced to quit.
This is known as “constructive dismissal.” It occurs when your employer makes your working conditions hostile, specifically to convince you to quit instead of firing you.
You do not have a wrongful termination case if you still work for the company. You may be able to file a discrimination or retaliation claim instead.
2. Did You Experience Previous Discrimination, Harassment, or Retaliatory Actions?
Because California is an at-will state, you need to prove that you were fired for an unlawful reason to have a case. If you have an employment contract or collective bargaining agreement, proving this may be simple. However, the situation is more difficult if you believe you were fired for discriminatory or retaliatory reasons.
The best way to prove it is by showing that your employer has a history of discriminating against workers. This can include:
- Policies that only apply to certain genders or races
- A history of HR complaints about a manager’s inappropriate behavior
- A trend of giving certain groups of people worse performance evaluations
- Communications warning you not to report unlawful activity
In short, you should have strong evidence that suggests you were fired for a protected activity or trait to make a successful claim.
3. Can You Disprove Your Employer’s Reason for Your Dismissal?
By definition, wrongful termination only occurs when it is prompted by a protected trait or activity or violates a contract. Even if you can prove you experienced harassment or discrimination at work, you still need to prove that it was the reason for your termination. Good evidence for this includes:
- A history of positive performance reviews
- Strong results and achievements at work
- Positive feedback from customers
- Testimony from your colleagues about your behavior and abilities
These details help demonstrate that you performed well and can contradict your employer’s narrative about your termination.
Steps to Take if You Suspect Wrongful Termination
If you can answer “yes” to the three checklist questions above, you may have been unlawfully dismissed. If you want to hold your employer accountable for harming you, here’s what to do next:
- Documenting evidence of termination: Save as much information about your final days and weeks at your job as possible. This evidence includes more than just your employment contract and termination notice. Collect emails with discriminatory language, save texts or voicemails threatening you with retaliation, and get copies of performance reviews if you can.
- Seeking legal advice from an experienced lawyer: With this information, talk to a skilled wrongful termination lawyer in California. They will listen to your concerns and advise whether you have a worthwhile claim.
- Reviewing employment contracts and policies: If your lawyer agrees you have a case, you will examine your evidence carefully. Your attorney will use this information to build your case and help you achieve the best possible outcome.
If you think you’ve been wrongfully terminated in San Francisco, you should talk to the experts at Le Clerc & Le Clerc LLP. We can help you understand what counts as wrongful termination in California and help you pursue justice. Schedule your consultation today to take the first step toward holding your employer accountable for its actions.
Amazon has been under fire for its working conditions for several years. Now, the Central District Court of California has permitted a pregnancy leave and discrimination class action lawsuit to proceed against the online retail giant, despite its attempt to have the case dismissed.
This is excellent news for anyone who has experienced pregnancy discrimination or protected leave violations while working for Amazon. It demonstrates that California courts remain dedicated to protecting workers’ rights, particularly those of pregnant people. Here’s what you need to know about this case and how you can hold your employer accountable for similar pregnancy discrimination with the help of a skilled attorney.
Background of the Amazon Pregnancy Discrimination Lawsuit
The putative class action lawsuit was filed on behalf of four plaintiffs, including one Ms. Sattar. These workers were employed at Amazon facilities in central California before 2022 and became pregnant while working for the company. The plaintiffs allege that while working for Amazon, they suffered pregnancy discrimination that impacted their hours, employment, and benefits.
Alleged violations by Amazon include:
- Failing to inform workers of their rights to pregnancy leave under California law
- Refusal to alter shift lengths upon employee request, even with doctors’ notes
- Refusal to grant or extend protected leave as required by state law
- Threats of retaliation for requesting or taking leave
- Demotions, cut hours, and firings related to their pregnancies
The plaintiffs believe they are far from the only employees at Amazon warehouses to experience these issues. As such, they have filed their class action lawsuit to hopefully achieve justice for themselves and others who suffered similar discrimination and retaliation for becoming pregnant.
Amazon attempted to get the case dismissed on technical grounds. However, the Central Circuit Court denied the motion and is permitting the plaintiffs’ claim to continue.
Key Points of Employment Law Relevant to Pregnancy Leave
The class action lawsuit hinges on California’s unique pregnancy leave laws. The California Family Rights Act (CFRA), the Fair Employment and Housing Act (FEHA), and the Pregnancy Disability Leave Law (PDLL) all provide protections for workers who are or may become pregnant. Among these protections include key rights such as:
- The right of eligible workers to take up to 12 weeks of protected unpaid leave to recover from labor or welcome a child under the CFRA.
- The right to up to four months additional protected disability leave for disabling conditions related to pregnancy under the PDLL, including emergency leave for acute conditions.
- The ability to request and receive reasonable accommodations for pregnancy-related conditions under the PDLL.
- The freedom from discrimination for pregnancy and related conditions under FEHA.
Crucially, employers cannot retaliate against workers for requesting protected leave. Retaliation includes demoting someone, cutting their shifts, firing them, or otherwise penalizing them for asking for disability or family leave. Furthermore, failing to approve leave or provide reasonable accommodations like reducing a pregnant person’s hours are considered violations and grounds for legal action.
Analysis of Amazon’s Alleged Violations
Ms. Sattar’s experiences demonstrate exactly how many ways Amazon may be violating pregnant workers’ rights at its California warehouses. According to Ms. Sattar’s allegations, her ordeal began when Amazon failed to inform her of her right to any form of parental or pregnancy disability leave (PDL), violating FEHA’s notice requirements.
Ms. Sattar learned about her rights elsewhere. Upon determining that her pregnancy may put her at risk, she submitted a doctor’s note requesting three months of PDL several months in advance, following the PDLL. However, her request was allegedly denied, which appears to be in violation of FEHA and the PDLL.
Later, when Ms. Sattar began experiencing pain related to her pregnancy, her doctor asked Amazon to provide her with the reasonable accommodation of shortening her 10.5-hour shift by at least one hour. This request was also denied.
When Ms. Sattar attempted to stand up for her rights, her manager threatened her employment directly related to her request for leave. Just days later, she was demoted to part-time, causing her to lose her health coverage. This appears to be an upsetting but unfortunately common example of pregnancy discrimination.
Ms. Sattar’s issues are not unique. Her fellow plaintiffs have remarkably similar stories. This mistreatment by Amazon not only violates employees’ rights to fair employment, but also puts its employees’ health at risk.
Possible Implications and Outcomes of the Amazon Case
While the lawsuit has a long way to go, it seriously affects workers. If Amazon is found to have violated California employment rights laws, it could be ordered to pay damages to workers for their lost pay and benefits. Damages in pregnancy discrimination and protected leave cases often reach hundreds of thousands of dollars per plaintiff.
Additionally, this case highlights how important it is for workers to stand up for themselves. If Ms. Sattar and her colleagues had not banded together, it could have been years before Amazon was called to account for its abusive practices. Now, workers may receive justice by pursuing their own claims even if the class action does not succeed.
Standing Up Against Pregnancy Discrimination in California
Despite Amazon’s best efforts, Ms. Sattar’s class action lawsuit will continue. The plaintiffs can now pursue their case and demonstrate how the retail company’s discriminatory behavior has harmed them. If you have experienced pregnancy discrimination or retaliation for requesting protected leave, you can do the same.The first step is to talk to an experienced California pregnancy lawyer at Le Clerc & Le Clerc LLP. Our experienced attorneys are dedicated to defending workers’ rights to fair employment and freedom from discrimination in San Francisco and throughout California. Get in touch to discuss the issues you face and learn more about how we can help you hold your employer accountable for violating your rights.
San Diego’s Mayor Todd Gloria has officially signed a new bill into law doubling leave benefits for city employees. The law increases the paid parental leave workers receive from 160 hours to 320 hours, or eight total weeks of full-time work. As such, eligible city employees can take time off to welcome a new child to the family without risking their finances.
The bill also has several other benefits for employees. It eliminates the 30-day waiting period for pregnancy-related disability benefits, so workers do not need to go a month without financial support due to a difficult pregnancy. Finally, it slashes the eligibility requirement for pregnancy benefits from one year of employment to just 30 days. As a result, people do not have to put off their plans for parenthood for the risk of losing income.
These changes make the city a significantly more appealing employer. They encourage younger workers and marginalized demographics to begin careers within the city by ensuring they can still start and support their families despite the high cost of living. They also provide invaluable support for women, who are more likely to exit the workforce to care for new children if their employer does not offer benefits.
However, it is important to note that benefits for city employees are very different from protected leave. While Mayor Gloria’s bill is an excellent step forward, it is not the same kind of leave guaranteed by the federal Family and Medical Leave Act (FMLA) or the California Family Rights Act (CFRA). Here’s how these types of policies differ and how they may impact your plans.
The Differences Between Employer and Governmental Leave
The CFRA and FMLA are government programs guaranteeing workers the right to a certain amount of time off for qualifying events. Under the CFRA, covered employers must grant qualifying employees 12 weeks of unpaid leave per year for certain events. Covered employers include all companies with five or more workers and all public and government institutions, regardless of size.
Qualifying employees are those who have worked for an employer for at least 12 months and have performed 1250 hours of work for that employer in the last year. These workers may take unpaid leave to care for a designated person, recover from a significant medical event or condition, or welcome a new child into the family.
Critically, CFRA and FMLA compliance is not optional. Employers cannot fire someone for requesting or taking protected time off. They cannot retaliate against them, either. When the employee returns, they must be given their previous job back, including their former hours, responsibilities, location, and title.
This is very different from employer-offered paid-leave plans. Employers can offer whatever type of leave they want. However, this time is not protected, nor is it guaranteed. Every organization can set its requirements and criteria for time off, so you may not be eligible for your employer’s program. Furthermore, organizations do not need to return workers to their previous positions if they take unprotected time off. This is true of private and government employers alike. As such, paid parental leave programs are not always as secure as unpaid, protected alternatives.
Can Your Employer Change Your Leave Benefits?
While Mayor Gloria’s change to employee benefits is positive, it raises an important question. When and how can your employer change benefits like paid leave? Employers generally have the right to change the fringe benefits they offer, such as paid time off (PTO) and leave, whenever they want. However, there are some exceptions.
First, if paid parental leave is explicitly part of your employment contract, your employer cannot rescind it without your permission. However, matters become more complex if your contract lumps this time off into “other benefits as provided” or states that it may be subject to change.
Second, if you work for an organization subject to a collective bargaining agreement, your employer may not be permitted to change your benefits. This agreement is just as binding as your employment contract.
Third, if you work for a government, such as the city of San Diego, local laws may provide more guarantees about your PTO. Changing a law is significantly more complex than altering a private organization’s policies. As such, your benefits are less likely to change for the worse.
When Do Leave Changes Violate Your Rights?
Your employer may be able to alter your benefits, but certain changes violate your rights. Unlawful actions include:
- Cutting your benefits to lower than local, state, or federal minimums
- Setting policies that bar you from taking protected leave
- Revoking paid time off without paying you the equivalent amount
- Retaliating against you for requesting CFRA or FMLA time
If you experience any of these changes, your employer is violating your rights. This is true whether you work for a public or private organization. You can take a stand to ensure you receive the benefits and time off you are guaranteed under the law.
Talk to Le Clerc & Le Clerc LLP
Cities around California are beginning to implement laws like San Diego’s, guaranteeing workers paid time off to care for new children. If you live in one of these cities, you may be owed up to eight weeks’ paid leave when welcoming your child into the world. If you are not granted this time, your employer may be violating your rights. If you believe your employer has violated your right to time off, you can get help. At Le Clerc & Le Clerc LLP, we specialize in protecting California workers’ employee rights. You can schedule your free consultation today to discuss your situation and learn more about your rights under state and local law. Our California employment lawyers are available to help you hold your employer accountable for providing you with the paid or unpaid leave you’re owed.
When you become a parent, certain working conditions begin to matter more. For example, having a regular schedule that allows you to spend time with your kids becomes crucial. Before, you may not have minded a few extra hours on your paycheck, but now, it interrupts your schedule and can create serious issues with finding childcare.
That leaves many new parents wondering whether their employers can require overtime at all. The answer is complicated – in some cases, your company can require extra time, but not in all. Here’s what you need to know about the overtime rules for parents in California and what to do if your employer discriminates against you for scheduling issues.
Overtime Rules in California
Three sets of rules may impact the type and amount of overtime your employer can require. First, the federal Department of Labor (DOL) sets some basic requirements in the Fair Labor Standards Act (FLSA).
According to the FLSA, all employers must pay nonexempt workers at least time and a half for working more than 40 hours in a 168-hour workweek or 8 hours in 24. However, the DOL does not limit total working hours for people 16 and older. Employers can require workers to perform as much extra time as they want as long as they do not discriminate against people for federally protected characteristics or violate OSHA safety rules.
California adds additional restrictions on mandatory overtime. It defines standard overtime as working more than 6 days a week, 40 hours a week, or 8 hours a day. When nonexempt employees exceed these hours, they must be paid time and a half. It also requires employers to pay double time or twice the worker’s standard wage if they exceed 12 hours of work in a day or more than 8 hours on their seventh consecutive day of work.
More importantly, California permits workers to refuse extra hours without penalties from their employer in certain circumstances. You can refuse to work more if:
- You worked overtime the previous week for a total of 72 hours or more.
- You are currently working your seventh consecutive day of the same workweek.
- You believe doing so would pose a safety or health hazard, such as if you are operating heavy machinery or factory equipment.
In these situations, your employer cannot penalize you for refusing to work more in California.
The third set of rules that may apply varies from job to job. Your employer is required to follow any terms set in your employment contract or industry-wide labor agreements.
If your contract states that you cannot be required to work more than 10 hours of overtime, for example, your employer cannot require you to do so. If they attempt to force you to work more than your contractual limit or penalize you for refusing, they are in breach of contract, and you have grounds for legal action.
Can Employers Make Overtime Mandatory?
Yes, your employer can require you to work more than 40 hours a week or 8 hours a day unless your employment contract states otherwise. However, it’s important to know the rules about mandatory overtime:
- Your employer cannot force you to show up or stay at work to work more. They can penalize you for refusing to do so, though. This can include firing you or otherwise taking adverse employment action.
- Your company must pay you appropriately for your time. If you are not receiving time and a half or double time as appropriate for the extra time you’re working, your employer is violating your right to fair pay.
- Your employer cannot require you to work extra time if it would be unsafe, if you worked more than 72 hours the previous week, or if you are on your seventh consecutive day of work in one workweek.
- If you’re salaried, you’re usually exempt from overtime requirements unless you would earn more working at the minimum wage and following overtime compensation laws. For example, if you make $45,000 per year but work 80 hours a week, you may be misclassified as exempt and have the right to overtime pay in California.
Keeping these rules in mind can help you spot if your employer is violating state wage and hour laws.
Overtime, Parents, and Protected Characteristics
Parents are not explicitly protected under California law, but many types of discrimination against parents are also grounded in gender and marital status. This includes scheduling discrimination. Examples of discriminatory overtime policies include:
- Requiring people of a certain gender to work more when other genders are not required to do so.
- Excusing married people from mandatory schedule requirements when single people are not excused.
- Penalizing people for taking protected family or medical leave instead of working overtime.
It is not illegal to fire someone who cannot work extra hours because they have children. However, it is unlawful to fire a woman because she may have children and no longer be able to work additional hours in the future. Employers also may not excuse women from working overtime so they can care for their kids while requiring fathers to work extra anyway. Finally, any policy that explicitly or implicitly benefits married workers over unmarried ones is unlawful, regardless of parental status.
Is Your Employer’s Overtime Policy Discriminatory?
Mandatory overtime is legal to an extent, but your employer’s policies may still be discriminatory. If you suspect your employer is violating your rights and discriminating against you with an unjust overtime policy, reach out to the skilled employment attorneys at Le Clerc & Le Clerc LLP. We can help you determine if you are suffering from discrimination and help you choose the best path forward. Learn more about how we can assist you with your workplace discrimination case by scheduling your consultation today.
Imagine your spouse needs surgery, and you request time off work to care for them as they recover. Instead of granting your request, you get fired for “not being a team player.”
Imagine you receive a cancer diagnosis and must take one day off work each week to attend and recover from chemotherapy. You get the time off, but your employer later fires you for not meeting the same productivity standards as your coworkers, who are healthy and working five days a week.
These situations and untold others are examples of being fired for taking protected leave. Not only is it unjust and harmful to fire someone caring for their family, but it’s also illegal in most situations in California. It’s considered retaliation for a protected action and grounds for a lawsuit.
While retaliating against an employee for protected actions is illegal, it occurs too often. If you’ve been fired for taking protected leave, you have the right to hold your employer accountable. Here’s what you need to know about when your employer can fire you, what counts as retaliation, and your rights after you’ve been wrongfully terminated.
Can You Be Fired for Taking Leave?
California offers some of the broadest protected leave in the US. Under the California Family Rights Act (CFRA), companies with five or more employees must grant eligible workers 12 weeks of unpaid family and medical leave if they meet certain conditions, including:
- They have performed at least one year of work with the employer.
- They have done at least 1,250 hours of work for their employer in the past year.
- Their leave request is for their own serious medical condition, to care for a designated person with a severe health condition, or to bond with a new child.
If these conditions are met, an employer must grant the worker up to 12 weeks of time off and cannot retaliate against them for requesting or taking the time off.
However, leave is not protected if a worker doesn’t meet these criteria. In that case, an employer can fire the worker for any reason permitted in their employment contract.
What Counts as a Retaliatory Termination?
California is an at-will state, meaning employers and employees can choose to end their working relationship for any reason at any time. The only exceptions are for protected activities and characteristics. Employers cannot terminate an employee for features like their race or gender or for engaging in protected activities like:
- Requesting or taking CFRA leave
- Requesting accommodations for a disability, pregnancy, or religious belief
- Attending or refusing to participate in religious services
- Filing complaints about discriminatory behavior
- Resisting harassment or assault
- Reporting illegal activities (“whistleblowing”) to supervisors or regulatory agencies
- Refusing to perform illegal or discriminatory actions
If you do anything listed above and your employer fires you because of it, that is considered retaliation.
Your Rights After Wrongful Termination in California
If you’ve lost your job due to retaliation, that is considered wrongful termination. California grants victims of wrongful termination several options to hold their employers accountable for violating their rights. Here’s what you can expect after you’re wrongfully fired.
Standard Post-Termination Rights
No matter why you were fired, you have the same post-termination rights as any other worker. These include:
- Receiving your final paycheck immediately.
- Having any unused vacation or paid time off days paid out in your last paycheck.
- Receiving notice or severance pay if required by your employment contract.
- Being reported as terminated to make you eligible for unemployment compensation.
- Retaining your health insurance coverage if your employer has 20 or more employees.
These legal requirements are intended to make losing your job less devastating. While they don’t make up for wrongful termination, they provide more stability as you determine your options.
Right to Sue
If you have been wrongfully terminated, you likely have the right to file a claim against them. This could be a claim filed with the Labor Commissioner, or it could be a lawsuit. In some cases, you may begin by filing a complaint, then proceed to sue your employer. Either way, you can talk to a California employment law attorney to discuss your best course of action.
Right to Reinstatement, Backpay, and Damages
A claim or lawsuit aims to correct the injustice you’ve suffered. While the court can’t go back in time and prevent you from losing your job, it can award you damages for the losses you’ve suffered. Potential damages include:
- Reinstatement to your old job or a position that is substantially similar
- Backpay for the time you did not have a job
- Compensation for the benefits you lost when you were fired, such as health insurance and 401(k) contributions
- Compensation for your pain and suffering, including a damaged reputation and emotional distress
- Attorneys’ fees to cover the cost of fighting for your rights
- Punitive damages if your dismissal was particularly egregious
These damages aren’t guaranteed. However, if the court agrees that you were wrongfully terminated, the damages awarded can go a long way to helping you get back on your feet after losing your job.
Discuss Your Termination With Le Clerc & Le Clerc LLP
If you were fired because you needed medical leave, it might be an example of retaliation. If so, you can hold your employer accountable for violating your rights. The first step is to talk to the experienced employment law attorneys at Le Clerc & Le Clerc LLP to determine whether you have a strong case. Our team is dedicated to advocating for California workers who have suffered wrongful termination, retaliation, and other rights violations by their employers. Learn more about how we can help you by scheduling your consultation today.
You likely have the right to take leave from work to care for your family or recover from a health condition under the Family and Medical Leave Act (FMLA). However, having the right and exercising it are very different things. Many people hesitate to take their legally protected time because they don’t know how to bring it up with their employers.
Don’t let a lack of knowledge force you to keep working when your family needs you. If you are eligible for this time off, your workplace must grant it and cannot retaliate against you for your request. All you need to do is ask for it. Here’s how to tell your boss you’re taking FMLA leave the right way.
When Can You Take FMLA Leave?
Before you request leave, you should ensure you’re eligible for it. In California, you’re covered by both the FMLA and the California Family Rights Act (CFRA), which provides more protections. Under CFRA, all employers with five or more workers must permit them to take up to 12 weeks of family or medical leave per 12-month period.
Employees must have worked for their current employer for at least 12 months before their start date, though this may be non-consecutive. Additionally, workers must have performed at least 1,250 hours of labor for the company in the past year.
If you meet those criteria, you’re eligible for protected leave in the following circumstances:
- To recover from a health condition or illness that makes you unable to perform your job duties
- To care for a designated person suffering from a serious medical condition
- To bond with a new child
During your time away, your employer must continue your benefits, though they do not need to pay you. Additionally, they must allow you to return to your previous role or a functionally identical position after you come back to work.
Informing Your Employer About Your Impending Leave
You can request protected leave if you’re confident you meet the terms above. Your employer cannot deny your request and cannot penalize you for it. However, you are required to tell your company when you need leave and provide an explanation.
However, this explanation does not need to be an in-depth exploration of your family’s medical history. In fact, your employer cannot request access to your medical records or otherwise invade your privacy. So, what do you have to share?
What You Need to Tell Your Employer
There is no standard report or form provided by the state or federal government related to protected leave requests. Your employer may have such a form, but it is not legally required. You’ll most likely request it through your employer’s normal call-in system. In your request, you must:
- Give your employer reasonable notice. The CFRA and FMLA require employees to request leave as soon as possible to give their employers time to prepare for their absence. What constitutes reasonable notice depends on your circumstances.
- Explain why your request is protected under the law. This means explaining how your request relates to a serious medical condition or a new child.
- Document that you requested the time off. It’s best to inform your employer about your need for time off by email since this records exactly what you said and when. If you tell them in person or over the phone, follow up by email to confirm.
After you make your request, your employer can require you to provide a medical certification from a qualified healthcare professional. However, they must give you at least 15 days to get this certification.
What You Do Not Have to Share
Your employer does not have the right to detailed information about your health. They cannot request your medical history or demand you sign a medical release or waiver. You don’t even have to share an exact diagnosis. You need to prove it fits the criteria established by the CFRA or FMLA.
For example, if you feel uncomfortable disclosing the reason for an injury, you can simply state you were seriously hurt and require physical therapy. If you are undergoing surgery, you do not need to explain why; you just need to note you need time to get surgery and recover. If you welcome a child, you don’t need to say whether you are adopting, fostering, using a surrogate, or any other information, just that you need child bonding time.
What Constitutes Reasonable Notice for Family Leave?
Reasonable notice varies. If you know well in advance that you’ll need to take time off work, you must give your employer at least 30 days advance notice. This gives them time to find a temporary replacement for you or otherwise tweak the schedule to cover for your absence.
If you find out you need leave less than 30 days in advance, you need to notify your employer as soon as possible. This is usually defined as within one business day of learning you’ll need leave.
If you need to leave for an emergency, let your employer know as soon as possible. If you can, follow standard call-out policies or sick time request policies.
How to Respond if Your Employer Denies FMLA Leave
If you’re eligible for protected leave and your employer denies your request, they are in the wrong. Le Clerc & Le Clerc LLP is here to help. Our expert California employment law attorneys are on your side. Reach out today to discuss your denied leave request and learn more about your options. We can help you stand up for your rights and represent you if you need to take legal action. Don’t let your employer violate your rights or put your health or family at risk. Let us help.
The federal government has finally caught up to California in guaranteeing protections for pregnant workers. While the Pregnancy Discrimination Act (PDA) has existed since 1978, it only provided limited protection. However, with the signing of the Pregnant Workers Fairness Act (PWFA), all expecting mothers will receive the same rights in the workplace that California has guaranteed for years.
The PWFA goes into effect on June 27th, 2023. On that date, all eligible pregnant workers will receive the right to reasonable accommodations for issues related to their pregnancies. Failure by covered employers to grant these accommodations will be considered unlawful discrimination. This expands federal rights recognized under the PDA, such as freedom from harassment or negative employment actions.
But this raises an important question: what does pregnancy discrimination actually look like? While California employees are already protected, many do not realize they are experiencing unlawful discrimination at work. Here’s what you should know about your rights as a pregnant employee in California, examples of common discriminatory behaviors, and what to do if your rights are violated.
New Federal Protections Reinforce California Anti-Discrimination Laws
For decades, the PDA was the only law protecting workers who had been, were, or could become pregnant. The law revised Title VII of the Civil Rights Act to include pregnancy discrimination as a form of sex discrimination. It covered current, past, and potential pregnancies as well as medical conditions related to them.
However, the PDA was implemented over a decade before the Americans with Disabilities Act (ADA) was written. As such, it did not include anything related to accommodations because, at the time, no one was guaranteed an accommodation for health conditions.
Unfortunately, when the ADA was signed into law, pregnancy was not named in the bill. While conditions resulting from pregnancy could be considered disabilities, pregnancy was not. As such, workers did not receive the right to accommodations for typical pregnancy symptoms, like difficulty standing for long periods or needing more bathroom breaks. As long as employers could argue these needs made someone unfit for their job, they could be fired or face other negative employment actions.
California’s Fair Employment and Housing Act (FEHA) was written to account for this. It does not define pregnancy as a disability but identifies it as a separate reason for granting reasonable accommodations. With the PWFA, federal law is finally catching up.
Examples of Discrimination Against Pregnant Workers
If you work in California, you benefit from the state’s many workplace pregnancy protections. However, you need to identify that you are being discriminated against before you can claim these protections. Some of the most common discriminatory acts against pregnant employees include:
Refusal to Grant Accommodations
A reasonable accommodation is a change to how tasks are usually handled at your workplace. These changes cannot put an “undue burden” on your employer, such as extreme costs or logistical difficulties. Examples of reasonable accommodations include:
- Receiving closer parking
- Wearing an altered uniform
- Receiving extra breaks
- Having duties changed to avoid activities that would put the pregnancy at risk
If your employer refuses to grant you accommodations that would allow you to perform your core duties, they may be discriminating against you.
Retaliation for Requesting Accommodations
In addition to granting accommodations, employers cannot retaliate against workers who request them. For instance, an employer cannot dock someone’s pay to cover the cost of an accommodation. Similarly, they cannot remove duties or cut workers’ hours against their wishes because of the accommodation request.
Termination for Taking Leave
Many workers need to take protected leave related to their pregnancy. California guarantees workers leave before and after labor under the California Family Rights Act and the Pregnancy Disability Leave programs. If an employer fires a worker for taking any form of protected leave, that is considered unlawful discrimination.
Making Unrequested Changes to Employment
Some employers may cut workers’ hours or change their duties when they become pregnant. This is often due to a misguided attempt to protect the staff member. However, employers have neither the responsibility nor the right to make these changes for their staff. If a worker requests these alterations, they are considered accommodations. If they are not requested, though, they are considered discriminatory actions.
Harassment of Pregnant Workers
One of the most obvious types of discrimination is harassment. Common examples of pregnancy harassment include:
- Making repeated, unwanted jokes about the pregnancy
- Calling someone names or mocking them because of their condition
- Attempting to touch a pregnant person, particularly their stomach, without their consent
- Threatening or intimidating someone because of their pregnancy
- Disclosing private medical information without the employee’s consent
If an employee requests that these behaviors stop and the employer does not take action, the pregnant person may have grounds for a hostile workplace claim.
Standing Up to Discriminatory Workplaces
Unlawful discrimination against pregnant workers remains all too common. The signing of the PWFA demonstrates that the issue is getting more attention nationwide, but more needs to be done. If you are working at a discriminatory workplace, you may have grounds to take legal action. Here’s how to get started:
- Collect evidence of the discrimination you face, like paystubs showing your hours were cut or communications refusing your accommodations.
- If you still work for your employer, file a complaint with your Human Resources department or manager about the behavior if you feel safe doing so.
- Talk to an experienced employment law attorney about your rights and options.
If you have questions or concerns, you can talk to the qualified California lawyers at Le Clerc & Le Clerc LLP. We have spent years representing employees suffering from harassment and discrimination, and we can assist you, too. Please schedule a consultation to discover how we can help you with a pregnancy discrimination claim today.