California's Employees
SAN FRANCISCO EMPLOYMENT LAW BLOG
- On Behalf of Le Clerc Le Clerc LLP
- Parental Leave
According to a recent study, San Francisco and Fremont are the fourth- and sixth-best cities for working parents in the US. These Bay Area locales have more than just nice weather and high wages. They also offer a suite of other benefits and protections that make raising children while working full-time easier.
But what makes a place a good option for parents? There are a lot of factors involved. According to CoworkingCafe, which performed the review, it considered details ranging from working conditions to education opportunities to health and environmental concerns. The study even left out certain critical features, such as protections for workers with families, that might have elevated Fremont and San Francisco even higher. Let’s break down what the study looked at, what it left out, and what you can do to make the most of these features.
What Makes Cities Parent-Friendly?
There’s a lot to consider regarding parent-friendly locations. The CoworkingCafe study rated cities based on three categories:
- Education (40%): How affordable is childcare? How well do public schools rank? How available is public education?
- Work (40%): How many people work remotely or in remote-eligible roles?
- Health & Environment (20%): How many pediatricians are there? How much green space is there? What is the air quality like?
While these are valuable tools, the study prioritizes remote work and coworking solutions over other working conditions due to its source. Other factors that should be considered when determining a city’s true friendliness toward working parents include:
- Cost of living: How affordable is an area to live in? How much does housing and transport cost?
- Minimum and median wages: How much can parents expect to earn to support their families?
- Parental and family leave policies: If a worker wants to start or expand their family, will they be able to take time off?
- Paid leave opportunities: Can a new parent take time off to bond with their child without sacrificing their financial stability?
- General worker protections: If an employee is forced to leave their job due to discrimination, harassment, or wrongful termination, what options do they have?
Considering these factors alongside the CoworkingCafe review may lead to a much more well-rounded understanding of what makes a city good for parents.
Why San Francisco and Fremont Are Working Parents’ Paradise
Whether you consider the nationwide review on its own or add the extra factors listed above, the Bay Area looks like an excellent option for parents.
Fremont is the number six city for working parents nationally because of its excellent environment and comparatively low childcare expenses. Meanwhile, San Francisco is named the number four city nationwide because of its large share of remote-eligible jobs, which signifies that workers have substantial flexibility in where they work. That flexibility is often indicative of positive work environments. It also has great air quality and excellent medical infrastructure.
The report leaves out the sheer number of protections offered to working parents in California. Among the most valuable state initiatives to support families are:
- Paid Family Leave (PFL): Eligible workers can receive PFL assistance worth up to 70% of their average income for eight weeks while welcoming new children to the family.
- School-related leave: Workers can take up to 40 hours a year off work to manage issues related to their children’s schooling or daycare, including attending open houses, parent-teacher conferences, and more.
- Medical and pregnancy leave: The state has some of the best protected leave policies in the country. Employees may take protected time off to ensure a healthy pregnancy or care for sick children.
- CFRA coverage: Compared to the federal Family and Medical Leave Act (FMLA), the California Family Rights Act (CFRA) extends protected leave to a much larger portion of the working population.
These policies apply statewide, giving workers greater options to care for their children. San Francisco still edges ahead of Fremont, though, due to two critical city laws:
- Family Friendly Workplace Ordinance (FFWO): Employees covered by the FFWO may request flexible or predictable work schedules to simplify caregiving responsibilities toward their children. Additionally, employers may not retaliate against workers who request these schedules.
- Paid Parental Leave Ordinance: Employers are required to supplement the income of workers who are currently receiving state PFL assistance to equal 100% of their normal income.
These policies make San Francisco indisputably one of the best places for working parents nationwide.
Make the Most of Your Rights as a Working Parent in California
There’s no doubt that California laws make working full-time easier for parents. However, these policies only help you if you know your rights. Employers may still attempt to discriminate and retaliate against workers requesting protected leave and accommodations despite the law. This may look like:
- Refusing to grant protected leave without providing a reason
- Threatening to fire you for asking or taking protected leave
- Terminating your employment during leave
- Cutting your hours, pay, or responsibilities before or after taking time off
- Refusing to provide reasonable accommodations while you’re pregnant
If you have experienced any of these problems, you likely have the right to take legal action. You may be able to hold your employer accountable for violating your rights under state and municipal law and pursue compensation for your losses.At Le Clerc & Le Clerc LLP, we’re dedicated to protecting employees from rights violations like these. We are prepared to advocate for you in court or at the negotiation table to help you achieve fair compensation for a lost job, pay, or refused accommodations. Schedule your free consultation with our Bay Area employment law firm to learn how we can protect your rights as a working parent in California.
- On Behalf of Le Clerc Le Clerc LLP
- Employment Law
After months of nationwide high-profile labor and employment disputes, the National Labor Relations Board (NLRB) has set new standards for evaluating employee rights violations. These standards come from its decision in the case Stericycle, Inc., 372 NLRB No. 113 (2023).
Under its new standard, the NLRB will take a much more employee-friendly approach when determining if a company’s workplace rules violate the National Labor Relations Act (NLRA). This law primarily addresses “labor relations,” such as unionization, but it heavily impacts other elements of employment law as well.
By revising its approach to evaluating company rules for rights violations, the NLRB has made it easier for all employees to exercise their rights. Let’s explore how the NLRA protects workers nationwide, how the NLRB has changed its evaluation approach, and what that means for you.
Your Right to Free Speech Under the NLRA
One of the laws that makes the US unique is the enshrinement of free speech as a fundamental right. However, freedom of speech means that the government may not restrict or penalize people from saying things; it does not prevent private parties from choosing to end relationships over someone’s statements.
This means that in at-will employment states like California, employers can fire workers who make statements they disagree with. For example, it is usually legal for an employer to terminate someone for swearing or making crude remarks. However, laws like the NLRA designate types of protected speech and activities that cannot be used to make adverse employment decisions.
The NLRA is a remarkably broad law that applies whether employees are on the clock or off-duty. Under the law, protected activities include things like:
- Complaining about workplace issues with colleagues or in public
- Speaking to reporters, the public, or the employer’s customers or vendors about working conditions and concerns
- Talking about pay, benefits, and working conditions among coworkers
- Making safety reports to state or federal agencies
- Organizing or going on strike
Of these activities, only the last is limited to unionization efforts. The rest are common occurrences in most workplaces, regardless of whether the employees want to unionize. The NLRA protects all workers, not just organized groups.
NLRB Standards After the Stericycle, Inc. Decision
One of the major duties of the NLRB is reviewing potential violations of the NLRA. This includes reviewing company rules to see if they may have a “chilling” effect that discourages workers from exercising their rights.
Since 2017, the agency has performed these reviews based on the standard it set in its decision on Boeing Co. (2017). Under the Boeing standard, the NLRB stated it would consider the impact of “reasonably interpreted” workplace rules on workers’ ability to exercise their rights and the employers’ justifications for the rules. This standard was interpreted as being particularly favorable for employers because it instructed the Board to deem rules to be lawful if employers’ needs outweighed their potential adverse impacts on employee rights. In other words, the Boeing standard meant that employers’ profits could be and were prioritized over individuals’ rights.
In the Stericycle decision, the NLRB reversed its stance. In its new decision, it stated that the Boeing standard permitted employers to “adopt overbroad work rules that chill employees’ exercise of their rights” and that employers were not required to tailor their rules to promote their “legitimate and substantial business interests without unnecessarily burdening employee rights.”
The new standard is heavily employee-focused. The Board states that future and currently active rule reviews will be performed “from the perspective of an employee who is subject to the rule and economically dependent on the employer, and who also contemplates engaging in protected concerted activity.” In other words, the NLRB will not take into account the employer’s justifications for rules and will instead focus entirely on the perspective of a potential employee. If it is found that an employee could reasonably interpret a rule to be restrictive, then it will be deemed unlawful.
Do Your Employer’s Rules Violate Your Rights?
The Stericycle standard is excellent news for workers nationwide. The Board has clarified what constitutes protected actions by broadening the definition of unlawful rules. More importantly, the new measure makes it clear that simply having unlawful rules on the books could violate employee rights, regardless of enforcement.
Examples of unlawful rules under the NLRA include prohibitions on:
- Discussing wage and benefit information
- Complaining about your employer in private or public
- Talking to reporters or attorneys about your working conditions
- Making “whistleblower” reports to safety agencies
The NLRB is responsible for reviewing rules that may violate the NLRA. Employees can report these violations but may not file a lawsuit in civil court. However, workers can hold companies accountable if they suffer from adverse action because of these rules. If you are retaliated against for engaging in protected activity like that which the NLRA covers, you can file a claim against your employer to pursue back pay and other damages.
Defending Your Right to Protected Activity in California Workplaces
The legal tide is turning in favor of employees. There has never been a better time to hold your employer accountable for violating your rights in the workplace. If you have had your hours or pay cut or been terminated for exercising your rights under the NLRA, you could have a claim against your company. If so, you should talk to the expert California employment attorneys at Le Clerc & Le Clerc LLP. Our employment law firm is dedicated to representing workers who have experienced retaliation and discrimination in the workplace. Schedule your appointment with our attorneys today to discuss your situation and learn more about how to pursue justice for workplace retaliation.
- On Behalf of Le Clerc Le Clerc LLP
- Discrimination
In a landmark new opinion, the California Supreme Court has declared that employers are not the only parties directly liable for employment discrimination. In the case Raines v. U.S. Healthworks Medical Group, the Court ruled that an employer’s “business entity agents” can also be held directly liable for discriminating against workers in certain circumstances.
This is a significant step forward for victims of workplace and employment discrimination statewide. The new ruling makes it easier to hold the correct parties accountable for discriminatory practices by expanding liability for these claims. Let’s break down how this may affect you.
Understanding the Raines v. U.S. HealthWorks Medical Group Ruling
The case Raines v. U.S. Healthworks Medical Group is a class-action lawsuit filed by Kristina Raines against U.S. HealthWorks Medical Group. This healthcare company performs medical screenings on behalf of employers, among other activities. Raines was offered a position at a local retirement community, contingent on passing a health screening performed by U.S. HealthWorks. However, when Raines began the screening process, she was instructed to complete an extensive health history questionnaire covering her current prescriptions, pregnancy status, HIV status, menstrual issues, and more.
Raines refused to complete the questionnaire, believing it to be overly intrusive. However, her job offer was revoked because she was reported to have failed the screening by refusing to complete it. In response, she filed a class-action lawsuit against U.S. HealthWorks, arguing that requiring her to answer all questions or fail the screening violated her rights under California’s Fair Employment and Housing Act (FEHA).
This law prohibits employers from making employment decisions based on medical conditions that do not affect a person’s ability to do the job. It also prohibits medical inquiries not “consistent with business necessity.” Raines argued that many of the questions she was asked were irrelevant to her job, and requiring her to answer them violated her right to privacy and freedom from gender and disability discrimination.
A federal judge in San Diego initially dismissed the lawsuit, arguing that FEHA only holds employers directly responsible for discrimination. The judge cited a previous ruling exempting supervisors from direct liability for discrimination in the workplace as grounds for the argument.
In response, California Attorney General Rob Bonta filed an amicus brief to revive the lawsuit because the court’s initial ruling undermined FEHA’s intended broad protections against discrimination. This led the Court of Appeals for the Ninth Circuit to submit the question to the state Supreme Court. It responded that “an employer’s business entity agents can be held directly liable under the FEHA for employment discrimination in appropriate circumstances when the business-entity agent has at least five employees and carries out FEHA-regulated activities on behalf of an employer.”
As a result, Raines’ class-action lawsuit can move forward. More importantly, people with similar experiences can hold discriminatory business entity agents accountable for the harm they cause.
What Counts as a Business Entity Agent?
A business entity agent is any party that meets the following three criteria as defined by the state Supreme Court:
- Size: The entity must consist of at least five employees, matching FEHA’s existing employment discrimination requirements.
- Responsibilities: The entity must carry out “FEHA-regulated activities” for an employer, such as screening prospective employees, developing or administering compensation plans, or formulating minimum job standards.
- Independence: The entity must be a separate party as opposed to a subdivision of the employer, as in that case, it would not be independent for liability purposes.
If these criteria are met, the entity counts as an agent of the business and may be held liable for its discriminatory practices.
Examples of Employer Discrimination by Business Entity Agents
The Raines ruling raises the question of what may constitute discrimination by a business agent. In the Raines case, the potential bias consists of making it mandatory to answer medical questions unrelated to the job in question. Other discriminatory actions may include:
- Deeming someone capable or incapable of a job based on irrelevant health characteristics
- Removing someone from consideration for a role when screening resumes based on their protected characteristics
- Creating compensation or benefit plans that treat people differently based on gender, ability to become pregnant, or need to take protected leave
- Setting minimum standards for a role that include discriminatory restrictions, such as height, weight, or unnecessary lifting requirements
These types of discriminatory practices would clearly be unlawful if performed directly by an employer. Raines means the agent performing the discriminatory practices can now be held liable instead of or in addition to the employer itself.
Proving Employment Discrimination by Agents of an Employer
Proving discrimination can be a complicated process. Whether seeking to prove discrimination by an employer or its agents, you must collect evidence to support your claim. This evidence may be direct or indirect.
Direct evidence is the strongest type, but also the least common. It consists of explicit statements from members of the business that a decision was made based on protected characteristics or other unlawful reasons.
Indirect or circumstantial evidence is significantly more common. This may include copies of overly invasive medical questionnaires, patterns of discriminatory behavior, noticeable hiring trends, or strongly correlated actions. For example, the revocation of Raines’ job offer after she refused to answer invasive questions by U.S. HealthWorks is an example of circumstantial evidence.
The most effective way to collect necessary evidence and build your case is to work with an experienced employment law attorney. At Le Clerc & Le Clerc LLP, we are dedicated to advocating for workers who have experienced discrimination. We are prepared to help you seek justice and hold the correct parties accountable for discriminating against you through California’s newly expanded liability provisions. Schedule your consultation today to discuss your case and learn more about how we can assist you.
- On Behalf of Le Clerc Le Clerc LLP
- Employment Law
Making the switch from working as an independent contractor or hourly worker to earning a salary is a big change. Salaried positions are typically assumed to have better benefits, working hours, and working conditions than other roles. In many cases, that’s true!
However, some employers use salaries to hide the fact that employees are being treated unfairly. Workers who receive a salary are still protected by federal and state employment laws. If you’ve just entered the world of salaried work, here’s what you need to know about your rights on the job and what you can do if you believe your employer is violating the law.
How Are Salaried Jobs Different?
Employees who receive a salary are paid a flat amount per month or year for their work. If they take a sick day or vacation time, their paycheck is not affected. This is in contrast to hourly workers, who are paid by the hour and only get paid for the time they work. Because of this difference, salaried workers normally do not receive overtime pay. They are considered “exempt” employees, while hourly workers are “nonexempt.”
Salaried positions are also different from independent contractor roles. Salaried workers often have routine working hours, but this is not a guarantee. Employers may enforce a standard 9-to-5 schedules, but they may also require people to stay late, work weekends, or be “on-call” for no extra compensation. While an employer cannot cut someone’s pay if they don’t do this work, they can fire salaried employees for refusing as long as the employment contract permits it. Furthermore, in California, employers must provide benefits like health insurance and time off, cover unemployment and workers’ comp, and provide protected leave to most salaried employees.
In contrast, independent contractors can choose when and how they get work done as long as they meet their contract’s deadlines and quality requirements. They may also get paid a flat rate yearly, but their clients do not have to manage their income taxes, provide health insurance, or offer leave.
In short, salaried workers theoretically have more flexibility, higher income, and better benefits than other workers. However, this heavily relies on employers respecting their staff’s rights.
Salaried Workers’ Rights in California
Exempt workers are not owed overtime but have various other rights in California. Some of the most important rights you have when working for a salary include:
The Right to Minimum Wage
The federal right to minimum wage applies to everyone, regardless of how they’re paid. California law, in particular, makes it clear that workers are owed at least the highest applicable minimum wage, regardless of how their employment is structured.
For example, California’s statewide minimum wage will rise to $16 an hour on January 1, 2024. If someone works 40 hours a week, 52 weeks a year, they should earn $33,280 at minimum. Anyone making a salary working full-time in California must earn at least that much, or they are not getting the minimum wage.
The Right to Correct Classification
If a nonexempt employee works more than eight hours in a day or more than 40 hours in a week, they have the right to be paid time and a half for the extra hours. This includes some people who are paid a salary.
In California, a salaried worker is only classified as exempt if they earn twice the minimum wage – in 2024, that threshold will be $66,560. Anyone who makes less than this for full-time work is considered nonexempt and eligible for overtime. If your employer has misclassified you as an exempt worker despite having you work full-time for less than that amount, you may be owed unpaid overtime.
The Right to Fair Employment
Every worker in the country has the right to fair treatment within the workplace. This includes:
- Equal pay for equal work: Companies must pay people who perform “substantially equal” work the same. Roles are substantially equal if they involve roughly equivalent skills, effort, responsibility, and conditions. For example, two accountants with similar duties who work at the same office should be paid the same, regardless of gender, health, or ability.
- Freedom from discrimination: Workers should not be discriminated against because of protected characteristics like gender, race, religion, disability status, or sexual orientation.
- Protected leave: In California, anyone who works for a company with five or more employees for 12 months and performs 1250 hours of work for the company during that time is eligible for protected family and medical leave.
If you are not offered fair pay or protected leave, or if you suffer discrimination or retaliation in the workplace, you can take legal action.
The Right to Safe and Healthy Working Conditions
All workers should be given safe and healthy workplaces. Employers must meet OSHA and Cal/OSHA standards to protect staff’s mental and physical health, regardless of how they pay people. This includes:
- Keeping working environments free from physical hazards
- Providing ergonomic furniture and equipment to prevent repetitive stress injuries
- Providing instruction on safe lifting techniques if necessary
- Maintaining a discrimination and harassment-free workplace culture
If an employer doesn’t maintain safe conditions, it may be violating your rights.
What You Can Do If Your Employer Isn’t Respecting Your Rights
No matter how you’re paid, you have rights in the workplace. Even if you receive a salary, you’re still owed fair pay, equal treatment, and a safe and discrimination-free workplace. If you think your employer isn’t respecting your rights, you can get help. The first step is to talk to the experienced attorneys at Le Clerc & Le Clerc LLP. Our skilled team has spent decades advocating for employees facing discrimination, unpaid wages, and harassment. Schedule your consultation with our firm today to learn how we can help you get the fair treatment you deserve under California’s employment laws.
- On Behalf of Le Clerc Le Clerc LLP
- Pregnancy Discrimination
The fact that pregnant workers are often subject to discrimination in the workplace is no surprise to most people. However, retaliation against pregnant workers is less well-known. It can be just as damaging as discrimination, though.
Under state and federal law, workplace discrimination and retaliation involve “adverse employment action.” This can include firing or demoting workers, changing their job duties or schedule to something worse, or negatively and concretely affecting their employment. The difference is that discrimination occurs because of protected characteristics, such as gender. In contrast, retaliation occurs because of protected actions like taking protected leave.
If you’ve struggled with your employer after becoming pregnant, you might be facing retaliation in addition to discrimination. Below, we explain four lesser-known types of retaliatory employment actions against people and what you can do to get help and fair employment.
4 Lesser-Known Signs of Retaliation Against Pregnant Employees
As a pregnant person, you have a variety of employment rights under laws like the Pregnancy Discrimination Act (PDA), the Pregnant Workers Fairness Act (PWFA), and the California Family Rights Act (CFRA) and Pregnancy Disability Leave Law (PDLL). These laws allow you to take time off work for things like medical appointments, temporary disability, and parental leave. They also permit you to request temporary modifications to your job duties if necessary to ensure a healthy pregnancy.
Requesting accommodations or taking medical, parental, or disability leave are protected actions. If your employer takes adverse employment actions against you as a result, it has committed retaliation. Four serious but lesser-known examples of pregnancy-related retaliation include:
1. Having Medical Appointment Leave Denied
Under US law, you can take unpaid medical leave as long as you meet a few criteria. If your employer is covered by the CFRA and you’ve worked for them for at least 1250 hours over the past twelve months, you likely qualify. Eligible employees can take up to 12 weeks of unpaid leave over a rolling 12-month period to care for a serious health condition. This includes taking time off work to attend medical appointments related to pregnancy.
If you qualify, your employer cannot deny you reasonable requested leave. A reasonable request must be:
- Related to care for a pregnancy or serious health condition
- Made at least 30 days before leave is necessary, if possible
- If 30 days’ notice isn’t practicable, a request must be made as soon as possible
If you meet these criteria and your employer denies your request for medical time off, they are violating federal employment law, and you may be experiencing retaliation.
2. Having Job Duties Altered Involuntarily
Federal and state laws now treat pregnancy similarly to disabilities and other health conditions. One of the key requirements within the Americans with Disabilities Act (ADA) is that disabled workers are granted reasonable accommodations for their health conditions but otherwise treated equally to other employees. For example, a cashier who cannot stand for long periods must be provided a stool. However, the employer cannot transfer them to a different department just because of their disability.
The same is true for pregnant people under the PWFA. You may request reasonable accommodations while expecting, such as temporary alterations to your duties or an altered work schedule. However, as long as you can perform the basic tasks of your job, your employer cannot change your responsibilities just because you’re pregnant or requested unrelated accommodations.
3. Receiving Poor Work Evaluations
You have the right to protected leave and reasonable accommodations while pregnant. Your employer cannot take these items into account when evaluating your work. Examples of unlawful retaliatory work evaluations include:
- Counting your protected leave time as days missed under company disciplinary attendance policies.
- Comparing your output and results to those of people who did not take medical leave without adjusting for the time you were gone.
- Describing requests for accommodations as making you “difficult to work with” and lowering your evaluation score because of it.
Even an evaluation that doesn’t directly reference your pregnancy can be retaliatory. If you get a particularly negative review after your pregnancy leave despite years of good reviews, it may be considered retaliation.
4. Being Made Redundant
Most employers know they can’t fire workers just because they become pregnant or request leave and accommodations. However, pregnancy does not make you immune to layoffs and redundancies. Some employers attempt to get around disability and medical leave protections by labeling disabled or pregnant workers “redundant” during other layoffs.
You have not necessarily experienced retaliation because you’re made redundant and laid off after requesting or taking leave. However, if you’re terminated after experiencing other instances of retaliation or discrimination, you may have a strong wrongful termination case.
How to Get Help With Ending Pregnancy Retaliation
The last thing you need as an expecting or new parent is to fight your employer over fair treatment. However, it may be necessary if the company treats you poorly because you exercised your right to accommodations or protected leave.
The best way to get started is by getting help. You can contact the experienced pregnancy retaliation and discrimination attorneys at Le Clerc & Le Clerc LLP. We are prepared to help you build your case against your employer by:
- Demonstrating your need for accommodations or leave. We can help prove your health needs by getting doctors’ notes, medical records, and expert witness testimony.
- Gathering evidence of retaliation: We will use our decades of experience and knowledge to demonstrate how your termination, negative evaluation, denied leave, or altered duties constitute retaliatory behavior.
- Handling negotiations with your employer: Many cases never go to trial and settle instead. We work to help you achieve the best possible settlement with your employer.
- Representing you in court if necessary: Our skilled trial attorneys are prepared to litigate your case if your employer refuses to negotiate.
Don’t let your employer’s bad behavior ruin your career and finances. Schedule your consultation with our pregnancy discrimination law firm to discuss how we can help you take a stand against unjust discrimination in the workplace.
- On Behalf of Le Clerc Le Clerc LLP
- Disability Discrimination, FMLA, Pregnancy Discrimination
Postpartum depression is often dismissed as a condition that describes new parents who feel tired and overwhelmed. However, it’s a much more serious and widespread condition than many people realize. According to the CDC, about one in eight new mothers will experience postpartum symptoms during or after their pregnancy.
Mothers experiencing postpartum depression describe feeling guilty and worthless; many even experience suicidal ideation. These emotions and the physical symptoms that accompany depression can be debilitating, making it harder to accomplish daily care tasks, much less go back to work.
Luckily, in California, parents may have the option to take protected disability leave or receive other accommodations for postpartum depression. Here’s what you need to know about when pregnancy-related depression becomes a disability, when it qualifies for leave, and how to seek accommodations for your condition.
Are Pregnancy-Related Health Issues Considered Disabilities?
For decades, health conditions related to pregnancy fell into a gray area in US law. Until the passage of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), there was significant debate about whether pregnancy-related conditions could qualify as “impairments” under the original ADA. Many courts held that they did not, as a pregnant person is not normally perceived to have a disability, and their abilities would no longer be limited after their child is born.
The ADAAA changed this by requiring the definition of a disability to be construed broadly. It also clarified that the cause or duration of a disability does not impact the disabled person’s rights. As such, employers were required to grant the same accommodations or medical leave to people with pregnancy-related conditions as non-pregnant workers with equivalent impairments.
However, even after the ADAAA was implemented, only conditions caused by pregnancy were considered impairments. This included mental and physical health issues ranging from preeclampsia to postpartum depression, but pregnancy itself was not considered a disability and was not subject to the ADAAA. It was not considered grounds for accommodations or protected leave nationwide until the Pregnant Workers Fairness Act (PWFA) was enacted in June 2023.
Pregnancy Protections vs. Disability Protections
But does it matter whether being pregnant is considered a disability? It’s because there are a variety of protections available in California for both pregnant and disabled workers that may not overlap. Understanding these protections and when they are available can help new parents make the most of their rights. The most important state protections for expecting parents include:
- California Family Rights Act (CFRA) Leave: Under the CFRA, all employers with five or more employees must provide their workers up to 12 weeks of unpaid leave in a rolling 12-month period to recover from serious health conditions or bond with a new child. However, expecting parents may hesitate to take this leave for disabling conditions during their pregnancy if they expect to need time to recover from postpartum depression after labor.
- Pregnancy Disability Leave (PDL): California also requires companies with five or more workers to provide employees with up to four months of protected pregnancy disability leave if a person is disabled by a pregnancy, childbirth, or related medical condition. This only applies when a condition is disabling and runs simultaneously with CFRA leave.
- Reasonable Accommodations: California required employers to provide reasonable accommodations for pregnant people long before the federal PWFA was enacted. These accommodations can include additional time off from work for health concerns if necessary and reasonable.
- State Disability Insurance (SDI) and Paid Family Leave (PFL): If someone needs to take leave for their own disabling health condition, they may be eligible for SDI wage replacement. They may also qualify for PFL if they take CFRA leave to bond with a new child.
Mothers experiencing depression related to their pregnancy may be able to maximize their protected time off by using PDL and CFRA leave concurrently while they are disabled. Once they are no longer impaired, if they have CFRA leave remaining, they can use it as bonding time with their child.
When Does Postpartum Depression Constitute a Disability?
There is no strict definition of when the baby blues become disabling postpartum depression. However, the California Civil Rights Department (CRD) explicitly names conditions such as severe morning sickness, gestational diabetes, and postpartum depression as conditions that may be grounds for PDL.
Additionally, the CRD states that a condition caused by a pregnancy is determined to be disabling by the person’s healthcare provider. As a general rule of thumb, healthcare providers typically determine that someone is disabled according to their employers’ purposes if a mental or physical health concern prevents them from accomplishing core job responsibilities. For example, depression may be incapacitating if you cannot focus or struggle to get out of bed.
Your provider will give you a note for your employer explaining what accommodations or leave you need to recover. Your employer must provide you with the accommodations or PDL your provider recommends unless it places an “undue hardship” on the business. Furthermore, your employer cannot ask about the details of your condition, nor can your provider share those details without your permission.
What to Do If You’re Denied Accommodations for Postpartum Depression
While significant postpartum depression is almost certainly disabling, some employers may still attempt to deny your request for accommodations or PDL. If your manager refuses to grant you leave or you experience retaliation because of your request, it’s time to get professional help.Le Clerc & Le Clerc LLP is there for you. We have decades of experience representing pregnant employees whose rights have been violated. We are prepared to advocate for your right to PDL and reasonable accommodations in the workplace. Get in touch to learn more about how we can help you.
- On Behalf of Le Clerc Le Clerc LLP
- Discrimination, Harassment, Hostile Workplace
The term “hostile workplace” often conjures images of verbal abuse and dramatic arguments. However, it applies to a much broader range of problematic behavior than many people realize. In fact, a survey performed by the University of California in 2017 found that nearly one in five employed adults may work in hostile or threatening conditions.
If so many workers are mistreated, why don’t they take action against their employers? It’s often because employees do not realize that hostile workplaces violate their rights. You may fall into this category if something seems seriously off about your workplace. Here’s what you need to know about hostile workplace laws, how these environments are created, and what you can do to pursue fair treatment at work.
What Is a Hostile Work Environment?
According to California’s Fair Employment and Housing Act (FEHA), a hostile work environment occurs when someone in your workplace is subject to harassment by colleagues or supervisors based on a protected characteristic.
In many cases, the harassment or bullying that leads to these types of environments comes alongside workplace discrimination. However, under FEHA, discriminatory behavior is defined as treating employees differently due to protected categories while performing job-related actions.
As a result, discrimination is most frequently committed by supervisors and management. In contrast, harassment is committed when it falls outside of the employee’s work duties, so anyone within an organization may commit it. A hostile workplace only coincides with unlawful discrimination when someone with authority over the victim participates.
What Characterizes Hostile Workplaces
Unlawful harassment is different from simple bullying. A colleague or supervisor who is mean or dislikes another person can make rude jokes or yell at others without necessarily creating a hostile workplace. The defining factor is that a protected characteristic causes hostility. Someone who bullies everyone regardless of race, gender, or religion may make a workplace unpleasant, but they are not violating the law.
Additionally, only “severe or pervasive” misconduct qualifies to create a hostile workplace. A single incident may be enough to qualify if it is particularly severe, such as a physical assault or a credible threat. However, smaller microaggressions may also accumulate into a hostile situation if they occur often enough for a long time. Examples of negative workplace behaviors include:
- Slurs or hate speech: Using negative words and phrases related to someone’s race, gender, or religion, even if not directly aimed at that person, can contribute to hostile work environments
- Unwanted sexual comments regarding someone’s gender identity or presentation: While compliments and consensual interactions are not a problem, unwanted sexual comments that continue after requesting they stop are a common kind of harassment.
- Unwanted physical contact related to racial hairstyles, religious apparel, or gender characteristics: Unwanted contact can quickly escalate to assault, especially if it is related to protected characteristics.
- Targeted aggressive behaviors: If a coworker or supervisor is frequently angry with or shouts at people with certain characteristics, they may be committing harassment.
- Focused pranks and ridicule: Similarly, if one person or group is frequently subject to unwanted or humiliating comments, teasing, or practical jokes, the perpetrator is likely harassing them.
- Quid pro quo sexual harassment: Offering someone better treatment at work for sexual favors is explicitly named as a type of harassment covered under state and federal workplace protection laws.
If these behaviors stop after one instance or are halted by management after the victim asks for help, they do not constitute workplace harassment. However, they can quickly lead to a hostile work environment if permitted to continue.
These work environments often form when management or HR turns a blind eye to someone’s behavior. Sometimes, there is a single biased person at the top of the department or organization setting the tone for company culture or demonstrating negative bias against certain classes of people. In others, though, the parties responsible for maintaining a hospitable work environment failed to take action when the first signs of harassment appeared, and the situation spiraled out of control. Regardless of the reason, people experiencing workplace harassment may be able to take legal action if their employer refuses to address the issues.
How to Get Help If Your Workplace Is Hostile
The first step to addressing harmful behaviors at work is to try to resolve the issue internally. You may talk to the people harassing you directly if you feel comfortable. Otherwise, you should bring it up with your manager or HR. Either way, it’s best practice to use email to bring up your issues. Email establishes a clear paper trail of when and how you tried to get the behavior to stop.
If the harassment continues and your employer refuses to address it, you may have grounds for legal action. Save copies of your emails and document as many instances of harassment as you can remember. With that information in hand, talk to an experienced workplace discrimination attorney. Your lawyer can help you determine if you have a case, ensure you understand your rights, determine what information and evidence you need to collect, and help you file a legal claim.
Talk to the Expert Hostile Workplace Attorneys at Le Clerc & Le Clerc LLP
Being trapped in a harmful professional environment can wear you down. However, if you’re being mistreated at work, you can get help. The experienced workplace harassment lawyers at Le Clerc & Le Clerc LLP are dedicated to advocating for the employee rights of clients like you. If you believe you’re facing harassment or a hostile workplace, schedule your free consultation with our San Francisco employment law office today to learn how we can help you take a stand.
- On Behalf of Le Clerc Le Clerc LLP
- Pregnancy Discrimination
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.
- On Behalf of Le Clerc Le Clerc LLP
- Discrimination
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:
- Race
- Color
- Religion
- Sex, gender identity, sexual orientation, and pregnancy
- National origin
- Disability
- Age
- 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.
- On Behalf of Le Clerc Le Clerc LLP
- Pregnancy Discrimination, Pregnancy Issues
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:
Gender
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.
Pregnancy
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 Leave
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.