California's Employees
SAN FRANCISCO EMPLOYMENT LAW BLOG
- On Behalf of Le Clerc Le Clerc LLP
- Parental Leave
Before parenthood, you most likely had plenty of time to devote to your career. While it may not always be convenient, you can usually take on extra work responsibilities, do overtime, and generally put your work first. Your partner, family, and friends understand if you must stay late at work or miss an event. It’s just part of being a good employee, supposedly.
Having a child changes that. Suddenly, your job can no longer be your top priority. Your kids need your time, attention, and energy more than your employer ever could. However, you still need to maintain your career to give your children the life they deserve. You need to find a new work-life balance.
Every family’s circumstances are different, so there’s no single answer as to the “right” type of work-life balance for a new parent. Instead, it’s up to you to understand your rights so you’re prepared to make the changes that work for you. If you’re expecting a new child, now is the time to learn about your rights under California law to care for your family while maintaining your career.
The Many Demands of Being a Working Parent
Becoming a working parent will likely cause you to change your approach to work out of necessity. A few of the many new demands that you may face because of parenthood include:
- Pregnant people may need time off during and after their pregnancies to ensure healthy delivery and recovery from labor.
- After returning to work, lactating people may need time to pump milk.
- Both parents may want to take time off to care for a brand-new child.
- Children can get sick, so parents may need more time off work to care for them.
- Parents must enroll children in school or daycare, so they may need time to visit open-house days.
- Similarly, parents may need to leave work to pick up their kids if an emergency happens at school.
In short, parenthood means you are more likely to take time away from work to care for your kids. However, you still have obligations to your job. The biggest demand on a parent who maintains their career is finding ways to balance these competing needs healthily.
Making the Most of California’s Legal Protections for Working Parents
Despite these new demands, you may feel uncomfortable taking time off work to care for your family. Many new parents fear that this could hurt their careers.
It’s not unreasonable to worry about this. Some employers do resent giving their employees the time they need to start or care for their families. However, California laws specifically protect your right to become a working parent, whether adopting, fostering, or having a biological child. Here’s what you need to know about your rights as a parent in the workplace in California.
Pregnancy Protections
Both state and federal law provide specific protections for pregnant people in the workforce. This comes in two forms:
- Pregnancy disability leave: Being pregnant was not initially considered a disability for workers to receive protected time off. However, California has implemented regulations requiring employers to provide up to four months of protected leave to people who cannot safely work while carrying a healthy pregnancy to term.
- Accommodations for pregnant workers: Pregnant people who find their ability to work is limited because of their condition can request reasonable accommodations from their employer, such as altered work hours, altered duties, chairs for jobs normally performed standing, and more.
Parental Leave
Under the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA), parents of all genders are eligible for up to 12 weeks of unpaid, protected leave during the first year after welcoming a new child into their family. In California, parents can take this leave simultaneously or consecutively.
Additionally, California offers a Paid Parental Leave (PPL) program that offers new parents up to 70% of their average wages for up to eight weeks if they are eligible for unpaid leave. In 2025, this will rise to 90% of the average salary for low-income parents.
CFRA and FMLA Leave
These programs permit more than just parental leave. If your child gets sick and requires dedicated help, you can request FMLA or CFRA leave to care for them. You can take up to 12 weeks of leave from your covered employer per 12-month period to care for an ill child with the guarantee that your job will be waiting for you when you return.
School Leave
Parents with school-age children can take up to eight hours a month and 40 hours a year to handle tasks related to their kids’ enrollment in school or daycare. This includes picking up children due to school emergencies, participating in school events, and attending open houses to find a new school.
Freedom From Discrimination
While discrimination against parents is not specifically illegal in California, current regulations make many potential types of discrimination unlawful. For example, it is against the law to discriminate against a worker for taking any form of leave mentioned above. Additionally, it may be considered unlawful gender discrimination if an employer terminates or refuses to promote a woman because she has or intends to have children.
Feel Safe Reclaiming Your Work-Life Balance as a Parent
There are few places in the U.S. where being a working parent is easier than in California. If you are expecting a child, you can trust that state laws protect your right to take the time you need to care for them. If your employer does violate your rights, you can hold them accountable for their actions. The first step is to talk to the expert California employment lawyers at Le Clerc & Le Clerc LLP. We have decades of experience representing employees who have had their rights violated at work. Get in touch today to learn how we can help you file a parental leave discrimination claim.
- On Behalf of Le Clerc Le Clerc LLP
- Parental Leave
Children are a full-time responsibility, which can be a problem if you’re also a full-time employee. Working parents need to balance the need to care for their children with their duties at their jobs.
But what happens when these needs conflict? What if you must pick up your child from daycare early for illness or participate in a school event? Unscrupulous or uncaring employers may threaten your employment for participating in parenthood’s routine demands.
Luckily, if you live in California, you may have the right to take time off for these situations. Here’s how California protects parents who need school-activities leave and how to request it.
California School-Activities Leave Laws
According to California Labor Code Section 230.8, covered employees are eligible for up to 40 hours of time off per year for activities specifically related to school or licensed childcare providers. This unique form of parental leave may be used for a variety of purposes, including:
- Participating in activities at the school or licensed daycare. This includes volunteering at the facility, attending parent-teacher conferences, and participating in field trips.
- Enrolling or re-enrolling children at a facility. Anything a parent must do to ensure their kids become or remain enrolled in school or childcare is covered under this leave, including attending open houses to find a new facility.
- Addressing emergencies. If an emergency occurs, such as the child needs to be picked up, a behavioral meeting is requested, or a health problem arises, employees have the right to take time off to address the issue.
The law is not restricted to legal parents, either. Section 230.8 treats the following people as parents who are eligible:
- Biological and adoptive parents
- Foster parents
- Stepparents
- Legal guardians
- Grandparents
- Anyone standing in loco parentis over a child
In other words, if you are directly responsible for caring for a child, you likely have the right to this time off under state law. Furthermore, covered employers may not retaliate against you in any way for requesting school-related parental leave.
Restrictions on School-Related Leave
Unfortunately, not every employee is covered under Section 230.8. The law only applies to employers with 25 or more employees. Furthermore, only workers with children in school between kindergarten and grade 12 are eligible. If your child is too young for kindergarten or you work for a small business, you may not be eligible to take time off.
Furthermore, employees must provide their employer with reasonable notice before taking this type of leave. While employers may not deny the request, they may request proof that the time was dedicated to school- or daycare-related activities, such as a letter from the facility. Furthermore, except for emergencies, employees may only take up to eight hours of time off per month under this law.
You should also note that California childcare leave only accounts for needs directly related to the child’s education or daycare. It does not account for caring for kids who must stay home for the day because they’re sick, unless facility policy prevents them from attending. A parent may use sick leave or vacation time instead in that case.
Finally, school-activities leave is not necessarily paid. Employers may require workers to use vacation, personal, and other non-sick leave before granting additional time. Employees may also choose to use any unpaid time off their employer provides.
How to Request Daycare Leave at Work
If you need to handle responsibilities for your child’s school or daycare, in most cases, you must give your employer advance notice. Here’s how to request time off correctly to reduce the risk of your employer illegally denying you the time you’re due:
- Keep track of the time you’ve already taken off for school activities. While you can take up to eight hours off in one month for childcare needs outside of emergencies, the total amount of protected time per calendar year is limited to 40 hours. Additionally, you can only take eight total hours per year for enrollment needs. Keep track of the time you’ve taken to ensure you remain under your limit.
- Determine if the reason you’ll be gone is covered under Section 230.8. Only activities specifically related to school or daycares are covered. Planned holidays, early closures, and children’s illnesses that prevent them from attending do not count, but snow days or a child’s unexpected illness do. Suppose your request is not covered under Section 230.8. In that case, you may be able to request leave under California’s Healthy Workplaces Healthy Families Act, which allows you to take up to three paid days off per year to care for yourself or your family.
- Provide reasonable notice if possible. If an issue is not an emergency, notify your employer as early as possible. What is considered “reasonable” varies based on the circumstances. For example, you cannot reasonably tell your employer you must leave for a behavioral conference before the conference is scheduled. If an emergency arises and you must leave immediately, inform your employer as soon as possible.
- Prepare documentation proving the reason for your leave. Documentation may include itineraries for field trips, tickets for open houses, notes from the school or daycare (ideally on branded letterhead), or other communications that demonstrate you had a valid reason for taking time away. However, you do not need to reveal specific details regarding your child’s health or behavior.
If you provide this information, covered employers may not deny your request for leave or retaliate against you for taking the time.
Consult Expert Employment Law Attorneys About Denied School Leave
Some employers disregard laws regarding protected leave. If your employer must provide school-activities leave and denies your request or penalizes you for taking time off, you have legal options. The first step is to consult with the skilled lawyers at Le Clerc & Le Clerc LLP. Our Bay Area employment law attorneys understand the complexities of California’s many protections for working parents. We will help you determine if you have a claim and help you pursue justice and compensation for your employer’s rights violations. Schedule your consultation today to learn more.
- On Behalf of Le Clerc Le Clerc LLP
- Employment Law, Parental Leave
While adoption is not the most common way of starting a family, it’s incredibly important. It benefits both prospective parents and the children who may otherwise grow up in the foster care system. Still, because it is less common, there is less social awareness of the needs and struggles new adoptive parents may face.
This is particularly noticeable in the workplace, where new parents may already struggle. Frequently, California adoptive parents experience harsher expectations and less sympathy from their employers than colleagues who welcome biological children. This can make it more difficult for your family to settle into your new life, particularly if you are refused time off to bond with your child.
If you are considering or in the middle of the adoption process, you should be aware of parents’ rights in California. The state specifically references adoption in the California Family Rights Act (CFRA), which dictates how employers must treat new parents.
Do Adoptive Parents Have Different Rights in California?
In short, no. Once you have legally adopted a child, that child is treated as if they were biologically yours. After finalizing an adoption, you have all the rights and responsibilities as you would for a biological child.
The same is not true of foster families. Fostering children is just as important, but fosters do not always receive the same rights as adoptive or biological parents. The child’s legal parents and the state retain rights and responsibilities for them unless and until they are adopted.
One of the crucial points where the rights of foster, adoptive, and biological parents overlap is at work. Under California law, welcoming a new child into your family in any of these situations is grounds for taking parental leave, taking time off to care for a sick kid, or otherwise prioritizing your responsibilities as a parent.
California Parents’ Rights in the Workplace
California has a number of laws protecting parents’ rights to fair employment and time off to bond and care for their kids. These include:
- Freedom From Discrimination: While parenthood is not a protected class, medical needs and requests for covered time off are considered protected in California. No employer may discriminate, terminate, or retaliate against a prospective parent for requesting family leave.
- Parental Leave: The CFRA requires employers to give eligible employees up to 12 weeks of unpaid leave after welcoming a new foster child, adoptive child, or infant to their family.
- Paid Family Leave (PFL): If a parent is eligible for unpaid parental leave, they are likely also eligible for PFL. The program compensates workers up to 70% of their average salary for up to eight weeks of bonding leave with any new child.
- Childcare Time Off: Employers with at least 25 employees must grant parents and fosters are up to 40 hours a year or eight hours a month of time off to “participate in school and licensed day-care activities” with reasonable notice and after using other sources of leave first.
There are a few points where adoption does not grant the same rights to workers as giving birth. These include:
- Leave for pregnancy: The state grants pregnant people the option to take disability leave separately from their child bonding leave if necessary for their health. California adoptive parents do not receive this, since they are not bearing the child themselves.
- Schedule alterations: Pregnant people have the right to request schedule adjustments and other accommodations to ensure they remain healthy during their pregnancy.
- Accommodations for nursing: Similarly, adoptive parents rarely receive nursing accommodations unless they are nursing another child.
Eligibility for Parental Leave
Not every new parent is eligible for parental leave, unfortunately. The CFRA only applies to public organizations or companies with at least five employees. If you are self-employed or work for a particularly small company, your employer is not obligated to provide you leave or protect your position while you’re out.
Additionally, even employees at covered businesses must meet two eligibility criteria:
- You must have worked for your employer for at least twelve months
- During that time, you must have worked at least 1250 hours for your employer
This is still better than federal FMLA leave. CFRA leave does not have exemptions for critical employees and applies to significantly more employers and employees statewide.
Do You Need to Inform Your Employer About Adoption?
Some prospective parents are hesitant to inform their employers that they will be adopting. Since parents are not a protected class, they may fear that their employer could fire them. They may just worry that their manager will assume they will be less dedicated to the job as a parent. However, concealing your attempt to adopt a child may be unwise, and may not even be possible.
For instance, most adoptions require the prospective parents to provide a letter from their employers to prove they have ongoing income and are in good standing. To receive this, you’ll need to tell your employer about your plans.
Furthermore, if your employer is not aware that you are adopting, they do not have to grant you time off. It is better to tell them in advance so they can plan for your eventual time off. If they do retaliate against you for requesting protected leave, you can take legal action to hold them accountable for your losses.
Standing Up for Parental Workplace Rights in California
Adopting a child is a stressful process. The last thing you should have to do once the adoption is finalized is to stand up to employment family responsibilities discrimination alone. At Le Clerc & Le Clerc LLP, we can help. We have decades of experience protecting parents’ rights in the workplace and ensuring they receive the leave they’re owed. Learn more about how we can assist you with denied bonding leave requests by scheduling your free consultation.
- On Behalf of Le Clerc Le Clerc LLP
- CFRA, Employment Law, FMLA
The federal Family and Medical Leave Act (FMLA) turned 30 in February 2023. This bill was a groundbreaking step for workers’ rights, but many argue it is no longer enough. Many legislators are advocating to expand the scope of the FMLA and providing workers with more options and security if they need to care for their families.
While the FMLA remains the primary federal law providing workers the opportunity to take family leave, many states have implemented similar laws to address its flaws. In honor of the bill’s 30th anniversary, let’s explore the history of the FMLA, how California has improved it, and how your rights as a worker have expanded in the past three decades.
History of the FMLA
Today, a law like the FMLA seems like it makes sense. Many people take it for granted that established employees can take time off from work to recover from an illness, care for a family member, or welcome a new child to their family. However, there was a long journey before the bill was signed into law in 1993.
Before its passage, workers had no protections if they needed to take a leave of absence. While employers could offer parental or family leave in their employment contracts or on a case-by-case basis, it was not required. As such, workers who needed to care for family often lost their jobs, and many struggled to return to the workforce afterward.
That’s why proponents of the bill introduced the FMLA before Congress every year from 1984 to 1993. The bill was passed by Congress twice, in 1991 and 1992, but vetoed by then-president George H.W. Bush. There was strong pushback against the bill by corporate interests, which argued that allowing workers to take time off of work – even unpaid time – could hamstring businesses and hurt the economy.
It wasn’t until President Clinton was elected that the bill was finally passed. In the three decades since, U.S. employees have used the bill more than 200 million times to take time away from work to care for their families without worrying about long-term unemployment.
This has had an outsized effect on women and low-income families in particular. Women can better maintain their jobs after having children because they can take time to recover without risking future employment. Meanwhile, low-income workers have more freedom to care for their families without quitting their jobs. If it has affected the economy, it has been positive by keeping more people in work.
Still, the FMLA is significantly less comprehensive than similar leave laws in countries like France, the U.K., and Spain. Many states have taken it upon themselves to improve on the FMLA to give workers more protection, safety, and security.
Improving on the FMLA: The California Family Rights Act
California’s main improvement on the FMLA is called the California Family Rights Act, or CFRA. This bill expands almost every element of the FMLA to cover more people and situations. Here’s how the two compare:
| Factors | FMLA | CFRA |
| Length | Up to 12 weeks of unpaid leave with a guarantee of reinstatement and a continuation of health benefits | Same |
| Eligibility | Any worker who has worked for a company for at least 12 months and performed 1250 hours of work for the company in that time | Same |
| Reason for Leave | New child or foster child brought into the family, a serious health condition of the employee, their child, spouse, or parent, or qualifying exigencies for the active military duty of the same. | New child or foster child brought into the family, a serious health condition of the employee or a designated party, or qualifying exigencies for the active military duty of the employee or a parent, child, or spouse. |
| Covered Employers | Any employer with 50 or more employees within 75 miles of the employee’s location, all primary and secondary schools, and all public agencies | Any employer with five or more California employees, without regard to geographic proximity, all primary and secondary schools and public agencies |
| Exemptions | Employers may withhold FMLA leave to key employees: those who are among the highest paid 10 percent of all the employees employed by the employer within 75 miles of the employee’s worksite. | No “key employee” exemptions |
Overall, the CFRA covers more people, offers fewer exceptions, and gives workers more freedom to care for their loved ones.
Furthermore, California also offers the Paid Family Leave (PFL) program to supplement income for workers who take time off from work under the CFRA. In general, if a worker is eligible for CFRA, they are likely to be eligible for PFL as well. This allows California workers to take time off for pregnancy, new children, or a loved one’s illness without sacrificing all of their income.
There is no equivalent federal program; people in states without the PFL program do not have a national alternative to cover their financial losses while taking unpaid leave. Federal advocates of expanding the FMLA are calling for this to change and for many elements of the CFRA to be adopted nationwide. However, this has not yet occurred.
Defending Your Rights Under the CFRA
While the FMLA still leaves much to be desired, California’s CFRA has closed many of the gaps. Your employer cannot deny it as long as you’re eligible for CFRA leave. If they do, you have the right to take legal action for your losses.At Le Clerc & Le Clerc, LLP, we specialize in helping workers like you defend your rights under the CFRA. If your employer has violated your right to leave under the bill, we can help. Learn more about how we can hold your employer accountable, fight for your job, and help you pursue unpaid wages by scheduling your consultation today.
- On Behalf of Le Clerc Le Clerc LLP
- Pregnancy Issues
It’s no surprise that pregnant people struggle to continue to work in the US. However, the extent of that struggle isn’t always obvious before someone becomes pregnant themselves. According to a recent survey by the Bipartisan Policy Center (BPC), one in every five working mothers reports experiencing discrimination in the workplace because of their pregnancy.
The survey, performed in February 2022, was focused on self-reported experiences of discrimination among pregnant people. It covered the experiences and concerns of pregnant working people and their partners before and during their pregnancies. From its sample of 2200 adults, the BPC identified several concerning trends regarding pregnancy discrimination in the workplace.
According to the survey result, pregnant people may be more likely to experience discriminatory behavior at work now than they were a few decades ago. An alternate interpretation of the data may be that expectant parents are more likely to notice this behavior than they were in the past.
Either way, the BPC’s survey highlights the continued struggles facing prospective parents in the workforce. Below, we break down the most concerning statistics highlighted in the BPC report, why discrimination against pregnant workers may be rising, and methods of preventing or fighting against it.
Concerning Statistics Regarding Workplace Pregnancy Discrimination
The BPC’s survey was performed to determine the extent of pregnancy discrimination in the workplace and the groups who struggle with it most. The results were discouraging: 20% of all people who self-identified as mothers reported that they had experienced this discrimination firsthand.
8% of all women and 10% of currently employed women had experienced the same. Contrary to expectations, though, self-reported experiences of pregnancy discrimination increased as the age of respondents decreased. 13% of Millennial women reported facing discriminatory behavior because they were pregnant, while only 9% of Gen X and 5% of Baby Boomers reported the same. However
The survey also asked several other questions:
- 12% of all adults and 20% of parents have witnessed workplace discrimination against pregnant people.
- 21% of mothers report being scared to tell their employers about a pregnancy due to fears of discrimination or retaliation.
- Only 4% of all Baby Boomer women report being afraid to tell their employers about a pregnancy, while 15% of Millennial women have been.
- 23% of fathers report that their partners were discriminated against at work for being pregnant.
One survey is not enough to prove that pregnancy discrimination is rising. However, analyses of federal court dockets have highlighted that claims regarding discriminatory actions against pregnant people are on the rise. Even if actual discriminatory and retaliatory actions aren’t increasing, it’s clear that awareness of the problem is.
Why Pregnancy Discrimination Is Becoming More Visible
It seems unlikely that discrimination against pregnant people is increasing as dramatically as the BPC study suggests. After all, laws like the federal Pregnancy Discrimination Act of 1978 and California’s Fair Employment and Housing Act (FEHA) provide workers with legal protections if employers attempt to fire, demote, cut pay, or cut hours because they are pregnant. Furthermore, some employers have begun offering pregnant employers additional parental leave and other benefits to retain talent. So why are more people reporting seeing or experiencing it?
The answer may be twofold. First, social expectations have changed for the better. Thirty or forty years ago, when most Baby Boomers first had children, it was still heavily engrained in the culture that women left the workforce when they had kids. Women who worked during this time may not have noticed discrimination or feared telling their employer because they knew they would leave after getting pregnant.
That’s no longer the case today. The federal Department of Labor (DOL) reported in 2018 that 62.0% of mothers with children under 3 work. While this is still significantly lower than the participation rate of fathers, it is nearly double the rate in 1975, when only 34.3% of mothers with young kids worked. As people stay in the workforce during and after pregnancies more frequently, they are less likely to accept discriminatory behavior from their employers.
The other cause is visibility. As more people remain employed after becoming pregnant, opportunities to experience discrimination rise. It seems likely that the likelihood of experiencing discriminatory behavior may be stable or even falling, but more potential victims are willing to speak out and hold their employers accountable.
Taking a Stand Against Unfair Treatment of Pregnant Workers
The last thing a prospective parent needs is the stress of their employer discriminating against them for starting a family. People who face discriminatory or retaliatory behavior at work because they are pregnant can stand up for their rights to fair employment.
- Know your rights. California has some of the best protections for pregnant workers in the country. Know your rights so you can spot when they’re being violated.
- Document the problems you face. If you encounter issues like having requests for accommodations denied, your hours cut, or otherwise being penalized for your pregnancy, carefully document each incident. Save communications, old work schedules or pay stubs, and employee reviews to demonstrate that the behavior is discriminatory and not based on your performance.
- File an official complaint. If your employer has an HR department, it may be worthwhile to submit an official complaint to start a paper trail within the organization.
- Consult with a skilled pregnancy discrimination attorney. If you are concerned about your job should you file a complaint, or if your employer has disregarded your concerns, it’s time to talk to a lawyer about legal action.
At Le Clerc & Le Clerc LLP, our attorneys are dedicated to helping California workers with families. We have decades of experience representing employees who have suffered from pregnancy discrimination around the state. We are available to help you take a stand against your employer’s unjust treatment of pregnant workers. Learn more about how we can protect your rights by scheduling your consultation today.
- On Behalf of Le Clerc Le Clerc LLP
- Parental Leave
Parents in California are covered by some of the most comprehensive parental leave laws in the U.S. However, while these laws are better than they are in many states, they still leave a lot to be desired.
For example, private employers are not required to provide workers with paid parental leave. Instead, eligible workers must request unpaid parental leave from their employer, then request Paid Family Leave (PFL) benefits from the California State Disability Insurance fund. These benefits last eight weeks and only cover up to 70% of the employee’s average weekly pay. While this is significantly better than a completely unpaid parental leave, it can still leave many new families struggling to pay bills.
Some California municipalities have taken steps to rectify the problem, though. For example, the city of San Francisco has implemented a law known as the Paid Parental Leave Ordinance (PPLO) to supplement workers’ finances during the earliest days of welcoming a new child into the family.
PPLO is invaluable for eligible workers but is not a guaranteed benefit. If you are preparing to welcome a new child into your family and regularly work in San Francisco, you should understand how SF PPLO works and how to make the most of this unique benefit.
What Is San Francisco’s Paid Parental Leave Ordinance?
The Paid Parental Leave Ordinance is a law that requires employers to provide “supplemental compensation” to eligible workers who are on parental leave. The law intends to ensure that employees receive the equivalent of their full salary while they are on paid leave. SF PPLO payments for eligible employees are paid after PFL benefits are granted and calculated using the awarded benefits.
PFL benefits range from 60-70% of an employee’s weekly salary, currently capped at $1620 weekly. For example, if you earn $2000 per week before tax, you would receive $1200 per week in PFL benefits upon successfully applying. If you are also eligible for PPLO, your employer would be expected to pay you an additional $800 per week to make up the funds you otherwise would not receive.
This is particularly valuable for families in and around San Francisco, which has one of the highest cost of living indexes in the country. In a city where renting a two-bedroom apartment costs an average of $4300 a month and the median home value is $1,195,700, every dollar counts. New parents eligible for SF PPLO can use the benefit to ensure that starting a family doesn’t force them to move away.
PFL vs. PPLO: Eligibility and Benefits
The eligibility requirements for PFL and PPLO are similar but not the same. Here’s how the two benefits programs compare:
| Requirements | PFL | PPLO |
| Employment Location | All of California | Workers who work at least 8 hours a week and 40% or more of their total hours for the employer in San Francisco |
| Conditions | Applicants must be employed or looking for work and unable to perform their normal duties because they have welcomed a new baby, adopted child, or foster child into their family in the past year. Typically, if a person is eligible for unpaid CFRA leave due to a new child, they are also eligible for PFL. | Workers must currently be employed and receiving PFL benefits. |
| Amount Paid | 60-70% of an employee’s average earnings during a 13-month “base period” from 18 to 5 months before the leave begins, capped at $1620 weekly in 2023. | An employee’s average weekly salary minus PFL benefits, capped at $1080 per week to reach $2700 total. |
| Employer Eligibility | 5 or more employees | 20 or more employees internationally |
| Weekly Hours | Amy amount | At least 8 hours a week |
| Employment Duration | 26 consecutive weeks of employment for workers who work 20 hours a week or more, or 175 days if they work fewer than 20 hours a week | 180 days |
| Length | 8 weeks | 8 weeks |
What to Do If Your Employer Denies PPLO
If you work in San Francisco, you may be relying on PPLO to cover some of your bills after welcoming a new child. That can make a denial from your employer particularly painful. However, suppose you meet the eligibility requirements listed above. In that case, your employer must pay you PPLO, regardless of where they are headquartered or whether you’re taking FMLA leave. The only exception is if it already has another paid leave program that compensates you equally. Failing to pay you appropriately, or retaliating against you for requesting PPLO, may give you the right to take legal action.
According to municipal law, the San Francisco Office of Labor Standards Enforcement (OLSE) is usually responsible for investigating and prosecuting PPLO denials. However, if the OLSE and City Attorney does not take legal action within 90 days of receiving written notice of a complaint, you may file a civil claim against your employer directly. You can use this claim to pursue up to treble the supplemental compensation you did not receive, as well as attorneys fees and legal costs.
Of course, when you’re busy adjusting to life as a new parent, the last thing you want to do is to fight a legal battle alone. With Le Clerc & Le Clerc LLP on your side, you don’t have to. We are dedicated to protecting the rights of workers with families around California. Our experienced attorneys understand the importance of receiving fair supplemental compensation during parental time off in San Francisco. If your employer denies your PPLO claim, we can help. Learn more about how we can assist you with an unpaid PPLO claim by scheduling your consultation with our parental leave attorneys today.
- On Behalf of Le Clerc Le Clerc LLP
- Employment Law, Parental Leave
California has some of the country’s strongest laws regarding parental leave. However, the relative strength of these laws does not mean all workers are guaranteed the same amount of leave. Some employers choose to offer their workers additional time off as a benefit to attract more talent.
This private, employer-based leave is invaluable for many new parents. The problem is that since it is not guaranteed under the law, it can be more difficult to hold employers accountable if they attempt to block workers from taking the promised time off. Here’s what you need to know about different types of parental leave in California and what to do if your employer attempts to block you from taking the time off you were promised in your employment contract.
The Difference Between FMLA Leave and Employer-Based Leave
The federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) both guarantee workers up to twelve weeks of protected, unpaid leave in a twelve-month period. These laws specifically allow eligible employees to take time away from work after welcoming a new child into the family with a guarantee that their job will still be there when they get back.
California also goes a step further. Under the state Paid Family Leave (PFL) program, people who need to take time off for a family reason, such as bonding with a new child, can request partial wage-replacement benefits for up to eight weeks. Eligible workers can receive 60-70% of their weekly wages for those eight weeks from the government. Generally, most employed people qualified for PFL is also eligible for CFRA or FMLA leave, allowing them to take publicly-funded paid parental time away from work.
Under the CFRA, only employers with five or more employees or state and local governments must provide workers with unpaid time away. Furthermore, you need to have been working for your employer for at least 12 months and 1250 hours before you specifically are eligible for this time.
This is very different from the programs some employers offer. Private employers with parental time off programs can set significantly different terms for eligibility, length, and pay as long as they are equivalent to or better than those already guaranteed by the state. For example, some employers only require workers to be at the company for 90 days before they are eligible. Others, like Google, provide workers with up to 24 weeks of leave, an unprecedented amount in the U.S.
When Can an Employer Deny Parental Leave?
The problem with employer-based paternity or maternity time is that it is not granted the same protections as state-mandated leave. Instead, it is treated like other benefits like vacation time or sick leave. While employers are required to live up to their contracts with their employees, it can be significantly more difficult to fight back if they do attempt to violate these agreements. Unless an employer fails to meet the requirements set by the state of California, failing to provide the contractually promised amount of time off is considered a contract violation, not a workers’ rights violation.
In addition, private new child policies often have stricter scheduling requirements than government alternatives. According to the U.S. Equal Employment Opportunity Commission, an employer can deny requests for medical leave when it is not protected under federal or state law in many circumstances.
This includes situations where finding someone to replace you for the duration of leave would be particularly difficult, or the length of your break will pose “significant difficulty or expense” to your employer. You must read your employment contract and your employer’s HR policies carefully to determine what amount of time off you are guaranteed under your agreement.
This does not mean that you have no recourse, though. If your employer promised you paid parental time and refuses to grant it to you, they are breaching the employment contract. You can still take legal action to pursue the compensation and time away you’re owed.
What to Do If You’re Denied Parental Leave Under Your Company’s Policy
California courts take violations of employment contracts very seriously. You can fight back if your employer reneges on your contract or makes it unreasonably difficult to access the parental leave you were promised. Here’s how to get started:
- Gather relevant documentation: Collect paperwork such as your employment contract and HR policies for your company. These should provide a clear idea of the type of compensation and time off you were offered. It would help if you also gathered any communications regarding your leave request and any updates to the policies that may have occurred after you were hired.
- Submit a formal complaint with HR: If you have not already done so, submit a formal, written complaint to your HR department, and keep a copy of that complaint yourself. Request a written response rather than a verbal one to ensure there is a paper trail if your request for time away is denied again.
- Consult with an experienced attorney: Skilled legal counsel is vital any time you have a contract dispute with your employer. Your attorney will help you understand your rights and determine the best path forward, whether that is negotiating with your employer or filing a lawsuit.
At Le Clerc & Le Clerc LLP, we specialize in helping parents and families who have been impacted by unfair and illegal employment practices. We are available to help you pursue the time off you were promised in your employment contract so you can spend time with your new child. Learn more about how we can help you stand up for your right to paid parental leave by scheduling your consultation with our skilled California employment law attorneys today.
- On Behalf of Le Clerc Le Clerc LLP
- Employment Law
In 2020, California voters chose to pass Proposition 24, the California Privacy Rights Act (CPRA). As of January 1st, 2023, it has officially gone into effect. This bill is an expansion of the California Consumer Privacy Act (CCPA) intended to provide consumers and workers with greater privacy rights.
Before 2023, employers had relatively few obligations toward their employees’ data privacy. Employees did not have the right to request what data has been collected by their employer or prevent it from being used or sold. However, with the CPRA going into effect, employers must now treat all human resources information and similar data shared with or from other businesses with the same care as consumer data.
This is excellent news for workers. Covered businesses now need to take extra precautions regarding your personal information and protect you from risks like data breaches and identity theft. Here’s what you should know about the CPRA’s impact on your rights to data privacy and what you can do if your employer violates them.
New Privacy Rights Guaranteed for Employees
The CPRA grants employees, job applicants, and contractors the same rights given to consumers under the CCPA. These six rights are:
- The right to know what information your employer has collected about you and how it is used or shared
- The right to opt out of having your information sold or shared with other parties
- The right to limit the use or disclosure of your sensitive personal information to necessary business tasks
- The right to request that data not directly related to your employment is deleted
- The right to correct collected data that is inaccurate
- The right not to face discrimination or retaliation for exercising any of the above rights
In short, your employer must tell you what information it collects about you, why it’s needed, and who has access. In addition, you can block your employer from collecting or sharing most information and request that it be corrected or deleted entirely.
Privacy Requirements for Employers
Applying the CCPA to employers was controversial because of the new requirements it imposes on them. That’s why the initial CCPA specifically stated that employees were temporarily exempt from the rights guaranteed to the average consumer. This exemption was intended to allow employers to prepare for the demands of the CCPA.
However, now all covered organizations must follow the law’s requirements. An employer must follow these restrictions if it:
- Achieves $25 million in gross revenue annually
- Makes 50% or more of its income from selling or sharing consumers’ personal information
- Buys, sells, or shares the personal information of 100,000 or more consumers, households, or devices
All employers subject to the CCPA and CPRA must ensure they can honor the rights listed above. This includes setting up processes to track, correct, and delete employee information and prevent it from being collected upon request. In addition, employers must be able to provide information about the following:
- What employee information they collect
- What types of sources they gather information from
- The commercial purpose for gathering this information
- The types of third parties with whom each kind of data is shared
This allows workers to understand how their data is used and make informed choices about whether to opt-out, request deletions, or limit its use.
Benefits of the CPRA
The primary benefits of the CPRA are obvious: you regain control over your personal information. If you work for a covered employer, you have the right to minimize the data it collects and keep your private life separate from work.
Furthermore, the bill increases transparency by requiring organizations to track and report how employee data is used and stored. Employers can no longer use their workers’ information for financial gain or potential discrimination without their knowledge.
This is partly why the rights enshrined in the CPRA are closely modeled after the European Union (EU) General Data Protect Regulation of 2016 (GDPR). Countries subject to the GDPR have discovered that many employers will collect employee information irrelevant to their employment and use it in discriminatory ways.
For example, in 2020, the clothing retailer H&M was found to be keeping records about employee relationships, religious affiliations, and health, and using this information to make employment decisions. This is just as illegal in the EU as in the US. H&M faced a $37.7 million fine and compensated employees for the violation.
If this type of blatant privacy violation and discrimination happens in the EU, it is not unlikely that it is also happening in the US. The CPRA may not only help protect your control over your data, but it could also protect you from discrimination.
What to Do If Your Employer Violates Your Data Privacy Rights
You have the right to data privacy under the CPRA. If your employer violates your rights, you may be able to take action.
In most cases, the California Attorney General is responsible for identifying whether an organization violates the CCPA and CPRA and suing non-compliant businesses. However, in certain circumstances, you can act directly. If your unencrypted personal data is stolen from your employer, you can file a lawsuit in pursuit of compensation for the losses you suffer. Furthermore, if you discover your employer is using your data in discriminatory ways, you can also file workplace discrimination claims.
This is where Le Clerc & Le Clerc LLP is proud to help. We are dedicated to protecting the rights of workers in California. We are available to help you take a stand against unjust violations of your privacy and discrimination in the workplace. Learn more about how our expert attorneys can defend your rights by scheduling a free consultation today.
- On Behalf of Le Clerc Le Clerc LLP
- Employment Law, Wrongful Termination
Layoffs have been on the news recently, especially in the California Bay Area. Major tech companies like Microsoft, Google, Twitter, Amazon, and Salesforce have cut tens of thousands of jobs since the beginning of January, primarily consisting of Silicon Valley workers.
While major layoffs appear to be mostly centered within the tech industry for the moment, these trends have a way of spreading. Even if you don’t work in tech, you could still be at risk of being named “redundant” if your employer downsizes. It’s more important than ever to understand your rights regarding layoffs so you can stand up for yourself if you are unfairly terminated.
The Ongoing Trend of California Tech Layoffs
Despite record profits posted throughout the tech field, many employers are announcing layoffs. Why? Companies that provide reasons for these massive cuts point toward ongoing inflation and rumors of an oncoming recession to justify their decisions. These businesses claim they are preemptively cutting costs to make it through the presumed lean times to come.
Analysts suggest that most of these layoffs aren’t occurring because companies need the money, though. Stanford business professor Jeffrey Pfeffer argues that these layoffs are being done just because other companies are doing the same thing in “copycat” behavior. They know they can do it, that it hasn’t harmed their competitors, and will make their profits higher in the short term, so they are making cuts just because they can.
Unfortunately, this behavior may bring about the very thing the companies profess to fear: a recession. Over the past year, as many as 120,000 people have been laid off, particularly in high-paying industries like technology. This is increasing competition for the remaining jobs, allowing employers to pay them less. Between lowering pay rates and many people simply no longer having their high-paying jobs, massive layoff trends significantly reduce the number of people with disposable income.
This can slow the rest of the economy as people are forced to cut back to necessities rather than circulate funds into other businesses. Layoffs in one industry can cause a domino effect as other companies are forced to cut costs because their customers can no longer afford to purchase their goods or services.
What You Should Know About WARN Laws
State and federal legislators understand the negative impacts of major layoffs. This is why California has implemented the Worker Adjustment and Retraining Notification (WARN) Act. This law provides strict rules regarding which employers must give notice to employees before performing layoffs and when that notice must be given.
California’s WARN Act is stricter than its federal equivalent, granting workers in the state greater protections. It applies to businesses with at least 75 full- or part-time employees who have worked at the company for at least six out of the last twelve months. It also applies to all state and state-sponsored organizations, regardless of the number of workers. Covered organizations must provide employees with 60 calendar days’ written notice before performing the following:
- Terminating at least 50 employees over 30 days, no matter how many employees the company has
- Closing any plant or location, regardless of how many workers this affects
- Requiring any employee to relocate by more than 100 miles
If an employer does not provide 60 days’ notice, they can offer severance packages equivalent to the number of working days the employees will not receive. For example, Google recently laid off 12,000 employees, effective immediately. However, the employees were guaranteed pay through the 60-day notice period. Because they will still receive the compensation they would have earned during those two months, the workers’ right to notice was not violated.
Note that these notice requirements don’t apply to seasonal workers or employees who are explicitly hired temporarily. In addition, organizations are not penalized for failing to provide notice if they must close a location due to a natural disaster or sudden, unexpected loss of business. Outside of these exceptions, failing to provide appropriate notice to employees is a WARN Act violation.
Your Rights During California Layoffs
Understanding your rights during California layoffs is invaluable. The WARN Act was enacted to give you time to find a new job and avoid unnecessary time spent unemployed. If your employer doesn’t provide you fair notice, you have the right to take legal action.
California law allows workers to pursue back pay for every day of notice they do not receive. For example, if a company notifies workers only 20 days before termination, the laid-off employees could demand back pay for their normal schedule during the remaining 40 days.
Furthermore, employers must perform layoffs equitably. They must choose which workers to terminate based on business-related concerns like performance rather than age, gender, race, or other protected classes. WARN notices allow employees to spot if their employer is committing wrongful termination during layoffs.
If they do selectively terminate people from protected classes, that’s when a layoff becomes wrongful termination. For instance, Twitter is facing a class action lawsuit for allegedly firing women at a significantly greater rate than men in the November cuts. In these cases, you may also pursue a wrongful termination claim for additional damages, such as the money you might have earned based on your performance if the company had laid off people fairly.
Experienced Legal Representation for Victims of California Tech Layoffs
The layoffs occurring throughout the California tech industry are alarming and harmful to many workers. Still, if you are laid off without appropriate notice, you may have grounds to take legal action. At Le Clerc & Le Clerc LLP, we specialize in helping workers stand up for their rights. We can help you determine if you were unfairly laid off or wrongfully terminated by your employer. If so, we will help you pursue justice and fair compensation for your losses. Learn more by scheduling your consultation today.
- On Behalf of Le Clerc Le Clerc LLP
- Employment Law
According to a proposal made by the federal Department of Labor (DOL), the agency intends to revise how independent contractors are classified under law. The proposed rule would significantly alter the most recent definition, which was finalized in 2021. Should the DOL’s newest proposal be implemented, it will significantly reduce the number of workers who can be classified as independent contractors nationwide.
For many workers, this would be a net benefit. However, it is still a significant change. It is in your best interest as an independent contractor to understand how the update could affect you and what it may mean for your future.
How the New Rule Could Change Federal Law
Currently, independent contractors are defined based on the DOL’s 2021 rule. This rule outlines five factors, including two “core” factors, that are used to determine if a given worker is an independent contractor. The core factors are:
- The amount and type of control the worker has over their work
- The worker’s opportunity to make a profit or loss depending on their skills
If a worker has significant control over how, where, and when they do their work, and if they stand to gain or lose depending on the quality of their work, the DOL’s current rule states there is a substantial likelihood that they are a contract. If there is still doubt, the DOL considers the other three factors:
- The amount of skill the work calls for
- The permanency of the working relationship
- Whether the work is “part of an integrated unit of production”
Under these rules, “gig economy” workers are generally considered independent contractors due to the core factors test. However, the DOL has determined that the current rule is inconsistent with current judicial precedent and the Fair Labor Standards Act (FLSA).
The proposed rule is intended to resolve these issues. It would institute a new collection of six factors, which are intended to be given equal weight. These factors include:
- Whether the worker’s managerial and negotiative skill impacts their opportunity for profit or loss
- Whether the employee is making independent investments into their work
- The permanency of the working relationship
- The amount of control the worker has over their work
- Whether the work they perform is integral to the employer’s business
- Whether the worker needs specialized skill and initiative to advance their business
These new factors are more specific and place a much heavier emphasis on the entrepreneurial spirit of the worker. The intention of this rule is to ensure that workers who genuinely wish to run their own businesses can remain independent contractors, while preventing employers from misclassifying workers to cut down on benefit and overtime costs.
How the New Rule Compares to California Laws
If the DOL finalizes the independent contractor rule, it will go into effect nationwide. However, it may not have as much of an impact in California as it will in other states. This is because the state has implemented a number of laws in recent years to restrict how companies may classify their workers.
First, Assembly Bill (AB) 5, which was implemented in 2020, codified the ABC test to determine whether a worker can be classified as an independent contractor:
- “The worker is free from the control and direction of the hiring entity in connection with the performance of the work.”
- “The worker performs work that is outside the usual course of the hiring entity’s business.”
- “The worker is customarily engaged in an independently established […] business of the same nature as that involved in the work performed.”
This law is stricter than the current federal rule, but the DOL’s proposed rule would tighten the definition further.
In addition, the passage of Proposition 22 added a major loophole to AB 5, allowing “app-based drivers” to continue to be classified as independent contractors despite the ABC test. If the DOL implements its proposed rule, this loophole would be closed, and California gig economy workers would finally be considered employees, not contractors.
How Will the New Law Affect You?
The DOL rule is not intended to force entrepreneurs to accept W-9 employment if they don’t want it. If you are satisfied as an independent contractor and do not want the possible restrictions of being a standard employee, the possible change should not affect you. However, the law will benefit many workers currently classified as contractors.
Independent contractors are not protected under the federal Fair Labor Standards Act (FLSA). These workers are considered to be their own employers, and the people paying them are their clients. As such, they are responsible for providing their own health insurance and negotiating contracts that provide them with fair pay. In return, they are supposed to receive the flexibility to pick and choose their clients, negotiate their rates, and get their work done on their own schedule.
Unfortunately, many gig workers currently receive all the drawbacks of independent contractorhood without the benefits. They may only be able to work for one or at most two companies, they cannot negotiate the rates at which they are paid, and they are restricted to working when demand is high. If the new DOL rule is implemented, though, this would change. They would receive the rights guaranteed eny employee, including health insurance, overtime pay, and minimum wage.
Expert Legal Assistance to Fight Employment Misclassification
While the DOL hasn’t finalized its new rule, it is likely that a version of the regulation will be implemented in the next year. In the meantime, many independent contractors around California can still rely on AB 5 to help them pursue fair employment.
If you believe you have been misclassified as an independent contractor, you can get help to pursue fair employment under the FLSA and AB 5. At Le Clerc & Le Clerc LLP, we can help. Learn more about how our California employment law firm can help you protect your employee rights by scheduling your free consultation today.