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Severance Agreements for New Parents: What You Need to Know

Becoming a parent is a transformative experience filled with joy and new responsibilities. Still, it brings unique challenges, especially when it comes to financial stability and work-life balance. For new parents, understanding and negotiating severance agreements can be crucial. 

These agreements provide essential financial support, health benefits, and legal protections that ensure both immediate and long-term security for the family. By addressing specific needs such as extended health coverage, flexible work arrangements, and childcare assistance, severance agreements can offer a vital safety net during times of employment transition. 

However, not every employer chooses to honor these agreements once they are negotiated. When that occurs, it may be necessary to take legal action to ensure you receive the severance you’re owed. Let’s break down how severance agreements work, why they’re particularly important for new parents, and how you can effectively navigate and secure these critical benefits.

How Do Severance Agreements Work?

A severance agreement is a legally binding contract between an employer and an employee designed to outline the terms of the employee’s departure from the company. The primary purpose of a severance agreement is to provide financial and other forms of support to the departing employee while protecting the employer from potential legal claims. Common components of these agreements include:

  1. Severance Pay: A lump sum or periodic payments to help the employee transition to new employment.
  2. Health Benefits: Continuation of health insurance coverage, often through COBRA, for a specified period.
  3. Stock Options and Retirement Benefits: Details on the handling of stock options, retirement plans, and other long-term benefits.
  4. Non-Compete and Non-Disclosure Clauses: Restrictions on working for competitors or sharing confidential information.
  5. Rehire and Reference Policies: Conditions under which the employee may be rehired or how references will be handled.

As California is a right-to-work state, severance agreements are not required under state law. You are most likely to be offered one of these contracts if you fall under one of the following categories:

  1. Executives and High-Level Managers: These employees often have complex roles with significant responsibilities, and their departures can have substantial impacts on the organization. Severance agreements for executives and managers usually include compensation packages, non-compete clauses, and other terms to ensure a smooth transition and protect company interests.
  2. Long-Term Employees: Employees who have dedicated many years to a company may receive severance agreements as a form of recognition for their service. These agreements can help ease the financial burden during their transition out of the company.
  3. Employees Affected by Layoffs or Downsizing: Companies often provide severance packages to employees who are laid off due to economic downturns, restructuring, or downsizing. These packages are designed to support employees while they search for new employment.
  4. Employees in Unionized Workplaces: In unionized workplaces, collective bargaining agreements often include provisions for severance pay and benefits for workers who are laid off or whose positions are eliminated.
  5. Workers with Specialized Skills or Knowledge: Employees who possess unique skills, knowledge, or expertise critical to the company’s operations may receive severance agreements to prevent them from immediately joining a competitor and to ensure the protection of proprietary information.
  6. Contract Employees and Consultants: Some contract employees and consultants negotiate severance agreements as part of their employment contracts. These agreements outline the terms and conditions of their departure, including any compensation they may receive.
  7. Employees in Voluntary Separation Programs: Companies sometimes offer voluntary separation programs to encourage employees to resign voluntarily. These programs often include severance packages as an incentive for employees to participate.
  8. Employees in High-Risk Positions: Workers in positions that carry significant legal or financial risks (e.g., financial analysts and compliance officers) may receive severance agreements to mitigate potential future liabilities and ensure a smooth transition.

If you fall into one of these categories, you may be offered a severance contract at some point during your employment. It is always important to understand the terms of your contract. Still, it is particularly crucial if you are planning or already have become a new parent. Let’s break down the laws surrounding these agreements in California. 

Laws Around Severance Agreements in California

California employment laws provide a robust framework to protect workers, including regulations that impact severance agreements. These laws ensure that employees are treated fairly and have access to essential rights and benefits, particularly during the termination process. Laws that impact severance agreements in California include:

WARN Act

The California Worker Adjustment and Retraining Notification (WARN) Act mandates that employers provide a 60-day notice to employees before a mass layoff, plant closure, or significant reduction in the workforce. This notice period allows employees to prepare for the transition, seek new employment, and make necessary financial arrangements.

Key Points:

  • Applies to employers with 75 or more full-time employees.
  • Requires notice to affected employees, the Employment Development Department, and local government officials.
  • Employers who fail to comply may be required to pay back wages and benefits for the notice period.

California Family Rights Act (CFRA)

The CFRA grants eligible employees the right to take up to 12 weeks of unpaid, job-protected leave within a 12-month period for certain family and medical reasons, including the birth of a child, adoption, or serious health condition of the employee or a family member.

Key Points:

  • Applies to employers with 5 or more employees.
  • Covers leave for bonding with a new child within one year of birth or placement.
  • Ensures job protection and continuation of health benefits during the leave period.

Fair Employment and Housing Act (FEHA)

The FEHA prohibits employment discrimination, harassment, and retaliation based on protected characteristics such as race, gender, age, disability, and pregnancy. It provides comprehensive protections to ensure fair treatment in the workplace.

Key Points:

  • Applies to employers with 5 or more employees.
  • Includes protections against discrimination for pregnancy, childbirth, and related medical conditions.
  • Allows for reasonable accommodations for pregnant employees, such as modified duties or leave.

Family and Medical Leave Act (FMLA)

The FMLA is a federal law that provides eligible employees with up to 12 weeks of unpaid, job-protected leave within a 12-month period for specific family and medical reasons, including the birth and care of a newborn.

Key Points:

  • Applies to employers with 50 or more employees within a 75-mile radius.
  • Ensures job protection and continuation of group health insurance coverage.
  • Allows for leave to care for a newborn or newly adopted child within the first year.

Pregnancy Disability Leave (PDL)

Under California law, Pregnancy Disability Leave (PDL) allows employees to take up to four months of leave for pregnancy-related conditions, including childbirth and recovery. PDL can be taken in addition to leave provided under the CFRA and FMLA.

Key Points:

  • Applies to employers with 5 or more employees.
  • Provides leave for any period the employee is disabled due to pregnancy, childbirth, or related medical conditions.
  • Ensures job protection and continuation of health insurance coverage during the leave.

Understanding these laws is crucial for new parents negotiating severance agreements, as it allows them to advocate for their rights and secure fair and adequate terms.

Negotiating a Fair Severance Agreement

Negotiating a severance agreement is a critical step for employees, especially new parents, to ensure fair treatment and secure adequate financial support during a period of transition. Effective negotiation can lead to better severance terms, providing necessary resources and flexibility to support new family dynamics. Strategies for effective bargaining include: 

Understanding Your Leverage

Leverage is the power or advantage one holds in a negotiation. It can stem from various factors, such as the employee’s role, performance, and the circumstances of the termination. Understanding your leverage helps you negotiate more favorable terms.

Identifying Your Needs and Priorities

Knowing what you need from the severance agreement allows you to focus negotiations on the most critical aspects. Prioritize elements that will provide the most significant benefit to your family and personal circumstances.

Seeking Professional Advice

Professional advice from an employment attorney or a human resources consultant can be invaluable. These experts can provide insights into typical severance terms, legal rights, and effective negotiation strategies.

Emphasizing Family and Health Needs

New parents should highlight the importance of family and health needs when negotiating severance terms. Employers may be more willing to accommodate requests that are framed around the well-being of the family.

Negotiating a fair severance agreement is essential for new parents to ensure they receive the support needed during a significant life transition. By understanding your leverage, identifying your needs and priorities, and seeking professional advice, you can negotiate terms that provide financial stability and accommodate your family’s needs. 

Getting Help Enforcing and Defending a Severance Package

Ensuring that the terms of a severance agreement are honored is crucial for new parents who depend on the promised benefits and support. Sometimes, disputes may arise, or employers might not adhere to the agreed-upon terms. 

Severance agreements are legal contracts detailing the terms under which you are leaving the company, including financial compensation, benefits continuation, and other considerations. Disputes may arise if there are misunderstandings or disagreements about these terms. If your employer is interpreting the agreement differently than you are, or if they are not honoring specific clauses, it may be time to seek legal assistance.

Furthermore, suppose your employer fails to adhere to the agreed-upon terms, such as not providing the full severance pay, benefits, or other promised compensations. In that case, this constitutes a violation of the severance agreement. Additionally, any breach of confidentiality, non-compete, or non-disparagement clauses on either side may warrant legal intervention.

In such cases, seeking legal help is essential. Here are three steps to take if your severance agreement is not honored:

  1. Documenting Violations Keep meticulous records of any violations of the severance agreement. This includes saving emails, letters, and any other communication related to the severance package. Detailed documentation will support your case if legal action becomes necessary.
  2. Communicating with Your Employer Before escalating the matter, attempt to resolve the issue by communicating directly with your employer. Clearly outline the violations and provide evidence to support your claims. Sometimes, a direct conversation can resolve misunderstandings without the need for legal proceedings.
  3. Seeking Mediation or Arbitration If direct communication does not resolve the issue, mediation or arbitration might be the next step. These are less formal and less costly alternatives to court proceedings, where a neutral third party helps to resolve the dispute. Many severance agreements include clauses that require mediation or arbitration before pursuing litigation.

An experienced employment law attorney can provide the necessary support and representation to protect your rights and ensure you receive the benefits you deserve.

Role of Employment Law Attorneys

Employment law attorneys specialize in labor and employment issues, making them well-equipped to handle severance agreement disputes. They can provide expert advice on the legality of the severance terms and the best course of action if the agreement is violated.

If mediation or arbitration does not resolve the dispute, your attorney can file a claim or lawsuit on your behalf. They will handle all legal paperwork, represent you in court, and work to ensure you receive the compensation and benefits you are entitled to under the severance agreement.

In many cases, disputes can be resolved through settlement negotiations before reaching trial. Employment law attorneys can negotiate with your employer’s legal team to reach a fair settlement that honors the original terms of the severance agreement or provides appropriate compensation for any breaches.

Understand and Defend Your Severance Contract in California

Negotiating and securing a fair severance agreement is crucial for new parents facing employment termination. By understanding the components of severance agreements, leveraging legal protections, and employing effective negotiation strategies, new parents can ensure they receive the support they need. Legal assistance from a skilled law firm like Le Clerc & Le Clerc, LLP, is invaluable in enforcing and defending these agreements, providing a safety net during a significant life transition. Advocacy, preparation, and professional support are key to achieving a fair and beneficial severance package.

How Changes in State Law Impact Parent Rights in the Workplace

Parental rights in the workplace have increasingly become a focal point of legislative efforts, particularly in states that are pushing for more progressive employment laws. These rights typically encompass provisions for maternity and paternity leave, flexible working arrangements, and the ability to address childcare emergencies without fear of job loss. 

The state of California has been at the forefront of this movement, often enacting laws that serve as benchmarks for other states. Here’s what you need to know about how recent changes in California’s state law have reshaped the landscape of parental rights, making significant strides in supporting working parents.

Background on Parental Rights in the Workplace 

Parental rights in the context of employment refer to the rights of employees to receive certain benefits and accommodations related to childbirth, adoption, and childrearing. These rights are essential to help parents balance their responsibilities at home with their obligations at work without facing discrimination or job loss. Key components of parental rights typically include:

  1. Maternity and Paternity Leave: This is the period of leave granted to mothers and fathers around the time of the birth or adoption of a child. This leave allows parents to care for and bond with their newborn or newly adopted child.
  2. Flexible Working Hours: These are arrangements that allow parents to modify their working hours to accommodate childcare needs. Examples include starting and ending work at non-standard times, working from home, or working part-time.
  3. Rights to Address Child Care Emergencies: This includes the right to take time off work, sometimes at short notice, to deal with emergencies related to a child’s care, such as illness or unexpected closure of childcare facilities.

In combination, these types of rights make it substantially easier for parents to remain in the workforce. 

The benefit of expanded rights for working parents is more than just a matter of convenience. According to workers’ rights advocates, these rights also reduce the impact of bias against women in the workplace. While these rights apply to people of all genders, women are still disproportionately likely to leave the workforce after becoming a parent, possibly because women continue to handle the bulk of childcare and house management tasks. The root of this issue is complex, but societal biases mean that men often feel obligated to support their families financially. At the same time, women experience social pressure to take on childcare tasks.

If mothers leave their jobs to recover from childbirth without having a guarantee of getting their positions back, their partners may feel pressured to work more. In contrast, if new fathers opt to work more, childcare by default falls on the mothers, which can make maintaining a standard work schedule difficult without accommodations. Either circumstance can spiral into a situation where a mother leaves the workforce, often against her will. By making it easier for parents to care for their children while keeping their jobs, rights like protected family leave and pregnancy accommodations help working mothers keep their jobs. 

Historical Legal Frameworks at the Federal Level

The foundational legal framework for parental rights in the United States is the Family and Medical Leave Act (FMLA) of 1993. FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. Employees are eligible for 12 workweeks of leave in a 12-month period for the birth and care of a newborn child, for the placement with the employee of a child for adoption or foster care, and to care for a designated person with a serious health condition, among other provisions.

California’s Specific Approach

California has expanded upon these federal protections with its own set of laws that are more comprehensive and inclusive. Some of the key features of California’s approach include:

  • California Family Rights Act (CFRA): CFRA mirrors the FMLA in many respects but includes additional provisions. For instance, it covers employers with at least five employees, compared to the federal requirement of 50 employees, significantly expanding access to family leave.
  • Paid Family Leave (PFL): California provides partial wage replacement to employees who take time off work to bond with a new child or care for a seriously ill family member. This benefit is funded through employee contributions to the State Disability Insurance (SDI) program and offers up to eight weeks of benefit payments.
  • Pregnancy Disability Leave (PDL): Separate from CFRA, PDL provides up to four months of leave for women who are disabled due to pregnancy, childbirth, or a related medical condition, irrespective of the employer’s size.

California’s laws often serve as a progressive model for other states, pushing forward the boundaries of what is considered standard for parental rights in the workplace. These laws not only address the duration and compensation aspects of leave but also enhance the inclusivity and accessibility of these rights, ensuring a broader demographic of workers can benefit from them.

Recent Changes in California State Law 

Recent legislative changes in California have significantly expanded and altered parental rights, reflecting the state’s commitment to supporting working families. These changes primarily focus on enhancing the scope of the CFRA and improving the PFL program. Here’s an in-depth look at these reforms, their implications, and the timelines for their implementation.

Expansion of the California Family Rights Act (CFRA)

Historically, CFRA aligned closely with the federal Family and Medical Leave Act (FMLA), providing up to 12 weeks of unpaid, job-protected leave for certain family and medical reasons. However, recent amendments, which took effect on January 1, 2023, have broadened its scope significantly:

  • Expansion to Smaller Employers: One of the most consequential changes is the expansion of CFRA to apply to any employer with five or more employees, previously applicable only to those with 50 or more. This change dramatically increases the number of California workers eligible for protected leave.
  • Inclusion of Additional Family Members: CFRA now allows employees to take leave to care for a broader range of family members, including grandparents, grandchildren, siblings, adult children, or unrelated “designated persons”. This amendment acknowledges the diverse caregiving needs of modern families.
  • Elimination of the 75-Mile Radius Requirement: Unlike the FMLA, which limits eligibility to employees who work within 75 miles of their employer’s location, CFRA has removed this requirement, further widening accessibility.

These amendments not only enhance job protection for leaves but also promote a more inclusive view of family obligations, accommodating a broader spectrum of family structures and needs.

Revisions to California’s Paid Family Leave 

Alongside the CFRA expansion, revisions to California’s Paid Family Leave, which took effect on July 1, 2020, have also made substantial impacts:

  • Increased Duration of Benefits: The duration of PFL benefits has been extended from six weeks to eight weeks. This extension allows for a longer period of bonding time with new children and caring for a sick family member, providing substantial support to working parents.
  • Benefit Amount Adjustments: While the percentage of wage replacement varies, efforts have been ongoing to increase the accessibility and attractiveness of PFL by making it financially feasible for lower-income workers to take leave.
  • Future Expansion Plans: Looking ahead, California legislators have discussed proposals to extend the duration of PFL further and to increase the wage replacement rate to make it even more accessible, especially for lower and middle-income workers.

Implementation and Timelines

These legislative changes reflect California’s progressive stance on parental rights and set a benchmark for other states considering similar reforms. By expanding coverage and enhancing benefits, California aims to create a more inclusive, supportive environment for working parents, both supporting individuals and families while ultimately benefiting the broader social fabric and economic health of the state.

Impact on Parents Working in California

The recent changes in California’s state laws regarding parental rights have had a direct and profound impact on parents working in the state. These legislative adjustments are designed to improve work-life balance and provide greater support during pivotal family moments. However, despite significant progress, challenges and gaps in the legislation still exist, affecting some family structures and situations. Here’s a closer look at both the positive impacts and the ongoing challenges.

  • Extended Leave and Financial Support: The extension of paid family leave from six to eight weeks has given parents more time to bond with new children or care for ill family members without the stress of immediate financial hardship. This has been particularly beneficial during the early stages of a child’s life or critical health crises, allowing parents to be present when needed most without jeopardizing their employment.
  • Inclusion of a Wider Range of Family Members: By expanding the definition of family within the California Family Rights Act (CFRA) to include grandparents, grandchildren, siblings, and adult children, the state acknowledges and supports the diverse caregiving responsibilities of modern families. This broader inclusivity helps workers who are involved in the care of extended family members, fostering a better balance between personal and professional responsibilities.
  • Stories from the Workplace: Anecdotal evidence and qualitative research suggest that these changes have significantly benefited family life. For instance, parents have reported a decrease in stress and an increase in overall happiness due to being able to spend more time at home during critical periods without fear of losing their jobs. Companies have shared stories of employees who returned to work more engaged and loyal, having been granted the time needed to focus on their families.

Persistent Challenges and Gaps

Despite the advancements, not all families and situations are adequately covered by the new laws, presenting ongoing challenges:

  • Part-Time and Gig Economy Workers: Many part-time workers, freelancers, and independent contractors do not enjoy the same benefits as full-time employees. These workers often miss out on job-protected leave and wage replacement benefits because they do not meet the eligibility requirements or because their employment status is not covered under the current legal framework.
  • Financial Feasibility for Low-Income Families: While paid family leave provides partial wage replacement, the amount may not be sufficient for low-income workers who live paycheck to paycheck. This financial shortfall can deter some parents from taking full advantage of the leave available to them, as the reduced income during this period may not be enough to cover basic living expenses.
  • Awareness and Utilization: There is also a challenge with awareness and utilization of these rights. Some employees may not fully understand their rights or how to claim them, particularly in smaller companies with less robust HR departments. Additionally, cultural stigmas or workplace pressures may discourage employees from taking full advantage of the leave they are entitled to.

While California’s legislative changes have undoubtedly improved parental rights in the workplace, leading to enhanced work-life balance and family well-being, there are still notable challenges that need addressing. Closing these gaps requires ongoing legislative refinement and broader cultural shifts in workplace attitudes toward family leave.

Helping You Demand Your Parental Rights in the Workplace

The changes in state law in California represent significant progress in supporting parental rights in the workplace, but they are not yet perfect. The ongoing struggle with awareness and utilization of working parents’ rights impacts people around California. Employers rely on workers’ fear of exercising their rights to avoid making the accommodations or providing the protected leave their employees are owed. If you are a new or expecting parent, you deserve to take the leave you’re guaranteed under California employment law. If your employer tries to prevent you from taking leave, or if you face retaliation for exercising your rights, the experienced employment lawyers at Le Clerc & Le Clerc, LLP, can help. We are dedicated to protecting parents’ rights at work, and we can help you take a stand against discrimination, harassment, or retaliation you face after becoming a parent. Don’t waste any more time – learn how we can help you with your employment discrimination claim by getting in touch with our Bay Area workplace discrimination law firm today.

The Intersection of Gender Discrimination and Parenting Responsibilities

In the contemporary workplace, the interplay between gender expectations and parenting responsibilities remains a pervasive issue. This dynamic not only influences career trajectories but also impacts personal and familial well-being. Gender discrimination—stemming from longstanding societal norms about the roles of men and women—continues to manifest in various forms, notably when intertwined with the responsibilities of parenting. 

Below, we explore how assumptions based on gender can affect parents’ treatment at work, the transformation of these assumptions into discrimination, and the measures individuals can take to hold employers accountable.

Gender Discrimination in the Context of Parenting

Gender discrimination occurs when an individual is treated unfavorably or less favorably because of their gender. When this discrimination intersects with parenting, it often results in unfair practices that can disadvantage both male and female employees, albeit in different ways. For mothers, stereotypes about their primary role as caregivers can lead to assumptions that they will be less committed to their jobs once they have children. This bias can manifest in fewer opportunities for advancement, lower pay, and even exclusion from important meetings or projects—assuming that their parenting duties might interfere with their work.

Fathers, on the other hand, often face a different set of expectations. The pervasive stereotype of men as the primary breadwinners can lead to increased pressure to work longer hours and forego paternity leave. However, men who seek to take an active role in parenting might encounter skepticism or ridicule, an indication that their desire to balance work and family life is atypical or unwelcome.

The Impact of Gender Bias at Work

Gender bias at work can significantly hinder the professional progress of parents. This bias is not always overt; it can be subtly woven into the fabric of everyday interactions and institutional policies. For example, a mother may be overlooked for a promotion, not because of her performance but because of an unspoken belief that she would not want to take on more responsibility due to her family commitments. Similarly, a father might be denied flexible working hours, which are often more readily granted to women, based on the assumption that his wife will handle childcare.

Such discriminatory practices not only affect the individual’s career development but also contribute to a broader economic disparity between genders, perpetuating a cycle where women are seen as less valuable employees due to their perceived primary roles as caregivers.

Legal Framework and Employer Accountability

Holding employers accountable for gender discrimination related to parenting responsibilities in California involves understanding and utilizing specific legal rights and resources available to working parents. California is known for its robust protections against workplace discrimination, including gender and parental discrimination. Here’s a step-by-step guide on how working parents can hold their employers accountable in this state:

1. Understand Your Legal Rights

California provides extensive protections against gender and parental discrimination under several laws, including:

  • The California Fair Employment and Housing Act (FEHA): Prohibits discrimination in employment based on sex, gender, gender identity, gender expression, and pregnancy, childbirth, or related medical conditions.
  • The California Family Rights Act (CFRA): Allows eligible employees up to 12 weeks of unpaid leave for the birth, adoption, or foster care placement of a child, or for the serious health condition of the employee or their family members, without fear of losing their job.
  • The New Parent Leave Act (NPLA): Provides up to 12 weeks of job-protected leave to bond with a new child within one year of the child’s birth, adoption, or foster care placement for employees who work at locations with at least 20 employees.

2. Document Instances of Discrimination

Document all instances of perceived discrimination, including dates, times, involved parties, and details of conversations or incidents. Save emails, messages, performance reviews, and any relevant documents that may demonstrate a pattern of discriminatory behavior.

3. Use Internal Company Channels

File a formal complaint through your employer’s HR department or the designated channel for workplace grievances. Follow the company’s procedures for reporting and resolving issues of discrimination.

4. Seek External Assistance

Consider consulting with an attorney who specializes in employment law to understand your rights and options fully. If internal remedies are ineffective, you can file a complaint with:

  • The California Civil Rights Department (CRD): The state agency that enforces California’s civil rights laws.
  • The Equal Employment Opportunity Commission (EEOC): The federal agency that enforces laws against workplace discrimination. Filing a complaint with the CRD is usually a prerequisite for filing a lawsuit in court under FEHA.

5. Consider Legal Action

Depending on the case’s specifics and after completing the necessary procedural steps (like filing with the CRD), you may be able to file a lawsuit against your employer for violations of state or federal laws.

6. Leverage Support Networks

Organizations such as the Legal Aid at Work or the California Employment Lawyers Association can offer resources, guidance, and sometimes legal representation or referrals.

7. Public Awareness

Raising awareness about your case can sometimes apply public pressure on an employer to resolve discriminatory practices. However, this should be approached cautiously and usually with the advice of a legal professional to avoid any negative repercussions.

By taking these steps, working parents in California can actively seek to hold their employers accountable for any gender discrimination related to parenting, thereby promoting a fairer and more inclusive workplace.

Legal Help for Gendered Discrimination Against Working Parents

The intersection of gender discrimination and parenting responsibilities is a complex issue that requires a multifaceted approach to address effectively. By understanding the subtleties of how gender biases manifest in the workplace, both employees and employers can work towards creating a more equitable environment. Through legal measures, corporate policies, and individual advocacy, it is possible to mitigate the effects of these biases and ensure that parenting—a universal aspect of human experience—is not a basis for discrimination but a celebrated part of life’s journey. At Le Clerc & Le Clerc, LLP, we can help you pursue fair treatment if you’re facing gendered discrimination as a working parent. We encourage you to reach out today to learn more about how we can help you seek justice for workplace discrimination.

The Role of Unconscious Bias in Discrimination Against Parent Employees

Modern parents often juggle the dual responsibilities of home and work. Despite legal protections and corporate policies aimed at fostering inclusion, discrimination against these workers persists, subtly influencing career trajectories and workplace dynamics. This discrimination isn’t always overt; often, it’s rooted in unconscious bias, a form of prejudice that affects decisions and behaviors without the decision-maker being aware of it. Let’s examine how unconscious bias and discrimination manifest against parent employees in the workplace, the impact on those employees, and strategies for both individuals and organizations to mitigate these biases.

Understanding Unconscious Bias and Discrimination

Unconscious bias refers to the automatic, implicit attitudes or stereotypes that influence our understanding, actions, and decisions unconsciously. These biases are different from explicit prejudices that individuals may consciously endorse. Instead, they are ingrained mental shortcuts based on patterns and past experiences, and they operate without our conscious awareness. 

Unconscious biases can affect various aspects of social interactions and decision-making. They may influence behaviors in workplaces, schools, and broader societal interactions, leading to preferences or discriminations against certain groups based on race, gender, age, and many other characteristics. Everyone holds unconscious beliefs about various social and identity groups, and these biases stem from one’s tendency to organize social worlds by categorizing. Unconscious discrimination occurs when these biases result in differential treatment of individuals based on their group membership—in this case, parents.

Manifestations of Bias Against Parents

Unconscious bias against parent employees can manifest in several ways:

  1. Flexibility Stigma: Parents may face skepticism or resentment from colleagues and supervisors when requesting flexible schedules or work-from-home arrangements. Despite the increasing acceptance of flexible work environments, there is often an underlying assumption that parents, particularly mothers, are less committed to their jobs if they seek accommodations to manage family responsibilities.
  2. Career Advancement Barriers: Parents might be overlooked for promotions or high-profile projects based on the assumption that their family commitments mean they are less available or less dedicated than other employees. This can be especially pronounced for women, who often face a “maternal wall” after returning from maternity leave.
  3. Compensation Penalties: Research has shown that parenthood can impact wages, with mothers experiencing decreases in pay per child, while fathers often see a “fatherhood bonus.” This discrepancy reflects deep-seated norms and expectations about gender roles within the workplace.
  4. Performance Evaluations: Bias in performance evaluations can also disadvantage parent employees. They might be judged more harshly if they utilize parental leave or flexible work options based on the perception that they are not working as hard as their counterparts.

The effects of this unconscious discrimination are profound, affecting not just the individual employee but the organization as a whole. For the individual, it can lead to job dissatisfaction, reduced career advancement, and even mental health challenges. For the organization, it can result in lower employee morale, increased turnover, and a tarnished reputation.

Protecting Yourself and Challenging Unconscious Bias

Working parents can face various challenges stemming from unconscious bias in the workplace, affecting everything from career progression to day-to-day treatment. Legal frameworks and strategic personal actions provide avenues for parents to protect themselves and advocate for fair treatment. Here are several strategies that working parents can use to safeguard against unconscious bias:

1. Understand Your Legal Rights

Parents should familiarize themselves with employment laws that protect against discrimination. In the United States, key legislations include:

  • Family and Medical Leave Act (FMLA): Provides eligible employees with up to 12 weeks of unpaid, job-protected leave per year for certain family and medical reasons, including childbirth and care.
  • Pregnancy Discrimination Act: Prohibits discrimination based on pregnancy, childbirth, or related medical conditions.
  • Americans with Disabilities Act (ADA): While not directly aimed at parents, it can be applicable if there are medical conditions related to childbirth or related issues that qualify as disabilities.

Understanding these rights can empower employees to recognize when they might be facing discrimination or unfair treatment that may be influenced by unconscious bias.

2. Document Instances of Potential Bias

Keeping a detailed record of interactions and decisions affecting one’s employment is crucial. This can include:

  • Dates and details of denied promotions or pay raises.
  • Records of comments made that suggest bias (e.g., remarks about your family responsibilities affecting work).
  • Comparisons showing discrepancies in treatment between employees with and without children. This documentation can be invaluable if you need to make a case for discrimination.

3. Use Internal Company Channels

Many companies have policies and procedures in place for addressing discrimination. Reporting incidents of prejudice or bias to HR can sometimes resolve issues internally. HR can also provide mediation or other dispute resolution approaches. Meanwhile, some organizations offer support through employee assistance programs, which can provide counseling and legal advice.

4. Seek Accommodations When Applicable

Request reasonable accommodations that would help in balancing work and parental responsibilities. This can include flexible working hours, telecommuting options, or temporary adjustments to workload. Employers are generally required to accommodate these requests if they don’t impose an undue hardship on the business.

5. Professional Legal Advice

If workplace remedies do not resolve the issue, consulting with an employment law attorney can clarify whether you have a viable claim and understand the complexities of proving discrimination based on unconscious bias. Legal professionals can offer guidance on how to proceed with filing a complaint with relevant authorities such as the Equal Employment Opportunity Commission (EEOC) in the U.S.

By combining an understanding of their legal rights with proactive measures to document and report bias, working parents can better protect themselves from the subtle yet significant effects of unconscious bias in the workplace.

Le Clerc & Le Clerc, LLP, Helps Parents Take a Stand Against Discrimination 

Unconscious bias in the workplace is a pervasive issue that requires conscious effort and ongoing attention to address. For many parents, the first step toward a more equitable work environment is to acknowledge the discrimination they are already facing. If you’re struggling against your employer’s unconscious biases, the discrimination attorneys at Le Clerc & Le Clerc, LLP, can help. Reach out today to discuss your concerns and learn how to take action against your biased employer.

Paternity Leave Rights in California: A Comprehensive Guide

California is known for its progressive approach to workplace rights and family leave policies. In particular, paternity leave rights in California are some of the most generous in the United States, offering new fathers significant opportunities to bond with their newborn or newly adopted children. This guide provides an overview of paternity leave rights in California and explains what individuals need to do to ensure they are granted fair treatment.

Understanding Paternity Leave in California

Paternity leave in California is governed by several state and federal laws, which provide both unpaid and paid options. The primary statutes include the California Family Rights Act (CFRA), the California Paid Family Leave (PFL), and the Family and Medical Leave Act (FMLA) at the federal level.

California Family Rights Act (CFRA)

The CFRA allows eligible employees to take up to 12 weeks of unpaid leave for the birth, adoption, or foster care placement of a child. This time is job-protected, meaning employees can return to their same or a comparable position after their time off ends.

California Paid Family Leave (PFL)

California’s PFL program provides up to eight weeks of paid time at approximately 60-70% of an employee’s salary, capped at a maximum weekly amount set by the state. This program is funded through employee-paid payroll taxes and is available to nearly all private sector workers who have paid into the State Disability Insurance (SDI) fund.

Family and Medical Leave Act (FMLA)

While the FMLA is a federal law that also offers up to 12 weeks of unpaid, job-protected leave, it overlaps with CFRA. Still, it includes broader criteria for eligibility and reasons for needing time away.

How to Apply for Paternity Leave

Applying for paternity leave in California involves a few specific steps to ensure compliance with both state and possibly federal laws. Here’s a detailed guide on how to apply for time off:

1. Understand Your Eligibility

Determine your eligibility under the CFRA and PFL. To be eligible for protected time off under CFRA or FMLA, employees must:

  • Work for a covered employer (typically businesses with 50 or more employees within a 75-mile radius);
  • Have worked for the employer for at least 12 months;
  • Have worked at least 1,250 hours during the 12 months prior to leaving.

For PFL, employees contribute to the SDI program and do not have a minimum employer size requirement, making it more universally accessible.

2. Review Your Employer’s Policies

Check your company’s employee handbook or speak with HR to understand the specific policies regarding parental time off. This can include notice periods, any required forms, and the process for submitting your request.

3. Notify Your Employer

Provide your employer with advance notice of your leave. The CFRA requires at least 30 days’ notice if the time away is foreseeable. In cases where it isn’t, notify them as soon as practicable. Discuss your plans and clarify how your time away might be coordinated with other benefits, such as the use of vacation or sick hours to cover some of the unpaid portion.

4. File for California Paid Family Leave

If applying for PFL, you will need to file a claim with the California Employment Development Department (EDD). This can typically be done online through the EDD website. Prepare necessary documentation, such as proof of relationship to the child, which could be a birth certificate or adoption papers. Submit your claim after the child’s birth or placement in your home. The EDD usually processes claims within a few weeks, and you can receive payments deposited directly to your account.

5. Coordinate with Your Employer

Keep open communication with your employer about your leave dates and any potential changes to your situation. Confirm how your time away will be tracked, especially if you’re taking a combination of paid and unpaid time.

6. Prepare for Your Time Off

Arrange your workload and responsibilities. It might be helpful to prepare handover notes or train a colleague to cover your duties during your absence. Ensure that you have a clear understanding of your return date and any conditions related to your return to work.

7. Keep Records

Keep copies of all communications and filings related to your time off. This includes notices provided to your employer, any forms or emails exchanged, and details of any discussions had with HR.

8. Stay Informed

Monitor the status of your claim with the EDD and stay updated on any changes in legislation related to paternity leave that might affect your rights or benefits.

By following these steps, you can smoothly navigate the process of applying for paternity leave in California, ensuring you get the time you need to bond with your new child while protecting your job and managing your financial needs during this important time.

How to Protect Your Right to Fair Treatment If You Need Paternity Leave

Understanding your rights is crucial to ensuring fair treatment. If you believe your rights under any employment laws are being violated:

  • Consult HR or a legal advisor: Review your company’s parental policies with HR or seek legal advice to understand the specifics of your situation.
  • Document everything: Keep detailed records of all communications regarding your request, including emails and notes from meetings.
  • File a complaint if necessary: If you encounter resistance or infringement of your rights, you may need to file a complaint with the California Department of Fair Employment and Housing (DFEH) or the relevant federal agency.

Protect Your Right to Paternity Leave in California

Navigating paternity leave rights in California requires an understanding of various state and federal laws. By familiarizing themselves with these laws, preparing appropriately, and communicating effectively with their employer, new fathers can take full advantage of their legal rights to bond with their children during these crucial early stages of life. If you are facing discrimination or retaliation for requesting the parental leave you’re owed in California, the professional attorneys at Le Clerc & Le Clerc LLP can help. Schedule your consultation with our San Francisco parental employment law firm to learn more about how we can help you protect your right to paternity time.

Navigating Flexible Working Arrangements: Can Your Request Be Denied?

In today’s fast-paced world, balancing work and family responsibilities is a significant challenge, especially for working parents. California, known for its progressive labor laws, offers a variety of rights and protections to employees seeking flexible working arrangements. 

However, these regulations only help you if you understand and exercise them. Let’s take an in-depth look at how working parents in California can navigate these options to achieve a healthier work-life balance.

California’s Legal Framework for Flexible Working

In California, several laws and regulations govern flexible working arrangements. Notable among these are:

  • Fair Employment and Housing Act (FEHA): While FEHA primarily addresses discrimination, it indirectly supports flexible working conditions by ensuring employees are not discriminated against due to familial responsibilities. It prohibits employment discrimination based on familial status. Employers cannot treat employees less favorably because of their responsibilities as parents. For example, an employer cannot deny a promotion or flexible working request simply because an employee has children.
  • California Family Rights Act (CFRA): This act allows eligible employees to take up to 12 weeks of unpaid, job-protected leave for family and medical reasons, which can include the birth, adoption, or foster care placement of a child. This leave can be used intermittently and can be combined with flexible working arrangements for a phased return to work. While not directly about flexible working hours, it supports work-life balance for parents.
  • San Francisco’s Family Friendly Workplace Ordinance: Unique to San Francisco, this ordinance allows employees in companies with 20 or more employees to request flexible or predictable working arrangements to assist with caregiving responsibilities. Employers are required to consider these requests and can only refuse them for legitimate business reasons.

These laws protect workers from discrimination based on family responsibilities and provide certain entitlements for parental leave and flexible work requests. Some of the most important protections they offer include:

Right to Request Flexible Working

Under the laws above, employees have the right to request flexible working arrangements if they qualify for accommodations or if their employer grants flexible schedules to other people in similar roles. For example, if an employer gives one employee the option to work from home two days a week, it must grant a working parent employee with the same duties the same option. Such arrangements help working parents manage childcare, reduce commuting time, and address other personal responsibilities.

Employers are required to consider employee requests for flexible arrangements seriously and can only refuse them for legitimate business reasons. Doing otherwise may constitute workplace discrimination. The process often involves a discussion between the employee and employer to find a mutually agreeable solution. This collaborative approach is encouraged to ensure that both parties’ needs are met.

Options for Flexible Work Arrangements

Depending on your circumstances and your employer’s policies, you may have several options for non-traditional work schedules and arrangements, such as:

  • Telecommuting as a Flexible Option: Telecommuting or remote work has become increasingly popular and viable due to technological advancements. California employers are increasingly adopting telecommuting policies that allow employees to work from home, benefiting working parents by eliminating commute time and providing greater flexibility in managing home responsibilities.
  • Part-Time Work and Job Sharing: Part-time work or job sharing are other flexible options that can be ideal for working parents. These arrangements involve working fewer hours than a full-time schedule or sharing a full-time job with another employee. While these options may impact benefits and salary, they offer greater time flexibility.
  • Compressed Workweeks: A compressed workweek allows employees to work their usual number of hours over fewer days. For example, an employee might work four 10-hour days instead of five 8-hour days. This arrangement gives parents an extra day each week to spend with their children or attend to personal matters.

The best option depends on your family’s needs and your employer’s scheduling policies. In general, you have a stronger case for requesting working arrangements that the company has already granted to other employees since it will need to justify why those workers qualify for alternative schedules, and you do not. 

Is It Discrimination If Your Employer Denies Your Request for a Flexible Working Arrangement?

Determining whether the denial of a flexible work arrangement request constitutes discrimination in California requires examining the specific circumstances of the case and the reasons for the employer’s decision. If you think your denial was discriminatory, you should talk to an experienced employment law attorney about your situation. Your attorney will help you evaluate the following factors to help you determine if it was discriminatory:

  • Reason for Denial: If the denial is based on legitimate business reasons, such as undue hardship, inability to reorganize work among existing staff, or significant detrimental effect on business operations, it may not be considered discriminatory. However, if the denial is based solely on the employee’s status as a parent, it might be discriminatory.
  • Consistency in Policy Application: If the employer consistently allows flexible work arrangements for other employees without caregiving responsibilities but denies them to parents, this could be indicative of discrimination.
  • Documentation and Dialogue: The way the employer handles the request and communicates the decision can also be relevant. Proper documentation of the reasons for the denial and an open dialogue with the employee are important.
  • Case Law: Your attorney will help you find any relevant California case law that guides how similar situations have been handled in the past.
  • Employer Policies: The employer’s policies and past practices regarding flexible work arrangements also play a role. A pattern of denying such requests only to working parents could be problematic.

Suppose your employer has denied you alternative work arrangements and cannot present a justifiable business reason or violated its policies. In that case, you have a strong argument that the denial is discriminatory. 

Professional Legal Counsel for Working Parents in California

As a working parent in California, navigating flexible working arrangements is a crucial aspect of balancing work and family life. If your request for alternative arrangements was denied, you may have other options. If you believe you are facing discrimination for requesting accommodations like an alternative work schedule, you should talk to an experienced employment law attorney at Le Clerc & Le Clerc LLP. We can help you determine if you’ve suffered from discrimination and represent you during legal action if necessary. 

Workplace Harassment and LGBTQ Identities: Your Rights at Work

One of the most important things you can do for yourself as a member of the LGBTQ community is to understand and fight for your rights in the workplace. California, known for its progressive stances on various social issues, has established robust laws and regulations to protect LGBTQ individuals from workplace harassment and discrimination. Below, we dive into the intricacies of these protections, highlighting what constitutes a protected identity, the forms of harassment or discrimination that are prohibited, and the steps you can take to safeguard your right to fair employment. 

What Are Protected LGBTQ Identities in California?

Under California law, particularly through the Fair Employment and Housing Act (FEHA), a broad range of LGBTQ identities are explicitly protected against discrimination and harassment in the workplace. These protections cover:

  • Sexual Orientation: This encompasses individuals who identify as heterosexual, homosexual (gay and lesbian), bisexual, or asexual. The law protects individuals against discrimination based on their actual or perceived sexual orientation.
  • Gender Identity: Gender identity refers to an individual’s internal understanding of their gender, which may be different from the sex assigned at birth, including transgender, non-binary, and genderqueer individuals.
  • Gender Expression: This pertains to the external presentation of one’s gender, including behavior, clothing, hairstyles, voice, or body characteristics, which may or may not conform to socially defined behaviors and characteristics typically associated with being either masculine or feminine.
  • Transitioning Status: The law also provides protections for individuals who are transitioning, have transitioned, or are perceived to be transitioning from one gender to another. 
  • Association: Additionally, California law protects individuals who are discriminated against because of their association with a person or group with one or more of these actual or perceived characteristics.

These protections are designed to ensure that all individuals, regardless of how they identify or are perceived in terms of their sexual orientation, gender expression, and identity, are treated equally and without bias in the workplace. 

Legal Protections and Enforcement for LGBTQ Workplace Rights

In California, LGBTQ individuals, as defined above, enjoy comprehensive legal protections in the workplace. These protections are designed to ensure that all employees, regardless of their sexual orientation, gender identity, or gender expression, are treated fairly and without discrimination in employment. Here are the key legal protections provided to LGBTQ people in California:

  1. Protection Against Discrimination: FEHA prohibits employers from discriminating against employees or job applicants based on sexual orientation, gender identity, and gender expression. This includes all aspects of employment, such as hiring, firing, promotions, job assignments, training, and benefits.
  2. Protection Against Harassment: The law also protects employees from harassment in the workplace on the basis of their actual or perceived sexual orientation, gender identity, or gender expression. Employers are required to take reasonable steps to prevent and correct such harassment.
  3. Equal Benefits: Employers must provide equal benefits to all employees, regardless of their sexual orientation or gender. This includes health insurance coverage for spouses and domestic partners equivalent to that provided for different-sex spouses.
  4. Gender Affirmation Rights: Employers are required to allow employees to dress consistently with their gender identity and expression. Additionally, employees have the right to use facilities that correspond with their gender identity. Employers may need to provide reasonable accommodations, such as access to gender-neutral restrooms.
  5. Privacy Protections: Employees have the right to privacy regarding their sexual orientation and gender identity or expression. Employers cannot discriminate against employees based on the disclosure or discovery of such information.
  6. Retaliation Protections: California law protects employees from retaliation by employers for filing a complaint, testifying, or assisting in any proceeding under FEHA related to discrimination or harassment.
  7. Required Training: California mandates sexual harassment training for supervisors in companies with five or more employees, which includes training on harassment based on gender identity, expression, and sexual orientation.
  8. Legal Recourse: Employees who believe they have been discriminated against or harassed can file a complaint with the California Civil Rights Department (CRD), which will investigate the complaint and can mediate or prosecute cases of discrimination or harassment.

These legal protections underscore California’s commitment to creating inclusive and equitable workplaces for LGBTQ individuals. It’s important for both employers and employees to be aware of these rights and to uphold them actively within the workplace.

Steps to Protect Yourself at Work

LGBTQ workers in California have several legal protections and steps they can take to safeguard themselves from harassment and discrimination at work. These measures are rooted in the state’s robust anti-discrimination laws, particularly the Fair Employment and Housing Act (FEHA), which prohibits discrimination based on sexual orientation, gender identity, and gender expression, among other characteristics. Here are key actions LGBTQ workers can take to protect themselves legally:

  • Document Incidents: If harassment or discrimination occurs, it’s crucial to document every incident with as much detail as possible. This includes dates, times, locations, what was said or done, and any witnesses present. 
  • Report the Behavior: Workers should report harassment or discrimination to their employer according to the company’s established procedures. This usually means speaking to a supervisor or the human resources department. 
  • Seek Legal Advice: Consulting with an attorney who specializes in employment law or LGBTQ rights can provide personalized guidance and representation. An attorney can help navigate the legal system, understand the nuances of the worker’s specific situation, and determine the best course of action.

By taking these steps, LGBTQ workers in California can actively protect their rights and seek recourse in the face of workplace harassment or discrimination. Workers need to remember that they are not alone and that there are laws designed to protect them at work. 

Take a Stand Against LGBTQ Discrimination in Your Workplace

California’s commitment to protecting LGBTQ workers from harassment and discrimination sets a precedent for fostering inclusive and respectful workplaces. Remember, advocating for your rights not only benefits you but also supports the broader movement toward equality and justice for all.At Le Clerc & Le Clerc LLP, we are dedicated to helping victims of workplace discrimination take a stand against unjust harassment and discrimination based on their identities. If you believe you are facing harassment at work for being a member of the LGBTQ community, contact us today to learn how we can help you.

Remote Work Policies and Working Parents: What Counts As Discrimination?

In the evolving landscape of employment, remote work has emerged as a crucial aspect, particularly for working parents. As a California employment attorney, it is vital to understand and convey the legalities surrounding remote work policies. This includes ensuring equal access to remote work for employees regardless of their gender or parental status. Moreover, specific policies in San Francisco have set precedents regarding remote work for caregivers, which are essential for both employers and employees to understand.

Your Right to Equal Access to Remote Work in California

Under California law, employers are required to provide equal employment opportunities to all employees. This includes access to remote work options. Discrimination based on gender or parental status is prohibited under both federal and state laws, such as the California Fair Employment and Housing Act (FEHA).

Employers must ensure that remote work policies do not favor one gender over another. For example, assuming that mothers are more in need of remote work than fathers can be a form of gender discrimination.

Similarly, providing remote options only to parents and not to non-parents, or vice versa, can lead to gender and discrimination claims. Policies should be structured to offer equal opportunities to all employees, regardless of their parental status. Failing to do so can violate employees’ rights and give them grounds for legal action. 

San Francisco’s Policies on Remote Work for Caregivers

While California laws are good, many municipalities offer even better protections for working parents. For example, San Francisco has been at the forefront of addressing the needs of working caregivers through its remote policies. The city’s Family Friendly Workplace Ordinance (FFWO) is a groundbreaking law designed to provide employees in San Francisco with the right to request flexible or predictable working arrangements to assist with caregiving responsibilities. 

The FFWO applies to employers in San Francisco with 20 or more employees. It is designed to assist employees who are caregivers. This includes care for a child, a parent over the age of 65, or a person with a serious health condition in a family relationship with the employee. 

Eligible employees have the right to request flexible or predictable working arrangements. These can include changes in the number of hours they work, the times they work, where they work (such as remote work), and the assignment of work. The request must be made in writing and should clearly state the arrangement sought and the reason for the request.

Employers are required to consider these requests seriously. After receiving a request, an employer has 21 days to meet with the employee to discuss the request. Within a further 21 days after this meeting, the employer must respond in writing. If the employer denies the request, they must explain the business reasons for the denial and provide a notice of the employee’s right to request reconsideration.

In addition, the FFWO includes protections against retaliation. Employers cannot take adverse employment actions against an employee for making a request under the ordinance. Employers who violate the ordinance may face legal consequences, including penalties and requirements to take corrective actions.

The FFWO represents a significant step towards creating a more family-friendly work environment. It acknowledges the challenges faced by working caregivers and seeks to provide them with the flexibility they need to manage both their professional and personal responsibilities effectively.

What to Do If Your Right to Remote Work Access Is Violated

Despite state, federal, and municipal laws, employers may still discriminate against parents and bar them from the remote opportunities offered to their colleagues. If you believe your right to a flexible work arrangement has been violated, here’s what you can do:

  • Try Internal Company Resolution: If possible, you should attempt to resolve the issue internally. This could involve discussing the concern with a supervisor or the human resources department. Sometimes, misunderstandings or miscommunications can be resolved through internal processes.
  • Document the Situation: It is important to document all relevant communications and events. This includes keeping copies of the request for flexible working arrangements, any responses from the employer, and any other related correspondence or documents.
  • Contact the San Francisco Office of Labor Standards Enforcement (OLSE): If internal resolution does not work, you can file a complaint with the OLSE. The OLSE is responsible for enforcing the FFWO and can investigate claims of violations. The complaint should include all pertinent details, such as the nature of the request, the employer’s response, and any evidence of how the FFWO was violated.
  • Seek Legal Advice: It may be necessary to seek advice from an attorney specializing in employment law. An attorney can guide the rights and options available under the FFWO and assist in navigating the legal process.
  • Mediation or Legal Action: In some cases, mediation might be a viable option to reach a resolution. If the issue cannot be resolved through mediation or other means, legal action may be necessary. An attorney can help file a lawsuit against the employer for violations of the FFWO.

Remember, each situation is unique, and the best course of action may vary depending on the specific circumstances. Legal advice from a qualified professional is often critical in these situations to ensure that your rights as a working parent are adequately protected and pursued.

Talk to the Skilled Parental Discrimination Lawyers at Le Clerc & Le Clerc LLP

In San Francisco, the FFWO provides a framework for supporting caregivers, setting an example for other cities and states. Employers must be diligent in providing equal access to remote work opportunities avoiding discrimination based on gender or parental status. Laws like the FFWO also mean that if your employer is violating your legal rights, you have the right to take action. The experienced employment law attorneys at Le Clerc & Le Clerc LLP can help. We encourage you to talk to our professional team today to learn more about your options and take the first steps toward holding your employer accountable for violating your rights.

Leaves of Absence and Accommodations: What Counts as Reasonable?

California has some of the best protections for workers in the United States. Among these protections are comprehensive laws that permit workers to take a leave of absence from their jobs under specific circumstances. In fact, state law treats time off of work as a reasonable accommodation in certain circumstances. 

However, it’s not always clear what counts as accommodation or when you’re eligible to take leave. That can make it difficult to exercise your rights and take the protected time off that you need. Here’s what you need to know about how leaves of absence work and when such leave may be considered a reasonable accommodation for disability under California law.

What Is a Leave of Absence?

A leave of absence is a period that an employee is allowed to be away from their job. This time can be paid or unpaid, depending on the specific circumstances and the employer’s policies. Commonly recognized types of leave in California include:

  1. Medical: Often associated with the Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA), medical time off allows employees to take time off for serious health conditions or to care for a family member with a serious health condition.
  2. Disability: This pertains to employees who are unable to work due to a disability. California’s Fair Employment and Housing Act (FEHA) provides protections for such employees.
  3. Pregnancy Disability: Specifically for employees unable to work due to pregnancy, childbirth, or related medical conditions, offering up to four months of leave.
  4. Paid Sick: California law requires employers to provide paid sick leave to employees who have worked for at least 30 days. Employees can use paid sick days for diagnosis, treatment, or preventative care for themselves or a family member, as well as for certain purposes related to being a victim of domestic violence, sexual assault, or stalking.
  5. Parental: This allows parents to take time off for the birth, adoption, or foster care placement of a child without pay but with job protection and continuation of health insurance benefits.
  6. Jury Duty: California law requires employers to provide unpaid time off for employees summoned to serve jury duty. Employers are prohibited from penalizing employees for taking this time.
  7. Kin Care: Under California’s “Kin Care” law, employees are entitled to use up to half of their accrued sick days to take care of a family member.

In California, if you meet the appropriate criteria, you can likely take unpaid time off from your job without losing employment.

When Is Leave Considered a Reasonable Accommodation?

In California, a leave of absence is considered a reasonable accommodation under the Fair Employment and Housing Act (FEHA) when it enables an employee with a disability to manage their health condition and eventually return to work. This accommodation must be provided unless doing so would cause undue hardship to the employer’s operations. Criteria for reasonable accommodations include:

  • Disability or Medical Condition: The employee has a physical or mental disability that limits one or more major life activities, and the leave is necessary for them to seek treatment, recover, or otherwise manage their condition. Under the Pregnant Workers Fairness Act (PWFA), this now includes temporary or permanent disabilities related to pregnancy, childbirth, or related medical conditions. 
  • Employer Notification: The employee, or someone on their behalf, must communicate the need for a leave of absence due to a disability, providing sufficient information for the employer to understand that the time is needed for disability-related reasons.

Employers are required to engage in a timely, good-faith interactive process with the employee to determine the feasibility of the accommodation. This process involves discussing the need for leave, its expected duration, and any possible alternatives that could equally meet the employee’s health needs without unduly disrupting the employer’s operations. If the leave is found to be reasonable and does not place an undue burden on the employer, it must be approved as an accommodation. 

But what constitutes reasonability? Four key factors must be present for leave to be considered a reasonable accommodation:

  1. Finite Duration: A leave with a defined duration, indicating when the employee expects to return to work, is more likely to be considered reasonable. Indefinite leaves, where no return date is specified, are less likely to be seen as reasonable accommodations.
  2. Does Not Cause Undue Hardship: The time off does not significantly strain the employer’s resources or operations. Factors include the size of the organization, the nature of the work, and the impact on the workforce and costs.
  3. Medical Documentation Support: The request for leave is supported by medical documentation that outlines the need for absence as a form of accommodation for the employee’s condition.
  4. Allows the Employee to Perform Essential Job Functions Upon Return: The purpose of the time off is to ensure that the employee can perform their essential job functions upon returning to work, with or without other reasonable accommodations.

In short, a leave of absence is considered a reasonable accommodation in California when it is necessary due to a disability (including those caused by pregnancy or labor), does not impose an undue hardship on the employer, and is part of an interactive process aimed at facilitating the employee’s eventual return to work.

Le Clerc & Le Clerc LLP: Protecting Your Right to Reasonable Accommodations

Leaves of absence and accommodations for disabilities are integral parts of California employment law aimed at protecting workers while balancing the interests of employers. Determining what constitutes a reasonable accommodation, including leave of absence, requires a nuanced understanding of both the employee’s medical needs and the employer’s operational capabilities. If you believe you have been denied access to time off work as a reasonable accommodation, the skilled employment lawyers at Le Clerc & Le Clerc LLP are available to help you. Our San Francisco attorneys have decades of experience assisting clients like you to pursue justice and fair treatment at work, including reasonable accommodations and compensation for rights violations. Schedule your consultation today to discuss your case and take the next step toward a more equitable work experience.

Workplace Protections for Parents of Disabled Children in California

In California, the intersection of employment law and family responsibilities takes on a significant dimension for parents of disabled children. Balancing work commitments with the demands of caring for a child with disabilities can be challenging. If you’re in that position, it’s critical to understand the legal protections available to you in the workplace so you can maintain your employment while still caring for your kids. 

Federal Laws and Protections for Parents of Disabled Children

Federal laws in the United States provide various protections for parents of disabled children. These laws help ensure people like you have the necessary support and accommodations to balance their work responsibilities with caregiving:

  • Family and Medical Leave Act (FMLA): FMLA allows eligible employees to take up to 12 weeks of unpaid leave per year for specific family and medical reasons, including caring for a child with a serious health condition. This leave is job-protected, meaning employees can return to their same or equivalent position after the leave.
  • Americans with Disabilities Act (ADA): While the ADA primarily protects individuals with disabilities, it also prohibits discrimination based on association with an individual with a disability. This can apply to parents of disabled kids.
  • Employee Retirement Income Security Act (ERISA): Protects employee benefits, including health insurance. If an employer provides health insurance, it typically extends to an employee’s children, including those with disabilities. ERISA ensures that employees don’t lose their benefits unjustly, which is crucial for parents managing medical care for their disabled children.

California-Specific Laws and Regulations

California offers additional legal protections for working parents of disabled children, providing more inclusive rights and accommodations. Some of the key California-specific laws and regulations include:

  • Fair Employment and Housing Act (FEHA): FEHA requires employers to provide reasonable accommodations for employees who are associated with a disabled person to assist them in performing their jobs. FEHA’s definition of disability is broader than the ADA, offering more inclusive protection.
  • California Family Rights Act (CFRA): CFRA allows eligible employees to take up to 12 weeks of protected unpaid leave in 12 months for family and medical reasons, including caring for a child with a serious health condition. CFRA applies to employers with five or more employees, making it more inclusive than FMLA.
  • Kin Care Law: Under California’s Kin Care Law, employees are allowed to use half of their accrued sick leave to care for a family member, including a child.

Examples of Workplace Accommodations You Might Need

Under FEHA, parents of disabled kids have the right to request reasonable accommodations in the workplace to assist them in balancing their job duties with caregiving responsibilities. Here are examples of such accommodations: 

  • Flexible Scheduling: Adjusting start and end times of the workday, allowing for split shifts or modified weekly schedules, or providing time off or adjustments for medical appointments and therapy sessions.
  • Remote Work: Permitting work from home, providing necessary equipment and technology for remote work, or combining telework with in-office work on a part-time basis.
  • Part-Time or Reduced Work Hours: Allowing a reduction in work hours or transitioning to a part-time schedule.
  • Job Restructuring: Modifying job duties that are non-essential or reassigning or redistributing marginal job tasks to other employees.
  • Temporary Transfer to a Less Stressful or Hazardous Position: Moving to a position with less stress or physical demands, if available.

You need to engage in an interactive conversation with your employer when requesting accommodations. Discussing the specific needs related to your child’s care and how the accommodation would assist you in performing your job can help you find a solution that works for you and your employer. 

Navigating Discrimination and Retaliation as a Parent of Special-Needs Children

Unfortunately, discrimination and retaliation against parents of children with special needs in the workplace are all too common. Some of the most common forms include:

  • Disparate Treatment: This occurs when an employee is treated differently or less favorably, specifically because they have a child with special needs. Examples include not being considered for promotions or important projects, receiving lower performance evaluations, or being subjected to negative comments or attitudes from supervisors or colleagues about their parenting responsibilities.
  • Failure to Accommodate: Under various laws, employers are required to provide reasonable accommodations to employees who are parents of children with special needs unless it causes undue hardship to the employer. Refusal to engage in an interactive process or outright denial of reasonable accommodation requests without proper justification can be considered discriminatory.
  • Harassment: This includes any unwelcome conduct based on the employee’s status as a parent of a child with special needs. Harassment becomes unlawful when the offensive conduct becomes a condition of continued employment or when the conduct is severe or pervasive enough to create a hostile work environment.
  • Adverse Employment Actions: Retaliation occurs when an employer takes an adverse action against an employee for engaging in a protected activity. Protected activities include requesting accommodations, taking leave under FMLA/CFRA, or filing a discrimination complaint. Adverse actions can include termination, demotion, pay reduction, or unfavorable job assignments.

It’s important for employees who believe they are experiencing discrimination or retaliation to document their experiences and seek advice, potentially from an experienced employment lawyer or a government agency like the California Civil Rights Department (CRD). They can provide guidance and, if necessary, a legal pathway to address these issues.

Expert Legal Counsel for Working Parents of Disabled Kids

Parents of disabled children in California have legal protections designed to help them balance their work and caregiving responsibilities. Understanding these rights and how to assert them is essential. With the right knowledge and support, you can continue to work while caring for your children’s special needs.At Le Clerc & Le Clerc LLP, we can help you if you’re struggling to exercise your rights under federal and state law. Our skilled attorneys are prepared to represent you at the negotiation table or in court if your employer has discriminated against you for having a disabled child. Learn more about how we can help by scheduling your consultation today.

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