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SAN FRANCISCO EMPLOYMENT LAW BLOG

After months of nationwide high-profile labor and employment disputes, the National Labor Relations Board (NLRB) has set new standards for evaluating employee rights violations. These standards come from its decision in the case Stericycle, Inc., 372 NLRB No. 113 (2023). 

Under its new standard, the NLRB will take a much more employee-friendly approach when determining if a company’s workplace rules violate the National Labor Relations Act (NLRA). This law primarily addresses “labor relations,” such as unionization, but it heavily impacts other elements of employment law as well. 

By revising its approach to evaluating company rules for rights violations, the NLRB has made it easier for all employees to exercise their rights. Let’s explore how the NLRA protects workers nationwide, how the NLRB has changed its evaluation approach, and what that means for you. 

Your Right to Free Speech Under the NLRA

One of the laws that makes the US unique is the enshrinement of free speech as a fundamental right. However, freedom of speech means that the government may not restrict or penalize people from saying things; it does not prevent private parties from choosing to end relationships over someone’s statements. 

This means that in at-will employment states like California, employers can fire workers who make statements they disagree with. For example, it is usually legal for an employer to terminate someone for swearing or making crude remarks. However, laws like the NLRA designate types of protected speech and activities that cannot be used to make adverse employment decisions. 

The NLRA is a remarkably broad law that applies whether employees are on the clock or off-duty. Under the law, protected activities include things like:

  • Complaining about workplace issues with colleagues or in public
  • Speaking to reporters, the public, or the employer’s customers or vendors about working conditions and concerns
  • Talking about pay, benefits, and working conditions among coworkers
  • Making safety reports to state or federal agencies
  • Organizing or going on strike

Of these activities, only the last is limited to unionization efforts. The rest are common occurrences in most workplaces, regardless of whether the employees want to unionize. The NLRA protects all workers, not just organized groups.

NLRB Standards After the Stericycle, Inc. Decision

One of the major duties of the NLRB is reviewing potential violations of the NLRA. This includes reviewing company rules to see if they may have a “chilling” effect that discourages workers from exercising their rights. 

Since 2017, the agency has performed these reviews based on the standard it set in its decision on Boeing Co. (2017). Under the Boeing standard, the NLRB stated it would consider the impact of “reasonably interpreted” workplace rules on workers’ ability to exercise their rights and the employers’ justifications for the rules. This standard was interpreted as being particularly favorable for employers because it instructed the Board to deem rules to be lawful if employers’ needs outweighed their potential adverse impacts on employee rights. In other words, the Boeing standard meant that employers’ profits could be and were prioritized over individuals’ rights. 

In the Stericycle decision, the NLRB reversed its stance. In its new decision, it stated that the Boeing standard permitted employers to “adopt overbroad work rules that chill employees’ exercise of their rights” and that employers were not required to tailor their rules to promote their “legitimate and substantial business interests without unnecessarily burdening employee rights.” 

The new standard is heavily employee-focused. The Board states that future and currently active rule reviews will be performed “from the perspective of an employee who is subject to the rule and economically dependent on the employer, and who also contemplates engaging in protected concerted activity.” In other words, the NLRB will not take into account the employer’s justifications for rules and will instead focus entirely on the perspective of a potential employee. If it is found that an employee could reasonably interpret a rule to be restrictive, then it will be deemed unlawful. 

Do Your Employer’s Rules Violate Your Rights?

The Stericycle standard is excellent news for workers nationwide. The Board has clarified what constitutes protected actions by broadening the definition of unlawful rules. More importantly, the new measure makes it clear that simply having unlawful rules on the books could violate employee rights, regardless of enforcement. 

Examples of unlawful rules under the NLRA include prohibitions on:

  • Complaining about your employer in private or public
  • Talking to reporters or attorneys about your working conditions
  • Making “whistleblower” reports to safety agencies

The NLRB is responsible for reviewing rules that may violate the NLRA. Employees can report these violations but may not file a lawsuit in civil court. However, workers can hold companies accountable if they suffer from adverse action because of these rules. If you are retaliated against for engaging in protected activity like that which the NLRA covers, you can file a claim against your employer to pursue back pay and other damages. 

Defending Your Right to Protected Activity in California Workplaces 

The legal tide is turning in favor of employees. There has never been a better time to hold your employer accountable for violating your rights in the workplace. If you have had your hours or pay cut or been terminated for exercising your rights under the NLRA, you could have a claim against your company. If so, you should talk to the expert California employment attorneys at Le Clerc & Le Clerc LLP. Our employment law firm is dedicated to representing workers who have experienced retaliation and discrimination in the workplace. Schedule your appointment with our attorneys today to discuss your situation and learn more about how to pursue justice for workplace retaliation.

Making the switch from working as an independent contractor or hourly worker to earning a salary is a big change. Salaried positions are typically assumed to have better benefits, working hours, and working conditions than other roles. In many cases, that’s true! 

However, some employers use salaries to hide the fact that employees are being treated unfairly. Workers who receive a salary are still protected by federal and state employment laws. If you’ve just entered the world of salaried work, here’s what you need to know about your rights on the job and what you can do if you believe your employer is violating the law. 

How Are Salaried Jobs Different?

Employees who receive a salary are paid a flat amount per month or year for their work. If they take a sick day or vacation time, their paycheck is not affected. This is in contrast to hourly workers, who are paid by the hour and only get paid for the time they work. Because of this difference, salaried workers normally do not receive overtime pay. They are considered “exempt” employees, while hourly workers are “nonexempt.”

Salaried positions are also different from independent contractor roles. Salaried workers often have routine working hours, but this is not a guarantee. Employers may enforce a standard 9-to-5 schedules, but they may also require people to stay late, work weekends, or be “on-call” for no extra compensation. While an employer cannot cut someone’s pay if they don’t do this work, they can fire salaried employees for refusing as long as the employment contract permits it. Furthermore, in California, employers must provide benefits like health insurance and time off, cover unemployment and workers’ comp, and provide protected leave to most salaried employees.

In contrast, independent contractors can choose when and how they get work done as long as they meet their contract’s deadlines and quality requirements. They may also get paid a flat rate yearly, but their clients do not have to manage their income taxes, provide health insurance, or offer leave.

In short, salaried workers theoretically have more flexibility, higher income, and better benefits than other workers. However, this heavily relies on employers respecting their staff’s rights.

Salaried Workers’ Rights in California

Exempt workers are not owed overtime but have various other rights in California. Some of the most important rights you have when working for a salary include: 

The Right to Minimum Wage

The federal right to minimum wage applies to everyone, regardless of how they’re paid. California law, in particular, makes it clear that workers are owed at least the highest applicable minimum wage, regardless of how their employment is structured. 

For example, California’s statewide minimum wage will rise to $16 an hour on January 1, 2024. If someone works 40 hours a week, 52 weeks a year, they should earn $33,280 at minimum. Anyone making a salary working full-time in California must earn at least that much, or they are not getting the minimum wage. 

The Right to Correct Classification

If a nonexempt employee works more than eight hours in a day or more than 40 hours in a week, they have the right to be paid time and a half for the extra hours. This includes some people who are paid a salary. 

In California, a salaried worker is only classified as exempt if they earn twice the minimum wage – in 2024, that threshold will be $66,560. Anyone who makes less than this for full-time work is considered nonexempt and eligible for overtime. If your employer has misclassified you as an exempt worker despite having you work full-time for less than that amount, you may be owed unpaid overtime. 

The Right to Fair Employment

Every worker in the country has the right to fair treatment within the workplace. This includes:

  • Equal pay for equal work: Companies must pay people who perform “substantially equal” work the same. Roles are substantially equal if they involve roughly equivalent skills, effort, responsibility, and conditions. For example, two accountants with similar duties who work at the same office should be paid the same, regardless of gender, health, or ability. 
  • Freedom from discrimination: Workers should not be discriminated against because of protected characteristics like gender, race, religion, disability status, or sexual orientation. 
  • Protected leave: In California, anyone who works for a company with five or more employees for 12 months and performs 1250 hours of work for the company during that time is eligible for protected family and medical leave. 

If you are not offered fair pay or protected leave, or if you suffer discrimination or retaliation in the workplace, you can take legal action. 

The Right to Safe and Healthy Working Conditions 

All workers should be given safe and healthy workplaces. Employers must meet OSHA and Cal/OSHA standards to protect staff’s mental and physical health, regardless of how they pay people. This includes:

  • Keeping working environments free from physical hazards
  • Providing ergonomic furniture and equipment to prevent repetitive stress injuries
  • Providing instruction on safe lifting techniques if necessary
  • Maintaining a discrimination and harassment-free workplace culture

If an employer doesn’t maintain safe conditions, it may be violating your rights.

What You Can Do If Your Employer Isn’t Respecting Your Rights

No matter how you’re paid, you have rights in the workplace. Even if you receive a salary, you’re still owed fair pay, equal treatment, and a safe and discrimination-free workplace. If you think your employer isn’t respecting your rights, you can get help. The first step is to talk to the experienced attorneys at Le Clerc & Le Clerc LLP. Our skilled team has spent decades advocating for employees facing discrimination, unpaid wages, and harassment. Schedule your consultation with our firm today to learn how we can help you get the fair treatment you deserve under California’s employment laws.

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.

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:

FactorsFMLACFRA
LengthUp to 12 weeks of unpaid leave with a guarantee of reinstatement and a continuation of health benefitsSame
EligibilityAny worker who has worked for a company for at least 12 months and performed 1250 hours of work for the company in that timeSame
Reason for LeaveNew 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 EmployersAny employer with 50 or more employees within 75 miles of the employee’s location, all primary and secondary schools, and all public agenciesAny employer with five or more California employees, without regard to geographic proximity, all primary and secondary schools and public agencies
ExemptionsEmployers 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.

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.

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.

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.

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

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

How the New Rule Could Change Federal Law

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

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

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

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

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

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

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

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

How the New Rule Compares to California Laws

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

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

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

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

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

How Will the New Law Affect You?

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

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

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

Expert Legal Assistance to Fight Employment Misclassification

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

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

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

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

California’s Paid Family Leave Program

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

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

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

Eligibility for Paid Family Leave

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

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

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

How to Take Paid Leave

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

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

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

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

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

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

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

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

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

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

The Pregnant Workers Fairness Act (PWFA)

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

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

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

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

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

The PUMP Act

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

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

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

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

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

Defending Your Rights as a Pregnant Employee

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

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

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

Make the Most of California Pregnancy Protections

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

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