Employment Law - San Francisco Employment Lawyer | Bay Area Discrimination Attorney

FMLA Turns 30: How Your Rights Have Changed

On Behalf of Le Clerc Le Clerc LLP
March 27, 2023
CFRA, Employment Law, FMLA

The federal Family and Medical Leave Act (FMLA) turned 30 in February 2023. This bill was a groundbreaking step for workers’ rights, but many argue it is no longer enough. Many legislators are advocating to expand the scope of the FMLA and providing workers with more options and security if they need to care for their families.

While the FMLA remains the primary federal law providing workers the opportunity to take family leave, many states have implemented similar laws to address its flaws. In honor of the bill’s 30^th anniversary, let’s explore the history of the FMLA, how California has improved it, and how your rights as a worker have expanded in the past three decades.

History of the FMLA

Today, a law like the FMLA seems like it makes sense. Many people take it for granted that established employees can take time off from work to recover from an illness, care for a family member, or welcome a new child to their family. However, there was a long journey before the bill was signed into law in 1993.

Before its passage, workers had no protections if they needed to take a leave of absence. While employers could offer parental or family leave in their employment contracts or on a case-by-case basis, it was not required. As such, workers who needed to care for family often lost their jobs, and many struggled to return to the workforce afterward.

That’s why proponents of the bill introduced the FMLA before Congress every year from 1984 to 1993. The bill was passed by Congress twice, in 1991 and 1992, but vetoed by then-president George H.W. Bush. There was strong pushback against the bill by corporate interests, which argued that allowing workers to take time off of work – even unpaid time – could hamstring businesses and hurt the economy.

It wasn’t until President Clinton was elected that the bill was finally passed. In the three decades since, U.S. employees have used the bill more than 200 million times to take time away from work to care for their families without worrying about long-term unemployment.

This has had an outsized effect on women and low-income families in particular. Women can better maintain their jobs after having children because they can take time to recover without risking future employment. Meanwhile, low-income workers have more freedom to care for their families without quitting their jobs. If it has affected the economy, it has been positive by keeping more people in work.

Still, the FMLA is significantly less comprehensive than similar leave laws in countries like France, the U.K., and Spain. Many states have taken it upon themselves to improve on the FMLA to give workers more protection, safety, and security.

Improving on the FMLA: The California Family Rights Act

California’s main improvement on the FMLA is called the California Family Rights Act, or CFRA. This bill expands almost every element of the FMLA to cover more people and situations. Here’s how the two compare:

Factors	FMLA	CFRA
Length	Up to 12 weeks of unpaid leave with a guarantee of reinstatement and a continuation of health benefits	Same
Eligibility	Any worker who has worked for a company for at least 12 months and performed 1250 hours of work for the company in that time	Same
Reason for Leave	New child or foster child brought into the family, a serious health condition of the employee, their child, spouse, or parent, or qualifying exigencies for the active military duty of the same.	New child or foster child brought into the family, a serious health condition of the employee or a designated party, or qualifying exigencies for the active military duty of the employee or a parent, child, or spouse.
Covered Employers	Any employer with 50 or more employees within 75 miles of the employee’s location, all primary and secondary schools, and all public agencies	Any employer with five or more California employees, without regard to geographic proximity, all primary and secondary schools and public agencies
Exemptions	Employers may withhold FMLA leave to key employees: those who are among the highest paid 10 percent of all the employees employed by the employer within 75 miles of the employee’s worksite.	No “key employee” exemptions

Overall, the CFRA covers more people, offers fewer exceptions, and gives workers more freedom to care for their loved ones.

Furthermore, California also offers the Paid Family Leave (PFL) program to supplement income for workers who take time off from work under the CFRA. In general, if a worker is eligible for CFRA, they are likely to be eligible for PFL as well. This allows California workers to take time off for pregnancy, new children, or a loved one’s illness without sacrificing all of their income.

There is no equivalent federal program; people in states without the PFL program do not have a national alternative to cover their financial losses while taking unpaid leave. Federal advocates of expanding the FMLA are calling for this to change and for many elements of the CFRA to be adopted nationwide. However, this has not yet occurred.

Defending Your Rights Under the CFRA

While the FMLA still leaves much to be desired, California’s CFRA has closed many of the gaps. Your employer cannot deny it as long as you’re eligible for CFRA leave. If they do, you have the right to take legal action for your losses.At Le Clerc & Le Clerc, LLP, we specialize in helping workers like you defend your rights under the CFRA. If your employer has violated your right to leave under the bill, we can help. Learn more about how we can hold your employer accountable, fight for your job, and help you pursue unpaid wages by scheduling your consultation today.

Making the Most of Private Parental Leave

On Behalf of Le Clerc Le Clerc LLP
March 1, 2023
Employment Law, Parental Leave

California has some of the country’s strongest laws regarding parental leave. However, the relative strength of these laws does not mean all workers are guaranteed the same amount of leave. Some employers choose to offer their workers additional time off as a benefit to attract more talent.

This private, employer-based leave is invaluable for many new parents. The problem is that since it is not guaranteed under the law, it can be more difficult to hold employers accountable if they attempt to block workers from taking the promised time off. Here’s what you need to know about different types of parental leave in California and what to do if your employer attempts to block you from taking the time off you were promised in your employment contract.

The Difference Between FMLA Leave and Employer-Based Leave

The federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) both guarantee workers up to twelve weeks of protected, unpaid leave in a twelve-month period. These laws specifically allow eligible employees to take time away from work after welcoming a new child into the family with a guarantee that their job will still be there when they get back.

California also goes a step further. Under the state Paid Family Leave (PFL) program, people who need to take time off for a family reason, such as bonding with a new child, can request partial wage-replacement benefits for up to eight weeks. Eligible workers can receive 60-70% of their weekly wages for those eight weeks from the government. Generally, most employed people qualified for PFL is also eligible for CFRA or FMLA leave, allowing them to take publicly-funded paid parental time away from work.

Under the CFRA, only employers with five or more employees or state and local governments must provide workers with unpaid time away. Furthermore, you need to have been working for your employer for at least 12 months and 1250 hours before you specifically are eligible for this time.

This is very different from the programs some employers offer. Private employers with parental time off programs can set significantly different terms for eligibility, length, and pay as long as they are equivalent to or better than those already guaranteed by the state. For example, some employers only require workers to be at the company for 90 days before they are eligible. Others, like Google, provide workers with up to 24 weeks of leave, an unprecedented amount in the U.S.

When Can an Employer Deny Parental Leave?

The problem with employer-based paternity or maternity time is that it is not granted the same protections as state-mandated leave. Instead, it is treated like other benefits like vacation time or sick leave. While employers are required to live up to their contracts with their employees, it can be significantly more difficult to fight back if they do attempt to violate these agreements. Unless an employer fails to meet the requirements set by the state of California, failing to provide the contractually promised amount of time off is considered a contract violation, not a workers’ rights violation.

In addition, private new child policies often have stricter scheduling requirements than government alternatives. According to the U.S. Equal Employment Opportunity Commission, an employer can deny requests for medical leave when it is not protected under federal or state law in many circumstances.

This includes situations where finding someone to replace you for the duration of leave would be particularly difficult, or the length of your break will pose “significant difficulty or expense” to your employer. You must read your employment contract and your employer’s HR policies carefully to determine what amount of time off you are guaranteed under your agreement.

This does not mean that you have no recourse, though. If your employer promised you paid parental time and refuses to grant it to you, they are breaching the employment contract. You can still take legal action to pursue the compensation and time away you’re owed.

What to Do If You’re Denied Parental Leave Under Your Company’s Policy

California courts take violations of employment contracts very seriously. You can fight back if your employer reneges on your contract or makes it unreasonably difficult to access the parental leave you were promised. Here’s how to get started:

Gather relevant documentation: Collect paperwork such as your employment contract and HR policies for your company. These should provide a clear idea of the type of compensation and time off you were offered. It would help if you also gathered any communications regarding your leave request and any updates to the policies that may have occurred after you were hired.
Submit a formal complaint with HR: If you have not already done so, submit a formal, written complaint to your HR department, and keep a copy of that complaint yourself. Request a written response rather than a verbal one to ensure there is a paper trail if your request for time away is denied again.
Consult with an experienced attorney: Skilled legal counsel is vital any time you have a contract dispute with your employer. Your attorney will help you understand your rights and determine the best path forward, whether that is negotiating with your employer or filing a lawsuit.

At Le Clerc & Le Clerc LLP, we specialize in helping parents and families who have been impacted by unfair and illegal employment practices. We are available to help you pursue the time off you were promised in your employment contract so you can spend time with your new child. Learn more about how we can help you stand up for your right to paid parental leave by scheduling your consultation with our skilled California employment law attorneys today.

How California’s New Privacy Bill Affects Workers

On Behalf of Le Clerc Le Clerc LLP
March 1, 2023
Employment Law

In 2020, California voters chose to pass Proposition 24, the California Privacy Rights Act (CPRA). As of January 1^st, 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.

Understanding Your Rights If You’re Laid Off

On Behalf of Le Clerc Le Clerc LLP
February 21, 2023
Employment Law, Wrongful Termination

Layoffs have been on the news recently, especially in the California Bay Area. Major tech companies like Microsoft, Google, Twitter, Amazon, and Salesforce have cut tens of thousands of jobs since the beginning of January, primarily consisting of Silicon Valley workers.

While major layoffs appear to be mostly centered within the tech industry for the moment, these trends have a way of spreading. Even if you don’t work in tech, you could still be at risk of being named “redundant” if your employer downsizes. It’s more important than ever to understand your rights regarding layoffs so you can stand up for yourself if you are unfairly terminated.

The Ongoing Trend of California Tech Layoffs

Despite record profits posted throughout the tech field, many employers are announcing layoffs. Why? Companies that provide reasons for these massive cuts point toward ongoing inflation and rumors of an oncoming recession to justify their decisions. These businesses claim they are preemptively cutting costs to make it through the presumed lean times to come.

Analysts suggest that most of these layoffs aren’t occurring because companies need the money, though. Stanford business professor Jeffrey Pfeffer argues that these layoffs are being done just because other companies are doing the same thing in “copycat” behavior. They know they can do it, that it hasn’t harmed their competitors, and will make their profits higher in the short term, so they are making cuts just because they can.

Unfortunately, this behavior may bring about the very thing the companies profess to fear: a recession. Over the past year, as many as 120,000 people have been laid off, particularly in high-paying industries like technology. This is increasing competition for the remaining jobs, allowing employers to pay them less. Between lowering pay rates and many people simply no longer having their high-paying jobs, massive layoff trends significantly reduce the number of people with disposable income.

This can slow the rest of the economy as people are forced to cut back to necessities rather than circulate funds into other businesses. Layoffs in one industry can cause a domino effect as other companies are forced to cut costs because their customers can no longer afford to purchase their goods or services.

What You Should Know About WARN Laws

State and federal legislators understand the negative impacts of major layoffs. This is why California has implemented the Worker Adjustment and Retraining Notification (WARN) Act. This law provides strict rules regarding which employers must give notice to employees before performing layoffs and when that notice must be given.

California’s WARN Act is stricter than its federal equivalent, granting workers in the state greater protections. It applies to businesses with at least 75 full- or part-time employees who have worked at the company for at least six out of the last twelve months. It also applies to all state and state-sponsored organizations, regardless of the number of workers. Covered organizations must provide employees with 60 calendar days’ written notice before performing the following:

Terminating at least 50 employees over 30 days, no matter how many employees the company has
Closing any plant or location, regardless of how many workers this affects
Requiring any employee to relocate by more than 100 miles

If an employer does not provide 60 days’ notice, they can offer severance packages equivalent to the number of working days the employees will not receive. For example, Google recently laid off 12,000 employees, effective immediately. However, the employees were guaranteed pay through the 60-day notice period. Because they will still receive the compensation they would have earned during those two months, the workers’ right to notice was not violated.

Note that these notice requirements don’t apply to seasonal workers or employees who are explicitly hired temporarily. In addition, organizations are not penalized for failing to provide notice if they must close a location due to a natural disaster or sudden, unexpected loss of business. Outside of these exceptions, failing to provide appropriate notice to employees is a WARN Act violation.

Your Rights During California Layoffs

Understanding your rights during California layoffs is invaluable. The WARN Act was enacted to give you time to find a new job and avoid unnecessary time spent unemployed. If your employer doesn’t provide you fair notice, you have the right to take legal action.

California law allows workers to pursue back pay for every day of notice they do not receive. For example, if a company notifies workers only 20 days before termination, the laid-off employees could demand back pay for their normal schedule during the remaining 40 days.

Furthermore, employers must perform layoffs equitably. They must choose which workers to terminate based on business-related concerns like performance rather than age, gender, race, or other protected classes. WARN notices allow employees to spot if their employer is committing wrongful termination during layoffs.

If they do selectively terminate people from protected classes, that’s when a layoff becomes wrongful termination. For instance, Twitter is facing a class action lawsuit for allegedly firing women at a significantly greater rate than men in the November cuts. In these cases, you may also pursue a wrongful termination claim for additional damages, such as the money you might have earned based on your performance if the company had laid off people fairly.

Experienced Legal Representation for Victims of California Tech Layoffs

The layoffs occurring throughout the California tech industry are alarming and harmful to many workers. Still, if you are laid off without appropriate notice, you may have grounds to take legal action. At Le Clerc & Le Clerc LLP, we specialize in helping workers stand up for their rights. We can help you determine if you were unfairly laid off or wrongfully terminated by your employer. If so, we will help you pursue justice and fair compensation for your losses. Learn more by scheduling your consultation today.

Will the Department of Labor Restrict Use of Independent Contractors?

On Behalf of Le Clerc Le Clerc LLP
February 17, 2023
Employment Law

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

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

How the New Rule Could Change Federal Law

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

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

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

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

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

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

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

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

How the New Rule Compares to California Laws

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

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

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

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

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

How Will the New Law Affect You?

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

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

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

Expert Legal Assistance to Fight Employment Misclassification

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

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

Paid Family Leave in California: What You Need to Know in 2023

On Behalf of Le Clerc Le Clerc LLP
February 4, 2023
Employment Law

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 1^st, 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.

Two Major Pregnant Worker Protection Laws Made Official

On Behalf of Le Clerc Le Clerc LLP
February 2, 2023
Employment Law, Pregnancy Issues

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.

Federal Agency Enforces Religious Protections Against Hairstyle Discrimination

On Behalf of Le Clerc Le Clerc LLP
January 31, 2023
Discrimination, Employment Law

The U.S. Equal Employment Opportunity Commission (EEOC) has sued a Kentucky grocery store for refusing to hire someone who would not change their religious hairstyle. The lawsuit alleges that this decision is a form of religious discrimination in the workplace.

The lawsuit was filed on behalf of Matthew Barnett, who applied to the Williamsburg Hometown IGA and received an interview. During the meeting, store management informed him that he would have to remove his dreadlocks to work at the location. Barnett is a longtime adherent of Rastafarianism, for which dreadlocks are a meaningful spiritual component. He refused to shave his head on religious grounds, and management ended the interview immediately.

The EEOC stated that it only filed a lawsuit after “exhausting its conciliation efforts to reach a voluntary pre-litigation settlement.” The agency worked with Hometown IGA to find other non-litigious methods of resolving Barnett’s claim, but a satisfactory resolution was not reached. No, the agency is taking the matter to court to set an important precedent regarding religious hairstyles nationally.

Hair has been the subject of much controversy over the past decade. There remain no national laws that specifically protect hairstyles as racial or religious expression. However, states like California have begun implementing regulations to prevent situations like Barnett’s. Here’s how California protects religious expression in the workplace, the potential impact of the EEOC’s lawsuit on California residents, and how to fight back if your employer prevents you from wearing your hair according to your religious principles.

California Laws Offering Hairstyle Protections

California has long been one of the forerunners in expanding civil rights in the United States. This is just as true in hairstyle discrimination as it was in gay marriage. The state’s Fair Employment and Housing Act (FEHA) is responsible for providing these protections, and legislators regularly amend it to clarify what is protected under the bill.

For hairstyles, two primary amendments have increased protections for workers. The first is the California Workplace Religious Freedom Act (WRFA). This 2012 bill states that all sincerely held religious beliefs must be accommodated in the workplace. In particular, it named “religious dress practice” as an example of protected behavior. This includes wearing or carrying religious items, head and face coverings, and, broadly, hairstyles as well.

The other law guarding the rights of employees to wear their hair in specific ways is the 2020 Creating a Respectful and Open Workplace for Natural Hair Act (CROWN Act). Under the CROWN Act, the definition of racial features protected from discrimination has been expanded to include traits “historically associated” with race. This specifically includes hair texture and “protective hairstyles” such as dreadlocks, twists, braids, and other styles that protect tightly coiled hair from breaking.

Under these laws, employers may not discriminate against workers for wearing dreadlocks due to their religion or race. This includes requiring employees to change their hairstyle to remain employed, refusing to hire people with these hairstyles, or penalizing workers with these styles.

Impact of the EEOC Case on California Employees

As a federal agency, the EEOC acts as the national government’s enforcement arm for employment discrimination claims. Because California already has the CROWN Act and WRFA on the books, the EEOC case may not have a noticeable effect immediately. However, it is an important reminder to many workplaces that discriminatory “grooming” policies that bar religious and racial hairstyles can have serious consequences.

Some employers discriminate against current or potential employees without realizing that it could have penalties. Barnett’s lawsuit may discourage this behavior by demonstrating that workers can and will fight back. Furthermore, the case may give California’s Civil Rights Department additional license to respond to similar claims filed by state workers, with the understanding that the federal government’s interpretation of anti-discrimination laws is similar to California’s.

How to Push Back Against Unfair Grooming Policies

If your workplace has grooming or dress code policies that primarily apply to people of certain races or religions, it is likely against the law in California. These restrictions on freedom of religion or discrimination based on race are explicitly unlawful in the state. You may have grounds to sue your employer if they have forced or threatened you with consequences for wearing your hair per your religious principles. You can take action by:

Collecting proof of discriminatory policies or harassment: In some cases, proving a policy is discriminatory is as simple as taking home a copy from work. If a policy bans protective hairstyles or specific religious expression, it violates your rights. In other cases, you may need to gather communications such as emails or texts that threaten you for wearing your hair in protected styles.
Talking to colleagues: A policy that only impacts people of certain races or religions is likely also illegal. You can discuss your experiences with coworkers to determine if the policy affects everyone or is only enforced with certain people.
Demonstrating adverse employment action: If you have been fired, denied a promotion, or lost a job opportunity like Matthew Barnett, document the incident and its causes. You may have a stronger case if you can show that you have excellent performance reviews or have been harassed for your hair in the past.
Consulting with a skilled attorney: An experienced workers’ rights attorney will help you gather all the information above and build a strong case. They will also help you file claims with the appropriate agencies and represent you if you need to take the matter to court.

At Le Clerc & Le Clerc LLP, we are dedicated to protecting your rights as an employee in California. Do not hesitate to get in touch and discuss your religious hairstyle harassment with our skilled attorneys. We are prepared to help you pursue fair employment and justice for the discrimination you have faced.

California Revises Paid Family Leave to Benefit Workers

On Behalf of Le Clerc Le Clerc LLP
January 12, 2023
Employment Law

California has been taking significant legislative steps to improve conditions for workers over the past two years. Earlier this year, the state chose to expand the California Family Rights Act (CFRA), but it didn’t stop there. This past fall, Governor Gavin Newsom signed into law improvements to both the Paid Family Leave (PFL) and State Disability Insurance (SDI) programs that will give lower-paid workers more support.

These programs are invaluable for allowing workers to receive a portion of their regular wage if they need to take time off to care for their families. While CFRA will enable workers to take unpaid time off work to care for family members or themselves and protect their jobs, many lower-paid employees hesitate to take time off because of the impact on their finances.

The updates to PFL and SDI will make it easier for these workers to take the time they need to care for themselves or those they love. Here’s what you need to know about the updates to these programs and how you can request CFRA leave and PFL or SDI compensation.

Understanding California Paid Family Leave and State Disability Insurance

Governor Newsom made waves when he signed Senate Bill (SB) 951, which adjusts both the Paid Family Leave and State Disability Insurance programs. PFL is intended to provide up to eight weeks of wage replacement benefits to eligible workers if they need to take unpaid time off work for qualifying reasons, which include:

Caring for seriously ill children, parents, spouses and registered domestic partners, siblings, grandparents, or grandchildren.
Bonding with a new child through birth, adoption, or foster placement.
Qualifying exigencies related to a family member’s military service.

These cases directly correlate with almost all qualifying reasons to take time off under the CFRA. The exception is for injuries, illnesses, or conditions affecting the worker themselves. This is because SDI is in place to cover those situations. You can apply for SDI to receive wage-replacement benefits if you are an eligible employee who cannot work due to a non-work-related illness, injury, or pregnancy. This neatly covers most of the remaining reasons why CFRA may be used.

Revisions to PFL and SDI

SB 951 significantly adjusted how PFL and SDI payments will be calculated. Currently, the programs allow workers to receive up to 70% of their regular wages while they qualify. However, this places many lower-earning workers below the minimum wage, which can significantly impact their ability to support themselves and their families. As such, these workers may opt not to take time off because even a 30% cut to their wages is too much to justify taking time off to care for loved ones.

That’s why SB 951 was written. Under the bill, a new benefit calculation will go into place starting in 2025. The new calculation considers the state’s average wage when determining the benefits eligible workers will receive. Any worker who receives 70% or less of California’s average wage would be eligible to receive 90% of their average pay instead of 70%. This significantly reduces the impact of taking unpaid leave, as lower-paid workers will only take a 10% cut to their earnings instead of 30%.

How to Pursue CFRA Leave and PFL Compensation

While it will be several years before the updates to PFL and SDI kick in, you can still receive wage-replacement benefits if you take time off. Even 70% of your earnings can be invaluable if you or a loved one is ill and you must stay home from work. First, however, you should ensure you can take that time off to heal or care for your family under CFRA.

Only eligible employees can take CFRA leave. You’re eligible if:

Your employer has five or more workers or is a public agency
You have worked for your employer for at least 12 months
During the past 12 months you’ve worked for your employer, you have worked at least 1250 hours for them
You have not yet taken 12 weeks of CFRA leave in the preceding 12-month period

If you meet these conditions, you can take leave for all the reasons that make you eligible for SDI or PFL payments. You may need to provide your employer with proof that you or your loved one is sick with a doctor’s note or that you have a new child by showing them documentation of the birth, foster placement, or adoption.

If your request for CFRA leave is unfairly denied, this can impact your ability to request PFL or SDI. Voluntarily quitting a job may affect your eligibility for these programs, and you cannot receive payments from either if you continue working. In that case, taking action against your employer may be necessary to have your request for leave granted.

This may be as simple as notifying HR that your request was unfairly denied and explaining your reasoning. However, if your complaint is ignored, or if you have been fired or otherwise retaliated against for requesting your state-protected leave, you may need legal help.

Legal Assistance for Unfairly Denied CFRA Leave Requests

When you believe your request for CFRA leave has been denied, your first step should be to consult with an experienced employment law attorney. Your employer does not have the stress of an illness or lost income impacting its ability to fight your claim. If you want the best possible chance of receiving protected CFRA leave and PFL or SDI payments, you need to have knowledgeable experts on your side.

That’s where the attorneys at Le Clerc & Le Clerc LLP can help. We are dedicated to protecting your employee rights and have years of experience acting as legal counsel to California workers. Learn more about how we can help you negotiate or litigate your denied CFRA claim by scheduling your free consultation.

Unconscious Bias in the Workplace: Are You Suffering?

On Behalf of Le Clerc Le Clerc LLP
January 10, 2023
Employment Law

Many people assume that racism, sexism, and other forms of discrimination in the workplace need to be overt before they can be addressed. This isn’t true. Under Title VII of the Civil Rights Act of 1964, employers may not discriminate against workers because they are part of a protected class. The bill says nothing about whether that discrimination must result from conscious bias.

Today, most employment discrimination is actually caused by unconscious bias. While this can be harder to prove, it’s no less damaging to its victims. Learn how to identify unconscious bias in your workplace, how it can harm workers, and what you can do to stop it.

What Is Unconscious Bias?

Unconscious bias is prejudice for or against someone because of aspects of their identity that isn’t done purposefully. In contrast, conscious bias is deliberately taking discriminatory actions against someone because of a trait like skin color, religion, or gender.

This difference is critical because unconscious bias is far more widespread. Even people who believe they are “color-blind” or otherwise accepting may have subconscious biases that they don’t recognize. This makes it far more challenging to address the effects of unconscious prejudice than conscious racism, sexism, or other biases.

Subconscious prejudice is the result of uncritical acceptance of stereotypes. For example, someone can consciously believe that sexism is wrong but may have internalized the idea that women are bad at math. If this unconscious bias isn’t noticed and accounted for, they may be less likely to hire or promote women into roles that require a lot of math despite their qualifications.

The problem with unconscious prejudice is that it can lead to organization-wide inequities without any one person actively trying to harm or push out minorities. One recruiter or manager with unexamined biases can impact the careers of everyone below them. If these biases are found throughout the organization, it can quickly shape a company’s culture to be hostile to women, people of color, religious minorities, and other protected classes.

The Impact of Unconscious Biases on Workers

While unconscious bias isn’t as blatant on a case-by-case basis as active harassment, it can still seriously harm workers. It is just as harmful to refuse to promote someone because of an unconscious assumption that they’re lazy as it would be to withhold a promotion because they’re Black. Some of the most significant impacts this type of prejudice has on workers include:

Reduced Job Opportunities: Minorities often struggle to receive the same opportunities and pursue the same jobs as white and male colleagues. Studies have shown that the same resume with an “anglicized” or gender-neutral name is significantly more likely to be considered for an interview than identical resumes with non-European or feminine names. The subconscious bias of the hiring teams often prevents workers from getting jobs in the first place.
Stalled Career Growth: These biases can make it difficult for victims to continue growing their careers. For instance, women often struggle to receive the same promotions and raises as their male colleagues, particularly if they are mothers, due to the unconscious assumption that they are less dedicated to their jobs.
Hostile Workplaces: If management has internalized negative stereotypes about specific demographics, the entire organization can develop toxic attitudes towards those groups. Minorities who are hired and promoted may feel uncomfortable, excluded, and unable to report harassment or microaggressions for fear that they will “support” the stereotypes management believes.

Standing Up to Workplace Bias

It should not be your responsibility to fix your employer’s unconscious biases. However, making them aware of these tendencies may fall to you. If that doesn’t lead to change, you may need to take legal action to receive the fair treatment you deserve. Here’s how you can stand up to workplace bias and fight against trends harming your career.

Talk to your colleagues. The most effective way to determine if unconscious bias is at play in the workplace is to talk with your coworkers. If management consistently appears to discriminate against people of a certain race, religion, or gender, your colleagues have likely noticed as well. Talk to them about their experiences and see if they have noticed anything you may have missed.
Document trends of discrimination. When you do find trends, document them. For example, collect organization charts for your company and note the relative diversity across the organization and between different levels of authority. Who has been promoted, and who has been fired or forced to resign? These trends are some of the best evidence you have of systemic discrimination.
Notify Human Resources: Even if you don’t believe it will make a difference, you should still communicate your concerns with the person or department in charge of hiring at your company. This demonstrates that you’re acting in good faith and may occasionally be enough to spur your employer to take anti-bias action.
Talk to an experienced lawyer. If your concerns are dismissed, it’s time to get help. Consult with a qualified workplace discrimination attorney about your circumstances. They will help you find the best path forward, whether that’s negotiating with your employer or taking legal action.

Pursue Equitable Treatment With Expert Legal Counsel

Because unconscious bias, by definition, is not done on purpose, it can be hard to prove. That’s why it’s critical for you to consult with an experienced employment law attorney if you suspect you and your colleagues are suffering from discrimination caused by subconscious prejudices. At Le Clerc & Le Clerc LLP, we understand how stressful it can be to lose out on opportunities at work because of your identity. We have a strong track record of success helping clients like you pursue compensation for the discrimination they’ve faced at work, no matter the reason. Call 415-445-0900 or contact us online to learn more about how we can help you.

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