Category Archives: FEHA

Maternity Leave California

Pregnant women often find that maternity leave is complicated and daunting. It does not have to be! There are a few basics that we cover in this post: what are your rights, what if your boss is upset that you will take a leave, and what to do if you get fired. Taking maternity leave in California is better than most states. The laws protect you here more than anywhere else in the country.

Basic Maternity Leave Rights in CA

The first question that many expecting employees face is whether they are entitled to maternity leave at all. The answer is usually, yes! California’s main pregnancy leave of absence laws (FMLA, CFRA, PDL, FEHA) apply to most employers. You have a right to take maternity leave. Employers are not required to pay employees during maternity leave. Even though employees do not have a right to pay from their employers during maternity leave, most California employees have a right to California’s state disability insurance during their leave. Fortunately, pregnancy related illnesses are considered disabilities by California law; employees often have a right to disability insurance payments during their leave. Visit California’s EDD website for more information.

Leave to Bond With Your Child – 12 Weeks

California provides leave rights under the Family Medical Leave Act (“FMLA”) and California Family Rights Act (“CFRA”). To be eligible for leave under CFRA, certain requirements must be met. The employee must work for an employer that has at least 50 employees within a 75 mile radius of the employee’s worksite. The employee must have worked for their employer more than 12 months. The employee must have worked at least 1,250 hours for the employer of work in the preceding year.

If these requirements are met, the employee is entitled to take up to 12 weeks of family care and medical leave in any given 12-month period. This leave can be used for the purpose of child bonding. To learn more about FMLA & CFRA visit this page that details who is eligible. 

Pregnancy Disability In CA – Four Months

In California, expecting employees are not only entitled to maternity leave for the childbirth itself, but they also have a right to time off for disabilities related to the pregnancy as well. The definition of “disabled” is fairly broad. Most employers that have five or more employees, which includes most businesses in California, are governed by California’s main pregnancy discrimination law, the Fair Employment & Housing Act (FEHA).

A law directly under FEHA is CA’s pregnancy disability law, PDL, which requires employers to give female employees time off work if:

  • She is disabled by pregnancy
  • She is disabled by childbirth
  • She has a medical condition related to pregnancy or childbirth

This can include, but is not limited too, the following: childbirth, loss of child, post-partum depression, bed-rest, prenatal care, gestational diabetes, preeclampsia, postnatal care, etc.

How long can you pregnancy disability leave last? FEHA gives female employees a right to maternity leave for up to four months. However, this maternity leave is only available to the employee as long as she is disabled from the childbirth, pregnancy, or some related condition.

The right to as much as 12 weeks of bonding time under CFRA is distinct from the right to pregnancy disability leave under FEHA. Accordingly, the bonding time under CFRA may be taken after the employee takes up to four months of pregnancy disability leave—totaling up to as much as seven months of total maternity leave depending on the length of the employee’s pregnancy disability.

Does maternity leave need to be taken all at once?

Maternity Leave CaliforniaNo, California’s FEHA provides for as much as four months of maternity leave for disabilities related to pregnancy and childbirth. But often disabilities are not continuous. Expecting mothers can take some time off during one trimester, or during an emergency, and then take the rest after delivery. This is called intermittent leave and is considered a reasonable accommodation.

Employers must provide reasonable accommodations for employees if they’re requested and if a health care provider has advised it. Your employer will likely ask you for a doctors note. If intermittent leave is expected, employers may explore a temporary transfer to a similar position with equal pay and benefits.

Can your company fire you for becoming pregnant?

No. California employers are prohibited from wrongfully terminating female employees due to pregnancy. Employment discrimination based on pregnancy is a type of sex discrimination, which is prohibited by FEHA. Expecting mothers also protected from harassment on the basis of pregnancy.

However, just because you are pregnant, does not mean they cannot fire you. If you are a bad employee, they can fire you. If they are laying off your department, you can go too. If you get fired while you are pregnant suspect the reason you were fired was your pregnancy, call a wrongful termination lawyer to investigate your case.

Do California employees have a right to their job after taking maternity leave?

Yes. Employees in California that exercise their right to maternity leave may not be discriminated against for taking a leave of absence. They have a right to return to their same or a similar position after their maternity leave has ended. The employer is not allowed to cut your pay when you return.

2017 Pregnacy Discrimination Update

I originally posted this article on February 27, 2015. I’ve updated it several times. Its now 2017 and some women are wondering if CA’s maternity leave laws have changed at all. First of all, the foundation of CA’s anti-discrimination laws have not changed. If you believe that you were fired because of your pregnancy, disability related to pregnancy, or maternity leave you should call the best employment lawyer in California for a free consultation. Some administrative rules and laws may have changed in 2017, but the majority of the calls to our office are about termination or expected termination. Therefore, it is unlikely that the maternity leave laws in California that may have changed in 2017 would affect the analysis of our office during your consultation.

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Filed under FEHA, Pregnancy

When Does Favoritism Become Harassment at Work?

We all hear the typical workplace stories of the male supervisor being overly generous to the young and attractive female subordinate. But at one point does sexual favoritism become a hostile work environment, and therefore a violation of law? This is a tricky question with an answer that is not exactly clear cut.

Sexual Favoritism and CA Employment Law

Interestingly enough, it is not unlawful for a supervisor to favor a subordinate with whom he or she has a romantic relationship. However, it may be unlawful and create a hostile work environment if the favoritism is based upon the granting of sexual favors, it is widespread throughout the workplace, and employees witnessing the favoritism do not welcome such conduct. It does not matter if the employee claiming hostile work environment was the target of such conduct, they can merely be a witness to the conduct.

Under California law, an employee may establish a claim of sexual harassment by demonstrating that widespread sexual favoritism was so severe as to alter his or her working conditions and create a hostile work environment. What is severe as to alter the employee’s working conditions depends on the fact of the case.

Case Study: Salinda vs. DIRECTV Inc.

Salinda is a great example of widespread sexual favoritism in the workplace. Plaintiff was an employee of the Defendant for several years. After a few years of employment with Defendant, Plaintiff witnessed favoritism for young and attractive female employees by male managers and superiors. Further, these female employees would perform sexual favors for the male managers and superiors.

After she complained of this, certain managers and employees were fired. However, years after this first incident, sexual favoritism ensued again. She again complained about the widespread sexual favoritism. Around the same time, Plaintiff was diagnosed with disease of the eye. When she requested a reasonable accommodation, Defendant retaliated against Plaintiff by verbally reprimanding her on her job performance. Soon after, Ms. Salinda was fired.

Plaintiff argued that, among other things, she was retaliated against for her complaints regarding widespread sexual favoritism in the workplace. Defendant argued that Plaintiff was terminated for legitimate reasons having to do with poor job performance. The jury sided with the Plaintiff, and awarded the Plaintiff $1,178,341 in damages.

Sexual Favoritism is Unlawful in California

Sexual favoritism in the workplace is not an uncommon occurrence whether it is between a male and female, male and male, or female and female. Sadly, some larger companies give their star executives too much discretion in the workplace, and sometimes these executives will have employees engage in sexual favors to get ahead in the workplace. If you feel you are a victim of widespread sexual favoritism at your work, then contact an employment lawyer to see if the law was broken.

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Reasonable Accommodation – California Employment Law

Employers have an affirmative duty to reasonably accommodate disabled employees. Our firm gets quite a bit of calls from potential clients who have a disability, yet their employers fail to accommodate them so they can perform their job duties. While not all disabilities are protected under the law, generally, employers are required to reasonably accommodate an employee’s known disabilities so that the employee can perform the essential functions of the job.

How Can an Employer Reasonably Accommodate a Disabled Employee?

How to reasonably accommodate an employee depends on the employee’s disability and what he or she can perform given his or her limitations. Therefore, there is no one specific way to accommodate an employee. Rather, there are many different ways an employer can reasonably accommodate an employee.

FEHA provides a list of just some of the ways in which an employee can be reasonable accommodated. This list includes some of the following.

  • An employer can make the work facilities readily accessible to the disabled employee. An employer can do this by modifying furniture or equipment for use by the disabled employee, or reserving a parking place for the disabled employee so he can park closer to work.
  • The employer can also modify the disabled employee’s work schedule. For example, if an employee is treated for cancer in the afternoons, then the employer can change the employee’s work schedule so he comes in earlier to work and leaves earlier for his cancer treatments so he gets a full day of work and completes his daily tasks.
  • An employer can even reasonably accommodate a disabled employee by having the employee work from home.

This listed examples is not exhaustive, there are many more ways an employer can reasonably accommodate a disabled employee.

What About Assistive Animals?

Here is something very interesting related to reasonable accommodation. Under California law, an employer must allow for assistive animals in the workplace as a form of reasonable accommodation. Assistive animals include guide, support, or service dogs. This includes animals that provide emotional support to a disabled employee suffering from post-traumatic stress disorders and even depression.

Contact An Employer Lawyer if You Have Reasonably Accommodation Questions

Unfortunately, a lot of times employers can be lazy and do not want to work with the disabled employee. But there are often multiple ways an employer can reasonably accommodate a disabled employee. If you are a disabled employee and your employer is failing to provide reasonable accommodation, or has fired you because they do not want to provide a reasonable accommodation, then call an reasonable accommodation & disability employment lawyer for a free consultation.

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Unpaid Volunteers and Interns Are Accorded Some of the Same Protection as Paid Employees Under FEHA

This year the California Legislature enacted various new employment laws. Most likely, the typical employee is unaware of the new employment laws enacted by the Legislature, thus it may be good to review some of the new 2015 labor laws from time to time. One of the more interesting newly enacted labor laws passed by the Legislature includes expanding anti-discrimination and anti-harassment protections under California Fair Employment and Housing Act (“FEHA”) to unpaid interns and volunteers.

Prior to 2015, unpaid interns and volunteers were not protected from under the FEHA anti-discrimination and anti-harassment laws. Rather, prior to 2015, the only unpaid workers who were protected by FEHA were those unpaid workers that were engaged in a program that would lead to a paid employee position.

Now, the 2015 law expands FEHA to protect unpaid interns and volunteers from discrimination and harassment based on, among other things, race, religion, national origin, disability, gender, or sexual orientation, age, or military and veteran status. Now, any discrimination or harassment based on a protected characteristic against an unpaid intern or volunteer is unlawful if it occurs at any time while the intern or volunteer is working for the employer. For example, it is now unlawful for an employer to sexually harass a volunteer or unpaid intern in the workplace.

At the end of the day, this is a win for Californians who are using a volunteer position or unpaid intern position to obtain a paid position. At a time when securing employment is rather difficult, it is important that those who are working unpaid with the hopes of securing a paid position are also protected from employer misconduct. If you are a volunteer or an unpaid intern, and your employer is discriminating against you or harassing you, then call a California employment lawyer immediately.

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Pregnancy Discrimination Verdict – $538,000 in Damages

Branigan Robertson is proud to announce that his law firm, along with the incredible Lawrance Bohm of the Bohm Law Group, just obtained a verdict in Orange County Superior Court in front of Hon. Ronald Bauer. The case was a pregnancy discrimination case in which the Plaintiff, Kimberly Perry, was terminated after delivering a stillborn child. Mr. Robertson has handled many pregnancy discrimination cases.

Ms. Perry worked at eGumball, Inc. In three years of employment as the HR Manager, Ms. Perry was never reprimanded in writing. In February of 2013 she told her boss, the President, that she was pregnant. Ms. Perry went on leave on August 30, 2013, approximately a week before her baby was due. A few days later she delivered a stillborn child. She and her husband were devastated. Her son’s name was Trenton.

On October 4, Ms. Perry informed the President via email that she intended to return to work on October 31st. According to witnesses, this made the President uneasy as he thought she would be depressed and gloomy. He did not think Ms. Perry would return from leave after what happened. The President forwarded Ms. Perry’s email to his assistant, Chelsea Patterson. Ms. Patterson was the President’s most trusted employee, and she replied to the President stating that despite the situation Kimmy had done a “good job” in the HR Department, but they should move forward with their “most recent decision.” Ms. Patterson confirmed at depo that this email meant “terminating Kimmy Perry.” She changed her testimony at trial and said it didn’t mean termination, it meant they were going to “make some kind of change.”

But since eGumball did not write up Ms. Perry in three years of employment, they needed a paper trail if they were going to fire her since her termination was going to follow the death of her child. eGumball hired an auditor to look into the HR Department on October 14, 2013. The auditor came in and interviewed two employees who were not qualified to give the answers. eGumball used the audit’s results as its main justification for terminating Ms. Perry. But during the case it was discovered that eGumball did not get the results of this audit until weeks after Ms. Perry was already fired.

The jury awarded $138,000 in damages for Ms. Perry. The jury then heard testimony as to whether or not punitive damages should be awarded. The jury felt they were needed awarded $400,000 for a total verdict of $538,000.

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Your Right to Receive Reasonable Accommodations Due to Disability in the Workplace

California law requires that employer make reasonable accommodation for the known disabilities of employees to enable them to perform the job’s essential functions unless doing so would produce undue hardship to the employer’s operations. This is an affirmative duty for employers to accommodate disabled workers. The Fair Employment and Housing Act (also known as FEHA) provides a list of possible accommodations including making facilities readily accessible for disabled employees, job restructuring, modifying work schedules, or even allowing an employee to work from home. Disability discrimination and employment lawyers ensure that employers in California will be held accountable for failing to provide reasonable accommodation for disabled employees.

FEHA Protects your Rights

In Doe Psychiatrist v. California Department of Corrections & Rehabilitation (“CDCR”), Plaintiff was a full time psychiatrist for CDCR since 2006. After medical leave of absence, Plaintiff informed the employer that she had ADHD and depression. She then asked for reasonable accommodations and presented the employer with a list of possible accommodations such as a more secluded and quiet place to work. CDCR refused to provide the accommodations. The employer notified the Plaintiff that she would need to decide whether to return to work or not. Plaintiff ended up being terminated shortly thereafter. Plaintiff retained an employment lawyer to represent her against the CDCR.

The employer argued that Plaintiff did not give the employer sufficient medical information to the employer, and that reasonable accommodation was already provided to the Plaintiff when she took a leave of absence. The jury did not buy the employer’s arguments. The jury awarded Plaintiff a gross verdict of over $1 million for employer’s failure to provide reasonable accommodations, and failure to engage in good faith in the interactive process.

Reasonable Accommodations in Today’s Workplace

Sadly, employers fail to provide employees with reasonable accommodation all the time. Many times employers may do this to cut costs. However, as the above case shows, employers will be held accountable for failing to provide disabled employees with reasonable accommodation. If your employer has failed to provide you with reasonable accommodation, contact an employment lawyer immediately.

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California Labor Laws on Age Discrimination

There are many types of prohibited employment discrimination in California. One common type is age discrimination. CA’s Fair Employment and Housing Act, or FEHA, protects employees who are at least 40 years old from discrimination in the workplace or during the hiring process. It is unlawful for an employer to discharge an employee because of the employee’s age if the employee is 40 years or older. And it is also unlawful for an employer to only search for younger applicants if the employer has a job opening. Age discrimination in the workplace is just one of the many areas of labor law in which California employment attorneys work to prevent.

California Labor Lawyers Deter Discrimination in the Workplace

In Nickel v. Staples, the plaintiff was employed as a facilities manager. The plaintiff was 64 years old at the time he was terminated. At the time he was terminated, a new company had just acquired the company he had been employed with for several years. Throughout his employment, the plaintiff received accolades and positive reviews for his performance. Despite this, the plaintiff believed he was terminated because his pay scale was higher than many of the employees of the acquiring company. His managers also stated that they needed to get rid of the older, higher paid employees. The plaintiff’s age also became a running joke at the office, and he was often referred to as an old goat. Lastly, the plaintiff was even approached by a co-worker who told him that she had been told by upper management to make up a false statement about the plaintiff’s conduct as a pretext to his termination.

The jury sided with the plaintiff. The jury awarded the plaintiff a total verdict of $26,107,328, most of which was punitive damages. This is an exceptional result that is rare in California jury verdicts. While the details here don’t seem to justify such a large verdict, the jury saw and evaluated all of the facts before coming to such a large amount.

Nickel Proves Workplace Discrimination Still Exists

Unfortunately, employers still take adverse action against its employees for discriminatory reasons. Sadly, this is far too common in California. But companies can be held accountable. If you believe you have been discriminated against in the workplace for any reason, call a California labor lawyer. There are many great lawyers up and down the State of California. If you have a good case, you will find a lawyer who will likely represent you on a contingency fee.

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