California workers with blossoming families got an extra bit of good news this month. On October 12, Governor Jerry Brown signed a new law expanding the state’s leave of absence rules so that more workers can spend time and bond with their newborn babies. The law, which will take effect January 2018, expands the California Family Rights Act (CFRA) to cover smaller businesses with fewer employees.
While the FMLA/CFRA have long provided job-protected time off for workers in order to spend time with newborns, until now, it’s only applied to companies with at least 50 employees. The new law expands leave protection to California workers employed by companies with 20 to 49 workers. This is a huge deal for women seeking to take maternity leave but who work for smaller employers.
According to an article published on October 12 by the Orange County Register, the expansion will cover 16 percent of the state’s labor force that had heretofore been neglected by existing law.
“This is a great victory for working parents and children in California,” said the bill’s author, Senator Hannah-Beth Jackson. “With more parents struggling to balance work and family responsibilities…no one should have to choose between caring for their newborn and keeping their job.”
What the Expansion Offers
The new expansion will specifically allow employees to take up to 12 weeks of job-protected leave in order to bond with newborn children, newly adopted children, or a recently placed foster child. This means an employer cannot fire, fine, suspend or otherwise discriminate against an employee for exercising their right to parental leave – that would be pregnancy discrimination.
While the law doesn’t require the employer to provide the employee’s salary during the leave, the employer is prohibited from refusing to maintain or pay health coverage supplied under a group plan during the leave.
In order for an employee to qualify under the new act, just like under FMLA or CFRA, he or she must meet the following requirements:
Have Been Employed by the Company for More than 12 Months
Have at Least 1,250 Hours of Service with the Employer During the Previous 12 Months
What Happens if an Employee is Denied Leave?
While the expansion has yet to go into effect, an employee who is denied their rightful leave under the law will have a number of different options. A good attorney will look at the facts of the case and seek the best outcome for the client. This could involve seeking lost wages, back pay, pain and suffering damages and possibly punitive damages.
An employee who wins their case might be reinstated at their job if wrongfully terminated, or entitled to monetary compensation. If you have questions about changes to the family leave law, or some other employment issue, contact this office for more information.
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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.
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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.
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).
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?
No, 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.
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.
2019 Pregnacy Discrimination Update
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I originally posted this article on February 27, 2015. I’ve updated it several times. Its now 2019 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 2019, 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 2019 would affect the analysis of our office during your consultation.
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.
Employers often assume that they can fire an at-will employee at any time for any reason. This is not entirely true. In California, a company can fire an employee for any reason except for something that violates the law. For example, an employer cannot fire an employee for his or her gender. Unfortunately, an employee getting fired for their gender or being pregnant is still common.
In Jaurez v. AutoZone, plaintiff (represented by the amazing Lawrance Bohm) sued AutoZone in San Diego Federal Court for sex discrimination and retaliation under California law. Over the course of her employment, plaintiff noticed that male employees were treated more favorable than female employees. For example, less experience male employees were being promoted more often than female employees. Even though she was very qualified, plaintiff was consistently brushed aside for promotion and inexperienced and unqualified male employees would be promoted instead. Several years into her employment, plaintiff became pregnant and almost instantly adverse action was taken against her by her employer upon her telling the employer the good news. The district manager made snarky comments to her about her being pregnant, nitpicked at all her work, placed her on a performance improvement plan and was even demoted back to assistant manager. She as replaced by a male store manager. She was fired after she returned from maternity leave for allegedly not being trustworthy.
AutoZone’s lawyers argued that there was no evidence to support Plaintiff’s case. AutoZone’s lawyers further argued that Plaintiff was a manipulator who lied and made threats to receive promotions.
Plaintiff presented testimonies and evidence of the contrary. Former employees testified about the aura of retaliation at the company. Another witness testified that the reasons Plaintiff was terminated was unknown to him although he was the employee who was deemed by AutoZone as most knowledgeable about Plaintiff’s termination. Finally, AutoZone did not have any female employees testify as to the fair treatment by the company of female employees.
Fortunately, the jury did not buy defense counsel’s arguments. The jury returned a stunning verdict in favor of Plaintiff awarding her roughly $800,000 in lost wages and emotional distress, and issued an enormous $185,000,000 punitive damages verdict.
At the end of the day, this is huge for employees who have been and potentially will be terminated by their employees for discriminatory reasons. Large corporations such as AutoZone need to be held accountable for breaking the law or else these corporations will keep doing it without any consequences.
While this case is not a typical employment verdict, contact an employment lawyer immediately if you believe that you have been wrongfully terminated. You should not wait as the statute of limitations may waive you case. The firm who represented Plaintiff in this case was the Bohm Law Group, a firm that Mr. Robertson works frequently with on employment cases. This is not a typical employment verdict. This information should in no way be construed as an estimate or guarantee of what you or your loved ones may win in court even if they suffered similar abuse.
On July 14th of this year, the Equal Employment Opportunity Commission (the “EEOC”) issued new enforcement guidance on pregnancy discrimination in the workplace. Among other things, the guidance addresses when an employers’ actions constitute unlawful discrimination on the basis of pregnancy, childbirth or related medical conditions; obligation of employers under the Pregnant Discrimination Act (“PDA”) to provide pregnant workers equal access to benefits of employment; and how Title I of the American with Disabilities Act (“ADA”) was amended to broaden the definition of disability to include individuals with pregnancy-related impairments. Both the PDA and the ADA apply to private and state and local government employers.
The EEOC is part of the federal anti-discrimination legal landscape. California has additional laws that provide equal (and in many cases) and stronger discrimination protection. But the CA laws are modeled off of the federal laws so it is important that CA lawyers are aware of any EEOC changes.
In the past, employers and the EEOC have struggled with applying the appropriate forms of leave of and treatment for pregnant employees. The new guidance addresses these problems. In the guidance, the EEOC states that pregnant employees and pregnant job applicants are not excluded from the ADA’s protection, and thanks to ADA amendments in 2008, changes to the definition of disability make it much easier for pregnant employees to show they have disabilities and thus are protected under the ADA. The guidance also states that pregnancy-related impairments are ADA covered disabilities if they substantially limit one or more major life activities (for example, walking, standing, lifting, etc.), as well as substantially limits major bodily functions.
Ultimately, the EEOC’s guidance on pregnant employees entitles employees with pregnancy related impairments to ADA accommodations even if the impairments are temporary. In addition, through this guidance, the EEOC take on the position that the PDA entitles pregnant employees to reasonable accommodations in the workplace. This is a huge win for pregnant employees in the workplace.
However, it should be noted that the EEOC’s guidances are not binding law and do not have the strength of the laws and regulations. But, as seen in the use of them by the courts, the guidances form the foundation for the EEOC’s enforcement efforts and basically act as persuasive authorities to the courts. Employers should strongly consider taking steps to safeguard themselves in light of this newly released guidance. The last thing an employer should want is to oppose a pregnant employer in a jury trial – especially one that is represented by the best employment lawyer in California.
It is unlawful for an employer to refuse to allow a female employee disabled by pregnancy, childbirth, or a related medical condition to take a leave for a reasonable period of time not to exceed four months and thereafter return to work. Reasonable period of time means that period during which the female employee is disabled on account of pregnancy, childbirth, or a related medical condition. An employer may require an employee who plans to take a leave pursuant to this subdivision to give the employer reasonable notice of the date the leave shall commence and the estimated duration of the leave.
It is unlawful for an employer to refuse to maintain and pay for coverage for an eligible female employee who takes pregnancy disability leave under a group health plan for the duration of the leave, not to exceed four months over the course of a 12-month period, at the level and under the conditions that coverage would have been provided if the employee had continued in employment continuously for the duration of the leave. The employer may recover from the employee the premium that the employer paid under this subdivision for maintaining coverage for the employee if certain conditions occur.
It is unlawful for an employer to refuse to provide reasonable accommodation for an employee for a condition related to pregnancy, childbirth, or a related medical condition, if she so requests, with the advice of her health care provider.
It is unlawful for an employer who has a policy, practice, or collective bargaining agreement requiring or authorizing the transfer of temporarily disabled employees to less strenuous or hazardous positions for the duration of the disability to refuse to transfer a pregnant female employee who so requests.
It is unlawful for an employer to refuse to temporarily transfer a pregnant female employee to a less strenuous or hazardous position for the duration of her pregnancy if she so requests, with the advice of her physician, where that transfer can be reasonably accommodated. However, no employer shall be required by this section to create additional employment that the employer would not otherwise have created, nor shall the employer be required to discharge any employee, transfer any employee with more seniority, or promote any employee who is not qualified to perform the job.
It is unlawful for an employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under the above provisions.
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