We’ve all seen those tacky, terrible, ridiculous personal injury commercials. I made a video that makes fun of them. Thanks to Sean Reis for letting me interview him. I think most people will enjoy watching this!
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Branigan Robertson is pleased to announce that he has joined the Irvine law firm of Kring & Chung, LLP. Mr. Robertson will continue to serve his clients with uncompromising personal service. If you have any questions, or want to consult with Mr. Robertson or his staff, call us at 949-667-3025.
In our last article, we took a brief look at what Family and Medical Leave Act and California Family Rights Acts are, who is eligible for them, and the three reasons people are eligible for it. As promised, today we will look at those three reasons a little closer. The below video explains who is eligible for FMLA. Below the video are great details.
The Birth of a Child or Adoption or Foster Care Placement of a Child
Eligible employees may take a paid or unpaid leave to bond with an adopted or foster child or to bond with a newborn. FMLA/CFRA leave includes both maternity and paternity leaves, but does not include pregnancy-related or childbirth-related disabilities. If you are disabled due to pregnancy, childbirth, or related medical conditions you may, however, take Pregnancy Disability Leave (“PDL”) for six weeks up to four months. The CFRA allows employees an additional twelve weeks of bonding time. The minimum amount of time that may be taken is 2 weeks, but the California Department of General Services will grant a leave of at least one day, but less than two weeks on any two occasions. Leave for an adopted or foster child and childbirth must conclude within 12 months of the birth or placement.
Immediate Family Member with a Serious Health Condition
You may also take leave if you are an eligible employee and need to care for an immediate family member with a serious health condition. An “immediate family member” is a husband or wife as defined or recognized under state law, a biological, adopted, or foster child, stepchild, legal war, or a child of a person standing in the place of the parent who are under 18 years of age. A child who is 18 years of age or older and incapable of caring for themselves due to a mental or physical disability also qualifies. Finally, a biological or adoptive parent, or a person who stood in place of a parent when the employee was a child also applies. Parent-in-laws do not apply
Employee with Serious Health Condition
A serious health condition is an illness, impairment or physical or mental condition that involves:
- Any period of treatment that includes inpatient care in hospital, hospice, or residential medical care facility; or
- Any period of more than three consecutive calendar days that involves continuing treatment by a health care provider; or
- Continuing treatment by or under the supervision of a health care provider for a chronic or long-term condition that is incurable, is so serious that if left untreated would result in incapacity for more than three consecutive calendar days, or for prenatal care.
- Restorative dental or plastic surgery after an accident or injury, or the removal of cancerous growths are serious health conditions if all the conditions are met. Cosmetic surgery that is not medically necessary does not qualify, unless inpatient hospital care is required.
If you want to know if your specific reason falls within one of these categories, contact an employment lawyer. If you are have not read the basic overview of FMLA/CFRA leave, scroll down to the next article.
While this has been more in-depth than the last article and we hope this has provided more information so you can conduct research on your own, the laws are still much more complicated than this. All the same, if you have been terminated while on FMLA/CFRA leave you may have a claim for wrongful termination. If so, contact our office for a free consultation with a leave of absence attorney.
Many people know of the acronym “FMLA” and maybe even a few have heard “CFRA” tossed around, but what are they? What do they cover? And most importantly, can you use them? The Family and Medical Leave Act (“FMLA”) and California Family Rights Act (“CFRA”) are laws passed by the Federal government and State government for your benefit and the following article will give a brief overview of the two. And this entire page is written by an employment lawyer!
What are the benefits of the FMLA/CFRA?
The FMLA/CFRA enables an eligible employee to take up to a total of 12 workweeks of paid or unpaid job-protected leave with employer-paid health, dental, and vision benefits during a 12-month period for one or more of the reasons listed below. The 12-month period can be a calendar year, a fixed “leave year” of 12 months, such as a fiscal year, the 12-month period measured from the date an employee’s first FMLA/CFRA leave begins, or a rolling 12-month period. A “rolling” 12-month period means that when an employee uses any FMLA/CFRA leave, any FMLA/CFRA leave used within 12 months of that date counts against 12 workweeks.
“Rolling” 12-month example: Today is May 17, 2016, and John starts FMLA/CFRA leave. We look back to May 18, 2015 to see if John has used any FMLA/CFRA. It turns out that John has used one workweek of FMLA/CFRA leave in July 2015, so John has eleven workweeks of FMLA/CFRA that he may use.
Who is eligible for FMLA CFRA leave?
There are two requirements in order to be eligible:
- You must be employed for a total of twelve months on the date that FMLA/CFRA leave is supposed to start.
- You must have physically worked for at least 1,250 hours during those twelve months. This works out to be averaging a little over 24 hours worked per week over 52 weeks. Time off from sick leave, vacation/annual leave, administrative time off, compensating time off, holidays, informal time off, or personal leave are not counted toward the 1,250 hours of work.
- You must work at a location which the employer has at least 50 employees within 75 miles of the employee’s worksite.
We will cover these three in far more detail in the next blog post about FMLA/CFRA eligibility.
What reasons are eligible for FMLA/CFRA leave?
As mentioned earlier, there are three basic reasons for FMLA/CFRA leave:
- The birth of a child or adoption or foster care placement of a child (maternity leave).
- To care for an immediate family member (spouse, child, or parent) with a serious health condition
- When the employee is unable to work because of a serious health condition.
If you want to know if your specific reason falls within one of these categories, contact an employment lawyer. This has been a very basic overview of FMLA/CFRA leave, particularly regarding the reasons, but if you tune in next week we will go more in-depth into the eligible reasons.
While every case is different and the laws are much more complicated than this basic outline, we hope this gives you some basic information so you can conduct research on your own. However, if you have been terminated while on FMLA/CFRA leave you have may have a claim for wrongful termination. If so, contact our office for a free consultation with a pregnancy and maternity leave lawyer. Or visit our leave of absence page.
Unfortunately, pregnancy discrimination in the workplace is still very prevalent in California. Earlier this year we won a trial for over $500,000 for a woman who was discriminated against because of her pregnancy. Beyond that, our firm receives several calls per week from female employees being treated unfairly because of their pregnancy. The journey of having a child is already filled with enough stress, both physical and emotional, and it further adds to the stress of having a child when a pregnant employee’s job and financial security are being threatened by the very company they work hard for. Therefore, when an employer discriminates you, you should contact an employment lawyer for a free consultation.
Pregnancy Discrimination in California
Under Federal and California law, it is unlawful for an employer to discriminate against an employee on the basis of pregnancy, childbirth, or any other related medical conditions (such as breastfeeding). Basically, to have any kind of case at all, the employee must show that her employer knew or was aware that she was pregnant and evidence of employer’s intent to discriminate based on pregnancy.
Reyes v. Gary R. Arnold and First Take Productions Inc.
Reyes is a 2009 pregnancy discrimination case coming out of the Los Angeles Superior Court, and is a great example of how pregnancy discrimination in the workplace typically occurs. Plaintiff worked as an executive assistant and manager of the fundraising department for Defendant. Plaintiff was terminated after she informed her employer that she was pregnant. Not surprisingly, Plaintiff alleged that Defendant terminated her because she was pregnant.
Clearly, Defendant knew she was pregnant because she informed them. But was their discriminatory intent to fire the Plaintiff based on her pregnancy? Yes, on numerous occasions, Defendant made derogatory and negative comments regarding Plaintiff being pregnant. Defendant showed his annoyance with her being pregnant as he kept referring to her as having “a belly full of Iranian baby.” The jury found in favor of the Plaintiff, and was awarded over $700,000 in damages.
Although Reyes is a few years old, California juries are still ruling in favor of employees who are subject to pregnancy discrimination. Pregnancy discrimination in the workplace is a serious thing, and it never looks good in front of a jury when an employer fires an employee while they are on maternity leave or upon giving birth to their child. If you believe your employer is discriminating against you because of you are pregnant or because you have given birth, visit our webpage on pregnancy discrimination.
More Information Related to This Post
Companies frequently try to squirrel out of having to pay payroll taxes and benefits to employees by calling them “independent contractors.” Employees are frequently misclassified this way. One popular example are sports cheerleaders. Governor Brown recently signed AB 202 which adds Section 2754 to the Labor Code, providing that cheerleaders for California-based professional sports teams are employees, rather than independent contractors. The statute applies “for purposes of all of the provisions of state law that govern employment, including the Labor Code, the Unemployment Insurance Code, and the California Fair Employment and Housing Act.” The new law goes into effect on January 1, 2016. After that date, the Chargers, Raiders, 49ers, Angels, Dodgers, Lakers, Clippers and all of the other sports teams will have to pay their “cheer” staff an hourly wage, overtime, and all the other perks of employment.
In today’s economy, women work as hard or harder than men. Even still, priority number one for many working women is having a family. Luckily, the US and California legislature’s have enacted laws that protect women who choose to have children and work. The law requires most employers to grant CA women maternity leave. Sadly, employers sometimes disregard the law and terminate the female soon after they find out she’s pregnant. If this has happened to you, you need to hire a maternity leave lawyer.
Maternity Leave Lawyers Know CA’s Employment Laws
A maternity leave lawyer is an employment lawyer who know’s a lot about California’s leave of absence laws that apply to maternity leave. These include the California Family Rights Act (CFRA) and the Pregnancy Discrimination Leave (PDL) laws. They are also very familiar with the federal laws on point, the Family Medical Rights Act (FMLA). There are many more laws that apply.
In a nutshell, a maternity leave attorney will be able to review your situation and let you know whether or not your employer has violated the law. If you need a reasonable accommodation because your doctor put you on bedrest, and your employer refused to provide you with accommodation, you might have a case. If you were fired shortly after you told your boss that you were pregnant, then you might have a case.
Typical Violations of the Pregnancy Discrimination Laws
Is it rare in today’s world when an employer blatantly fires an employee because she is pregnant. Discrimination is far more subtle in today’s world. Here are a few typical pregnancy discrimination scenarios that we see frequently:
- The employee finds out that she is pregnant and informs her boss a few months into the pregnancy. But then complications arise, and the employee is put on bedrest or her doctor instructs her to sit for 95% of the day. When the employee requests these accommodations, the employee is either fired, or gets a bad performance review and then is fired. Often, the employer will claim that the termination is for “tardiness” or some other made-up reason.
- The employee is pregnant and goes on maternity leave. Shortly after the employee returns, she is fired for performance related issues that allegedly occurred when she was pregnant. We often find that these bogus reasons are related to the days she left for prenatal visits or are correlated with her transition in preparing for her maternity leave.
- The employee tells the employer that she is pregnant and is suddenly fired for things that she allegedly did wrong before she told the employer that she was pregnant. If the lawyer can prove that these are not genuine reasons for her termination, the employer could be in a lot of legal trouble.
There are many more variations, but we see these all the time. But at the end of the day, whether or not you have a good case is determined on a case by case basis. If you want to know more, give our employment law firm a call. We always offer free consultations.