Judge Sanctions Lawyer for Sexist Comment

U.S. Magistrate Judge Paul Grewal, Northern District of California Jason Doiy / The Recorder

SAN FRANCISCO — A federal judge in San Jose has ordered a Southern California attorney to pay up for making a sexist remark to a female attorney during a deposition.

Peter Bertling of Santa Barbara’s Bertling & Clausen told opposing counsel that it wasn’t “becoming of a woman” to raise her voice at him during a contentious expert deposition in October in a wrongful death suit.

The utterance didn’t sit well with U.S. Magistrate Judge Paul Grewal, who sanctioned Bertling and ordered him to donate $250 to the Women Lawyers Association of Los Angeles Foundation.

“A sexist remark is not just a professional discourtesy, although that in itself is regrettable and all too common,” Grewal wrote in an order issued Tuesday. “The bigger issue is that comments like Bertling’s reflect and reinforce the male-dominated attitude of our profession.”

Grewal also forced Bertling’s clients to pay the plaintiffs’ costs for the deposition, finding that Bertling had “repeatedly and unapologetically flout[ed] guideline after guideline” during discovery.

Bertling didn’t respond to an email and voice message seeking comment.

Oakland solo Lori Rifkin, who sought the sanctions against Bertling, said that based on conversations she’s had with lawyers across the country “this is something that almost every woman attorney has experienced again and again over their careers.” Rifkin, who was a lawyer in the Department of Justice’s Civil Rights Division from 2010 to 2013 before going into private practice, said that many women don’t make an issue of comments like Bertling’s for fear of being labelled “whiners.”

“This is reflective of the usual course of business which needs to change,” she said.

 

Grewal’s sanction order detailed a string of problems with Bertling’s conduct in discovery, including a propensity toward coaching witnesses, cutting them off and answering for them in depositions. Grewal found that Bertling repeatedly failed to hand over relevant documents, including a medical expert’s notes from jail visits which were delivered to plaintiffs’ counsel the day after an important brief was due.

“Discovery is hard enough, even without conduct like that,” Grewal wrote. Beyond awarding plaintiffs their costs for three depositions and for briefing on the sanctions order, the judge ordered that the expert hired by Bertling’s client be made available for another four-hour deposition to be paid for by the defense.

It was during the expert’s earlier deposition that Bertling asked Rifkin to lower her voice. When Rifkin asked him to stop interrupting her, Bertling said, “[D]on’t raise your voice at me. It’s not becoming of a woman or an attorney.”

In a brief declaration filed in response to the motion for sanctions, Bertling wrote, “In retrospect, the proper term for me to have used in this context would have been ‘attorney.’ I apologize to Ms. Rifkin if I offended her by referring to her as a ‘woman’ instead of as an ‘attorney.’ ” Bertling wrote that his remarks were made “in the context of Ms. Rifkin literally yelling at my client and creating a hostile environment during the deposition.”

New Laws Impact Your Rights at Work, Including the Equal Pay Act

 

All of the new laws were effective on Jan. 1, 2016, unless otherwise noted.

 

Wage & Hour

 

California Fair Pay Act – SB 358

 Governor Brown has referred to this new law as “the strongest equal pay law in the nation,” and we think he’s right on the money. Amending California’s existing equal pay law, the new Fair Pay Act lowers the burden of proof for plaintiffs claiming gender-discriminatory pay practices, by prohibiting an employer from paying lower wage rates for “substantially similar” work, rather than “equal” work as used in existing law. The Fair Pay Act also increases the burden of proof for employers in defending such claims, requiring employers to directly demonstrate that a wage differential is based on a bona fide factor other than the employee’s gender. Notably, the new law provides broader coverage than its federal counterpart, the Equal Pay Act (29 USC § 206(d)). Unlike the Equal Pay Act, California’s Fair Pay Act even provides employees an ability to challenge their pay based on wages paid to employees at other work locations of the same employer.

 

PAGA Amendments  – AB 1506

 Amendments to the Private Attorneys General Act of 2004 (PAGA), which are effective immediately, provide some welcome relief to employers relating to claims under Labor Code § 2699. Based on the amendment, employers now have  a limited right to cure a violation of failing to provide its employees with a wage statement containing the inclusive dates of the pay period and the name and address of the legal entity that is the employer.

 

Expanded Labor Commissioner Enforcement Powers  – SB 588 and AB 970

 In SB 588, the California legislature authorized the Labor Commissioner to file a lien on real estate, or a levy on an employer’s property, or impose a stop order on an employer’s business to assist an employee in collecting unpaid wages where there is a judgment against the employer. Additionally, employers, or individuals acting on behalf of employers, who violate any provision regulating minimum wages or hours and days of work in any order of the Industrial Welfare Commission, or who violate other related provisions of law, may be held liable as the employer for such violation. A bond of up to $150,000 may be required of an employer who does not promptly pay a judgment for unpaid wages.

 

In AB 970, the California legislature authorized the Labor Commissioner to issue citations to enforce local minimum wage and overtime laws.

 

IWC Wage Orders 4-2001 and 5-2001 and Health Care Employees – SB 327

 In an effort to negate the California Court of Appeal opinion in Gerard v. Orange Coast Memorial Medical Center, 234 Cal. App. 4th 285 (2015), the California legislature enacted SB 327, making meal period waivers for health care employees valid and enforceable (reaffirming the validity of Section 11(D) of Industrial Welfare Commission Wage Orders 4-2001 and 5-2001).

 

Piece-Rate Compensation – AB 1513

 The California legislature clarified the statutory requirements for piece-rate compensation and provided an affirmative defense and safe harbor for employers who, by Dec. 15, 2016, fully compensate their specified employees for all under-compensated or uncompensated rest periods, recovery periods, or unproductive time between July 1, 2012 and Dec. 31, 2015.

 

Kin Care:  More Kin & More Care – SB 579

 This Act was amended to better coordinate with California’s paid sick leave law. Effective Jan. 1, employees may take kin care leave to care for grandparents, grandchildren, and siblings. Also, the amendment clarifies and expands the reasons an employee may take for leave. While the prior version covered “leave to attend to an illness,” the new version covers:

◾ the diagnosis, care, or treatment for an existing health condition, or for preventive care (prior law specified “illness” only)

◾ certain absences resulting from domestic violence, sexual assault, or stalking

 

This is meaningful when employers offer more generous sick leave (or PTO) than the sick leave law requires.  Now, employees can use up to one-half a year’s sick leave/PTO accrual for, basically, the same purposes as the sick leave law with the same protections against negative repercussions as the sick leave law creates.

 

Leave & Benefits

 

Paid Sick Leave Amendments – AB 304

 Last year, the California legislature created California’s paid sick leave (PSL) obligations, which applies to most California employers. The provisions took effect on July 1, 2015. Quickly thereafter, however, the California legislature made some fixes to the original law. These fixes took effect July 13, 2015 and clarified the following points:

◾ An employee must work for the same employer for 30 or more days within a year of the commencement of employment to be eligible to use PSL.

◾ Allow for alternative accrual methods for all leave banks.

◾ “Grandfather” in leave banks existing as of Jan. 1, 2015.

◾ Allow employers with unlimited or undefined leave banks to indicate “unlimited” on the employee’s itemized wage statement.

◾ Allow employers to calculate the rate of pay for employees using any of three methods.

◾ Make other clarifications and exclusions from the PSL law, and delay its effective date for some employers.

 

Family School Partnership Act – SB 579

 The school-related leave law is expanded to broaden the reasons employees may take job-protected leave from work without the fear of reprisal by allowing workers to take time off work to: (1) find, enroll, or re-enroll children in a school or with a licensed child care provider, and (2) to address a child care provider or school emergency.

 

Grocery Store Workers Protection – AB 359 and 897

 Certain large grocery store establishments now have obligations to retain certain grocery store workers for a limited period of time following the sale of the grocery store to another entity.

 

Discrimination and Retaliation Laws

 

New California laws extend employee protection in both the retaliation and discrimination context.

 

California law protects employees from retaliation and discrimination based on the employee having engaged in protected conduct. AB 1509 amends Labor Code section 98.6, 1102.5, 2810.3, and 6310, and extends that protection with regard to retaliation by extending it to a family member of a person who engaged in, or was perceived to engage in, the protected conduct. The bill also gives an exemption to household goods carriers from the client, employer and labor contractor liability provisions in this law.

 

Meanwhile, AB 987 extends retaliation and discrimination protections under the Fair Employment and Housing Act (FEHA) to include employees requesting accommodation based on disability or religious beliefs, regardless of whether the request was ultimately granted. The purpose of the law is to clarify part of the holding in the published decision Rope v. Auto-Clor Sys. Of Washington, Inc., 220 Cal. App. 4th 635 (2013).

 

Government Contractors and Prevailing Wages

 

New laws also expanded the definition of “public works” in the prevailing wage context.  AB 219 expanded the “public works” definition to include hauling and delivery of ready-mixed concrete. The law also provides that the entity engaged in the hauling and delivery of ready-mixed concrete is considered a subcontractor for the purpose of Labor Code section 1720.9. The law goes into effect on July 1, 2016.

 

AB 852 expanded the “public works” definition to include work (i.e. construction, alteration, demolition, installation, or repair work) done under a private contract on a most general acute care hospitals under certain conditions. The law contains a limited exception for rural general acute care hospitals, where the project is funded at least in part with proceeds of conduit revenue bonds issued by a public agency.

 

SB 350 expanded the “public works” definition to include work (i.e. construction, alteration, demolition, installation, or repair work) on projects involving California’s electric transmission system pursuant to the Clean Energy and Pollution Reduction Act of 2015. Such projects will now be subject to the prevailing wage laws.

 

AB 327 extended to Jan. 1, 2024 the sunset date for the statutory exemption of paying volunteers a prevailing wage on public works projects.

 

 

A number of changes to California Employment Law have taken effect or were recently amended. The laws are summarized below. If you are experiencing difficulties at work regarding these situations, or would like to speak with an attorney regarding your employment rights, please give us a call.

Changes to the new law regarding Paid Sick Leave include requirements that:

-An employee must work for the same employer for 30 or more days within a year of the commencement of employment to be eligible to use PSL.

-Allow for alternative accrual methods for all leave banks.

-“Grandfather” in leave banks existing as of January 1, 2015.

-Allow employers with unlimited or undefined leave banks to indicate “unlimited” on the employee’s itemized wage statement.

-Allow employers to calculate the rate of pay for employees using any of three methods.

-Make other clarifications and exclusions from the PSL law, and delay its effective date for some employers.

California’s equal pay statute, first enacted in 1949, was significantly modified to lower the burden of proof for plaintiff’s claims, to greatly increase the burden of proof for an employer’s defenses, and to allow employees to ask other employees about the amount of their wages for the purpose of ascertaining whether there may be a factual basis for an equal pay claim.  Governor Brown has referred to the new law as “the strongest equal pay law in the nation.”

Employment retaliation protections are extended to an employee who is a family member of a person who engaged in, or is perceived to have engaged in, legally protected conduct. This bill also exempts household goods carriers from the client employer and labor contractor liability provisions in this law.

Employers are prohibited from retaliating or otherwise discriminating against an employee for requesting accommodation of his or her disability or religious beliefs, regardless of whether the accommodation request was ultimately granted.  The new law is intended to clarify a portion of the holding in the published decision of Rope v. Auto-Clor System of Washington, Inc. 220 Cal. App. 4th 635 (2013).

The Labor Commissioner is authorized to file a lien on real estate, or a levy on an employer’s property, or impose a stop order on an employer’s business in order to assist an employee in collecting unpaid wages where there is a judgment against the employer. Any employer, or individual acting on behalf of an employer, who violates any provision regulating minimum wages or hours and days of work in any order of the Industrial Welfare Commission, or who violates other related provisions of law may be held liable as the employer for such violation. A bond of up to $150,000 may be required of an employer who does not promptly pay a judgment for unpaid wages.

The Labor Commissioner will have the authority to issue a citation to enforce local minimum wage and overtime laws, including against an employer or person acting on behalf of an employer for violations of existing law related to reimbursements for expenses.

The duration of the “disability benefit period” is extended from 14 days to 60 days.

Two statutory provisions containing the term “alien,” used to describe any person who is not born in or a fully naturalized citizen of the United States, will be deleted from the Labor Code.

The Family School Partnership Act is expanded to broaden the authorized reasons for which an employee can take job-protected time off of work without the fear of discrimination or discharge by allowing workers to take time off work to: (1) find, enroll, or re-enroll his or her child in a school or with a licensed child care provider, and (2) to address a child care provider or school emergency, as defined.  (SB 579; amends Labor Code sections 230.8 and 233).

Certain grocery stores that are sold to another entity will have specified obligations to retain grocery workers for a limited period of time.

The definition of an “unlawful employment practice” is expanded to prohibit an employer or any other person or entity from using the E-Verify system at a time or in a manner not required by federal law, or not authorized by a federal agency memorandum of understanding, to check the employment authorization status of an existing employee or an applicant who has not received an offer of employment. There is a civil penalty of up to $10,000 for each violation of the provisions of the bill.

Pedicab businesses might have the option of allowing alcohol to be served and consumed on board, if their employees are properly trained.

Pregnancy Discrimination — What is it?

The California Fair Employment and Housing Act (FEHA) makes it an unlawful employment practice for an employer to discriminate because of “race, religious creed, color, national origin, ancestry, physical disability, medical condition, marital status, sex, age, or sexual orientation.” This includes “pregnancy, childbirth, or other related medical condition.” Pregnancy treated the same as sex discrimination under California law. In California, it is unlawful for an employer to:

Refuse to hire or employ the applicant;
Refuse to select the applicant or employee for a training program leading to employment or promotion (unless the employer has less than 15 employees);
Refuse to promote the employee;
Bar or to discharge the applicant or employee from employment or from a training program leading to employment or promotion;
Refuse to provide health benefits for pregnancy if the employer provides such benefits for other temporary disabilities (unless the employer has less than 15 employees);
Discriminate against the applicant or employee in terms, conditions or privileges of employment (unless the employer has less than 15 employees);
Harass the applicant or employee because of pregnancy;
Retaliate against the employee because of pregnancy or because that employee has exercised her right to take a pregnancy disability leave or transfer;
Refuse to accommodate the employee who is temporarily disabled by pregnancy to the same extent that other temporarily disabled employees are accommodated under the employer’s policy, practice or collective bargaining agreement;
Refuse to transfer the employee affected by pregnancy;
Refuse to grant the employee disabled by pregnancy a pregnancy disability leave.

 

Employer’s Statutory Duty to Reasonably Accommodate
An employer must provide a pregnant employee with a reasonable accommodation. Depending on the particular circumstances, “reasonable” accommodations may include, for example, a leave of absence, an intermittent leave schedule, a transfer to another location, or a transfer to a less strenuous position.

 

Pregnancy Disability Leave in California
The California Pregnancy Disability Leave Law (PDLL) applies to employers who employ five or more employees, and applies to all employees, irrespective of the amount of time employed. It mandates that an employer must provide for up to four-months of protected leave per pregnancy, that can be taken on a continual basis, or in smaller increments, as needed. PDLL leave is unpaid, unless available paid time off is taken (e.g. vacation, paid sick time, or paid personal time off) and/or unless disability benefits are available. Because the PDLL is part of the FEHA, the same procedures and remedies that apply in FEHA discrimination cases apply in PDLL cases.

The Family Medical Leave Act (FMLA) applies to employers with 50 or more employees, and to employees employed for at least 12 months, and for more than 1250 hours. The FMLA allows up to 12 workweeks of leave per leave year for an employee who is unable to perform the essential functions of his or her position because of a serious health condition. A “serious health condition” under the FMLA also includes any period of incapacity due to pregnancy, or for prenatal care. Both parents are entitled to a combined total of 12 weeks FMLA leave for the birth of a child. The mother can use FMLA leave for prenatal care and any incapacity relating to pregnancy, as well as for childbirth and any serious health condition following childbirth. The father can use FMLA leave for birth of the child and to care for his pregnant spouse if she is incapacitated.

The PDLL and the FMLA run concurrently. Therefore, an employee taking PDLL leave cannot request an additional 12 weeks of FMLA leave. The employee may, however, take an additional 12 weeks under the California Family Rights Act (“CFRA”), since the PDLL and CFRA do not run concurrently. CFRA applies to employers with 50 or more employees, and to employees employed for at least 12 months and for more than 1250 hours.

 

You have a right to reinstatement after you take pregnancy leave
The FEHA also applies to reinstatement rights unless: 1) the position is no longer available due to reasons unrelated to the employee’s leave, or 2) the employer can establish that each means of holding open the position would have substantially undermined the employer’s ability to operate the business safely and efficiently. If either of the exceptions apply, and the same position is no longer available, the employee has the right to reinstatement to any available comparable position.

 

Retaliation against an employee for exercising her rights is against the law
If you experienced retaliation in the workplace as a result of exercising your rights, or for complaining to your employer about your legally protected rights, you may have a case for retaliation.

To establish a valid case of retaliation, a plaintiff must show that she engaged in a protected activity, that she was thereafter subjected to an adverse employment action by her employer, and that there was a causal link between the two incidents. Retaliation is “adverse treatment that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion.” Where a retaliatory course of conduct is alleged, a series of separate retaliatory acts collectively may constitute an “adverse employment action,” although none of the acts individually is actionable. So, we look at everything that has happened, even if the isolated instances may not individually give rise to a claim independently.

The FEHA provides for detailed procedures and remedies to deter and redress unlawful employment practices, such as pregnancy discrimination and harassment. Be aware that you have only one year from the time of the discriminatory action to file a complaint.

 

NEED MORE INFORMATION?
For further information on this topic, please give us a call at 1-805-845-9630. We stand ready to fight for your rights at work.

STATE OF CALIFORNIA | GOVERNOR EDMUND G. BROWN JR.

DEPARTMENT OF FAIR EMPLOYMENT & HOUSING DIRECTOR PHYLLIS W. CHENG
2218 Kausen Drive | Suite 100 | Elk Grove | CA 95758-7115
(916) 478-7251 | TTY (800) 700-2320 | Fax (916) 478-7329
www.dfeh.ca.gov

May 20, 2014 Contact: Fahizah Alim
For Immediate Release (916) 743-2374
fahizah.alim@dfeh.ca.gov

MULTIMILLION-DOLLAR SETTLEMENT LEVELS THE PLAYING FIELD FOR PEOPLE WITH DISABILITIES IN LAW SCHOOL ADMISSIONS

ELK GROVE – The California Department of Fair Employment and Housing (DFEH)
announced today a multimillion-dollar settlement that prohibits the Law School Admission
Council (LSAC) from discriminating against people with disabilities who take the Law School
Admission Test (LSAT). (HTML | PDF) Requiring reasonable accommodations for test takers
with disabilities, the more than $8 million agreement was a successful collaboration between
state and federal civil rights agencies and the private bar.

“This settlement ensures fairness and levels the playing field for persons with disabilities to enter
the legal profession,” said Anna Caballero, Secretary of the Business Consumer Services and
Housing Agency. “The Department of Fair Employment and Housing continues to take steps to
ensure that the underrepresented are helped.”

The settlement, filed Tuesday in federal court for entry of an order by U.S. District Judge
Edward M. Chen, includes an $8.73 million payment, of which $6.73 million will be equally
distributed to an estimated 6,300 individuals nationwide who applied for testing accommodations
on the LSAT from January 1, 2009 through May 20, 2014. This total includes attorney’s fees and
costs to DFEH.

“DEFH took down a longstanding barrier to entering the legal profession for people with
disabilities,” said Phyllis Cheng, DFEH Director. “California once more leads the way in
opening doors for all who strive to become future attorneys regardless of disability.”

The complaint arose from DFEH’s two-year investigation which began after the Department
received complaints of discrimination from individuals who had requested testing
accommodations on the LSAT, the examination required for admission to most law schools.

In July 2010, Cheng issued a Director’s complaint alleging that LSAC denied reasonable
accommodations to prospective test takers with disabilities, and that whenever a test-taker
received testing accommodations, LSAC sent a letter which informed law schools that 1) the
applicant was an individual with a disability; 2) the applicant’s LSAT scores “did not have the
same meaning” as other applicant’s test scores; and 3) that the applicant’s test scores had to be
viewed “with great sensitivity and flexibility.” (HTML | PDF) The U.S. Department of Justice
joined in the federal court case, expanding it to encompass nationwide claims. (HTML | PDF)

“This nationwide settlement illustrates the important role that government enforcement agencies
can play in helping to secure relief for students with disabilities,” said Jocelyn Larkin, Executive

Director of The Impact Fund a nationally recognized expert in civil rights and systemic
litigation. “Given the difficulties that private plaintiffs can sometimes face in obtaining class
certification in disability rights cases, DFEH’s ability to pursue systemic litigation can help
protect our significant civil rights principles for all Californians.”

The mission of the DFEH is to protect the people of California from unlawful discrimination in
employment, housing and public accommodations and from hate violence. For more information,
visit the Department’s Web site at www.dfeh.ca.gov.

What is the general rule on paying overtime in California?

In California, the general overtime provisions are that 8 hours of labor constitutes a day’s work, and employment beyond 8 hours in any workday or more than 40 per week or more than six days in any workweek is permissible if the employee is compensated for the overtime at not less than:

a.            1.5 times the employee’s regular rate of pay for all hours worked over 8 in one day up to and including 12 hours in any workday, and for the first 8 hours worked on the seventh consecutive day of work in a workweek; and

b.            Double the employee’s regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of 8 on the seventh consecutive day of work in a workweek.

How do you generally calculate the regular rate of pay?

1.            If you are paid by the hour, the hourly rate is your regular rate of pay.

2.            If you are paid a salary, the regular rate is determined as follows:

a.  Multiply monthly earnings by 12 (months) to get the annual salary; b. Divide the annual salary by 52 (weeks) to get the weekly salary; and then  c. Divide the weekly salary by 40 (hours) to get your regular hourly rate.

3.            If you are paid by the piece or commission, either of the following methods may be used to determine the regular rate of pay for purposes of computing overtime:

a.            The piece or commission rate is used as the regular rate and you are paid 1 & 1/2 times this rate for production during the first 4 overtime hours in a workday, and double time for all hours worked beyond 12 in a workday; or

b.            Divide your total earnings for the workweek, including earnings during overtime hours, by the total hours worked during the workweek, including the overtime hours.

How is overtime calculated if you earn different rates of pay in the same workweek?

If you are paid two or more rates by the same employer during the workweek, the regular rate is the “weighted average” which is determined by dividing your total earnings for the workweek, including earnings during overtime hours, by the total hours worked during the workweek, including the overtime hours.

For example, if you work 32 hours at $10.00 an hour and 10 hours during the same workweek at $8.00 an hour, the weighted average (and thus the regular rate for that workweek) is $9.52 This is calculated by adding your $400 straight time pay for the workweek (32 hours x $10.00/hour) + (10 hours x $8.00/hour) = $400) and dividing that number by the 42 hours you worked.

Are salaried employees entitled to overtime?

It all depends and usually requires an attorney to analyze. Generally, a “salaried” employee must be paid overtime unless they meet the test for “exempt status” as defined by federal or state law. This area of law can be complex. If you are being paid on a “salary” basis and are not being compensated for overtime hours, give us a call and we will be glad to discuss whether you have a potential claim.

President Obama intends to direct the Department of Labor to significantly change the Fair Labor Standards Act (FLSA) regulations that relate to overtime exemptions so that a larger number of employees will qualify for overtime pay.  While the details of the intended revisions have not yet been announced, it is reported that Obama will be urging at least two major changes: (1) an increase in the amount of minimum compensation that must be paid to an employee in order for the employee to qualify for exempt status (the minimum currently is $455 per week under the FLSA [please note: in California it is $640 already, so it may not represent a big change for California employees], and Obama is expected to direct that the minimum be substantially increased, with some urging that it be doubled); and (2) replacing the FLSA “primary duty” test with a more quantitative test that requires an employee to spend a certain percentage of his or her time (likely at least 50%) on exempt duties in order to qualify for exempt status. These changes would substantially increase the number of employees who qualify for overtime pay under the FLSA.

 

Pregnancy Discrimination — What is it? 

The California Fair Employment and Housing Act (FEHA) makes it an unlawful employment practice for an employer to discriminate because of “race, religious creed, color, national origin, ancestry, physical disability, medical condition, marital status, sex, age, or sexual orientation.”  This includes “pregnancy, childbirth, or other related medical condition.” Pregnancy treated the same as sex discrimination under California law. In California, it is unlawful for an employer to:

Refuse to hire or employ the applicant;
Refuse to select the applicant or employee for a training program leading to employment or promotion (unless the employer has less than 15 employees);
Refuse to promote the employee;
Bar or to discharge the applicant or employee from employment or from a training program leading to employment or promotion;
Refuse to provide health benefits for pregnancy if the employer provides such benefits for other temporary disabilities (unless the employer has less than 15 employees);
Discriminate against the applicant or employee in terms, conditions or privileges of employment (unless the employer has less than 15 employees);
Harass the applicant or employee because of pregnancy;
Retaliate against the employee because of pregnancy or because that employee has exercised her right to take a pregnancy disability leave or transfer;
Refuse to accommodate the employee who is temporarily disabled by pregnancy to the same extent that other temporarily disabled employees are accommodated under the employer’s policy, practice or collective bargaining agreement;
Refuse to transfer the employee affected by pregnancy;
Refuse to grant the employee disabled by pregnancy a pregnancy disability leave.

 

Employer’s Statutory Duty to Reasonably Accommodate
An employer must provide a pregnant employee with a reasonable accommodation. Depending on the particular circumstances, “reasonable” accommodations may include, for example, a leave of absence, an intermittent leave schedule, a transfer to another location, or a transfer to a less strenuous position.

 

Pregnancy Disability Leave in California
The California Pregnancy Disability Leave Law (PDLL) applies to employers who employ five or more employees, and applies to all employees, irrespective of the amount of time employed. It mandates that an employer must provide for up to four-months of protected leave per pregnancy, that can be taken on a continual basis, or in smaller increments, as needed. PDLL leave is unpaid, unless available paid time off is taken (e.g. vacation, paid sick time, or paid personal time off) and/or unless disability benefits are available. Because the PDLL is part of the FEHA, the same procedures and remedies that apply in FEHA discrimination cases apply in PDLL cases.

The Family Medical Leave Act (FMLA) applies to employers with 50 or more employees, and to employees employed for at least 12 months, and for more than 1250 hours. The FMLA allows up to 12 workweeks of leave per leave year for an employee who is unable to perform the essential functions of his or her position because of a serious health condition. A “serious health condition” under the FMLA also includes any period of incapacity due to pregnancy, or for prenatal care. Both parents are entitled to a combined total of 12 weeks FMLA leave for the birth of a child. The mother can use FMLA leave for prenatal care and any incapacity relating to pregnancy, as well as for childbirth and any serious health condition following childbirth. The father can use FMLA leave for birth of the child and to care for his pregnant spouse if she is incapacitated.

The PDLL and the FMLA run concurrently. Therefore, an employee taking PDLL leave cannot request an additional 12 weeks of FMLA leave. The employee may, however, take an additional 12 weeks under the California Family Rights Act (“CFRA”), since the PDLL and CFRA do not run concurrently. CFRA applies to employers with 50 or more employees, and to employees employed for at least 12 months and for more than 1250 hours.

 

You have a right to reinstatement after you take pregnancy leave
The FEHA also applies to reinstatement rights unless: 1) the position is no longer available due to reasons unrelated to the employee’s leave, or 2) the employer can establish that each means of holding open the position would have substantially undermined the employer’s ability to operate the business safely and efficiently. If either of the exceptions apply, and the same position is no longer available, the employee has the right to reinstatement to any available comparable position.

 

Retaliation against an employee for exercising her rights is against the law
If you experienced retaliation in the workplace as a result of exercising your rights, or for complaining to your employer about your legally protected rights, you may have a case for retaliation.

To establish a valid case of retaliation, a plaintiff must show that she engaged in a protected activity, that she was thereafter subjected to an adverse employment action by her employer, and that there was a causal link between the two incidents. Retaliation is “adverse treatment that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion.” Where a retaliatory course of conduct is alleged, a series of separate retaliatory acts collectively may constitute an “adverse employment action,” although none of the acts individually is actionable. So, we look at everything that has happened, even if the isolated instances may not individually give rise to a claim independently.

The FEHA provides for detailed procedures and remedies to deter and redress unlawful employment practices, such as pregnancy discrimination and harassment. Be aware that you have only one year from the time of the discriminatory action to file a complaint.

 

NEED MORE INFORMATION?
For further information on this topic, please give us a call at 1-805-845-9630. We stand ready to fight for your rights at work.

 

The IRS announced the 2014 optional standard mileage reimbursement rates.  Beginning January 1, 2014, they decrease one-half cent from the current rates in effect, and are as follows:

  • 56 cents per mile for business miles driven;
  • 23.5 cents per mile driven for medical or moving purposes; and
  • 14 cents per mile driven in service of charitable organizations (same as current rate in effect).

 

The Senate passed a historic piece of gay rights legislation that would ban workplace discrimination against gay and transgender employees. A 64-32 vote, the passage of this legislation marks another milestone victory for the gay rights movement in America.

 

The 64 to 32 vote to approve the Employment Non-Discrimination Act marked the first time federal lawmakers had approved legislation to advance gay rights since repealing the military’s ban on gay men and lesbians in uniform in late 2010. Approval of the measure came two days after Illinois became the 15th state to legalize same-sex marriage and four months after the U.S. Supreme Court sanctioned federal recognition of legally married gay couples.


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