You’re Expecting: Know Your Rights as a Mom-To-Be

Disability Discrimination, Employee Discrimination , , , , ,

Whether you are first time mother, or a master at raising kids, being pregnant is an exciting and uncertain time. As you are preparing for the arrival of your child, settle your worries by knowing your pregnancy leave rights and ensuring your employment is protected while you are away.

While you are planning for pregnancy leave, consider the following: How much leave is available to you? When can leave be taken? What reinstatement rights apply? What type of pay is provided during leave? Some of these questions can be answered through California law and some are decided by your employer.

California employees are protected by three laws for their leave when pregnant and after giving birth. These laws are California’s Pregnancy Disability Leave Law (PDLL), The California Family Rights Act (CFRA), and Federal Family and Medical Leave Act (FMLA).

So, which laws apply to you, and what do they offer?

Pregnancy Disability Leave Law

The law that is often referred to first is California’s Pregnancy Disability Leave Law (PDLL). PDLL applies to most employees and provides the best job protection. If you work at a company with at least five employees, PDLL applies to you. This law protects you starting on your first day of employment, whether you are full or part-time. PDLL requires that employers must reasonably accommodate any pregnancy related disabilities and allows for up to four months of pregnancy disability leave. PDLL falls within the California Fair Employment and Housing Act (FEHA) and therefore requires allowance of extended reasonable pregnancy disability leave unless the extension would cause undue hardship on the employer.

California Family Rights Act

An additional protection is the California Family Rights Act (CFRA). CFRA applies in more limited circumstances and affects companies of 50 employees or more. In order to qualify for CFRA, you must have been hired at least 12 months prior and worked at least 1,250 hours of work during that time. CFRA is bonding leave and will not eliminate your access to PDLL. With CFRA, you are provided with 12 additional work weeks of leave that can be taken at any time. CFRA and PDLL protection cannot be used concurrently.

Federal Family and Medical Leave Act

Finally, Federal Family and Medical Leave Act (FMLA) is a federal law and is not as protective as PDLL and CFRA. FMLA is only required of companies that employ at least 50 employees. Just like CFRA, you must have worked 12 months and at least 1,250 hours in order to for it to be available. However, FMLA provides protection for serious health conditions related to pregnancy for 12 weeks. FMLA runs concurrently with CFRA.

Simply understanding how you are protected through California’s laws is not enough to be fully prepared and confident in your leave. You should also speak with your employer to understand company-specific pregnancy leave policies. The California laws do not entitle you to your continued salary during leave unless your employer also provides paid leave to other temporarily disabled employees. Work directly with your supervisor or the human resources department to learn about your company’s policy on pregnancy leave.

Expecting is stressful enough, don’t let work leave add to it. If you have any concerns about your workplace policies, how you have been treated as a pregnant woman, or anything regarding workplace pregnancy leave, reach out to us today.

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Claiming Punitive Damages in Discrimination Lawsuits

Disability Discrimination, Employee Discrimination , , , , , ,

CLC 510What are punitive damages and when can you claim them? Punitive damages are damages designed to punish an organization or individual for particularly bad behavior and deter them from doing it in the future. Punitive damages are possible to receive in employment discrimination lawsuits. However, these damages require a very high level of proof, including the following requirements.

Punitive Damage Proof Requirements

The first requirement is that the employer acted with oppression, fraud or malice. This must be shown with clear and convincing evidence. Clear and convincing evidence is a higher standard than the typical burden of proof in a civil case. Generally, to prove anything to the court requires a preponderance of the evidence, which means that the weight of the admissible evidence rests on your side; in other words it was more likely than not true. By contrast clear and convincing evidence requires that the admissible evidence shows a high probability that what you accuse occurred.

California Civil Code § 3294 defines more explicitly what oppression, fraud, and malice are. Oppression is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Fraud means an intentional lie, misrepresentation, or concealment of an important (“material”) fact that was made in order to deprive the person of their property of legal rights. Malice means acts where the employer intentionally caused injury to the plaintiff or acted despicably with a “willful and conscious disregard of the rights or safety of others.”

Should You Claim Punitive Damages?

In summary, unless the employer intentionally lied about an important fact to deceive the employee, committed some other fraud, or intentionally tried to injure the employee, the employee must show that the act of discrimination was despicable. Despicable means conduct that is so bad that it would be looked down upon and despised by ordinary decent people. Some examples of despicable conduct include conduct that is intended to humiliate an employee and force them to quit. It generally requires more than 1 act. For example in McGee v. Tucoemas Fed. Credit Union (2007) an employee with cancer was able to win punitive damages after the employer refused to give the employee extended leave after cancer treatment surgery, cancelled the employee’s medical insurance, and demoted the employee.

An employee must also prove with clear and convincing evidence that the employer either authorized the discrimination or learned of the discrimination and did nothing to prevent it; effectively ratifying the discrimination.

If you have been discriminated against due to your disability or perceived disability contact California employment law attorney Michelle Baker right away. Schedule your Free Consultation today or call us at (858) 452-0093.

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Organ Donors Eligible for Disability Benefits

Disability Discrimination, Employee Discrimination, Wrongful Termination , , , , , ,

Non Compete AgreementsCalifornia disability law allows those who are associated with disabled individuals to receive protection against disability discrimination. In this post, we will use a past case from the California Courts of Appeal to demonstrates this protection. In this case, a man who planned to donate a kidney to his disabled sister won a disability discrimination appeal.

In Rope v. Auto-Chlor System of Washington, Inc. a recently hired employee informed his employer, Auto-Chlor, that he intended to donate his kidney to his disabled sister. The employee then attempted to take time off under a new law associated with such cases, known as the Michelle Maykin Memorial Donation Protection Act (DPA). The employee’s manager did not respond to his request to take leave, so the employee complained to management. However, just two days before the law took official effect, Auto-Chlor terminated the employee for allegedly “poor performance.”

The Employee’s Claim

The employee then sued Auto-Chlor for several violations including associational disability discrimination, retaliation for a protected activity, violation of the DPA, and wrongful termination in violation of public policy. The trial court dismissed the employee’s claims but the court of appeals reversed the decision, allowing the associational disability discrimination and wrongful termination claims to proceed.

California Court of Appeal’s Decision

The California Court of Appeals decided that the employee had provided enough evidence to show that the employer had discriminated against him. The discrimination was determined to be based on his relationship to his disabled sister and the fact that the employee would soon become disabled himself after the kidney donation surgery was complete. These facts could have supported a claim for wrongful termination and associational discrimination.

What Is Associational Discrimination?

Associational discrimination claims are a powerful tool to fight discrimination in the workplace. Such claims cover situations in which the employer takes adverse action (such as termination or harassment) against the employee for a disability that an employee’s close family member or spouse has. It also covers claims as the one in Rope discussed above, where the employer fears incurring expenses due to the employee’s association with a disabled person. It is possible that an employer may fear that due to the relationship with the disabled family member, the employee will have to take time off to care for them, or possibly raise the costs of the employer-sponsored medical benefits plan.

Keep in mind that the employer here seemed to be trying to illegally discriminate against the employee before the new law that would have protected him took effect. Today, this would be much more difficult as the DPA is now in full effect and protects employees by allowing them to take 30 days off in order to donate organs.

If you have been the victim of discrimination contact an experienced attorney right away. Call attorney Michelle Baker at (858) 452-0093 or submit your information online for a Free Consultation.

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When is Reasonable Disability Accommodation Required?

Disability Discrimination , , , , ,

DisabilityBoth the Americans with Disabilities Act and the Fair Employment and Housing Act (FEHA) require employers to make reasonable accommodations for their disabled employees and job applicants. These accommodations can range between accommodations like giving the employee a special tool, providing the employee with extra breaks, or even allowing the employee to take leave or work from home.

An employee is not required to specifically ask for “reasonable accommodations” or to even figure out what the accommodation would be. The employer has a duty to engage with the employee in the process of figuring out what a reasonable accommodation would entail, this is called engaging in the interactive process.

Exceptions to Reasonable Accommodation Requirements

An employer is not required to provide reasonable accommodations in a few limited circumstances. First an employer is not required hire or employ an individual who will endanger the health and safety of themselves or others because they will be unable to perform the essential duties of the job. The essential functions of a job are the duties that are necessary due to one or more of the following:

  1. The reason the position exists is to perform the function at issue.
  2. The amount of employees available to perform that function is limited.
  3. The function is highly specialized and the individual is hired for his or her ability or expertise in performing the function.

Whether a job duty is an essential one is a fact intensive question and can bring up a significant amount of debate. In determining whether a job function is essential the following factors are relevant: the employer’s judgment, the job description, the amount of time the individual performs the job function, the work experience of past individuals in the job category, the current work experience of individuals in the job category, and the terms of any associated collective bargaining agreement.

Reasonable accommodation is also not required if an employee suffers from alcoholism and they perform alcoholism-related misconduct. For example, in the case of Gonzalez v State Personnel Bd. (1995), an employee was absent without leave on several occasions, was proved to be an alcoholic, and was justifiably terminated.

Disability discrimination is a major problem. Legally confronting it enforces your right to be free from discrimination also helps others by preventing employers from engaging in discrimination the future. To learn more about how to get monetary recovery for disability discrimination, contact employment lawyer Michelle Baker today. Schedule your free consultation by calling (858) 452-0093.