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A recent California Court of Appeal case –Sanchez v. Swissport, Inc. (February 21, 2014), 213 California Appellate Reporter, fourth series (Cal.App.4th) 1331– confirms that employers must comply with both thePregnancy Disability Leave Law(PDLL) law and the wider protections for women disabled due to pregnancy under in theFair Employment and Housing Act(FEHA).
A recent California Court of Appeal case – Sanchez v. Swissport, Inc. (February 21, 2014), 213 California Appellate Reporter, fourth series (Cal.App.4th) 1331 – confirms that employers must comply with both the Pregnancy Disability Leave Law (PDLL) law and the wider protections for women disabled due to pregnancy under in the Fair Employment and Housing Act (FEHA).
The PDLL requires any employer with four or more persons on payroll to provide a worker up to four months of unpaid leave for her pregnancy, delivery and newborn care. Pregnant employees have those rights even if they must go out on such leave within days of taking on new employment. These protections extend to full time and part-time workers alike.
The FEHA also requires any employer with four or more employees to provide disabled individuals equal employment opportunity if such persons are able to perform the essential functions of the job position in question with reasonable accommodation as necessary. However, an employer is not required to accommodate such a worker if such action would create undue hardship on that company’s operations. For example, a business may decline to hire a blind person for a truck driving position (since accommodation would be too burdensome on the company) but likely may not decline to hire a qualified computer programmer because he or she cannot walk (since accommodation for sitting at a terminal is probably a simple, inexpensive matter).
In the above case, Ana Sanchez alleged Swissport employed her for some two years (mid-2007 to mid-2009). In early 2009, she requested and received a temporary leave for medically required time away on her high-risk pregnancy. While she then had to be away from the job until that October to give birth and attend to newborn care – obviously more than four months later — Ms. Sanchez alleged that “very soon after she was scheduled to give birth, she would have returned to work, with the need for only minimal accommodations, if any, in order to perform the essential function[s] of her job.” 213 Cal.App.4th at 1334-1335.
Ms. Sanchez claimed that Swissport nevertheless terminated her in July on the company’s contention it had no further obligation to accommodate her once she had been absent for the four months under the PDLL. Ms. Sanchez also asserted that prior to her termination, Swissport never contacted her “to engage her in a timely, good faith interactive process in order to identify available accommodations, such as the extended leave of absence she had requested, so that she could remain employed.” Finally, she alleged that “the reasonable accommodations necessitated by her pregnancy and pregnancy-related disabilities would not have created an undue hardship upon [Swissport], nor would said accommodations have adversely impacted, in any way, the operation of [its] business.” 213 Cal.App.4th at 1335.
Swissport convinced the trial judge to dismiss the case, on its claim that its obligations to accommodate Ms. Sanchez’s pregnancy ended after it provided the four month leave. The California Court of Appeal disagreed and allowed Ms. Sanchez to continue her suit. An employer’s compliance with PDLL does not fulfill its obligations to comply with the wider disability protections under the FEHA. “We conclude that … the plain language of the PDLL … makes clear that its remedies augment, rather than supplant, those set forth elsewhere in the FEHA. By its terms, the PDLL provides that its remedies are ‘in addition to’ those governing pregnancy, childbirth, and pregnancy-related medical conditions set forth in the FEHA.” 213 Cal.App.4th at 1338.
This decision underscores the importance of employer’s open and constructive communication with any worker seeking time away from the job due to pregnancy, child birth or newborn care. It is a business’s obligation to ensure it seeks to understand and reasonably accommodate such conditions short of undue hardship to its operations. This is particularly critical in instances where an employee is requesting such accommodations after she has expended her maximum four month time away under the PDLL.
Please contact attorneys Tim Bowles, Cindy Bamforth, or Helena Kobrin for assistance in this highly sensitive area of employee relations.
California’s $8.00/hour minimum wage will continue its pace as one of the highest in the nation; rising to$9.00/hour on July 1, 2014, and to $10.00/hour on January 1, 2016. In approving the recent legislation,Governor Brown stated, “This legislation is overdue and will help families that are struggling in this harsh economy.”
California’s $8.00/hour minimum wage will continue its pace as one of the highest in the nation; rising to $9.00/hour on July 1, 2014, and to $10.00/hour on January 1, 2016. In approving the recent legislation, Governor Brown stated, “This legislation is overdue and will help families that are struggling in this harsh economy.”
Washington State currently has the highest minimum nationally, at $9.19/hour, adjusted annually based on the consumer price index (due to increase to $9.32 January 1, 2014). California currently ranks 5th highest in the country. State minimum wage rates range down to Georgia and Wyoming at the bottom, matching the federal minimum level of $7.25/hour. That federal minimum did not increase for 20 years, from 1997 to 2007. Congress not expected to raise it again in the foreseeable future.
On its face, any rise in minimum wage would not appear to pose any significant burden. A 2012 Federal Department of Labor Survey found only 1.6 million workers paid at that level, some 2.1% at the national labor force.
Nevertheless, California employers should note additional costs indirectly created by a rise in the “wage floor.” Increased minimum wage levels will tend to push up other hourly wage rates for companies that want to keep pace at some proportion above the minimum. Higher wage rates lead to higher payments on employment taxes as well as workers’ compensation premiums.
The scale of such impacts depends of course on the size of a business’s payroll. Particularly for large employers, an increase in wage levels is all the more reason to ensure all wage and timekeeping practices are in full compliance with applicable federal and state laws.
For example improperly calculated overtime, faulty procedure on meal and rest periods, or substandard clock-in and clock-out systems and rules can create expensive challenges, in the worst case from a claimed class of numerous workers allegedly affected across-the-boards.
For information concerning wage levels and related workplace practices, as well as model employee policies and forms, contact one of our attorneys Tim Bowles or Cindy Bamforth.
Beginning on January 1, 2014,California’s Fair Employment and Housing Act (FEHA)will protect an individual’s “military and veteran status” against employment discrimination and harassment.
Beginning on January 1, 2014, California’s Fair Employment and Housing Act (FEHA) will protect an individual’s “military and veteran status” against employment discrimination and harassment.
This new FEHA provision defines military and veteran status as “a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.”
Administered by the California Department of Fair Employment and Housing (DFEH), FEHA also protects race, religious creed, color, national origin, ancestry, physical disability, mental disability, sex, sexual orientation, age (40 or over), and several other individual characteristics or life conditions from such workplace mistreatment. Employment discrimination laws are intended to ensure employers make personnel decisions on the basis of ability and performance and not on factors recognized as irrelevant to the conduct of business or management of personnel.
California’s regard for military and veteran status is distinct from the other protected classifications as FEHA specifically reserves the right of employers to ask applicants for any military service and to give preference to those who served or who have served in the military.
FEHA’s anti-discrimination provisions extend to any business regularly employing five or more persons FEHA’s anti-harassment provisions cover any business regularly employing one or more persons or receiving the services of one or more independent contractors.
For more information concerning an employer’s obligations under federal or California discrimination laws, contact one of our attorneys Tim Bowles or Cindy Bamforth.
Our articles “Caring for Caregivers” and “Private Household Workers in California” caution that misunderstandings about California’s rules for household employees can be expensive.California’s Domestic Worker Bill of Rights (DWBR),effective January 1, 2014, drives home the need to properly pay the wages and to comply with the hours and working conditions requirements for certain household occupations.
Our articles “Caring for Caregivers” and “Private Household Workers in California” caution that misunderstandings about California’s rules for household employees can be expensive. California’s Domestic Worker Bill of Rights (DWBR), effective January 1, 2014, drives home the need to properly pay the wages and to comply with the hours and working conditions requirements for certain household occupations.
The DWBR entitles nannies and other caregivers to overtime pay.
Assemblymember Tom Ammiano, the author of the new law, states, “Domestic workers are among the most isolated and vulnerable workers in the state. Historically, domestic workers who cared for property were given full wage and hour protections but those who cared for human beings were not. Personal attendants in California were excluded entirely from overtime coverage under [existing law].”
California’s Industrial Welfare Commission (IWC) regulates the wages and hours of workers through a series of “Wage Orders.” Wage Order 15 covers employees engaged in so-called “household occupations,” services related to the care of people or premises in a private household.
Under Wage Order 15, “personal attendants” include nannies, babysitters and certain caregivers who work in a private household to supervise, feed, or dress a child or a person who by reason of advanced age, physical disability, or mental deficiency needs supervision. (Wage Order 15 vaguely directed that “personal attendant” status only applies when “no significant amount of work” outside of such caregiving duties was required. The DWBR now specifies that “no significant amount of work” means that work other than “supervising, feeding or dressing” does not exceed 20 percent of the total weekly hours worked.)
Wage Order 15 excluded such personal attendants, including live-in workers, from receiving overtime. Beginning January 1, 2014, the DWBR overrides that wage order, providing that personal attendants “shall not be employed more than nine hours in any workday or more than 45 hours in any workweek unless the employee receives one and one-half times the employee’s regular rate of pay for all hours worked over nine hours in any workday and for all hours worked more than 45 hours in the workweek.”
This new law will be temporary, ending in 2017 if the Legislature fails to extend them.
The DWBR does not cover, among others, the employer’s close family members; babysitters who are under 18 or casual babysitters (i.e. someone who babysits a minor child on an irregular or intermittent basis and whose vocation is not babysitting).
Improperly calculated overtime and substandard clock-in and clock-out systems and rules can create expensive challenges. Thus, personal attendant employers should take action including:
For more information concerning an employer’s obligations under California or federal wage and hour laws, contact one of our attorneys Tim Bowles or Cindy Bamforth.
San Francisco Adopts a “Right to Request” Workplace Flexibility Ordinance (for employers with 20 or more on payroll)
San Francisco Adopts a “Right to Request” Workplace Flexibility Ordinance (for employers with 20 or more on payroll)
On January 1, 2014, San Francisco enacted a “right to request” ordinance which gives certain employees working in the City the right to seek flexible work arrangements to address family needs. The City has since amended the law to apply to employers with 20 or more employees anywhere.
The ordinance permits workers employed within the city limits for at least six months and eight hours per week to request scheduling accommodation to assist with caregiving responsibilities for: (i) children under the age of 18; (ii) family members with a serious health condition; or (iii) parents age 65 or older.
The employer must meet with the requesting employee within 21 days and respond within 21 days of that meeting. If the employer denies the request, it must explain to the worker in writing the business reasons for the decision as well as specify that employee’s rights to request reconsideration. Legitimate reasons for a denial include the cost of the proposed change, the detrimental effect on customer/client demands, inability to organize work among other employees, or lack of available work during the proposed work time.
The ordinance also makes it unlawful for an employer to “discharge, threaten to discharge, demote, suspend, or otherwise take adverse employment action against any person on the basis of caregiver status, in retaliation for exercising rights protected under the Ordinance, or for cooperating with the City in enforcement.”
Employers with work sites in San Francisco need to post the ordinance’s official notice and should consider modifying their applicable employment policies.
Our articles “Caring for Caregivers” and “Private Household Workers in California” caution that misunderstandings about California’s rules for household employees can be expensive.California’s Domestic Worker Bill of Rights (DWBR),effective January 1, 2014, drives home the need to properly pay the wages and to comply with the hours and working conditions requirements for certain household occupations.
Our articles “Caring for Caregivers” and “Private Household Workers in California” caution that misunderstandings about California’s rules for household employees can be expensive. California’s Domestic Worker Bill of Rights (DWBR), effective January 1, 2014, drives home the need to properly pay the wages and to comply with the hours and working conditions requirements for certain household occupations.
The DWBR entitles nannies and other caregivers to overtime pay.
Assemblymember Tom Ammiano, the author of the new law, states, “Domestic workers are among the most isolated and vulnerable workers in the state. Historically, domestic workers who cared for property were given full wage and hour protections but those who cared for human beings were not. Personal attendants in California were excluded entirely from overtime coverage under [existing law].”
California’s Industrial Welfare Commission (IWC) regulates the wages and hours of workers through a series of “Wage Orders.” Wage Order 15 covers employees engaged in so-called “household occupations,” services related to the care of people or premises in a private household.
Under Wage Order 15, “personal attendants” include nannies, babysitters and certain caregivers who work in a private household to supervise, feed, or dress a child or a person who by reason of advanced age, physical disability, or mental deficiency needs supervision. (Wage Order 15 vaguely directed that “personal attendant” status only applies when “no significant amount of work” outside of such caregiving duties was required. The DWBR now specifies that “no significant amount of work” means that work other than “supervising, feeding or dressing” does not exceed 20 percent of the total weekly hours worked.)
Wage Order 15 excluded such personal attendants, including live-in workers, from receiving overtime. Beginning January 1, 2014, the DWBR overrides that wage order, providing that personal attendants “shall not be employed more than nine hours in any workday or more than 45 hours in any workweek unless the employee receives one and one-half times the employee’s regular rate of pay for all hours worked over nine hours in any workday and for all hours worked more than 45 hours in the workweek.”
This new law will be temporary, ending in 2017 if the Legislature fails to extend them.
The DWBR does not cover, among others, the employer’s close family members; babysitters who are under 18 or casual babysitters (i.e. someone who babysits a minor child on an irregular or intermittent basis and whose vocation is not babysitting).
Improperly calculated overtime and substandard clock-in and clock-out systems and rules can create expensive challenges. Thus, personal attendant employers should take action including:
For more information concerning an employer’s obligations under California or federal wage and hour laws, contact one of our attorneys Tim Bowles or Cindy Bamforth.
California’s $8.00/hour minimum wage will continue its pace as one of the highest in the nation; rising to$9.00/hour on July 1, 2014, and to $10.00/hour on January 1, 2016. In approving the recent legislation,Governor Brown stated, “This legislation is overdue and will help families that are struggling in this harsh economy.”
California’s $8.00/hour minimum wage will continue its pace as one of the highest in the nation; rising to $9.00/hour on July 1, 2014, and to $10.00/hour on January 1, 2016. In approving the recent legislation, Governor Brown stated, “This legislation is overdue and will help families that are struggling in this harsh economy.”
Washington State currently has the highest minimum nationally, at $9.19/hour, adjusted annually based on the consumer price index (due to increase to $9.32 January 1, 2014). California currently ranks 5th highest in the country. State minimum wage rates range down to Georgia and Wyoming at the bottom, matching the federal minimum level of $7.25/hour. That federal minimum did not increase for 20 years, from 1997 to 2007. Congress not expected to raise it again in the foreseeable future.
On its face, any rise in minimum wage would not appear to pose any significant burden. A 2012 Federal Department of Labor Survey found only 1.6 million workers paid at that level, some 2.1% at the national labor force.
Nevertheless, California employers should note additional costs indirectly created by a rise in the “wage floor.” Increased minimum wage levels will tend to push up other hourly wage rates for companies that want to keep pace at some proportion above the minimum. Higher wage rates lead to higher payments on employment taxes as well as workers’ compensation premiums.
The scale of such impacts depends of course on the size of a business’s payroll. Particularly for large employers, an increase in wage levels is all the more reason to ensure all wage and timekeeping practices are in full compliance with applicable federal and state laws.
For example improperly calculated overtime, faulty procedure on meal and rest periods, or substandard clock-in and clock-out systems and rules can create expensive challenges, in the worst case from a claimed class of numerous workers allegedly affected across-the-boards.
For information concerning wage levels and related workplace practices, as well as model employee policies and forms, contact one of our attorneys Tim Bowles or Cindy Bamforth.
Beginning on January 1, 2014,California’s Fair Employment and Housing Act (FEHA)will protect an individual’s “military and veteran status” against employment discrimination and harassment.
Beginning on January 1, 2014, California’s Fair Employment and Housing Act (FEHA) will protect an individual’s “military and veteran status” against employment discrimination and harassment.
This new FEHA provision defines military and veteran status as “a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.”
Administered by the California Department of Fair Employment and Housing (DFEH), FEHA also protects race, religious creed, color, national origin, ancestry, physical disability, mental disability, sex, sexual orientation, age (40 or over), and several other individual characteristics or life conditions from such workplace mistreatment. Employment discrimination laws are intended to ensure employers make personnel decisions on the basis of ability and performance and not on factors recognized as irrelevant to the conduct of business or management of personnel.
California’s regard for military and veteran status is distinct from the other protected classifications as FEHA specifically reserves the right of employers to ask applicants for any military service and to give preference to those who served or who have served in the military.
FEHA’s anti-discrimination provisions extend to any business regularly employing five or more persons FEHA’s anti-harassment provisions cover any business regularly employing one or more persons or receiving the services of one or more independent contractors.
For more information concerning an employer’s obligations under federal or California discrimination laws, contact one of our attorneys Tim Bowles or Cindy Bamforth.
San Francisco Adopts a “Right to Request” Workplace Flexibility Ordinance (for employers with 20 or more on payroll)
San Francisco Adopts a “Right to Request” Workplace Flexibility Ordinance (for employers with 20 or more on payroll)
On January 1, 2014, San Francisco enacted a “right to request” ordinance which gives certain employees working in the City the right to seek flexible work arrangements to address family needs. The City has since amended the law to apply to employers with 20 or more employees anywhere.
The ordinance permits workers employed within the city limits for at least six months and eight hours per week to request scheduling accommodation to assist with caregiving responsibilities for: (i) children under the age of 18; (ii) family members with a serious health condition; or (iii) parents age 65 or older.
The employer must meet with the requesting employee within 21 days and respond within 21 days of that meeting. If the employer denies the request, it must explain to the worker in writing the business reasons for the decision as well as specify that employee’s rights to request reconsideration. Legitimate reasons for a denial include the cost of the proposed change, the detrimental effect on customer/client demands, inability to organize work among other employees, or lack of available work during the proposed work time.
The ordinance also makes it unlawful for an employer to “discharge, threaten to discharge, demote, suspend, or otherwise take adverse employment action against any person on the basis of caregiver status, in retaliation for exercising rights protected under the Ordinance, or for cooperating with the City in enforcement.”
Employers with work sites in San Francisco need to post the ordinance’s official notice and should consider modifying their applicable employment policies.