San Francisco Employment Law Firm Blog

Many workers who are subjected to sexual or other forms or harassment prefer not to disclose this to their supervisor or human resources department. This reluctance to speak up is usually motivated by fear of retaliatory termination in response to a complaint about harassment.

However, choosing not to complain about harassment at your workplace is hardly ever a good idea. First, the harassment which is not addressed usually only gets worse as the harasser sees how much he can get away with without being punished. More importantly, under California law, while the employer is strictly liable for the harassment by a victim's supervisor, the employer is liable for harassment by a co-worker only if the employer knew or had a reason to know of the harassment. Thus, by not complaining about harassment, the victim virtually forecloses the future opportunity to seek legal redress for hostile work environment and harassment, as it's hard to blame someone for preventing harassment if that entity wasn't even aware of misconduct which the victim of harassment was subjected to.

The California Fair Employment and Housing Act ("FEHA") prohibits an employer from taking any adverse action (such as refusing to hire or employ, refusing to select for a training program leading to employment, demoting or discharging from employment or training program leading to employment, discrimination in compensation or terms or conditions of employment) based on his or her: race, religious creed, color, national origin, ancestry, physical or mental disability, medical condition, marital status, sex, sexual orientation, age (if 40 or over), or pregnancy, childbirth or related medical conditions of any female employee.

It is also unlawful for employer to act upon the perception that the aggrieved individual has one of the above protected characteristics, even if he or she does not. Thus, if an employee discriminated or harassed based on his perceived homosexuality, he is protected under FEHA and the employer will be likely liable for discrimination and harassment even if that employee is not gay.

There are numerous exemptions and exceptions that relieve California employers from the some legal duties with regards to providing their employee with rest and meal breaks. These exception usually apply to employees of such professions and in such environment where complying with the general rules would be unduly burdensome impracticable for the employer.

In the absence of an applicable exception, the following general rules apply to meal and rest breaks in California. An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of at least 30 minutes. However, if the total work day of the employee is sex hours or less, the meal period may be waived by mutual consent of both the employer and employee. It is very prudent for an employer to obtain such consent in writing in order to avoid subsequent claims for unpaid meal breaks, as the employer would normally have a burden of proving that he/she complied with the law.
Under California Labor Code 512, an employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of at least 30 minutes. However, if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee, but only if the first meal period was not waived. Further, under labor code section 226.7(a), no employer shall require any employee to work during any meal or rest period.

The right to meal periods and penalties under California's Labor Code applies, and has consistently applied, to workers who are members of a union and who are covered by collective bargaining agreements (CBAs). Moreover, the right to meal periods and penalties for violation of those rights is non-negotiable and cannot be waived.

It's important to note that the employers' obligation to provide meal periods does not suggest any obligation to ensure that employees take advantage of what is made available to them. Brown v. Federal Express Corp. (2008); Brinker Restaurant Corp. v. Superior Court (2008). The employer must only make the meal period time available and not force employees to work through their meal/break periods.

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Many employment contracts and the majority of the union collective bargaining agreements provide that the employee should not be terminated unless for good cause. It is important to understand what the "good cause" standard exactly means, as the meaning of "good cause" in this instance is quite different from the ordinary meaning of the words "good cause."

In the context of express or implied contracts not to discharge without good cause, "good cause" means "fair and honest reasons, regulated by good faith on the part of the employer, that are not trivial, arbitrary, or capricious, unrelated to business needs or goals, or pretextual. A reasoned conclusion supported by substantial evidence gathered through an adequate investigation that includes notice of the claimed misconduct and a chance for the employee to respond.

Employee misconduct on the job is, of course, good cause for termination. But employers do not need to prove that the alleged misconduct actually took place. "Good cause" exists if the employer reasonably believed the alleged misconduct took place and otherwise acted fairly.

Several California court cases held that the depressed condition of the employer's business and its decision to reduce its staff with the result that an employee's services are no longer needed is "good cause," for discharging employee. Similarly, sale or divestiture of a portion of the employer's business can be "good cause" for terminating the employees involved.

However, economic reasons for layoff do not automatically insulate an employer from liability for wrongful termination. Where the employee alleges that he was terminated for unlawful reasons, such as discrimination and retaliation, courts will not accept a reduction in force as the conclusory explanation for the employee's termination.

Many people are used to believing that sexual harassment hostile work environment is an unlawful conduct at work place which involves unwelcome sexual advances of a co-workers or a supervisor such as sexual innuendos, offensive touching, and alike. Although those are typical examples of a situation which is likely to be classified as sexual harassment, the offensive words or conduct directed at an employee because of his or her gender may create a hostile work environment even if those words or conduct are not sexual in nature. For example, using a word “bitch” repetitively in the presence of both men and women but in reference to women may constitute unlawful gender harassment.

On the other hand, hostile words or conduct based solely on personal animosity is no actionable as sexual harassment in California even if the victim is of the opposite gender. As the court pointed out in once case – “Unfair, overbearing, or annoying treatment of an employee, standing alone, cannot constitute a sex discrimination claim. In other words, a conduct that is based on personal agenda or anger and not on gender is not grounds to claim sexual harassment. For instance, if a boss and a particular employee are not compatible, it would not be sexually discriminatory to harass employee on that basis. In other words, sexual/gender harassment requires showing that the employee was treated a certain way because of his or her gender. For example, where the employee was the only woman on the workforce, her coworkers’ acts of insubordination, dissemination of untrue rumors about her, and aspersions on her competence may contribute to a hostile work environment based on sex.

The employer may assert a defense against liability for sexual harassment claim by showing that the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and that the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer to avoid harm otherwise. This corrective opportunities commonly include a section in the employee handbook explaining the procedures of complaining about harassment and the employer’s express commitment to address those complaints as soon as possible.

It is presumed in California that unless agreed otherwise between employer and his employee (such as through contract or the union's collective bargaining agreement), the employment is "at will." Generally, at-will employee may be terminated for any reason, no reason, or arbitrary reason, as long as it is not an illegal reasons such as harassment, discrimination or constructive discharge (objectively intolerable working conditions that force the employee to quit).

However, in some circumstances an employer may be estopped from claiming that an employment is at will where the employer has made a promise that it should reasonably have known would cause the employee to believe a more permanent employment relationship existed, and the employee has relied to his or her detriment thereon. Under such circumstances, the promise is binding. This kind of obligation upon employer is called "promissory estoppel." To prove the existence of promissory estoppel, the employee must show that (1) a clear promise was made by his employer, (2) he relied on that promise, (3) to his substantial detriment (by giving up some benefit, such as then existing job), and (4) damages measured by the extend of obligation assumed by the employer and not performed.

The courts have invoked the above principle where an employer changes his mind and rejects a new employee before giving the new employee a good faith opportunity to perform the duties for which he or she was hired. If the new employee has detrimentally relied on the new employment, the employer may be estopped from asserting that the employer was at will.

An employee who resigns from at-will employment in reliance on an unfulfilled promise of other at-will employment may be entitled to recover, on a promissory estoppel theory, the wages plaintiff would have earned had plaintiff remained in the former job. The lost wages must not be speculative or remot, and must be supported by substantial evidence such as a testimony by a qualified expert as to how long the employee was likely to have retained the former job and the wages he or she was likely to have earned.

Promissory estoppel claims are unnecesary where an employee has entered into performance of the services called for in the employment contract. In such cases, traditional breach of contract analysis governs the employer's liability.

The federal Family and Medical Leave Act (FMLA) provides job security to an employee who is absent from work because of the employee's own serious health condition or to care for a specified family members with serious health conditions, as well as for the birth of a child and to care for a newborn child, or because of the placement for adoption or foster care of a child with the employee.

Employees eligible for FMLA are entitled to 12 workweeks of leave in a 12-month "leave year." An employee may take FMLA leave for any of the following reasons: (1) the serious health condition that makes the employee unable to perform the essential functions of the position; (2) the serious health condition" of a spouse, child or parent; (3) the birth of a child or to care for such child; or (4) the placement of a child with the employee for adoption or foster care.

Employers may require medical certification of the existence of a serious health condition. Further, FMLA 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 beneftis are available.

At the conclusion of an FMLA leave, the employee must be reinstated to the same or an equivalent job, unless he or she is a "key employee" who is given appropriate notification. An employer must maintain health plan benefits for an employee on FMLA leave on the same basis as if the employee were actively employed; and all benefits, including those that lapsed during the leave, must be restored immediately upon the employee's return to work.

One of the most common ways that employer tries to fight their former employee's claim for unemployment insurance benefits is arguing that the employee was terminated due to misconduct. Misconduct in the context of unemployment insurance code is a term of art, and understanding its legal definition is crucial to appealing the denial of unemployment benefits at the appeals board if your initial claim has been denied.

Under California Unemployment Insurance Code section 1256 "an individual is disqualified for unemployment compensation benefits if the director finds that he left most recent work voluntarily without good cause or that he has been discharged for misconduct connected with his most recent work."

The standard for showing "misconduct" within the meaning of unemployment benefits eligibility is quite high and thus favoring applicants for those benefits. While such gross violations as violence or threats of violence at workplace and clear grounds for disqualification from unemployment insurance benefits, many of the less grave issues at work do not constitute misconduct. Thus, employee's mere inefficiency, unsatisfactory conduct, ordinary negligence, or good faith errors in judgment at work are not "misconduct," that will disqualify that employee from receiving unemployment compensation. In this context, the term "misconduct" is limited to conduct evidencing such willful or wanton disregard for an employer's interest as is found in deliberate violations or disregard of standards of behavior which employer has right to expect of his employee, or in carelessness or negligence of such degree, or recurrence as to manifest equal culpability, or to show an intentional and substantial disregard of employer's interest or of employee's duties and obligations to his employer.

Even refusal to perform work as directed does not always rise to the level of misconduct that disqualifies an employee from benefits. In one case, the nurse willfully refused to perform work because her consultations with outside authorities led her to conclude that health of patient would be jeopardized if she following her superiors' direction. Because her refusal to perform was out of reasonable and good faith fear of harm to others, she was entitled for unemployment insurance benefits after she was discharged for repeated refusals to follow her employer's orders.

Likewise, an employee's unauthorized departure from work did not constitute misconduct causing his discharge within the meaning of unemployment insurance code where the employer testified that it's the employee's inappropriate language following the confrontation on the day following the unauthorized departure and not the departure itself was the sole cause of his discharge.

California Labor Code 1102.5 prohibits discharging an employee for disclosing an alleged violation of a statute of public importance to a government or a law enforcement agency. Such a discharge may be grounds for a claim of wrongful discharge in violation of public policy.
The following are examples of "whistleblowing" cases in which such a claim was upheld:
* Reporting to management that the company was not paying overtime wages due to certain of its employees.
* Reporting to governmental agency the employer's improper billing practices with respect to governmental contract.
* Reporting to management that certain executives shipping promotional records were violatating laws prohibiting bribery, kickbacks, embezzlement and tax evasion.
* Reporting discrimination against women and minorities.
* Reporting health and safety violations by an employer.
* Reporting violations of consumer protection laws and immigration laws.

It's important to note that an actual violation is not required for a legitimate whistleblower action. Under the code, an employee's reasonable suspicion of violation is sufficient. In other words, an employee does not need to prove that his employer actually violated the law; it is sufficient if the employer fired the employee for reporting hi "reasonably based suspicion" of illegal activity.

An employee who has been subjected to a whistleblower retaliation at workplace and has been wrongfully terminated as a result of employment may recover a full measure of tort damages in an action for wrongful discharge in violation of public policy, including, in appropriate cases, damages for emotional distress and punitive damages.

One of the greatest powers of section Cal. Gov. Code section 1102.5 is actually in section 1102.6, which states that once the employee met his or her burden of showing that he or she was retaliated against for reporting what was reasonably believed an unlawful conduct, the employer has to prove by clear and convincing evidence that the adverse action taken against employee was not motivated by "blowing the whistle" but by other, legitimate reasons, such as downsizing or restructuring or employee's performance issues.

Under a "use it or lose it" policy, an individual who does not use all of his or her accrued vacation pay by a particular time forfeits the right to be paid fro those days at a later date. The California Supreme Court held, however, that vacation pay vests as it is earned, and any vacation earned cannot be taken away. Vacation pay is, in effect, additional wages for services performed, the receipt of which is postponed. Thus, this "use it or lose it" policy is generally unlawful. Thus, upon termination, for instance, the employer must compensate the terminating employee for unused vested vacation time.

Vacation time is in many ways treated like wages under California law and is actually considered wages for the purposes of compensation. Thus, when vacation is earned during a period of employment (for example, two weeks of paid vacation annually) and the employee does not complete the period, California Labor Code section 227.3 requires compensation for a pro rata share of the unused vacation based on the percentage of the period completed.

Further, an employer may not force an employee to use accrued vacation time rather than serve out the term of his employment. Vacation pay that is not used continues to accumulate unless the vacation policy contains a "cap" on accruals. A "cap" precludes the employee from accruing additional vacation time after a specified amount has been accumulated.

Under California Labor Code section 227.3, unless otherwise provided by a collective bargaining agreement, an employee who is terminated without having taken all accrued vacation time must be paid for the vacation time as wages to his final rate of pay.

However, it is important to distinguish between the "use it or lose it" policy and the "no additional accrual" policy with regard to vacation time, because while the former is illegal the latter is permissible. That is, if the employment agreement precludes an employee from accruing more vacation time after accumulating a specified amount of unused vacation time, this is a lawful policy. Boothby v. Atlas Mechanical, Inc. (1992) This policy makes sense, as for some employers, especially small businesses, a "no additional accrual" policy may be necessary to meet reasonable needs. When an employee takes a short vacation, the company may be able to cover the absence using existing staff and resources with minimal disruption. However, if an employee could accumulated many months of vacation and then take it all at once, the business might not have the resources to absorb the substantial disruption.

In recent years, it has become increasingly popular for businesses to use the services of independent contractors for both short and long-term projects rather than to hire new career employees. Business can retain the services of independent contractors directly, or through a temporary employment agency.

The potential advantages of suing independent contractors include:
1. Cost savings from mandated contributions. The employer does not have to pay the usual employer contributions - state unemployment tax, social security tax or federal unemployment tax.
2. Cost savings from discretionary fringe benefits. The employer does not have to provide the independent contractor the employee benefits such as medical or life insurance, vacation leave, sick time and pregnancy leave, or retirement plan participation.
3. Minimizing potential liability in workplace. Businesses are generally not liable for injuries incurred by independent contractors of by employees of independent contractors. 4. The employer can choose whether to provide workers compensation insurance. The risk of discrimination claims by independent contractors is also significantly lower because most anti-discrimination statutes protect employees only.
5. The employer may use an independent contractor for individual projects without incurring liability for unlawful employment termination suits of unemployment claims. Employer usually also save administrative time and costs by paying independent contractors on a gross basis and not setting up a payroll system.

The potential disadvantages in using independent contractors:
1. The employer has less control over how the contractor performs the services.
2. The employer cannot unilaterally terminate the working relationship with the independent contractor without risking liability for breach of contract. It might be easier to terminate an employee, especially if he/she is an at-will worker.
3. The employer may have no ongoing relationship with the contractor.
4. The employer bears the risk of misclassification. It is very important to recognize that whether the workers is an employee or an independent contractors dependends on the specific circumstances of his employment and not on how he is formally classified. Thus, calling someone an "independent contractor" doesn't create the contractor status. The key element to determining the worker's status is the degree of control that the employer exercises over the worker's work, schedule, etc. Misclassification of a workers may lead to serious penalties and liability for civil damages if the workers is not provided with certain benefits because he was erroneously classified as an independent contractor.

What is a tip?

A tip (or gratuity) is the money that a customer leaves an employee over the actual amount due for the goods or services received. This tip money belongs to the employee, not the employer.

Is it legal for my employer to deduct my tips from my paycheck?

No. Your employer cannot take your tips (or any part of them), and cannot deduct money from your pay because of the tips your earn. Your employer also cannot credit the amount of your tips against the money he owes you. You do not have to pay back your tips to your employer with one exception that is explained below.

When a customer pays with credit card, my employer deducts the credit card company’s fees from the tips they leave. Is this legal?

No. Since the employer has chose to use the services of the credit card company, the employer must pay that cost. The fee is a cost of doing business for your employer that he cannot shift to you.

I made an agreement with my employer that he can deduct my tip money from my check. Is this allowed?

No. An employer cannot get around any of the laws mentioned above by getting an employer to agree to a deduction. Like many other employment related matters, many laws and rules, especially the ones that concern public policy, preempt and trump any private agreements at work place. This includes most of the tip pooling laws.

My employer pays me less than minimum wage because he includes my tips in my hourly pay. Is this legal?

No. Although some states allows employers to pay tipped employees less, California requires that they be paid minimum wage, a calculation of which does not include tips.

I was told to share my tips with other employees, even though I am the one receiving tips directly from customers. Do I have to share my tips?

Sharing tips with other employees is called “tip pooling” or “tipping out” and is usually legal if it is common in your trade (e.g. restaurant workers). Since tips belong to the employees who helped “serving the customer,” and sometimes more than one employee “serves” a customer (e.g. cooks, bussers, and waiters all make sure that the customer gets good service), it is OK for your employer to force you to share tips with those other employees that help. As long as you only share tips with employees who somehow help the customer, and not supervisors or managers, forced tipping out is legal. However, the tip pooling arrangement must be reasonable. If you have to tip out too much to other employees, the arrangement may not be legal. For example, it is usual in the restaurant business for a waitress to tip out 15-20% to other employees, so this arrangement is almost certainly reasonable. On the other hand, if a waitress has to give up 60% of the tips she collects to other employees, this arrangement is probably not legal.

Are all employees who receive tips protected?

Yes, with one exception. If an employee provides a service for customers but the business doesn’t charge for that service, the employee may have to pay her tips back to her employers. Examples are a valet parking attendant who parks cars for a restaurant and a coat checker in a theater where the customer is not charged for the service. The employer must still pay minimum wage, and the employee must be paid her wage or salary in full, even if the tips collected are not enough to cover the employee’s wages or salary.

Constructive discharge occurs when an employer engages in conduct that effectively forces the employee to resign or retire. Although the employee may say “I quit,” the employer relationship is actually terminated by the employer’s acts against the employee’s will. As a result, a constructive discharge is legally considered as a firing by the employer rather than a voluntary resignation or retirement by the employee.

To establish a constructive discharge claim, an employee must prove that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign. In determining whether a reasonable employee would feel compelled to resign, courts consider such factors as demotion, reduction in salary, reduction in job responsibilities, reassignment to degrading work, badgering, harassment or humiliation by the employer intended to encourage the employee to resign, offers of early retirement or continued employment on terms less favorable than the employee’s former status. The employee must further notify someone in a position of authority of intolerable conditions before he may prevail on a constructive discharge claim. Such notice prevents employers from closing their eyes to wrongdoing and permits employers who are unaware of any wrongdoing to correct a potentially destructive situation.

It is important to remember that this standard is objective, and employee’s subjective feeling of disappointment is not enough to claim constructive discharge. An employee is not permitted to quit and sue simply because he doesn’t like something at his workplace.

So, which working conditions are considered “intolerable” and thus grounds to claim constructive discharge? Intolerable working conditions are those which either are unusually aggravated or amount to a continuous pattern of objectionable conduct. For instance, continuous course of harassment, uncorrected by management, can constitute objectively intolerable working conditions.

Normally, a single or isolated acts are generally insufficient to support a constructive discharge claim. But in some cases, even a single incident may be held to be “aggravated” misconduct by the employer; e.g., a crime of violence against the employee, or an ultimatum that the employee commit a crime.

The following conditions have been found to be “intolerable:”

* continued harassment of an employee due to his sexual orientation (repeated gay jokes and other remarks);
* a supervisor’s continuous “yelling and screaming,” unfair and harsh criticism and threats to fire an employee, uncorrected by management, may constitute objectively intolerable working conditions;
* a supervisor’s extended campaign to get an employee fired, including repeated efforts to invent documentation for her termination, frequent reorganization of her duties and demands that she process unlawful orders, may constitute “intolerable” working conditions when the employee’s medical condition is exacerbated by stress.

The following conditions have been found to NOT be “intolerable:”

* severe verbal abuse of employee (harsh, unfair criticism) in front of other employees and threats to terminate or demote are not intolerable working conditions unless a continuous course of such conduct is involved;
* a poor performance rating or demotion, even when accompanied by a pay cut does not constitute an intolerable working condition necessary to support a claim for constructive discharge;
* failure to promote over a long period of time is normally not enough to show “intolerable” working conditions.

The claim of constructive discharge is not applicable to at-will employment. There is no constructive discharge where there is no contractual right to continued employment. In other words, if you are an at-will employee (and you are presumed to be in the absence of a contract between you and your employer or any other evidence of your employer’s promise to continuously employ you for a certain period of time), you cannot have a claim of constructive discharge.

It is commonly known that sexual harassment at workplace involves unwelcome acts of sexual nature by a co-workers or a supervisor, such as unwelcome touching, repeated unwanted propositioning, conditioning employment or promotion on sexual favors, etc.

Offensive conduct, however, need not be sexual in nature to create a hostile work environment in the workplace. Hostile non-sexual conduct (or language) directed at an employee because of his or her gender may create an actionable hostile environment. A pervasive pattern of abuse violates Title VII even if not motivated by sexual desire to drive women out of the organization. Rude overbearing, loud, vulgar and generally unpleasant comments by a male supervisor toward female subordinates, coupled with physically aggressive (though non-sexual) actions, may constitute sexual harassment if male subordinates were treated with proper respect. Interestingly enough, the fact that there were more women than men in the office does not make a difference.

A non-sexual conduct that singles out an employee based on gender may also be actionable and constitute sexual harassment/hostile work environment . In one California case, a hostile work environment was shown by evidence that male police officers engaged in overtly hostile acts toward female police officer, including stuffing her shotgun barrel with paper so that the weapon would explode if fired, spreading untrue rumors about her abilities, singling her out for unfavorable work assignments and shifts, making false complaints about her performance, and even threatening to disrupt her wedding.

Even staring, coupled with other factors, can constitute sexual harassment hostile work environment. In one case, a female employee refused a male co-worker’s several requests for a date (which included divulges lewd fantasies about her). When she complained to her supervisor, the coworker stopped talking to her, but started staring at her in an intimidating manner. In light of his prior conduct, the coworker’s repeatedly staring at the female employee and the employer’s failure to stop it despite the employee’s complaints could constitute actionable hostile environment sexual harassment according to court.

In sum, the California law and the recent rulings by courts clearly indicate that the conduct does not have to be sexual in nature in order to constitute hostile work environment sexual/gender harassment.

Under California law, an employer is required to promptly and thoroughly investigate any claim of harassment, discrimination, or retaliation. The obligation to investigate arises out of the affirmative duty under the Fair Employment and Housing Act, Cal. Gov. Code section 12940(j) and (k) to take all reasonable steps necessary to prevent discrimination and harassment from occurring. The duty to investigate a harassment claim promptly and throughly exists whether or not the claimant consents to an investigation or cooperates with one. Further, neither an employee’s failure to report harassment nor the fact that the harassment stopped before the investigation began conclusively absolve an employer from liability for discrimination and harassment. Moreover, it is not enough for an employer to conduct an investigation without also taking measure to protect the employee from retaliation.

Employer’s failure to investigate an employee’s complaint adequately may violate California anti-discrimination laws. To be adequate, the investigations should be commenced immediately, and be completed as soon as circumstances reasonably allow. Investigations commenced within a day or days of a complaint and completed within a two-week period have been routinely upheld as timely. Waiting until after the complainant has filed an administrative charge with DFEH or EEOC will be presumed inadequate.

While the complaint is undergoing investigation, the employer should take steps to prevent contact between the complaining employee and the alleged harasser, such as rescheduling or placing the alleged harasser on leave.

Several laws protect California women from pregnancy discrimination at workplace. These laws interact with each other in complex ways. Each law and protection may or may not apply depending on the size of the employer, the employee’s length of service, and other facts. Some leaves run concurrently, while others don’t.

There are three statutes that directly related to leave during and after pregnancy: California Pregnancy Disability Leave Law (PDLL), California Family Rights Act (CFRA) and the federal Family and Medical Leave Act (FMLA)

California’s Pregnancy Disability Leave Law is the most inclusive and should be looked at first in determining a woman’s entitled to protected leave. All California employers with at least five employees are covered. Pregnancy disability leave is available regardless of a woman’s length of service with a covered employer, and it is available to both full and part-time employees.

The PDLL provides women with up to four months of leave for disabilities caused by pregnancy, childbirth, or related medical conditions. PDLL also requires employers to reasonably accommodate any restrictions tha are advised by a woman’s health care provider. According to the Employment Development Department, women with normal pregnancies typically receive disability benefits for up to six weeks after giving birth. Women who have c-sections or any number of other complications relating to pregnancy or childbirth will likely be entitled to longer leave periods.

It is important to note that the fourth months of protected leave is a floor, not a ceiling. While the law provides that it is unlawful for employers to refuse to allow a leave “for a reasonable period of time not to exceed four months,” Gov. Code section 12945(a), it also provides that if a pregnancy related medical condition or disability requires more than four months of leave, “the employer must treat the employee the same way regarding reinstatement rights as it treats any similarly situated employee who has taken a similar length disability leave.

California’s PDLL has more protective reinstatement rights than other leave laws. Under this law, a woman must be returned to the same position at the end of her leave. There are only two exceptions to this rule: (1) when the employee would not otherwise have been employer in her same position at the time reinstatement is requested for legitimate business reasons unrelated to the employee taking a pregnancy disability leave or transfer;” and (2) when “each means of preserving the job or duties for the employee would substantially undermine the employer’s ability to operate the business safely and efficiently. If an employer is excused from reinstating a woman to her same position, she must be reinstated to a comparable position unless there is no comparable position available.

PDLL is an essential protection because many women who become pregnant are not entitle to leave under the more familiar FMLA and CFRA provisions. Those laws only apply to employers with at least 50 employees working within a 75 mile radius of the affected employee’s job site. In addition, FMLA and CFRA only apply after a woman has worked for her employer for at least one year and 1250 hours during that past year.

The important difference between FMLA and CFRA is that FMLA leave generally runs concurrently with the pregnancy disability leave CFRA does not, and in fact it expressly excludes disabilities due to pregnancy, childbirth, and related medical conditions. Thus, some women may qualify for four months of disability leave and an additional twelve weeks of leave under CFRA. It is important to note that if a woman decides to take both, the pregnancy disability leave and CFRA leave, her right to reinstatement will be governed by CFRA and not PDLL. This means that she will be entitled to a comparable position rather than the same position when reinstated.

It should be noted that the PDLL, CFRA, and FMLA all provide for unpaid leave. State disability and Paid Family Leave (PFL) may provide partial wage replacement during a period of leave.

If you believe that you have been singled out, treated unfairly, discriminated against or terminated due to pregnancy, contact Arkady Itkin, San Francisco employment lawyer to discuss your claims.