Although California has had basic “lactation accommodation” requirements since 2002, earlier this month, the legislature enacted an amendment to the Labor Code to provide lactation rights, similar to those enacted in San Francisco, to employees throughout the state. The changes to the law provide that a lactating employee is permitted a “reasonable amount” of break time to express breast milk for her child, each time she needs to do so, as well as a private room to express breast milk.

Even prior to these amendments, employers were supposed to provide a room other than the bathroom for an employee to express breast milk. The changes to the law reiterate that the room shall not be the bathroom and also sets forth several additional requirements including that the room must: (1) be safe, clean, and free of hazardous materials, (2) contain a surface to place a pump and personal items, (3) have a place to sit, and (4) have access to electricity or alternative devices (i.e. extension cords or charging stations). In addition, an employer must provide a sink and refrigerator (or other “cooling device” if a refrigerator cannot be provided) for storing breast milk.

Like the San Francisco ordinance, the new lactation law prohibits an employer from discriminating against or retaliating against an employee who exercises her rights under the law. It also provides for enforcement by the California Labor Commissioner, who may issue citations and impose civil penalties of $100 per day for each day that an employee is denied reasonable break time or adequate space to express milk. In addition, if an employer denies reasonable break time or adequate space to pump, that denial will be deemed a violation of the wage and hour law. Employers must also develop and implement policies regarding lactation accommodations.

It is important to note that employers with fewer than 50 employees may be exempt from the requirements of the new law if they can demonstrate that a requirement would impose an undue hardship by causing the employer significant difficulty or expense. However, we hope the enforcing authorities scrutinizes any claims of undue hardship carefully.

The new law goes in to effect on January 1, 2020 and is an important step toward gender equity in the workplace. Providing sufficient time, and safe and sanitary location for mothers to express breast milk is a significant step to help infants and the mothers health, and will help keep more women in the workforce.

Jean Krasilnikoff

The California Fair Employment and Housing Act (“FEHA”) prohibits discrimination, harassment, and retaliation against California employees on a variety of bases. The FEHA provides some of the best employment protections in the country, and has been expanded several times over the years to afford additional protections in the workplace. However, one of the greatest hurdles to employees is the statute of limitations. In California, an employee has one year from the date of the unlawful practice to file a charge with the Department of Fair Employment and Housing (“DFEH”). Failure to file a charge within the limitations period waives an employee’s rights to any claims she has under the FEHA. Further complicating matters is that the intake process at the DFEH has several steps and it has been unclear to employees as to when their charge was actually filed, and thus, whether they filed within the one-year period.

On Thursday, Governor Newsom signed AB 9 which extends the one year period to three years starting on January 1, 2020. The bill also specifies filing a complaint means filing an intake form with the DFEH and the operative date of the verified complaint relates back to the filing of the intake form- clarifying what has been a confusing issue for employees over the years. This new statute triples the time an employee has to file their charge, which is particularly valuable for those employees who feel they cannot come forward soon after the adverse employment action.

However, it is important to note that the bill specifically says it will not “be interpreted to revived lapsed claims.” So, if your statute of limitations has already passed, this new extension will not give you any relief. However, if you suffer an adverse employment action (for example, if you are fired) in or after January 2020, the new statute of limitations will apply. The stickier issue is what happens to claims that arose this year, or will arise between now and the end of the year? If you were fired on March 1, 2019, and believe it was due to your gender, you would have until February 2020 to file your charge. But what happens now? Do you have until February 2022 to file your claim? Or, do you still need to file by February 2020?

Normally, when a statute of limitations is increased, it applies prospectively to pending cases. In analyzing the bill, the Senate Judiciary Committee noted: “Applying these rules to this bill, it would automatically extend the time to file for incidents that occurred before the effective date of the change in the law, but for which the limitations period had not yet expired on the date of the enactment.” However, because the law does not make this point entirely clear, we strongly advise that you file as soon as possible to preserve any rights that you may have so that there is no argument that you have failed to file within the statute of limitations period. There are other good reasons to file sooner rather than later too- memories fade, key witnesses move out of state, documents go missing – so if you are considering filing a charge, don’t count on that three year statute just yet.

If you believe you have claim for work place discrimination, harassment, and/or retaliation and would like to discuss your options, contact Siegel LeWitter Malkani at (510)452-5000.

Jean Krasilnikoff

Swissport terminated Ms. Sanchez after the expiration of her four month leave of absence, contending that it had provided her with all that the law required under the PDLL.

But Ms. Sanchez asked what about the other provisions of the Fair Employment & Housing Act? Doesn’t Govt. Code § 12940(m) require that an employer provide a reasonable accommodation to a disabled employee? (Yes.) Wasn’t Ms. Sanchez – due to her high risk pregnancy – a disabled employee? (Yes.) And isn’t it true that a leave of absence is, under the law, a reasonable accommodation? (Yes, again.) And – last but not least – can’t a reasonable accommodation consist of a leave of absence greater than four months? (Yes! See Hanson v. Lucky Stores (1999) 74 Cal.App.4th 215, 227 ; andWatkins v. Ameripride Services (9th Cir. 2004) 375 F.3d 821, 828-829).

So wasn’t it about time for a published case to declare that – if not an undue hardship on the employer – a disabled pregnant employee should be entitled to more than four months of a pregnancy related disability leave?

This is just what the Court held in Sanchez v. Swissport (2-21-13) ____ Cal.App.4th______ . The Court explained that the pregnancy leave law was meant to supplement, not limit or displace, other provisions of the Fair Employment and Housing Act.

Good for the Court! Good for Ms. Sanchez! And great news for everyone else, including pregnant women, all women employees, and their families!

Jody I. LeWitter March 27, 2013

With all that said – let’s take a look at the Veronese case. The facts are a little hard to follow, as they involve a lot of personal dialogue and soap opera-like scenarios. Ms. Veronese applied for a job with Lucasfilm, but the position had almost nothing to do with the film industry. The title was assistant to the manager of Lucas’ home, and appeared to involve a lot of household management and childcare.

The statement of facts relate a fairly lengthy set of drawn out and intricate conversations and emails throughout a terribly over-analyzed and detailed hiring process, during which Ms. Veronese finds out and announces she is pregnant with twins, the hiring manager discusses every possible feeling she has about children, pregnancy, and both sides – frankly – say and write a lot of things that are capable of multiple interpretations.

Both sides go back and forth about the job and the hiring process, asking for and receiving accommodations, trial jobs, and frankly TMI (“too much information”). In the end, the whole deal falls apart, Lucasfilm hires someone else, and Ms. Veronese sues for pregnancy discrimination.

After quite a bit of discovery, the case goes to trial on multiple claims, and Ms. Veronese is awarded $113,830, and her attorneys $1,157,411 (a relationship between client and attorney compensation that generally makes no lawyer or client happy).

The case is appealed. The Court of Appeals reverses the award and remands the case for retrial, holding that there are multiple instructional errors.

The Court of Appeals opinion reads as if the three (male) judges simply did not like the jury’s determination, and let their own opinions, intentionally or unintentionally, influence the outcome, resulting in a reversal of the jury award. Now, this is not to suggest that the trial court record was pristine, as it was rather messy, but the opinion itself makes some mighty bad law, replete with comments that would make any feminist’s blood boil.

For example, there was a lot of testimony at trial about whether Lucasfilm’s manager was simply showing caring and concern towards a pregnant applicant/ employee carrying twins, or was making employment decisions based upon the fact that Ms. Veronese was pregnant with twins, something the employer clearly could not do under the law. There is no doubt that there was a fact dispute here and that the jury believed the employee’s version of the facts. However, the Court of Appeals, citing instructional errors, reversed on multiple grounds. In its haste to reverse, it made some law it ought not to have set down in a precedential opinion.

For example, because the manager wrapped her “concerns” in a coat of I’m-only-thinking-of-you (and the baby), the employee’s lawyer requested a jury instruction stating, “A potential hazard to a fetus or an unborn child is not a defense to pregnancy discrimination.” While the three-man (sic) panel admitted that the jury instruction accurately reflected the law, it held that the instruction was given in error, based upon a distinction without a difference: the case law supporting such an instruction dealt with a policy, whereas this case dealt with “only one 36-year-old pregnant woman who had already miscarried one twin.” This was the panel’s so-called legal justification for ignoring U.S. Supreme Court law. The panel might have just as well ‘fessed up to the fact that it was simply uncomfortable with the law, and therefore was refusing to follow it.

The Court of Appeals also declared a variety of other jury instructions as erroneous and prejudicial. For example, it declared that it was error to refuse to give the employer’s requested instruction on “business judgment.” A business judgment instruction would have instructed the jury that it couldn’t hold the employer liable for discrimination if the decisions weren’t discriminatory, but were rather based upon the non-discriminatory business judgment of the employer. Although giving this instruction wouldn’t have hurt anyone, failing to give it didn’t hurt anyone either, and thus wasn’t prejudicial. It was just another reason to justify reversal of the judgment.

There were other jury instructions that the Court of Appeals cited as justifying reversal of the verdict. Which brings us to one of the lessons that can be learned from this opinion, whether well reasoned or not. One lesson for employees and their counsel is that convincing a judge to give you the most employee-friendly jury instruction isn’t always the best strategy. It may leave the verdict vulnerable to reversal or appeal. Making sure the jury instructions look like they accurately and neutrally reflect the law may be a wise strategy for protecting a verdict over the long run.

Jody I. LeWitter February 22, 2013