Who is Covered by the Current Law?

Under the current law, employers with fewer than 50 employees within a 75-mile radius were not required to provide family or medical leave to their employees. Likewise, employers with fewer than 30 employees within a 75-mile radius were not required to provide baby-bonding leave under the New Parent Leave Act. The employer size requirements left many employees without any job-protected leave to care for their own medical conditions, their family members’ medical conditions, or the birth or adoption of a new child.

Who Will Be Covered by the New Law?

In January, if your employer has five or more employees and you are otherwise eligible, your employer is required to provide 12 workweeks of unpaid job-protected leave during any 12-month period for reasons covered by the law. During this unpaid leave, employers will be required to pay for and maintain the employee’s group health plan for the duration of the leave. Job protection means that once an employee returns from their protected leave, he/she must be reinstated to the same or a comparable position. Job protection provides employees with certainty that they will have a job when they return from caring for themselves or their loved ones.

What Changes Will There Be to the Qualifying Reasons for Taking Leave?

As the law currently stands, covered employees are entitled to take medical leave to care for a serious health condition for themselves, their child, a parent, a spouse, or a domestic partner. The new law expands the coverage and allows employees to take leave for the serious health conditions of additional family members including grandparents, grandchildren, and siblings. This is a welcome change that recognizes that families come in a variety of shapes.

Am I Eligible To Take Leave?

To be eligible for the 12 weeks of job protected leave, in addition to working for an employer that has five or more employees, an employee must have been working for the employer for one year or more, and must have worked 1,250 hours or more during the 12 months preceding the leave. Although you must have worked for the employer for a total of 12 months, this can now be 12 nonconsecutive months, as long as you have worked for the employer for 12 months over the course of a seven-year period.

What About Leave for the Birth of a Child, Adoption, or Foster Care Placement?

Currently, eligible employees are also allowed to use their 12 weeks of leave for the birth of a child, or the placement of a child in connection with adoption or foster care of the child by the employee. This coverage will not change. However, there are expanded protections for parents who work for the same company. Under existing law, if both parents worked for the same employer, the employer was only required to provide 12 weeks total to both parents for bonding with a newborn, adopting or foster care placement. The new law will require the employer to provide 12 weeks of leave to each parent.

What if I am covered by both CFRA and FLMA?

The federal Family Medical Leave Act provides 12 weeks of job protected leave to employees who have been employed for one year or more and have worked 1,250 or more hours during the 12 months preceding the leave, and who have worked at a location where there are 50 or more employees within a 75 mile radius. A covered employee can take FMLA leave to care for his/her own serious health condition, or for the serious health condition of the employee’s child, parent, or spouse. Eligible employees can also take the 12 weeks of leave for bonding with a newborn, or for the adoption or foster care placement of a child. Currently, if an employee is covered by both CFRA and FMLA, those two leave run concurrently. So for example, if you take leave to care for a new baby and you are covered by both CFRA and FMLA, you only get 12 weeks of leave total, not 24.

However, with the expansion of the California leave law, there may be circumstances where an employee who is covered by both CFRA and FMLA may be entitled to a total of 24 weeks of job-protected leave. For example, under the new CFRA rules, a covered employee can take 12 weeks to care for a grandchild’s serious health condition. However, grandchildren are not covered by FMLA, so it would not apply. Therefore, if the same employee needed 12 weeks to care for his/her own serious health condition, the employee could take that time under FMLA and have an additional 12 weeks of FMLA leave.

These changes are long overdue and a welcome change to the family leave laws in California!

On July 13, 2020, the California Court of Appeal, First Appellate District allowed patients with severe mental illness to pursue a class action against Kaiser Foundation Health Plan for underfunding mental health care, and restricting medically necessary treatment for Kaiser patients, resulting in long waits for individual therapy, forcing them into inappropriate group treatment. The decision overturns the lower court’s ruling denying class certification of the claims brought by Susan Futterman, Acianita Lucero, and Maria Spivey.

The Court’s decision came after significant briefing by Latika Malkani and Laura Heron Weber and oral argument by Jonathan Siegel.

The Plaintiffs, Ms. Futterman, Ms. Lucero and Ms. Spivey allege that Kaiser has violated California’s Mental Health Parity Act by denying coverage for treatment to patients diagnosed with severe mental disorders. Kaiser’s system restricts individual therapy and other necessary treatment, forcing patients to wait weeks or even months for appointments, or be placed into inappropriate group therapy modalities, with devastating outcomes. They bring claims on behalf of similarly situated patients asking Kaiser to cover medically necessary treatment for patients with severe mental illness. The Court of Appeal’s decision remands the case to the lower court for reconsideration of the motion for class certification.

Susan Futterman is the widow of Fred Paroutaud, who was hospitalized and diagnosed with bipolar disorder, but was denied individual therapy and later committed suicide. Ms. Lucero was diagnosed with Major Depressive Disorder and was automatically placed in group therapy, after being told that long-term individual therapy was “not available” at Kaiser. Ms. Spivey lost her teenage daughter, Chloe Roston, to suicide. Roston suffered from mental illness for many years, but was repeatedly denied individual therapy by Kaiser, even after an attempted suicide.

Siegel LeWitter Malkani is proud to represent these deserving clients who have suffered devastating loss from Kaiser’s broken mental health care system. For more information about this case, please contact our office.

“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear.” “An employer who fires an individual merely for being gay or transgender defies the law.”

In today’s decision in Bostock v. Clayton County, Georgia, the Supreme Court made clear that the anti-discrimination protections of Title VII apply to LGBTQ+ persons across the country.

This important decision came out of three cases. Gerald Bostock worked as a child welfare advocate in Clayton County, Georgia for a decade. After he joined a gay softball league, he was fired for conduct “unbecoming” a county employee. In his case, the Eleventh Circuit decided that Title VII does not prohibit employer from firing employees for being gay.

Donald Zarda was a skydiving instructor in New York. Days after mentioning to his employer that he was gay, he was fired. The Second Circuit determined that his firing was illegal under Title VII.

Aimee Stephens worked for a funeral home in Garden City, Michigan. When she started her position, Ms. Stephens presented as male. Two years later, she informed her employer that she was going to begin living and working full time as a woman. The funeral home fired her telling her “this is not going to work out.” The Sixth Circuit reached a decision that Title VII bars employers from firing employees because of their transgender status.

The Supreme Court agreed to hear the cases to finally resolve that Title VII protections extend to LGBTQ+ persons.

The employers made numerous arguments that were soundly rejected by the Court. The majority opinion explained that the plain language of Title VII protects LGBTQ+ persons: “As enacted, Title VII prohibits all forms of discrimination because of sex, however they may manifest themselves or whatever other labels might attach to them.” In rejecting the employers’ argument that Congress did not intend Title VII to apply to discrimination based on being LGBTQ+, the Court responded: “In fact, many now-obvious applications [of Title VII] met with heated opposition early on, even among those tasked with enforcing the law.”

Prior to today’s decision, only 21 states (as well as the District of Columbia, Guam, and Puerto Rico) had laws explicitly banning workplace discrimination based on sexual orientation and gender identity. Although California was one of the states that explicitly prohibits discrimination against LGBTQ+ employees, the anti-discrimination protections now apply across the country.

In 2017, the California Department of Fair Employment and Housing added new regulations which expanded the Fair Employment and Housing Act to explicitly prohibit discrimination on the bases of gender, gender identity, gender expression, and transgender persons. At the time, we wrote a blog post about those changes, as well as the Justice Department’s brief in Mr. Zarda’s case. Three years later, the Supreme Court has now made clear that employers cannot fire employees because they are LGBTQ+. As the Supreme Court indicated, this decision has been a long time coming. We agree, and are happy that this decision comes during Pride month.

If you believe that you have been subjected to discrimination at work because you are LGBTQ+, please contact our offices to discuss what options you may have.

High-risk employees include any employees over 65 years of age.

High-risk employees also include employees who have conditions the Center for Disease Control (CDC) has found make them at high-risk for COVID-19. CDC website

This includes employees with any of the following medical conditions: liver disease, chronic kidney disease undergoing dialysis, diabetes, severe obesity (body mass index measuring 40 or more), serious heart conditions, chronic lung disease, or asthma that is moderate or severe.

High-risk employees are also those who are immunocompromised. According to the CDC, many conditions can cause an employee to be immunocompromised, so talk to your doctor about whether you are immunocompromised. The CDC’s current website includes the following as examples of conditions that cause people to be immunocompromised: smoking, cancer treatments, bone marrow and or organ transplants, HIV or AIDS that is not well controlled, and long term use of medications that weaken the immune system.

If you are high-risk, be sure to request a reasonable accommodation from your employer. Your employer is obligated to engage in an interactive process with you to determine whether there is a reasonable accommodation for you. Types of reasonable accommodations, depending upon your job and other factors, may include working from home, eliminating job functions that are not essential, time off, or a flexible work schedule. The EEOC specifically urges employers and employees to look for creative and flexible solutions that permit you to do your job safely.

An employer cannot retaliate against you or terminate your employment because you ask for a reasonable accommodation because you are a high-risk employee. If your employer does, reach out to Siegel LeWitter Malkani for advice and be safe!

As a result of the ongoing COVID-19 pandemic, many employers are being forced to lay off, furlough, and/or reduce employee hours as a result of slow or nonexistent business. If you find yourself out of work, or working a reduced work schedule through no fault of your own, you may be entitled to unemployment insurance (UI) benefits and should file a claim with the California Employment Development Department (EDD) https://edd.ca.gov/ Benefits range from $40 to $450 per week depending on your earnings history within the base period, and other factors, such as whether you are receiving any wages or pay. Although there is normally a one week waiting period for unemployment benefits, the order issued by the California Governor waived that period.

To be eligible for unemployment benefits, you must meet the eligibility requirements including that you:

• Earned enough wages during the base period to establish a claim;
• Have legal authorization to work in the U.S.;
• Are totally or partially unemployed;
• Are unemployed through no fault of your own;
• Are physically able to work;
• Are available for work;
• Are ready and willing to accept work immediately; and
• Are actively looking for work (note: this may not apply if you are working reduced hours)

Reduced Hours

If your employer reduces your hours due to COVID-19, you may be entitled to unemployment benefits. Even if you are still working some hours, you may be entitled to partial wage replacement. If you expect to return to work with your employer within a few weeks, you must meet the eligibility requirements listed above, but you are not required to actively seek work each week. However, you must able and available to work during each week that you receive unemployment benefits.

Generally, to be eligible for partial unemployment benefits, your hours must be reduced by at least 50%. However, because of the continuing developments, we suggest that if you have suffered any wage loss due to your hours or pay being cut, you should file an unemployment claim to determine if you are eligible.

Pandemic Unemployment Assistance

Under the recently passed federal Coronavirus Aid, Relief and Economic Security (CARES) Act, which was enacted on March 27, you may be eligible for an additional $600 per week, on top of the regular unemployment amount, through the end of July. In addition, the CARES Act extended unemployment benefits from 26 weeks to 39 weeks.

It is unclear how this benefit will be paid, and to date, the California EDD is awaiting guidance from the Department of Labor. We recommend that you continue to check for updates on the EDD website: https://edd.ca.gov/about_edd/coronavirus-2019.htm

Independent Contractors

Typically, independent contractors are not eligible for unemployment benefits (and their employers don’t pay unemployment insurance payroll taxes).

Under the recently passed federal CARES act, independent contractors may be eligible for unemployment insurance as well as the additional $600 per week provided for under that new law.

In addition, there have been a lot of changes to the law on who can properly be classified as an independent contractor in California. If you have been classified as an independent contractor, it may be that this was inappropriate and you may be reclassified as an employee, and therefore entitled to receive unemployment benefits.

At the moment, California’s EDD website has not been updated to include the new provisions for independent contractors, but if you are out of work, or working a reduced work scheduled due to COVID-19, you should apply for unemployment insurance.

Self-Employed Workers

As with independent contractors, normally self-employed workers are not entitled to unemployment insurance (and do not pay unemployment insurance payroll taxes). However, under the CARES Act, many self-employed individuals will qualify for unemployment insurance as well as the additional $600 per week benefit for up to four months.

At the moment, California’s EDD website has not been updated to include the new provisions for independent contractors, but if you are out of work, or working a reduced work scheduled due to COVID-19, you should apply for unemployment insurance.

Undocumented Employees

Unfortunately, undocumented workers are not eligible for unemployment insurance. However, under California law undocumented workers may be entitled to income from State Disability Insurance (SDI) (https://www.edd.ca.gov/disability/), Paid Family Leave (https://www.edd.ca.gov/disability/paid_family_leave.htm), Workers’ Compensation (https://www.dir.ca.gov/dwc/) and Paid Sick days (https://www.dir.ca.gov/dlse/paid_sick_leave.htm)

Quit Your Job?

Normally, if you quit your job, unless you did so for very limited reasons, you will not be entitled to unemployment insurance benefits. However, under the expanded coverage of the CARES Act, employees who quit because they contracted COVID-19, or because they were required to leave their job to provide full-time care to family and other relatives but did not have access to paid leave benefits, may be entitled to unemployment insurance benefits. Prior to quitting your job, you should see, what other possibilities may be available to you including FMLA/CFRA, Paid Family Leave, and the expanded child care leave under the FFCRA. Blog Article: New Protections for Workers Under the Federal Families First Coronavirus Response Act Because changes are occurring daily, we recommend that you continue to check the EDD website for updates at https://edd.ca.gov/about_edd/coronavirus-2019.htm

What does the new law provide?

• 10 Paid Sick Days for full-time workers
  • You receive 100% of your pay (up to $511 per day, up to a total of $5,110) for 10 days if you are quarantined or if you are exhibiting COVID-19 symptoms and are seeking a COVID-19 diagnosis
  • You receive 2/3 of your pay (up to $200 per day, up to a total of $2,000) if you are caring for another individual who is quarantined or because of illness, or your child’s school or child care is closed and you do not have another child care provider
  • If you are a part time employee, you are eligible for the number of hours of leave that you work on average over a two week period

• 12 Weeks Paid Family Leave
  • Full-time employees are eligible for up to 12 weeks of leave at 40 hours per week. During that time, eligible employees will receive 2/3 of their pay (up to $200 per day and $10,000 in the aggregate) where the employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.
  • If you are a part-time employee, you are eligible for leave for the number of hours that you are normally scheduled to work over that period.
  • The first two weeks can be unpaid, or dovetailed with the paid sick days described above to cover the gap.
  • This provision is only applicable if you have been employed for at least 30 calendar days

Who is Covered?

• Public agencies, including federal, state and local agencies
• Private employers with under 500 employees
  • Employer provide the pay and can get a credit or refund through payroll taxes
• All employees of covered employers are eligible for two weeks of paid sick leave, but you must have been employed for at least 30 days to be eligible for the additional 10 weeks of paid family leave.
• Exceptions?
  • Under the law, the Secretary of Labor can exempt employers with 50 or fewer employees from the leave due to school closings or child care unavailability if the viability of the business is compromised. However, the process for obtaining an exemption is unclear but guidance is expected in April 2020.
  • An employer or the Department of Labor can also exempt healthcare providers and emergency responders

If I Take the Child Care Leave, Does My Employer Have to Reinstate Me?

The Family Medical Leave Act (FMLA) and California Family Rights Act (CFRA) were the main leave laws applicable to California employees prior to the COVID-19 pandemic. Under those laws, if you take protected leave, your employer is required to reinstate you to you original position or an equivalent one when you return to work. Under the Families First Coronavirus Response Act, there is a possibility that your employer does not have to return you to your same job if your employer employs fewer than 25 employees.

When Does This Start?

• The provisions go into effect April 2, 2020 (or sooner). The protections end December 31, 2020.

What if I Have Other Sick Leave Available To Me?

Your employer may not require you to use other paid leave before the paid sick leave provided in the Families First Coronavirus Act.

Can My Employer Retaliate Against Me for Taking Sick Leave?

The law provides that it is illegal for an employer to discharge, discipline or discriminate against any employer who takes the sick leave provided by the Act.

Changes to the law are happening on a daily basis in response to COVID-19. We will continue to post updates, but if you have questions about your employment situation and would like to speak with an attorney, please contact our offices. Our physical office is closed, but attorneys are available for phone and Zoom consultations.

Sick with or Exposed to COVID-19

In California, the California Family Rights Act (“CFRA”) provide up to 12 weeks of unpaid job protected leave within a 12 month period to care for yourself or your immediate family if they have a serious health condition. A serious health condition includes any illness that causes any period of incapacity requiring absence from work, school, or other regular daily activities for more than 3 consecutive days. To be eligible for CFRA leave, you must have been employed with your employer for 12 months and you must have worked at least 1250 hours in that twelve month period and your employer must employ 50 or more people within a 75 mile radius. While the CFRA does not provide pay, other laws may provide wage replacement, and your employer may also have other benefits and programs that you may be able to utilize during this time.

If you are unable to work because you have been diagnosed with or if you have been exposed to COVID-19 (certified by a medical professional) you can apply for disability insurance which will cover partial wage replacement. Contact your doctor for assistance with a medical certification if you believe you have, or have been exposed to COVID-19. While there is normally a one-week unpaid waiting period that period has been waived under the Governor’s Executive Order. EDD Website

If you have paid sick leave available, your employer must provide the leave and compensate you under the California paid sick leave laws. You may use sick leave for absences due to your own illness or the care of a family member. California Department of Labor Standards Enforcement

Caregiving

As described above, you may be entitled to job-protected leave if you are caring for an immediate family member who has COVID-19 under the California Family Rights Act. (See above.) CFRA is unpaid leave so below are some options on obtaining wage replacement if you are caring for a family member.

If you are unable to work because you are caring for an ill or quarantined family member (child, parent parent-in-law, grandparent, grandchild, sibling, spouse, or registered domestic partner) with COVID-19 (certified by a medical professional) you can file a Paid Family Leave (PFL) claim. PFL provides for six weeks of benefits to eligible workers. EDD Website

With lots of schools closing, many parents are unable to work because they need to care for their children. If this is the case, you may be entitled to unemployment insurance benefits. However, there are eligibility requirements including whether you have any other care options and/or if you can continue working your normal hours remotely. You should contact an EDD representative to determine eligibility. EDD Website

If you work at a worksite with 25 or more employees, you may also be entitled to 40 hours of leave per year for school-related emergencies, including the closure of school or daycare by civil authorities. Whether the leave is paid or unpaid depends on the employer’s policies. You may be required to use your vacation or paid time off before you are allowed to take unpaid leave but the employer cannot require you to use paid sick leave. DLSE Website Reduced Work Hours

If your employer has reduced your hours or shut down operations due to COVID-19 you can file a claim for unemployment insurance, which provides wage replacement benefits. This is true for workers who have lost their job, or who have had their hours reduced through no fault of their own. Again, the normal one-week unpaid waiting period is waived. EDD Website

Other Wage Replacement

If you do not have any sick leave available, or if you do not have enough available to cover the amount of time you are out of work, you can use any other leave that is available to you based on your employer’s policies. For example, you may have vacation or paid time off that you may utilize. DLSE Website

If you are in a union, you may also be eligible for other kinds of compensation. You should check your union’s website, and/or with your union representative.

Discrimination & Retaliation

The question of what will happen if your employer discriminates against you or retaliates against you for having COVID-19 does not have a clear answer. Under California law, an employer cannot discriminate against you because you have, or the employer perceives you as having any physical disability, mental disability, and/or medical condition. However, the Fair Employment and Housing Act does not cover “mild” conditions that have little or no residual effect- including things like colds, seasonal flu, and minor or nonchronic gastrointestinal disorders. Because COVID-19 is a novel virus, and the impact is different for different people, whether or not it will be considered a disability under the Fair Employment and Housing Act will likely depend on how the virus impacts you.

Because this virus originated in China, we have heard some reports of discrimination against people based on their national origin, race, and ethnicity. Discrimination on these bases is prohibited by both California and federal law. If you believe you have been discriminated against based on your national origin, race, and/or ethnicity, contact our office so we can help evaluate any clams you may have.

It is illegal for an employer to interfere with any eligible employee’s right to take leave under the California Family Rights Act or discriminating or retaliating against an employee for taking a leave. If you are eligible for leave, and are discouraged or prohibited from taking it, and/or if you are retaliated against after taking leave, please call our office so we can discuss any claims you may have.

The state of California, as well as cities and counties, are continuing to put out updated information and recommendations so be sure to check the California and local authorities for updates. Other resources you may wish to consult are:

• https://www.cdc.gov/
• https://www.dir.ca.gov/dlse/
• https://www.dir.ca.gov/dosh/

When an employment situation sours and an employee pursues his rights, usually at some point there is talk of settlement. Almost routinely, employers include a no-rehire provision in any settlement agreement which prohibits the former employee from seeking reemployment with the employer. While this may not seem like a big deal if you work for a small company and have no intention of seeking reemployment with the same people who wronged you in the first place, for individuals who work for large employers, the no-hire provision can create significant hardship. For example, if you work for a major retailer with numerous locations and you are terminated, a no-rehire provision might prevent you from working for that company ever again, in any capacity. That means, even if you wanted to work for a store 100 miles away, you would be barred from doing so. This is particularly problematic for long-term employees who have deep knowledge of the employer’s policies and practices and have been successful in their positions for years- they know the job, and have done it well, and now they are unable to apply for any future job at the company where their skills are a perfect match. This is also a significant problem for people who work for a utility; it may be that there is really only one employer in the area you can work for and a ban on working for that company will prevent you from working, period. The no-rehire provision would require you to either move to a new location or develop skills for an entirely different field. It seems, to many employees, like a final act of retaliation by their former employer.

Starting January 1, 2020, employment dispute settlement agreements cannot contain a no-rehire provision and such provisions are void as a matter of law and public policy. There is an exception, undoubtedly inspired by the #MeToo and #TimesUp movements- if an employer has made a good faith determination that the terminated employee engaged in sexual harassment or sexual assault, the employer may prohibit or restrict the terminated employee from obtaining future employment with the employer.

The new prohibition on no-rehire provisions eliminates a punitive and sometimes career-ending tool that employers routinely employ and is a victory for workers in California. As employee-advocates we are thrilled with this new law; employees who stand up for their rights no longer have to give up potential future employment just because they did so.

Jean Krasilnikoff

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

It is common practice throughout California to have an employee sign an arbitration agreement at the time she is hired. These agreements are generally non-negotiable, buried in a pile of new hire paperwork, and require the employee to arbitrate any claims arising out of employment. While valid arbitration agreements provide some of the safeguards that are afforded to litigants in court, it often takes away basic protections and rights including a trial by jury, and class or collective action. Arbitration is also a private process so it allows an employer to keep their wrongdoing under wraps.

The United States Supreme Court has said, repeatedly, that arbitration agreements are valid in the employment context. Recognizing the inherent imbalance in power between employers and employees, several states have tried to stop employers from forcing employees into arbitration. However, given the Supreme Court’s rulings, it is impossible to ban arbitration in employment altogether. The hope is that in California, AB 51 will even the playing field before an employee signs an arbitration agreement; requiring that an employee can only enter such an agreement voluntarily. The law also prohibits an employer from retaliating against an employee who declines to enter into an arbitration agreement, which provides additional protection.

Another significant benefit of the law is that attorneys’ fees are available to prevailing plaintiffs for violations of the law. This is an important piece of the legislation as the availability of attorneys’ fees greatly impacts the ability of plaintiffs’ firms to actually take and litigate these claims. It also provides a valuable bargaining chip in settlement negotiations.

While we expect that there will be legal challenges to AB 51, come January 1, 2020, employees have expanded and important rights with respect to whether they agree to enter into an arbitration agreement. While worker protections at the federal level are being chipped away, in California AB 51 is a significant step in the right direction to preserving employee rights in the workplace.

Jean Krasilnikoff

In Epic Systems Corp. v. Lewis, the Supreme Court decided that the NLRA does not protect the right of workers to engage in collective action through class-wide arbitrations, and instead, employers can compel employees to one-on-one arbitration for any workplace disputes or claims. In doing so, the Court ignored the realities of employment arbitration agreements and shifted the power squarely to employers.

Employees rarely “agree” to arbitration. Employees are often confronted with take-it-or-leave-it arbitration agreements – if the employee doesn’t sign, she doesn’t get the job. In the past, many arbitration agreements would require employees who sign the arbitration agreement to waive their right to go to court, and instead forces the employee into closed-door arbitrations. Usually the agreements include any claims – including discrimination and wage and hour claims.

As if this is not bad enough, employers have started including sections in arbitration agreements prohibiting employees from filing claims together as a class. For years, class-wide arbitrations have been an effective tool for workplace disputes – especially wage and hour claims for low-wage workers. For example, if a group of employees believes they have been misclassified or haven’t received meal and rest breaks, they have been able to band together to file a single class-wide arbitration against their employer. There is power in numbers. Where an individual employee may not have the means to hire an attorney, especially where the damages are low, a class-wide arbitration has the potential for substantial recovery and is often an attractive prospect for attorneys. In her dissent, Justice Ginsberg noted: “By joining hands in litigation, workers can spread the costs of litigation and reduce the risk of employer retaliation.” The cases before the Supreme Court challenged this practice – arguing that allowing employers to force employees into one-one-one arbitration is a violation of the right of employees to band together under the NLRA. Unfortunately, the Supreme Court disagreed and employers now have the green-light to force employees into arbitration agreements that waive class claims.

We agree with Justice Ginsberg that the Court’s decision is “egregiously wrong” and that this decision exacerbates the power imbalance between employers and employees that the NLRA was designed to correct. While this decision eviscerates an especially powerful tool for holding rogue employers accountable, our firm is committed to preserving employee rights both in court and arbitration. If you feel you have an employment claim, contact our offices today.

Jean Krasilnikoff

This sounds like the beginning of a very typical workplace claim. However the Court brought the civil claims to a very atypical, and I must say, poorly reasoned and dangerous, ending.

The Workers Compensation Act claim went to a hearing first and the Administrative Law Judge found that the employer’s actions were “non-discriminatory, good faith personnel decisions.” Based on this finding in an administrative hearing, where there is no civil discovery, the impetus to put on witnesses and gather evidence is different, and, among many other differences, the legal standard is different, the Court of Appeals held that the employees’ civil claims were barred.

The Court acknowledged that workers’ compensation is not the exclusive remedy for discrimination in the workplace, but went on to hold that where “plaintiff’s elected to pursue both remedies… the workers compensation decisions have a reclusive effect.”

In other words, the Court is making an employee who dares to bring two claims face an unnecessary and unwarranted risk. Employees must carefully consider whether to file in two forums and which case is likely to be decided first.

Jody I. LeWitter

The distinction in being classified as an independent contractor or an employee is an important one. Numerous laws protect the rights of employees, but do not protect independent contractors. For example, California’s minimum wage, overtime, meal period, and rest break laws apply to employees, but do not apply to independent contractors. Many employers misclassify their workers as independent contractors instead of employees to avoid having to comply with the many laws and regulations that protect employees – usually to shift costs onto the worker and off of the company.

Although the employee vs. independent contractor debate has raged on for many years, it has been in the spotlight with the explosion of the so-called “gig economy.” A number of decisions have come down through the courts and through the regulatory agencies, and depending on which law applies, different tests apply for how an employee is classified. However, the California Supreme Court has now definitively adopted a new test for determining whether a worker is an employee or an independent contractor under the California Wage Orders in Dynamex Operations West, Inc. v. Superior Court (Lee).

Dynamex is a same-day delivery company that hires drivers to carry out the deliveries. In 2004, the company changed the drivers’ status from employees to independent contractors. After being reclassified, the drivers had to provide their own vehicles, pay for their expenses (tolls, fuel, maintenance, insurance), taxes, and workers’ compensation insurance. Dynamex controlled how the workers were given delivery jobs and drivers were not guaranteed any number of deliveries. The drivers filed a class action lawsuit alleging wage and hour violations, claiming that they were required to do the same duties as independent contractors as they had while they were classified as employees.

The California Supreme Court held that the appropriate test for purposes of wage orders is the “ABC” test. Under the ABC test, a worker is only properly considered an independent contractor (and thus wage orders do not apply) if the hiring company establishes:

1. That the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact;
2. That the worker performs work that is outside the usual course of the hiring entity’s business; and
3. That the worker is customarily engaged in an independently established trade, occupation or business of the same nature as the work performed for the hiring entity.

Importantly, this test “presumptively considers all workers to be employees, and permits workers to be classified as independent contractors” only if they satisfy each of the three requirements of the ABC test.

Adoption of this standard is long overdue and is welcome relief for workers throughout the state of California. For purposes of wage and hour laws, workers are presumptively considered employees under the ABC test and the employer will have to prove otherwise. This is likely to extend protections to a significant number of employees throughout the state who have been, up until now, been classified as independent contractors.

If you believe you have been misclassified, please contact our office for a consultation.

Jean Krasilnikoff

As we watch the re-trial of the famous Bill Cosby for his sexual assault of Andrea Constand, we have to wonder why he wasn’t convicted the first time (i.e., why did the case result in a mistrial?) and, given the ascent of the #metoo movement, with the accompanying consciousness raising, whether justice will be done in the retrial. The jury hasn’t yet started to deliberate but some lessons can already be learned.

First, of course, the burden of proof is simply higher in a criminal case than in a civil case, and there are good policy reasons for that. We want to be very sure when we put someone behind bars. Second, the jury pretty much never has the entire story. In the first trial, the judge only allowed one other victim to testify, and in the re-trial, 5 victims have testified. In all cases, for reasons both right and wrong, not all evidence is heard by the jury. And lastly, it is unusual for a civil case involving incidents so far into the distant past to proceed, which does provide reasons to sow reasonable doubt, and to question witnesses’ and victims’ memories and motives, in this criminal case.

But what is similar about the original Cosby trial and the re-trial? The good old-fashioned blame the victim. Cosby’s lawyers are calling the victim, Andrea Constand a “con artist”, who is obsessed with fame and money. They are vilifying her and suggesting she is a liar, who made up a story to get rich and famous. In the re-trial, the judge has ruled that the fact that Cosby paid Constand $3,380,000 to settle the sexual assault civil lawsuit is admissible evidence. The defense is using the payment to support its theory that Constand is greedy. But doesn’t this payment equally support the theory that Cosby is guilty as charged? Even the likes of Bill Cosby doesn’t just hand out $3,380,000 for no reason, especially with 59 other victims possibly waiting in the wings.

There are credibility issues in this case, but the criminal defendant himself is remaining silent. At this moment in the trial, the credibility determination ironically seems to rest on the relative credibility of two women: the victim, and a woman testifying on behalf of the defense. Nice way to move the focus off the bad actor and pit two women against each other.

The defense has put on the testimony of Marguerite Jackson, someone who says she spoke with the victim, to suggest that the victim made the whole thing up. A close read of Marguerite Jackson’s testimony (really a close read of newspaper articles about the testimony!) suggests that Ms. Jackson also has some credibility issues and her story seems like a twist on the truth. Jackson says the two women were watching television and a story came on about a sexual assault by a famous person. According to Jackson, Constand told her that she had been attacked by a famous person but couldn’t prove it. Jackson says she told Constand that she would report it. According to Jackson, Constand asked what the case on tv was about, and Jackson told her it was a civil case and therefore was about money. Then Jackson, not Constand, brought up the issue of money, admitting she said that the case was about money and that, “Money is the best motivator.” After that, Jackson then testified, somewhat bizarrely, that Constand admitted she made the story up. Jackson also testified that Constand, “I could say it did. I could quit that job… I could get that money.” The prosecutor has attacked Ms. Jackson’s credibility, suggesting it was Jackson who was out for fame and fortune.

The prosecution is offering evidence that it was Jackson, not Constand, that was looking for her moment of fame and therefore was offering dishonest testimony. I believe that Constand’s testimony has more integrity than Jackson’s testimony, and is more logically consistent. Of course, I am interpreting this through my own lens, as everyone does. I wait with anxious anticipation to see how the jury interprets this conversation and the rest of the evidence. In some ways this will tell us how far society has come, and whether the #metoo movement has had some influence on the perspective of society. On the other hand, it may just tell us what this jury of 12 people happens to think.

We should be cautious to not make too much of any one jury’s determination of what happened in one of the sixty cases that “coulda shoulda woulda” been brought against a wealthy male celebrity who has abused his lot in life. Regardless of the outcome, let’s keep chipping away at the privileges and biases that allow this behavior to permeate our society.

Jody LeWitter

First, social norms are so well ingrained that we, as a society, often do not question what should be questioned. The line between appropriate behavior and inappropriate but- we-have-to-put-up-with-it behavior is simply blurred. I am grateful beyond belief to those brave souls, those who question the way things are, for shinning a floodlight on these deep dark not-so-secret societal norms.

Second, my own experiences are like an onion. The outer skin protects a lot of interior sections of which I am not always so cognizant. When peeled back, the memories are hazy but powerful. My outer skin is: no, no, lucky me, I am fortunate and have not been subject to sexual harassment. But it isn’t true. I feel this way due to years of denial and a well-honed ability to minimize. It is my denial mechanism that has made me a successful lawyer and advocate. But this ability to minimize, ignore and excuse doesn’t help change society, and change is what we need.

My story is simply the story of my generation of women of my socioeconomic class, race and privilege, growing up in the 60s, wanting to have a career and change the world without a lot of role models. I was white, middle-class and privileged enough. Yes, I experienced sexual harassment, both verbal and physical, especially as a young woman. Young women, women of color, gender non-conforming, gay, lesbian, transgender people, poor people, and all powerless people, are vulnerable to this display of power and the harm that comes with it….. in the workplace, on the streets, where they seek medical care or government services, in their own homes…anywhere and everywhere.

And I also experienced limited expectations with well-defined and rigid goals for what I would and could grow up to be, which were intended to shape (and narrow) my dreams, for myself and for a better society. The confines of this spectrum of expectations (or lack thereof) also made it so that I, and other young women, did not feel empowered to even articulate, much less question, discrimination and harassment when we saw it.

And, in the legal realm, in order to move this movement forward, we must change the standard for bringing sexual harassment claims, other harassment claims, and discrimination claims, in order to change how society operates and stop simply accepting the unacceptable. More on this later.

So, happy new year, and, thanks to #metoo.

Jody LeWitter

In Fuller v. Idaho Department of Corrections (9th Cir. 2017) 865 F.3d 154, the Ninth Circuit stressed the importance of how this imbalance impacted the employee/rape victim and how a reasonable jury could conclude that the employer’s conduct “effectively condoned the rapist” and thus, created a hostile work environment for the victim. In doing so, the Ninth Circuit overturned the lower court’s summary judgment in favor of the employer.

When the employer learned that a male employee was being investigated by the sheriff for the rape of an employee, it put the co-worker on a paid administrative leave, and did not warn any of its employees. (Yes, we understand the difficult balancing test between safety and privacy). The employer, Department of Corrections, not only paid the co-worker while on leave but gratuitously noted that it “looked forward to…[his]…prompt return to work.” (Yes, this case was before the #MeToo movement.) Ms. Fuller, who had a relationship with the co-worker, disclosed the relationship to her employer. The employer did nothing to warn or protect her, and she was subsequently raped by this same co-worker.

When Ms. Fuller, suffering from the impact of the rape, asked for a paid leave of absence, which the employer in its discretion could have granted, the employer denied her request. Ms. Fuller was distraught, not only by the rape, but by the fact that her employer was paying her rapist but refused to pay her. Supervisors continued to make supportive statements towards the rapist, telling staff to “feel free to give… [the coworker accused of rape] some encouragement.” A supervisor opined to all that he “hate[d] that [the accused rapist] cannot come to the office until the investigation is complete.”

When Ms. Fuller expressed concern that the man accused of rape might return to her workplace, the employer responded that he “still was our employee” and that they did not want “a stigma hanging over” him in case the allegations were proven to be untrue. No empathy or understanding at all was expressed towards the female victim. Even though Ms. Fuller obtained a civil injunction barring this co-worker from approaching her, all the employer did was indicate that an employee under an administrative investigation could not enter the premises. It did not warn its staff that there was a stay away order or do anything to protect Ms. Fuller at all.

The Ninth Circuit concluded that, “…a reasonable jury could find the agency’s public and internal endorsement of…[the accused rapist] made it more difficult for Fuller to do her job, to take pride in her work, and to deserve to stay in her position.”

Courts often get hostile environment claims wrong; they just do, as demonstrated by the fact that this was a 2-1 decision rather than a 3-0 decision. Our society and courts have much work to do to understand and embrace how women are impacted by sexism. This opinion helps to further this important work.

Employer be warned, now is the time to fully embrace change, protect victims of harassment, discrimination and rape. The times they are a changin’.

Jody I. LeWitter

As happens at this time of the year, the governor signs a number of pieces of legislation, many of which impact employees. Today we are looking at a few more important pieces of legislation protecting employees with criminal histories, women, immigrants, and families.

First, Governor Brown signed Ban the Box. This legislation broadens the current legislation. Now, it will be an unlawful employment practice to ask a potential employee about his or her criminal convictions or to consider any convictions until after a conditional offer of employment is made. After making such an offer, the law sets forth limits on how an employer may consider facts surrounding a conviction, including an individualized assessment and notice. The law applies to employer’s with over five employees. See, AB1008.

SB 63 expands parental or baby-bonding leave to any employer with 20 or more employees in a 75 mile radius (the prior law covered employers with 50 employees). The law permits 12 weeks of leave (yes, unfortunately unpaid leave) within a year of a child’s birth, adoption, or foster care placement. The law still requires that the employee have worked one year and 1,250 hours.

The Immigrant Worker Protection Act, AB 450, prohibits employers from allowing federal immigration agents from entering nonpublic areas of a place of labor, or inspect employee records, except with a warrant or subpoena, or otherwise required by federal law.

Jody LeWitter

In recent years there have been several legislative changes strengthening the equal pay law in California. The California Equal Pay Act prohibits an employer for paying a male employee more than a female employee “for substantially similar work.” Cal. Labor Code § 1197.5. The California Equal Pay Act applies to all California employers, regardless of the size of the employer. The California Equal Pay Act also prohibits employers from discriminating or retaliating against an employee for invoking rights provided by the law or helping another person invoke her rights under the law.

On January 1, 2017, the Fair Pay Act was expanded to address compensation disparities between members of one race or ethnicity and those of another race or ethnicity. For example, women of color are often paid less than white women, and the changes to the law allow women of color to make a claim where this occurs. See Cal. Labor Code § 1197.5(b)

Employers often justify a disparity in salaries by claiming that they based the employees’ salaries on what the employees made at their prior jobs. Changes to the law in 2017 now explicitly prohibit an employer from justifying an unlawful difference in pay on prior salary alone. Reliance on an employee’s prior salary alone oftentimes perpetuates a life-long salary disparity. By prohibiting an employee from relying on prior salary alone, the law works to break the cycle of wage disparity.

One week ago Governor Brown signed a bill, which will prohibit an employer from relying on an applicant’s prior salaries to determine whether to offer the applicant a job, and how much to pay the applicant. In addition, the bill will require employers to disclose the position’s pay scale if a job applicant requests that information. You can view a copy of the bill here: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB168 This is a step in the right direction for equal pay in California!

If you believe that you have been subject to wage discrimination, contact Siegel LeWitter Malkani today.

Jean Krasilnikoff

Courts have differed on whether Title VII protects workers on the basis or their sexual orientation or not. This has led to a split of authority in several federal districts. For example, in 2000, the Seventh Circuit decided that Title VII did not protect workers on the basis of their sexual orientation, but earlier this year, the Seventh Circuit sitting en banc came to the opposite conclusion: that Title VII does in fact protect workers based on their sexual orientation. Compare Hamner v. St. Vincent Hospital & Health Center, Inc. (7th Cir. 2000) 224 F.3d 701 and Hively v. Ivy Tech Community College of Indiana (April 4, 2017, en banc.)

While federal courts continue to argue the meaning of “sex” under Title VII, California employees can rest assured that they are protected from discrimination based on their sexual orientation. The California Fair Employment and Housing Act (“FEHA”) explicitly prohibits discrimination against any person because of his or her sexual orientation. This means that employees in California are protected from discrimination based on their actual and/or perceived sexual orientation. Cal. Gov. Code §§ 12926(o), (s); 12940(a)-(d). Like Title VII, FEHA also prohibits discrimination based on “sex” but FEHA expressly defines “sex” to include “gender” which is defined as a person’s “gender identity” and “gender expression.” Cal. Gov. Code § 12926(r)(2).

The Justice Department’s position in Zarda is disappointing as it advocates for limiting protections to workers. However, this does not change the protections for California employees. Under California law, employees are undeniably protected from discrimination based on their sexual orientation. We hope the Zarda appeals court will decide to protect workers in the Second Circuit from sexual orientation discrimination as well.

Jean Krasilnikoff