A turning point in paid family leave: California measure has broad political and medical support

A turning point in paid family leave: California measure has broad political and medical support
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Charles Anderson, a new father who was denied parental leave by his employer, and his baby girl.

By Jenna Gerry

With unprecedented bi-partisan support, a bill that would expand parental leave to 2.7 million more of California’s working families is on Gov. Jerry Brown’s desk. Introduced by Sen. Hannah-Beth Jackson (D-Santa Barbara), SB 654, the New Parent Leave Act, would extend six weeks of job-protected bonding leave to California workers at companies with at least 20 employees within 75 miles of the employee’s worksite.

This bill addresses one of the biggest barriers workers face when trying to take Paid Family Leave — knowing that their job may not be there when they get back. This bill is remarkable not only for what it will provide to millions of California workers but for the justified bi-partisan support it received on the Assembly floor.

Here in California, the state Chamber of Commerce has consistently put every bill expanding the right to take job-protected parental leave on its infamous “Job Killer” list. In the past, a bill’s placement there has ensured that no Republican legislator would support it, and it has often meant that few to no moderate Democrats would either. Indeed, it can be the kiss of death for progressive legislation, even in our Democratic-controlled Legislature. So, as SB 654, prominent on the “Job Killer” list, headed to the Assembly floor in August, Jackson and the bill’s sponsors were not sure if we had the 41 votes we needed. But something miraculous happened.

After hearing her fellow Republicans voice staunch opposition, Assemblymember Melissa Melendez (R-Murrieta) stood up to speak in support of SB 654. She described her own experience of deciding to leave the military when she became a mother — in part because she would have received only six weeks off after giving birth. She could not imagine having to leave her child that fast. Melendez called on her colleagues to consider that we guarantee the job of any member of the military reserves if they are called to active duty. And she asked whether “the birth of a child is less important than service to one’s country.” She also challenged past rhetoric from both sides of the aisle justifying votes against parental leave measures.

When the final vote came down, nine Republicans joined 45 Democrats in favor of SB 654. We hope this was a turning point, and our state and nation can now transcend partisan politics to understand, finally, that family leave affects us all. As Melendez put it, “Republicans and Democrats agree that family is important, that children are important. And, if you believe that, you have to put your money where your mouth is.”

California’s health community is also speaking out for SB 654. More than 120 California health care professionals and 16 health care organizations — including the American Academy of Pediatrics’ California chapter — delivered a letter to Governor Brown this week urging him to sign it. “This is about clear empirical evidence,” said one signatory, Dr. Paul Chung of UCLA, “showing that the health and well-being of parents and their children — the present and future of our state’s economic productivity — are improved by job-protected paid parental leave.”

In addition to my organization, Legal Aid Society-Employment Law Center, several groups that advocate for policies to support the viability of working families cosponsored and helped promote SB654: the California Employment Lawyers Association, Equal Rights Advocates, and the California Work and Family Coalition (which counts these groups and many more among its members).

Now it is time for Governor Brown to make parental leave a reality for millions more California workers, especially because they’re already funding six weeks of it through payroll deductions. But parental leave is about more than the bottom line; it is about ensuring the wellbeing of California families and the state as a whole.

Jenna Gerry is an attorney at Legal Aid Society – Employment Law Center (LAS-ELC), where she advises workers struggling with family and medical crises and participates in legislative advocacy to expand family-friendly workplace policies.  LAS-ELC is a co-sponsor of SB 654, along with the California Employment Lawyers Association, the Work and Family Coalition, and Equal Rights Advocates.  

 

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A Mother’s Day gift of job-security

A Mother’s Day gift of job-security

This Mother’s Day, let’s give moms the gift of job-security for the time they take away from work to bond with their new babies.  Just last month, Governor Brown signed into law a bill that would boost Paid Family Leave benefits for parents who take baby bonding leave, but nearly half of all California workers could still be fired for taking the leave and accessing those benefits.  Under current law, job-protection for baby bonding leave is only available to parents who work for large companies with 50 or more employees, leaving out over forty percent of the workforce in California.

A legislative proposal currently underway in California, Senate Bill 1166, by Senator Hannah-Beth Jackson, would help ensure more mothers can go back to their jobs after taking up to 12 weeks of baby bonding leave, by extending job-protection to parents who work for smaller companies.  The reality is, almost half of the workforce is now women and mothers and fathers are sharing in financial and childcare responsibilities.  Without job-protection for new parents, mothers are usually the ones who are forced out of the job market when they would otherwise choose to return after an extended period of leave.

Many other states have already expanded their family leave laws to provide more parents with job-protection when out on leave.  Most recently, New York signed a bill that provided paid family leave benefits with job protection for nearly all workers in the state, regardless of the size of their employer.  In Washington DC, all employees have 16 weeks of job-protected leave.  In Maine, workers at companies with 15 or more employees have 10 weeks of job-protected leave; Massachusetts provides 8 weeks of job-protected leave for workers at companies with 6 or more employees; Minnesota offers 6 weeks of job-protected leave for workers at companies with 21 or employees; and Oregon provides 12 weeks of job-protected leave for workers at companies with 25 or more employees.

Opponents of SB 1166 argue that the proposed measure would “kill jobs” and “unduly burdens and increases costs of small employers.” These fear-based, sky-will-fall arguments have no basis.  In 2004, the National Federation of Independent Business conducted a poll of small businesses that contradicts the “undue burden” narrative.  The average number of requests for leave is only one per year.  Two-thirds of the small businesses did not receive a request for leave at all in the prior three years.  When asked about the principal problem caused by the employee’s absence, the most frequent response was “no real problems.”  A 2012 national survey of employers conducted by the Department of Labor also found that small employers were less likely to report problems with family leave than were large employers and that fewer than 10 percent of employers reported problems with productivity, absenteeism, turnover, profitability, career advancement, or morale because of family leave.

At last month’s bill signing ceremony raising California’s minimum wage, President pro Tem Kevin de León said, “When it comes to taking care of working families, mark my words, California leads the nation…the rest of the country looks toward California for leadership on this issue.”  It’s time for California to make good on its promise to working families – to provide not just higher paid leave benefits, but an assurance that their job will be there when they need it the most.

In addition to signing your Mother’s Day cards today, please sign this petition in support of SB 1166, because no mother in this state should have to choose between caring for a child and keeping a job.

Why California needs stronger parental leave policies

Why California needs stronger parental leave policies

By Menaka Fernando

At first glance, a cultural shift appears to be occurring in the country when it comes to parental leave. In the past year, companies like Facebook, Microsoft, Accenture and Netflix have instituted generous paid parental leave policies that give parents the ability to take time off from work to bond with a new child. However, while paid parental leave may be becoming more accessible to high-wage earning professionals, it remains impossibly out of reach for many workers who risk losing their job if they take any time off after having a new child.  It’s worth noting that Netflix’s parental leave policy glaringly excluded low-wage workers from its benefits.

Last week, Senator Hannah-Beth Jackson (D-Santa Barbara) unveiled a new legislative proposal that would dramatically improve access to parental leave for all California workers by addressing one of its biggest barriers — job protection.

The reality is the patchwork of existing protections for workers who need to take parental leave are woefully inadequate. The California Family Rights Act and the federal Family and Medical Leave Act provide 12 weeks of unpaid leave and job protection, but these laws only cover employees who work for larger companies with 50 or more employees. This leaves over 40% of California’s workforce ineligible for job-protected leave because their employer is too small.

Because nearly half of the workforce is not covered by our family leave laws, employers can punish workers for taking time off to care for a new child.  As a workers’ rights advocate, I often hear stories of employees – particularly low-wage earners – whose careers are slow-tracked, whose hours are restricted, or who are simply fired for taking or even requesting family leave.

Even more troubling is that workers without job protection are unable to take advantage of the state’s Paid Family Leave (PFL) program, which provides partial wage replacement benefits for those who take family leave. Studies have shown that low-wage workers who qualify for these benefits often cannot use them even though they pay into the program.  A 2011 Center for Economic and Policy Research study of the PFL program showed that the ability to use parental leave is far greater for salaried employees (mainly managers and professionals) and high earners (those earning over $20 per hour plus employer health insurance) than for those in hourly and low-quality jobs.

In the same study, 37% of respondents expressed concern that if they took PFL, their employer would be unhappy, their opportunities for advancement would be affected, or they might simply be fired. At a time when financial security and healthcare coverage are so important, the risk of losing one’s job to take leave to care for a new child is simply a risk that many new parents cannot afford to take.

Senator Jackson’s bill would alleviate that risk by extending parental leave rights for new parents (including domestic partners and adoptive or foster parents) who work for employers with 5 or more employees.

The need for expanded and equitable access to parental leave in the state cannot be understated.  The benefits of parental leave on the health and welfare of the economy and our state’s working families have been well-documented.  Research shows that paid family leave, particularly when there is job protection, increased new mothers’ wage growth and future employment rates.  Fathers who take parental leave are more engaged with their newborns, promoting greater gender equity at home and at work. In addition, evidence strongly suggests that children enjoy many short- and long-term benefits from parental leave including better health and  higher high school graduation rates.

While it is encouraging that good corporate policy is pushing the conversation on parental leave forward, it’s time for the Legislature to act. The protections of Senator Jackson’s bill will help ensure the physical, psychological, and economic health of all of California’s working families, and not just Silicon Valley executives.

Menaka Fernando is an associate attorney at Outten & Golden LLP, where she represents individual employees in litigation and negotiation, and a member of the California Employment Lawyers Association.

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Valuing fatherhood in the workplace

Valuing fatherhood in the workplace

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By Sarah Schlehr and Mariko Yoshihara

This Father’s Day, let’s do more than just celebrate our dads with Hallmark cards and backyard barbecues.  Instead, let’s give our dads something they really need – flexible workplace policies.

It can’t be surprising that the increase of women in the workforce, coupled with laws that discourage fathers from taking leave, has created a cascade of domestic stresses.  While women still bear a disproportionate share of the domestic work despite also working outside the home, working fathers now report feeling more work-family conflict than working mothers do.  The irony of this conflict is that fathers are actually prevented from sharing some of the burdens (and joys) of family life because they are saddled by Leave It To Beaver-era parental leave laws.

The good news is, change appears to be on the horizon.  This April, Massachusetts became the first state to require all but the smallest employers to provide fathers with unpaid job-protected leave for the birth of a child.  The law, renamed from the Maternity Leave Act to the Parental Leave Act,  requires businesses with at least six employees to cover dads as well as moms.  The expanded coverage is a much-needed first step in recognizing the universal need for fathers to spend time and bond with their newborn children.

A 2007 study found that fathers who took two or more weeks of leave after a child was born were more likely to perform certain daily child care tasks, like diapering, feeding, and bathing later on.  Fathers who took less than two weeks of leave were no more involved than those who took no leave at all.

Despite the clear benefit of taking time off to bond with a new child, fewer and fewer businesses are offering leave benefits to fathers and research has shown that those who do take leave face a significant stigma in the workplace (let’s not forget the New York Mets baseball player, Daniel Murphy, who was criticized when he took three days off for the birth of his child).

According to a recent study, most fathers only take between one and two weeks off after the birth of a child and the length of time off was closely tied to how much of the leave was paid.  Luckily, California is one of the few states that offer paid leave to parents.  And it’s no surprise that since the program was implemented, the percentage of “bonding leaves” claimed by men has gone up from 18.7 percent in 2005 and 2006 to 31.3 percent in 2012 and 2013.

Unfortunately, many fathers, especially low-income fathers, cannot take advantage of paid leave because their employers are too small to be covered by a law that would provide the new dads with job protection.  Most fathers simply cannot risk losing their job, especially after the birth of a new child.  Leaving aside the lucky Massachusetts dads, the only fathers who can access job-protected leave are those who are covered by the Federal Family and Medical Leave Act (FMLA) or a state law corollary.  But these laws leave a lot of fathers out in the cold since they only cover employees who work for companies with 50 or more employees and who have worked there for at least a year.

Incremental change may be on the way in California, where advocates for working dads (and moms) are pushing to increase the boundaries of who is covered by the California Family Rights Act, California’s corollary to the FMLA.  California’s SB 406, the legislation that would amend the law, does not go as far as the Massachusetts parental leave law.  But it does propose to expand leave rights to workers at smaller businesses, by lowering the employee threshold from 50 or more employees to 25 or more.

While SB 406 and the Massachusetts law are certainly steps in the right direction, both still lag far behind what other countries provide for their fathers.  For years, Sweden has had a generous parental leave policy of 16 months that could be shared by the mother and father.  Beginning in 1995, Sweden introduced a “use it or lose it” policy that reserved one month specifically for dads.  This was increased to two months in 2002 and will increase again to 3 months in 2016.  Some countries, like Chile, Portugal, and Italy, go so far as to make paternity leave compulsory, to help ensure that fathers share childcare responsibility with mothers.

It’s time for California and the rest of the United States to catch up and show that the job of parent is at least as important as the jobs parents perform for their employers.

Sarah Schlehr

About Sarah Schlehr

Sarah B. Schlehr is the founder of The Schlehr Law Firm, P.C. Her firm focuses on representing employees who are discriminated against because of pregnancy or for taking a leave of absence. Her firm also represents veterans who have been discriminated against for taking military leave. She is a graduate of Harvard Law School, Brigham Young University, Gerry Spence’s Trial Lawyers College, and the Strauss Institutes’ Program on Mediating the Litigated Case.

What do the United States and Papua New Guinea have in common?

What do the United States and Papua New Guinea have in common?  According to the United Nations, they are the only countries in the world without any sort of paid time off for new mothers.

In the Mother’s Day edition of his HBO show “Last Week Tonight,” John Oliver, the British comedian who is perpetually incredulous over most things American, juxtaposed the maudlin, corporate exploitation of the holiday with the grim economic realities facing working mothers in this country.  But Oliver noted a tiny bright spot.  Three states, California, Rhode Island and New Jersey, have some sort of limited paid leave for new mothers.

California’s paid family leave program is modest.  Payments are only partial and a worker can be fired for taking paid family leave unless they are also eligible for job protection under the California Family Rights Act (“CFRA”).  Yet, only workers at companies with 50 or more employees and who have been on the job for at least a year are covered under CFRA.  Accordingly, only about half of California employees can actually take advantage of the paid family leave program.

That may be about to change.  Senate Bill 406, currently pending before the California Legislature, would expand the job-protection coverage of the paid family leave program to include smaller companies of 25 or more employees.  It would also expand the definition of family member for whom a worker can take job-protected leave to care for to reflect the realities of modern families, by including grandparents, grandchildren, siblings, and adult children.

Even this modest expansion of the paid leave program has drawn the garment-rending wailing of the Chamber of Commerce, who predictably labeled it a “job killer.”  In the Mother’s Day clip, Oliver mocked the overwrought rhetoric and overblown fears of Congressional opponents of the unpaid Family Medical Leave Act (“FMLA”) in 1992:  “Our businesses shall crumble, or cities shall burn and hungry wolves will roam the streets.”

In reality, a 2012 Department of Labor survey showed only 15% of employers reporting any significant difficulty in complying with the FMLA.   There were no reports of hungry wolves.  A similar study conducted ten years after the enactment of California’s Paid Family Leave Act found that 90% of California employers considered the Act to have a positive or neutral effect on productivity, profit, morale and costs.

Progress in protecting the economic security of families seems to happen only incrementally.  The expansion of California’s paid leave program reflected in SB 406 is a great next step.  Let’s leave Papua New Guinea in the dust!

Watch the John Oliver clip by clicking here.

Curt Surls

About Curt Surls

Curt Surls has been practicing in Los Angeles, specializing in employment law, for almost 25 years. Mr. Surls is a Fellow of the American Bar Foundation, a non-profit professional association honoring lawyers whose careers have demonstrated dedication to the welfare of the community and the traditions of the profession. Prior to opening the Law Office of Curt Surls in July 2012, he was a partner with Bornn & Surls for over 15 years. Mr. Surls was also an attorney with the Oakland civil rights firm then known as Saperstein, Seligman & Mayeda, specializing in employment and civil rights class actions. Mr. Surls also worked for the Department of Industrial Relations and the Legal Aid Foundation of Los Angeles.

International Women’s Day now means progress without equity

International Women’s Day now means progress without equity

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By Elizabeth Kristen

International Women’s Day, celebrated worldwide this past weekend, started out as  “International Working Women’s Day” in 1911. One week later, the notorious Triangle Shirtwaist Factory Fire of 1911 broke out, killing over 140 workers – mostly women – who were trapped inside the factory. The horror of that fire and the working conditions imposed on the women locked inside the factory galvanized the labor movement and the women’s rights movement. Even though the name may have changed, this annual day honoring women is the perfect time to take account of the barriers working women still face today.

Working women in the United States confront challenges ranging from workplace discrimination and harassment to unequal pay and inadequate leaves of absences.  The 2014 Shriver Report:  A Woman’s Nation Pushes Back from the Brink collects essays that detail how these barriers impact not only working women, but their families, the economy and society as a whole.

Discrimination and harassment – Women continue to face unlawful discrimination and harassment on the job based on sex, pregnancy, gender identity, sexual orientation, race, national origin, disability, and many other characteristics.  The U.S. Equal Employment Opportunity Commission, the agency that enforces our federal civil rights laws published its statistics for charges filed in Fiscal Year 2013.  Charges of sex discrimination constituted approximately 30% of the charges filed with the EEOC.  The California Department of Fair Employment and Housing, the state agency that enforces our state civil rights laws published its statistics for 2012. This data showed that sexual harassment charges were approximately 60% of the charges filed regarding sex discrimination and harassment.  These statistics demonstrate that employment discrimination and harassment continue as serious problems for working women.

On the legislative front of women’s rights issues at the federal level, the Pregnant Workers Fairness Act would strengthen the protections for working pregnant women.  We also need the protections of the Employment Non-Discrimination Act, which would prohibit discrimination on the basis of sexual orientation and gender identity across the country.  But these laws must also be enforced, which means vigilant leadership and restoration of the funding cuts that have undermined the California and federal agencies charged with civil rights enforcement.

Gender-Based Wage Gap – Despite the fact that gender-based pay discrimination has been against the law for over 50 years, women in the United States still face a significant wage gap.  Recently, there has been little progress in closing the gap in wages between women and men.  As of 2012, women’s median earnings were 81% of men’s.  And the wage gap is worse for women of color.  Because women are breadwinners for their families, the impact of wage discrimination is felt across the board.  The Paycheck Fairness Act, pending in Congress, would help fight gender-based pay discrimination

Leaves of Absence – Women are still the primary caregivers in the U.S. and they also often must take time off work for pregnancy and childbirth.  Yet the U.S. lags behind nearly every other country in the industrialized world in terms of how much leave it provides for caregiving, pregnancy and childbirth.  The federal Family and Medical Leave Act provides for job-protected leaves of absence for caregiving as well as for pregnancy and bonding leave.  However, the FMLA is unpaid leave and many workers cannot afford to take unpaid leave.  The FMLA also provides no protection for those workers at companies with fewer than 50 employees at or near their worksite, those who have worked for the employer for less than a year, and many who work part-time. Additionally FMLA takes a narrow view of what it means to be a family member, drawing a tight boundary around the nuclear family– parent, child, and spouse.   Grandparents, siblings and other extended family are not included.

The California Paid Family Leave Law, the first of its kind in the country, provides partial wage replacement to workers who take time off to care for family members or bond with a new child.  As of July 2014, California workers will be able to take  paid family leave for a broader group of family members that will include grandparents and grandchildren, siblings, and parents-in-law.

Some federal legislators are already taking the cue from California with a pending bill in Congress to provide paid leave nationally.  They should keep up the momentum and improve the FMLA to extend coverage to more workers and to widen the circle of who is considered “family.”

The United Nations’ theme for this year’s International Women’s Day is “Equality for Women is Progress for All.”  The global gender gap index shows a strong correlation between a country’s gender gap and its economic competitiveness. Given the fact that women are at least half of the potential workforce, a nation’s economic competitiveness depends on how it treats women. Improving the lives of working women will enhance progress for all working families and our national economy.  When that happens, we will all be able to proclaim “Happy International Women’s Day”!

Elizabeth Kristen

About Elizabeth Kristen

Elizabeth Kristen is the Director of the Gender Equity & LGBT Rights Program and a senior staff attorney at Legal Aid at Work.  Ms. Kristen began her public interest career as a Skadden Fellow at Legal Aid.  Ms. Kristen graduated from University of California at Berkeley School of Law in 2001 and served as a law clerk to the Honorable James R. Browning on the Ninth Circuit Court of Appeals in San Francisco.  In 2012-13, she served as a Harvard law School Wasserstein Public Interest Fellow.  She has been a lecturer at Berkeley Law School since 2008. Legal Aid at Work together with the California Women’s Law Center and Equal Rights Advocates make up the California Fair Pay Collaborative dedicated to engaging and informing Californians about fair pay issues.

A reason for gratitude: We can care for loved ones when they need us most 1

A reason for gratitude: We can care for loved ones when they need us most

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By Ramit Mizrahi

Thanksgiving has always been my favorite holiday. While it’s true that all year I look forward to eating turkey, cranberry sauce, and pumpkin pie, I love most what the holiday stands for. It is a day of gratitude, shared by Americans of all faiths and persuasions, that we set aside to spend with our families. As we reunite with our loved ones, we focus on what really matters and appreciate all that we have. The holiday has special significance for me as a plaintiff-side employment lawyer. One of my primary focuses is on family leave, and I spend a lot of time thinking and writing about how we can encourage and protect caregiving by workers, male and female. After all, what’s more important than family? So this year I am extra thankful: our paid family leave program is being expanded to allow workers to care for more family members.

Workers today face significant barriers when trying to take family leave, particularly those who are already struggling to make ends meet. Around three quarters of Americans live from paycheck-to-paycheck, with little in the way of savings, and 68% of Americans would find it difficult if their paychecks were delayed by even a week. It is no surprise, then, that a 2012 Department of Labor survey found that of those who reported that they needed family and medical leave but did not take it, 46% stated that inability to afford leave was the reason they did not take it. Of those who did take leave, nearly half cut their leave short because they could not afford more time off. Paid family leave is therefore critical as a safety net for workers to take the time they need to bond with their babies and to care for their relatives.

Since 2004, California has offered a Paid Family Leave (PFL) program that provides up to six weeks of paid benefits for workers to take time off to bond with a new child or care for seriously ill family members. It is fully funded by employees, and all employees who pay into the State Disability Insurance Fund are covered. However, until recently, its scope was limited to leave to care for a parent, child, spouse, or domestic partner, or to bond with a new child.

Earlier this year, Governor Brown signed SB 770 (Jackson) to expand PFL coverage to employees who take leave to care for seriously ill grandchildren, grandparents, siblings, or parents-in-law. By expanding PFL’s scope, we take into account changing demographics and allow more workers to provide care for family members in need. According to research cited by State Senator Hannah-Beth Jackson, author of SB 770, California has the second-highest percentage of multi-generational households in the country, and the EDD rejected about 10% of PFL claims because the employee sought leave to care for a family member not previously covered.

We as a society only stand to gain from family members being able to provide each other with quality care. Research has shown that the effect on workers and their families has been overwhelmingly positive. For example, with respect to new parents, research found that 91% of those who used PFL said it had a positive effect on their ability to care for their new child, that fathers who used PFL took a leave twice as long as men who didn’t use PFL, and that PFL doubles the duration of breastfeeding for new moms who used it. Employers, too, have reason to celebrate the expansion of PFL as the vast majority of surveyed employers responded that PFL had either a “positive effect” or “no noticeable effect” on business productivity (89%), profitability/performance (91%), turnover (96%), and employee morale (99%).

For next year, let’s aspire to expand paid family leave further, to cover more working Americans inside and outside of California.  Within the next few weeks, Senator Kirsten Gillibrand (NY) and Representative Rosa DeLauro (CT) will introduce the Family and Medical Insurance Leave Act (“FAMILY Act”), which would provide workers with up to 12 weeks of paid family leave at up to 66% of their earned wages. Within California, we can also help more workers take family leave by expanding PFL to cover public employees and by giving job protection to those who take PFL. By strengthening our paid family leave programs, the ability to take time to care for family members and bond with children will be within reach for so many more workers throughout the country.

This Thanksgiving, celebrate your time with family. Be grateful for the love and health you all have, and take comfort that if they need you, they can count on you to be there for them.

Ramit Mizrahi

About Ramit Mizrahi

Ramit Mizrahi, the founder of Mizrahi Law, APC, practices in the area of employment law, representing employees exclusively. Her work focuses on cases involving discrimination, harassment, retaliation, leave law issues, and wrongful termination. She is a graduate of Yale Law School, The London School of Economics, and UC-Berkeley.

This Halloween, no more tricks on pregnant women 1

This Halloween, no more tricks on pregnant women

By Mariko Yoshihara and Jean Hyams

As our children spend today dressed up in costumes, carving pumpkins, and eating way too much candy, let’s take a moment to celebrate the moms who created all those lovely trick-or-treaters.

On this day, 35 years ago, President Jimmy Carter signed the Pregnancy Discrimination Act into law, recognizing the pervasive threat of workplace discrimination to the health, safety, and economic security of pregnant women and their families.

Before the PDA, employers could legally fire or refuse to hire pregnant women.  Indeed, employer policies that discriminated against pregnant women were upheld by the courts because pregnancy was regarded as “a voluntarily undertaken and desired condition.”

The PDA finally addressed this sexist line of thinking (and notably with bipartisan support) by amending Title VII to clarify that sex discrimination in employment includes discrimination on the basis of pregnancy, childbirth, or related medical conditions.

Thirty-five years later, pregnancy discrimination complaints are still on the rise.  From 1992 to 2011, the U.S. Equal Employment Opportunity Commission (EEOC) reported that pregnancy discrimination complaints increased by 71 percent, particularly among low-wage earners and women of color.

While some of the rise in complaints may be due to the fact that more women are in the workforce, significant injustice persists because many employers refuse to provide reasonable accommodations to pregnant women.  As a result, women are still being forced out of the workplace to avoid putting their health and the health of their babies at risk.

The Pregnant Workers Fairness Act (H.R. 1975/S. 942), sponsored by Representative Jerrold Nadler (D – N.Y.) and Senators Robert Casey (D – Pa.) and Jeanne Shaheen (D – N.H.), would help strengthen the PDA by ensuring that employers provide reasonable accommodations to those pregnant women who want to continue working.

The Pregnant Workers Fairness Act is a chance to make clear that Congress wasn’t playing a trick on our nation’s mothers when it promised non-discrimination based on pregnancy.  With “family values” a guiding maxim on both sides of the aisle, Congress should act now to protect the health and financial security of our nation’s mothers.

Bring your personal life back into the office 1

Bring your personal life back into the office

By Lisa Peck

“Don’t bring your personal life to the office” is a time worn adage that is simply not possible for a vast proportion of the modern-day workplace.  Today’s employees are challenged to meet their workplace expectations in the face of what are often significant family care issues, as well as being a primary breadwinner.  One reason for this is the influx of women with children into the workplace; less obvious reasons involve society’s changing concept of “family” to embrace multi-generations in one household, non-traditional families, blending of families (or, step-families), same-sex partnerships, and workers of many different stages of life and family circumstance.

As a result, Family Responsibility Discrimination (“FRD”) – employment discrimination based on an employee’s responsibilities to provide care for family members – has gained recognition as a form of workplace discrimination comparable to gender, disability, race, national origin, or religious discrimination.

FRD is not only directed at new mothers.  It rears its head when an employee must care for any aging, seriously ill, or disabled family member, whether it is a spouse diagnosed with Multiple Sclerosis, an aging parent or grandparent showing signs of dementia, a child born with a serious disability who will require lifelong medical intervention, or a sibling seriously injured in a car accident.

Without protection against FRD, these real-life, difficult, and everyday challenges may result in termination of employment, or force employees into a wrenching choice between preserving their livelihood and caring for their loved ones.

FRD is most often recognized when an employer discriminates against an employee because of family care responsibilities, or treats the employee less favorably than other employees based on false assumptions that caregiving responsibilities will impair job performance or lessen job commitment.  FRD also can stem from an employer’s good intentions in trying to “help” an employee’s caregiving responsibilities by taking such actions as decreasing hours, reassigning duties, or reducing job functions.

The law does not consistently recognize FRD as a distinct form of workplace discrimination, but there is recourse for some situations.  Under federal law, the Family & Medical Leave Act (“FMLA”) protects eligible employees who need leave to care for a seriously ill family member. The Americans with Disabilities Act (“ADA”) and the Rehabilitation Act preclude discrimination against a qualified employee based on her “association” or relationship with someone with a known disability. The U.S. Equal Employment Opportunity Commission issued enforcement guidance on FRD, and proactively suggested “best practices” to employers to prevent FRD.  The Employment Retirement Income Security Act (“ERISA”) prohibits employer discrimination against an employee that interferes with his exercise of rights under an employee benefit plan.

California provides similar protections. California’s Family Rights Act precludes discrimination and offers job protection for eligible employees needing time off to care for a seriously ill family member, similar to FMLA protections.  Akin to the ADA’s association clause, the California Court of Appeals in Rope v. Auto-Chlor System of Washington, Inc., (Cal. App 2d, 2013) recognized an employee’s right to seek recourse under California’s Fair Employment and Housing Act (“FEHA”) for association-based disability discrimination.  California offers Paid Family Leave (“PFL”) under its disability benefits program (providing wage replacement to those workers taking leave for family care), and legislation recently passed to enlarge the definition of “family” to include grandparents, grandchildren, siblings and parents-in-law for purposes of PFL.

However, California rejected corresponding legislation to provide job protection to workers who take PFL, and it declined to extend employment discrimination protections under the FEHA to include “familial status.”  In contrast, San Francisco adopted a “Family Friendly Workplace Ordinance” effective January 2014, applicable to all San Francisco City and County employees working for employers with 20 or more city-based employees.  It further gives covered employees the right to ask for flexible or “predictable working arrangements” for their family caregiving responsibilities.

This is the wave of the future. Family care responsibilities affect all kinds of workers: women/men, young/old, single/attached, parents/childless, low/high wage earners, public/private employees, and employers of all sizes and industries.  If you work and you have family, FRD may well affect you and your family at some point in your working life. Grassroots efforts are essential to creating pressure for change.

Our community is made up of families, and FRD protection has long since become a community matter.  So, by all means – bring your personal life to work – and to local, state and national officials – to insure legal protection for everyone.

 

 

Lisa Peck

About Elizabeth Peck

Lisa is a partner in the firm of Peck Law, LLP with offices in Salt Lake City, Utah and San Jose, California.  She practices employment, discrimination, and civil rights law. She is a past ambassador for the National Multiple Sclerosis Society, and having been diagnosed with MS in 1996, Lisa remains actively involved in educating the MS community, their caregivers, and physicians about their rights and responsibilities under the ADA and the FMLA.  Lisa splits her time between California and Utah, and she is an avid cyclist, skier, lacrosse player, and surfer.

Are workplace flexibility laws the wave of the future? 2

Are workplace flexibility laws the wave of the future?

By Sharon Vinick

Flexibility in scheduling  and other alternative work arrangements are crucial tools that enable working families to reconcile work and family responsibilities.  Many industrialized countries, including the United Kingdom and Australia, have enacted laws that guarantee employees the right to ask for flexible work schedules, without fear of retaliation.  These laws also require that employers seriously consider a request for flexible working arrangements, and provide a business justification for any request that is denied.

The Working Families Flexibility Act, first introduced in Congress by Representative Carolyn Maloney and the late Senator Edward Kennedy in 2007, would have  guaranteed American workers the same ability to ask for  work options without fear of retaliation.  Although she keeps trying to pass the legislation into law, the Congresswoman’s vision has yet to take hold.

While  Congress has yet to act,  developments at the state and local level suggest that the tide may be turning in the direction of workplace flexibility.

In June, Vermont passed legislation that gives employees the right to request a “flexible work arrangement” for any reason and requires the employer to consider such a request at least twice each calendar year.  The law, which will go into effect on January 1, 2014, defines a “flexible work arrangement” as “intermediate or long-term changes in the employee’s regular working arrangements, including changes in the number of days or hours worked, changes in the time the employee arrives at or departs from work, work from home, or job sharing.”  Once an employee submits a request, the employer must discuss it in good faith and grant the request if it is not inconsistent with business operations.

This month, the San Francisco Board of Supervisors passed the “Family Friendly Workplace Ordinance,” which allows employees to submit a request for an alternative work schedule to better fit their care-giving needs. The ordinance, which is likely to be approved by the mayor, requires that employers meet with employees to discuss requests for flexible work arrangements, and to either grant the request or provide a bona fide business reason for rejecting a request.

While neither the Vermont law nor the San Francisco ordinance  require businesses to grant an employee’s request for a flexible work arrangement, the mere fact that employers are required to consider the requests is a move in the right direction.

Congresswoman Maloney’s Working Families Flexibility Act – version 2013 – is again languishing in committee.  But as worker flexibility laws continue to gain a foothold on American soil, enabling businesses and workers to experience the anticipated benefits in productivity and morale, there is renewed hope for its eventual success.

Sharon Vinick

About Sharon Vinick

Sharon Vinick is the Managing Partner of Levy Vinick Burrell Hyam LLP, the largest women-owned law firm in the state that specializes in representing plaintiffs in employment cases. In more than two decades of representing employees, Sharon has enjoyed great success, securing numerous six and seven figure settlements and judgments for her clients. Sharon has been named by Northern California Super Lawyers for the past five years. Sharon is a graduate of Harvard Law School and UC Berkeley. In addition to being a talented attorney, Sharon is an darn good cook.

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