New and Expectant Mothers

If you are a new or expectant mother, what are your rights under California and federal laws? As a general caveat, let me make it clear that you may not have a right to paid maternity leave. However, you absolutely have a right to take a protected leave of absence from your job.


You may keep your job and take a leave of absence under the Pregnancy Disability Leave ("PDL") law in California. Under this law, you are entitled to up to 4 months of protected leave. You can take that leave all at once, or you can take it intermittently as needed.


As I continue to learn more and more at my new job (pregnancylawyer.com) I am absoluely astounded at how many HR "professionals" have no idea that this law exists. Essentially if you suffer from any disability from pregnancy, child birth or a related medical condition, the PDL protects you from being fired from your job. The PDL applies to everyone no matter the length of time you have worked for your employer.

Employers - it's a bad, bad idea to fire people while they are on leave. You will have all sorts of trouble on your hands including potential causes of action for pregnancy discrimination and pregnancy harassment.


In addition to the PDL, you make take 12 weeks of leave under the California Family Rights Act (CFRA) or under the Federal Medical Leave Act (FMLA). However, you must have worked for your employer for at least 1 year and have performed 1,250 hours of service over 12 months prior to going on leave. Again, this is not paid leave. It is protected leave.

So, if you are pregnant, tell your employer. If your employer does not mention the PDL (and in fact as far as I've seen they basically never do even though they are obligated to) you now have an idea of what your rights are -- 4 months plus 3 months of CFRA/FMLA.

Happy mommying...

Questions & Comments

Because of the number of comments and emails that I have been receiving, I am unable to respond to each question. I will do my best to respond in a timely manner. I encourage readers to respond to each other if possible. Some of you have a lot of insight and sophisticated knowledge of the processes of the EDD.

4,000 Pages Of Motion And Opposition For Summary Judgment

4,000 pages? It is painful just to write that. I took an ABA class on how to write a winning trial brief over the summer. The message was keep your sentences tidy and the volume to a minimum. The teacher told us to write a draft and then cut our page count by 25%. Guess the attorneys in Nazir v. United Airlines didn't take that class.

The Appellate Court strongly chastises the parties and the trial court for the pure volume of points and authorities, evidence and the separate statements. There is an entire section in the opinion called "The Girth In The Record: The Inappropriate Papers." Ouch.

Click here for the full opinion, and a lesson for the rest of us.

Blowing the whistle...

My favorite cases right now involve whistleblower claims. It's not easy to blow the whistle on corrupt corporate or government practices. Hats off to those brave folks who actually stand up for what they believe in.

Sometimes, the whistleblower is an unlikely hero. I have found that some people who blow that whistle might be looking to cover himself or herself from potential liability. But in the process, he or she complains loudly enough to catch the attention of the people responsible for the illegal behavior. This can lead the employer to find some way to terminate the employee or force him or her to quit.


Other times, the whistleblower intentionally reaches out to an outside agency to turn in his or her employer for the illegal conduct or what he or she reasonably believes is illegal. In any event, the consequences are severe. In a 2004 study of whistleblowers, it was determined that:


100% were fired - most were unable to find new jobs; 17% lost their homes; 54% were harassed by peers at work; 15% were subsequently divorced; 80% suffered physical deterioration; 90% reported emotional stress, depression and anxiety;10% attempted suicide.


Currently, if a whistleblower suffers an adverse employment action, he or she must take some steps before filing a complaint and pursuing litigation. He or she must "exhaust administrative remedies." What qualifies as exhausting administrative remedies is a bit murky.

Senate Bill 705 authored by Senator Lowenthal would clear the pathway to the courthouse for whistleblowers. The bill, if passed, would eliminate the current requirement that potential plaintiffs exhaust internal administrative remedies before filing suit, if the cause of action is one which the Legislature has determined is fundamental to the public policy of the state. In California, that's pretty limitless!


This bill would provide that exhaustion of an employer's internal administrative remedies, or judicial review of a decision of an administrative agency, is not a precondition for a civil action alleging a violation of a right that the Legislature determines to be based on a fundamental public policy of the state, unless the Legislature provides otherwise in the statute that established the civil action.

This bill would also make evidence of administrative adjudication admissible as evidence in a lawsuit regarding an allegation of a violation of an employee right that the Legislature determined to be based on a fundamental public policy, where the civil action involves substantially the same rights and substantially the same parties, unless otherwise provided by the Legislature or by a collective bargaining agreement.

According to Senator Lowenthal:
"The employee's path from being the subject of illegal employment practices to court redress should be clear... In the absence of legislative guidance, courts have created rules which are based on a case-by-case review, often inconsistent, unclear, and ill-defined. As a result, employers and employees are uncertain about whether the employee must exhaust internal remedies and what, if any, are the consequences of doing or not doing so."

I can't agree more, particularly based on rather recent experience. We should make the path to whistleblowing litigation as clear as possible.


Click here for the full text of the bill.

Preventing Age Discrimination

The New York Times agrees with me on the movement to reverse the United States Supreme Court's recent holding on the Age Discrimination in Employment Act. Click here to read the article as published yesterday.

AB 943 - Credit History Discrimination

As a follow up to the post I wrote about a bill proposed by Tony Mendoza. The bill, AB 943, would outlaw discrimination based on bad credit. Seems fair right? Governor Schwarzenegger has vetoed it. Click here for the attached veto message.

Protecting Older Workers Against Discrimination Act

Being a plaintiff's employment lawyer, I interview a lot of people with discrimination claims. Age discrimination tends to tug at my heart strings particularly strongly. For instance, employers who fire or lay off older employees really do a disservice to the employee. Often, the older employee is considered beyond the prime age for hiring. What is a 62 year old supposed to do after he gets laid off from his job as an Engineer? My friend's dad is in a similiar position and is currently working at Wal-Mart. She refers to this past year as "humbling" for her family. Often the older employee's pension has yet to fully vest and he or she loses that as well.

In California, 40 years is when you're considered sufficiently old to file a discrimination claim. I think in Los Angeles, my current hometown, 28 is considered ancient. I kid. I kid. Although 40 is the floor, I think the closer you get to the ceiling, the more likely a jury is to find in your favor, thus making the claim more viable.

In June 2009, the United State Supreme Court handed down a ruling which makes it more difficult for an age discrimination plaintiff to succeed in a lawsuit. Before that case, an age discrimination plaintiff needed only to show that age was a factor in an adverse employment action such as a lay off or termination. The burden then shifted to the employer-defendant to show that there was a valid reason for the adverse employment action. After the Supreme Court ruling, an age discrimination plaintiff must show that it was the deciding factor.

Three Democrats, Senator Tom Harkin (D-Iowa), Patrick J. Leahy, (D-Vermont), and Representative George Miller, (D-California, 7th District - East Bay of San Francisco) plan to push a bill that would overrule this decision.

I'm all for it!