Pregnancy Discrimination

While many employees may just be getting back to work after some vacation time, companies’ human resources departments are likely just getting started on making sure they are in compliance with a host of new laws that went into effect and are designed to protect workers from discrimination in Fullerton and statewide.

The San Francisco Chronicle recently published an article that states nearly two dozen new employment laws went into effect Jan. 1 — some that prohibit discrimination and others that help employees who typically end up getting the short end of the stick at work.

Our Fullerton employment lawyers fully support new laws that go into effect with the plan to end discrimination and not put people at a disadvantage in the workplace. There are far too many situations where employees face a difficult time at work, whether it be pregnancy, service in the military or because of their race or gender.

One law that may have the biggest impact is one that requires companies to inform workers who aren’t exempt from overtime of their rate of pay, the workers’ compensation insurer, the paydays and if there are any meal or lodging allowances.

If there are any chances in that information, the employer must tell each non-exempt worker within seven calendar days, the newspaper reports. If there are wage violations, the penalties are larger than in year’s past.

Another new law on the books requires companies with five or more employees to ensure they have health coverage under a group health plan to ensure female employees who take leave for pregnancy can do so for up to four months. The benefits have to be the same as if the woman were working during the leave period.

In cases where employees and employers split health care costs 50/50, the same must be done if the woman is out on leave. The current law applies to companies with 50 or more employees and for a maximum of 12 weeks, so the new law expands the time frame and type of company affected.

Other laws that go into effect:

SB459: A law that creates penalties of $5,000 to $25,000 for a “willful misclassification” of employees as independent contractors. Doing so can save money for companies, but being penalized changes things.

AB22: The law prohibits companies, except some financial institutions, from using credit reports on job applicants and employees. Some exceptions include managerial positions exempt from overtime pay, law enforcement and work with money.

AB1396: This requires commission plans for employees to be in writing so they can’t be changed after the fact.

AB877: The law prevents companies from discriminating against employees based on their gender expression. While there are laws on the books that protect from discrimination against people based on their gender and gender identity, the new law also protects employees based on the way they dress and behave.
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A recent case out of Illinois highlights just how critical it is to make sure your rights as an employee are upheld when you take medical leave.

In Makowski v. SmithAmundsen LLC, a law firm marketing director took time off from work under the Family Medical Leave Act in order to give birth to her child and recover afterward.

When she was on leave, her bosses told her that her position had been eliminated as part of a restructuring. She sued, alleging that she was the victim of discrimination and for retaliation. After a lower court ruled in favor of her former employer, an appeals court reversed.

In our now ultra-competitive work environment, companies are often scrambling to get or stay ahead as they compete. But they simply aren’t allowed to show favoritism toward employees simply because another is pregnant. Pregnancy discrimination in Fullerton is considered a special class that is protected.

Women who are pregnant must be treated like anyone else. That means they can’t simply be dismissed or fired because they are with child. And like any other full-time employee, they have a right to time off for medical reasons.

The federal Family Medical Leave Act is designed to allow employees to take unpaid leave for a certain period of time while enjoying the protection of their job. Under federal guidelines, to qualify for FMLA, a worker must have been employed for at least a year and must have worked at least 1,250 hours in the past year. The company must also have 5 or more employees over a 20-week period.

California also has a family leave law that was in place two years before the feds created their own in 1993. The two sets of laws are close in language and protections to pregnant employees.

In this case, sadly, the woman was treated poorly while on maternity leave with a bogus reason of “restructuring” as why they let her go. But as the appeals court noted in a 15-page ruling, verbal statements by a human resources director speaking with the employee upon being fired should have been admitted. Those statements showed a connection between the woman taking leave and her termination and were discriminatory in nature.

When the woman came to work to pick up her belongings after being fired over the phone, the human resources director told her she was fired because she was pregnant and took medical leave. She also told her that others who were pregnant had been discriminated against, and that she should consult with a lawyer to pursue a possible class action lawsuit.

After reviewing a lower court’s ruling, the appeals court reversed and admitted the H.R. director’s comments into evidence and allowed them to be used at trial.

While the term “smoking gun” is usually reserved for criminal cases, this would be the “smoking gun” in a pregnancy discrimination case. For an H.R. director, responsible for firing and upholding employment laws, to tell a fired employee that there is widespread discrimination would be a very important thing for jurors to hear at trial. It’s a good thing the appeals court took another look at this case.
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Articles Posted in Pregnancy Discrimination

New Year Brings New Fullerton Employment Laws

Makowski v. SmithAmundsen LLC Highlights Pregnancy Discrimination Can Happen in Orange County Too