Complex Litigation
 

Employment Law News

by Carmen J. Cole  |  Managing Partner, Los Angeles Office

Welcome to the Employment Law News. Employment Law is a constantly evolving, dynamic practice area. LJUPK’s Employment Law News is designed to help our clients and employers stay on top of what is new and how it may affect their business. Check back regularly for up-to-date information on a wide range of employment issues impacting employers and management across the globe. Although informative, this blog is not intended nor should it be used as a substitute for specific legal advice.
 


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November 06, 2015

Employers are forced to carefully navigate the differences between state and federal leave laws, making sure they comply with both in their handbook policies, practices, and workplace postings. It is welcome news for employers with employees in California that the state recently issued regulations, effective July 1, 2015, to bring its California Family Rights Act ("CFRA") more into alignment with the federal Family and Medical Leave Act ("FMLA"). This update will highlight some of those changes and identify areas where differences between the laws remain.

The CFRA applies to employers with 50 or more employees within California. Like the FMLA, certain criteria must be met before employees are eligible for leave. The CFRA amendments address and clarify these requirements. In part, the amendments:

  • Expand the definition of "covered employer" to add the definition of a "joint employer" and clarify that "covered employer" includes an employer's successors in interest.
  • Clarify the definition of "eligible employee":
    • Eligible employees must have been employed for at least 12 months, and the amendments clarify that if the employee worked for the employer more than seven years before the current employment stint, those older periods of employment cannot be counted toward the 12 month length of service requirement unless the break was caused by military service;
    • For employees with no fixed worksite, their assigned worksite is used to determine if the employer meets the 50 employees within a 75-mile radius threshold; and
    • Employees who have not met the 12-month service length requirement may meet the requirement while on leave and therefore designate the qualifying portion of the leave as CFRA leave.
  • Expand the definition of "spouse" to include coverage for same-sex spouses (in accordance with the Department of Labor's recent guidelines on the FMLA).


The amendments also bring other provisions of the CFRA into alignment with the FMLA. For example, the amendments:

  • Expand the reinstatement provisions by:
    • adding provisions guaranteeing covering personnel restructures and requiring employers to provide reasonable opportunities for returning employees to re-qualify for their positions;
    • adding permissible defenses to refusal to reinstate, including allowing employers to refuse to reinstate employees who fraudulently obtain or use CFRA leave; and
    • amending the "key employee" rules to clarify the definition of "key employee" and permit employers to refuse to reinstate a key employee in certain economic circumstances.
  • Shorten employers' time to respond to CFRA leave requests to five business days.
  • Revise the intermittent leave and reduced schedule provisions relating to overtime, holidays and calculating leave entitlement.
  • Update employee consequences for misconduct, including failure to respond to employer questions regarding the request for leave, failure to return a required medical certification, and fraudulently obtaining CFRA leave.


These changes notwithstanding, employers should be aware that not every aspect of the CFRA tracks the FMLA, and following the requirements of the FMLA will not be sufficient for CFRA-qualifying employers.

Employers should familiarize themselves with the ways in which the amendments still cause the CFRA to differ from the FMLA. For example, the California-specific amendments: 

  • Specify that pregnancy disability is not covered under CFRA, but is considered a "serious health condition" under FMLA.
  • Require employers to maintain an employee's group health benefits for the entire time an employee is on pregnancy disability leave and subsequent CFRA leave (consistent with recently updated pregnancy disability leave regulations).
  • Revise medical certification regulations and state that employers:
    • are prohibited from contacting an employee's healthcare provider for any reason other than to authenticate a medical certification;
    • must have a "good faith, objective reason" to ask for a second opinion on an employee's serious health condition;
    • may not seek a second opinion unless the certification involves an employee's own serious health condition; and
    • are barred from seeking additional information (such as symptoms or diagnosis) in the certification process.
  • Revise the paid leave substitution rules to state and note that:
    • the CFRA differentiates between leave for an employee's own serious health condition and other reasons;
    • an employee may elect, or employer may require employee, to use sick leave during an unpaid portion of CFRA leave for the employee's own serious health condition, substitute sick leave during CFRA leaves that are not for the employee's own serious health condition, or use vacation or PTO for any unpaid CFRA leave; and
    • an employee receiving Paid Family Leave ("PFL") benefits is not on unpaid leave. (Therefore, an employer cannot require employee to use PTO or vacation during PFL-designated portion of CFRA leave.)
  • Set forth new notice requirements providing that:
    • covered employers must provide and post notice of employee's right to request CFRA leave in conspicuous places easily seen by employees and applicants for employment;
    • electronic posting is sufficient if it meets the other requirements of the section;
    • employers are encouraged to give a copy of the notice to current and new employees, ensure that copies are otherwise available and disseminate the notice in any other way; and
    • if employer's workforce at any facility contains 10 percent or more of persons who speak a language other than English, the employer must translate the CFRA notice into every language that is spoken by at least 10 percent of the workforce.
  • Require employers to include a description of CFRA leave in the next edition of their handbooks following these amendments if employers' handbooks describe other kinds of personal or disability leave.
  • Provides the Certification of Health Care Provider form that employer may use for leaves involving serious health conditions.     


In light of the recent amendments, employers should update their policies and procedures (as well as all posted notices), evaluate their workforce to determine if posted notices should be translated, and ensure that supervisors are trained and prepared on the new laws and requirements. The amendments are substantial, and this update outlines only a few highlights from the amendments. Therefore, employers should consult with an employment attorney on how the amendments may affect their workforce.

May 13, 2015

The United States Supreme Court recently issued its much-anticipated decision in Young v. United Parcel Service, Inc. Employers are now on notice of a new standard for facially neutral policies affecting pregnant employees challenging workplace accommodation policies and practices under Title VII of the Civil Rights Act (“Title VII”), as amended by the Pregnancy Discrimination Act (“PDA”).

In a 6-3 decision, the Court held that a pregnant worker can establish a prima facie case of disparate treatment by showing under the age-old McDonnell Douglas burden-shifting framework, that: (1) she belongs to a protected class; (2) she sought an accommodation; (3) the employer did not accommodate her; and (4) the employer accommodated others “similar in their ability or inability to work.”  Once these elements are shown, the burden of production then shifts to the employer to proffer a legitimate, nondiscriminatory reason for denying the accommodation.  That reason must be more than an employer’s claim that it is more expensive or less convenient to add pregnant women to the categories of those whom the employer accommodates.  Once the employer proffers a legitimate, nondiscriminatory reason, the employee must establish the employer’s reason is a pretext for discrimination.  Young provides new examples of how this can be accomplished in the context of the PDA.

Provisions of the PDA
The PDA is part of Title VII of the Civil Rights Act of 1964, which prohibits discrimination in the conditions, privileges and terms of employment based on sex.  The first part of the PDA provides that Title VII’s sex discrimination prohibition applies to discrimination on the basis of pregnancy, childbirth, or medical conditions related to either or both.  The second provision of the PDA provides that employers shall treat “women affected by pregnancy, childbirth, or related medical conditions…the same for all employment-related purposes…as other persons not so affected but similar in their ability or inability to work.”  The legal analysis of Young requires the interpretation of the second provision of the PDA.  In particular, the interpretation of the phrase “other persons” was central to the Supreme Court’s decision in Young.

Facts of the Young Case
Peggy Young was a pregnant, part-time delivery driver for UPS.  All UPS drivers are required to lift up to 70 pounds without assistance.  After she became pregnant, Young was placed on a weight lifting restriction by her doctor, recommending that she not lift more than 20 pounds.  Her subsequent request for an accommodation to light duty work was denied by UPS on the ground that lifting more than 20 pounds was an essential function of the job. As a result, Young was not permitted back to work.

As do many employers, UPS’ policies provide light-duty assignments to certain categories of employees, such as those with on-the-job injuries, employees covered by the Americans with Disabilities Act (“ADA”), and employees who lost their Department of Transportation certification and were unable to drive.  Employees who do not fall into any of these categories (like Young) are ineligible for light-duty assignments – whether male or female.  Because she did not fit squarely within one of these seemingly neutral categories, Young remained out of work at UPS, without pay or medical benefits, for the majority of her pregnancy.  Young sued UPS, alleging pregnancy discrimination because it did not accommodate her weight lifting restriction, while simultaneously accommodating other drivers who could not work.  The PDA, Young argued requires employers to provide pregnant employees with light-duty work if they provide similar work to other employees in other circumstances.

UPS argued that Young was not discriminated against due to her pregnancy at all.  In fact, because she was not covered by any of its policies for accommodating employees, she was treated precisely the same as any other employee who did not qualify under those polices – male or female.  The district and appellate courts agreed with UPS.  The Supreme Court did not.

The Supreme Court’s Decision
In rejecting UPS’ argument, the Supreme Court set a new framework within which employees can demonstrate pregnancy discrimination.  An employee alleging that the denial of an accommodation violates the PDA may prove her case through the traditional burden-shifting approach used in employment discrimination cases, but with a different way of showing that an employer’s valid, non-discriminatory reason for its decision is a pretext for discrimination.  Young could show pretext by proving that UPS’ policies were a “significant burden” upon pregnant employees and that UPS’ reasons for its policies were “not sufficiently strong to justify the burden,” but rather “when considered along with the burden imposed” gave rise to an inference of discrimination by the employer.  An employee can create a genuine issue of material fact about whether a significant burden exists “by providing evidence that the employer accommodates a large percentage of non-pregnant workers, while failing to accommodate a large percentage of pregnant workers.”

Notably, the Court highlighted that UPS had multiple policies that accommodated non-pregnant employees in various categories who had restrictions similar to Young’s.  The Court explained that if Young’s version of the facts are accurate, she could show that UPS accommodated “most” non-pregnant workers with lifting restrictions while “categorically failing” to do the same for pregnant workers.  That, combined with the number of policies UPS had to accommodate non-pregnant employees with lifting restrictions, suggests that UPS’ reasons for failing to accommodate pregnant employees are “not sufficiently strong” and support a jury finding of “an inference of intentional discrimination.”

What Does Young Mean for Employers?
Employers should review their accommodation policies and practices and to whom they apply.  Employers that have policies providing accommodations or other types of benefits to categories of employees (where pregnancy is not one of those categories) need to ensure they have legitimate, nondiscriminatory reasons for doing so.  In most cases, cost alone will not suffice.  Additionally, if the categories of workers to whom those accommodations or other benefits are offered make up a substantial number of employees, but still exclude pregnant workers, the risk of denying such benefits to pregnant workers will be significant.

Importantly, Young does not outright reject an employer’s ability to have a light-duty policy reserved only for employers injured on the job.  But it does underscore that employers excluding pregnant employees from discussions about available reasonable accommodations – when other categories of employees remain eligible for such accommodations – run a substantial risk of liability.