The settlement provides monetary and non-monetary relief for Amira to resolve claims that ERA filed on her behalf last year with the California Department of Fair Employment and Housing, alleging that Amira’s employer, a national operator of residential facilities and communities for seniors, had subjected Amira to harassment, other forms of discrimination, and ultimately terminated her because she was pregnant and sought to exercise her right to take pregnancy-related leave. Amira also alleged that the company discriminated against her and other caregivers based on their race and national origin.

Amira’s case is unfortunately not unusual.  ERA has seen a sharp rise in pregnancy discrimination and accommodation complaints in recent years, a trend mirrored at the federal level. (Click here to see ERA’s May 2012 report, Expecting a Baby, Not A Lay-off:  Why Federal Law Should Require the Reasonable Accommodation of Pregnant Workers, noting a 54% rise in pregnancy discrimination claims filed with the EEOC between 1997 and 2010.)  ERA Staff Attorney Mia Munro is proud to have represented Amira and observes that, “It takes real courage and determination for women like Amira to come forward and complain about these injustices.  We are very pleased that the matter has been resolved to the satisfaction of all parties.”

ERA Legal Director Jennifer Reisch further added that, “This case shows how discrimination against pregnant workers and the failure to provide reasonable accommodations that would enable women to keep working during pregnancy are particularly acute problems, and have especially devastating economic consequences, for women in low-wage jobs and industries.”

ERA fights for women like Amira because we believe that providing pregnant employees with reasonable accommodations on the job is essential to fulfilling the promise of equal opportunity in employment.  This is also why ERA is a strong supporter of the federal Pregnant Workers Fairness Act (PWFA), a bill which would require employers to provide pregnant workers with reasonable accommodations.  Learn more about this important issue and take action to support the PWFA.

*Not her real name

Fortunately for Rose, the California Fair Employment and Housing Commission recently issued amended regulations, effective on December 30, 2012, that clarify that employers must continue providing health insurance coverage during both pregnancy disability leave AND bonding leave under the California Family Rights Act. ERA was able to use those amended regulations to ensure that Rose could take the leave she needed without losing much needed health insurance coverage.

Pregnant workers and families across California will begin the new year with many important increased protections due to amendments to the regulations for the California Fair Employment and Housing Act. These amendments were informed by years of experience of a coalition of California legal services organizations (including ERA), that saw firsthand the issues that most pregnant workers face in the workplace. Below are some of the important changes that were made:

Clarification of the FEHA’s reasonable pregnancy accommodation requirement

• When an employer becomes aware that an employee might need a pregnancy accommodation, the employer must engage in a good faith conversation with a pregnant employee who needs an accommodation to identify a reasonable accommodation. This means that the employer cannot automatically and categorically deny the worker a pregnancy accommodation upon receiving a request, without discussing options and alternatives.
• The regulations now provide examples of reasonable pregnancy accommodation, including: providing break time and space for breast feeding or pumping, providing the employee with a sitting stool, modifying an employee’s work duties or schedule, and providing additional leave to an employee once she exhausts her four months of pregnancy disability leave.

Clarification of the FEHA’s pregnancy disability leave requirement

• Employees can be entitled to pregnancy disability leave for a broad array of pregnancy-related conditions, including: severe morning sickness, gestational diabetes, hypertension, preeclampsia, and post-partem depression.
• The only defense to failing to reinstate an employee when she returns from her pregnancy disability leave is if the employer has a legitimate business reason that is not related to the fact that the employee took the leave. The regulations no longer allow an employer to fail to reinstate an employee when holding her position open during her pregnancy disability leave would substantially undermine the business operations of the employer.
• It may be unlawful for an employer to force a pregnant employee on leave when the employee has not requested leave.

Clarification that employers must provide language appropriate notice to employees that are not English proficient.

If you are an employee that needs more information about your employer’s obligations to provide pregnancy accommodations or leave, please call ERA’s Advice and Counseling Hotline at 1-800-839-4ERA.

“It is imperative that we fill the gaps in existing laws so that women receive equal pay for equal work,” stated Noreen Farrell, Executive Director of Equal Rights Advocates. Farrell made her comments today at an event in San Francisco also featuring House Minority Leader Nancy Pelosi and Congressmen George Miller and other advocacy groups and workers celebrating passage of the Lilly Ledbetter Fair Pay Act and the Family and Medical Leave Act.

Four years ago today, President Obama signed the Ledbetter Act into law to ensure that the time limit for bringing pay discrimination claims would renew with each discriminatory paycheck (rather than be tied to when the employer first started discriminating). But in an economy where women earn, on average, 77 cents for every dollar men earn, and women on color fare far worse, with African American women earning 64 cents and Latinas 55 cents for each dollar earned by a white man, the fight for pay equity is far from over. The Paycheck Fairness Act updates and strengthens the Equal Pay Act of 1963 and would give women the tools they need to challenge this prevailing (and embarrassing) wage gap.

As co-counsel representing plaintiffs in Dukes v. Wal-Mart, the class action lawsuit addressing discriminatory pay practices by the nation’s largest retailer, Equal Rights Advocates is deeply committed to achieving wage justice for working women. The Paycheck Fairness Act would help by clearly prohibiting pay secrecy policies that are currently imposed by many employers and were faced by the plaintiffs in the Wal-Mart case, along with many other low wage workers. Pay secrecy policies prevent employees from gaining information necessary to enforce their rights to earn equal pay for equal work, and the Paycheck Fairness Act would help eradicate such policies.

The wage gap results in thousands of dollars in lost income for America’s women and families each year. It hurts women, their families and our economy. Equal Rights Advocates urges the passage of the Paycheck Fairness Act to help working women achieve wage justice. It is time for the administration and Congress to take action to advance this important goal.

Contact: Noreen Farrell, Executive Director, nfarrell@equalrights.org
Work (415.575.2398); cell (510.701.8243)

About ERA: Equal Rights Advocates (ERA), founded in 1974, is a national civil rights organization dedicated to protecting and expanding economic and educational access and opportunities for women and girls. Through its campaign approach—incorporating public education, legislative advocacy, and litigation—ERA seeks to assist women and girls throughout a life-long continuum: ensuring equality in their educational experience, combating sex discrimination in the workforce, and advocating for workplaces hospitable to working families. To learn more about ERA’s work, visit www.equalrights.org.

 With millions without health care coverage in the United States, California demonstrated leadership in passing Senate Bill 299 (SB 299) to close a gap in health care coverage impacting women workers when they were most vulnerable – while on brief pregnancy leaves.  The bill requires most California employers to continue health care coverage for workers on pregnancy disability leave, even if those workers do not otherwise qualify for such benefits under the federal Family and Medical Leave Act (FMLA).    Because SB 299 affords workers benefits that the FMLA intended to preserve, SB 299 is not preempted by ERISA, as argued by some skeptics.

Congress enacted the FMLA in 1993 as a critical first step in alleviating the average citizen’s struggle to balance family responsibility and economic security.  One essential component of the FMLA is the provision of 12 weeks of unpaid job-protected leave for certain family and medical situations (including pregnancy), and continuation of medical benefits during such leave.  In enacting the FMLA, Congress expected and encouraged states to provide even greater family or medical leave benefits; to that end, the FMLA expressly saves more protective state laws from preemption.  29 U.S.C. § 2651(b).

Consistent with the goals of the FMLA, California passed SB 299 (Cal. Gov’t Code § 12945(a)(2)(A)), which requires employers with five or more employees to continue providing medical benefits for female employees on job-protected pregnancy disability leave for up to four months before returning to work.  SB 299 requires approximately four additional weeks of continued medical coverage during a pregnancy leave than the FMLA (which applies to employers with 50 or more employees).

That SB 299 builds permissibly upon the FMLA is made clear by the official position of the U.S. Department of Labor (DOL), the federal agency responsible for interpreting, administering, and enforcing ERISA and the FMLA.  As head of the DOL, the Secretary of Labor has taken the position that ERISA preemption of a state law providing greater family or medical leave rights than the rights established under the FMLA would impair or otherwise supersede the FMLA, impermissibly turning FMLA’s floor into a ceiling.  The DOL’s theory, sometimes referred to cheekily as the “double savings” clause theory, is based on the “savings clause” of the FMLA which states that nothing in the FMLA “shall be construed to supersede any provision of any State or local law that provides greater family or medical leave rights than the rights established under” the FMLA (29 U.S.C. § 2651(b)), and the “savings clause” of ERISA, which provides that nothing in the statute “shall be construed to . . . impair, or supersede any law of the United States,” which includes the FMLA. 29 U.S.C. § 1144(d).

Some question the validity of SB 299 based on a federal court decision, Sherfel v. Gassman, 2012 U.S. Dist. LEXIS 140001 (S.D. Ohio 2012), which concerned the Wisconsin Family and Medical Leave Act (WFMLA).  The Sherfel case, which is not binding, involved a law that is materially different from SB 299.  The Sherfel court’s dismissal of the DOL’s theory as it applies to the WFMLA thus does not impact the validity of SB 299. In Sherfel, the WFMLA was enforced to require an employer to provide paid disability leave to an employee who was not “disabled” under the terms of the employer’s ERISA plan, and thus, not eligible for payment under the plan.    SB 299, on the other hand, simply requires a modest continuation of the medical benefit coverage already provided to working employees, while they are out on time-limited pregnancy disability leave.  SB 299 is thus merely an extension of the same benefits that the FMLA provides.  The Sherfel court  acknowledged that laws like SB 299 are different from the WFMLA, noting that the FMLA, which also requires continuation of medical benefits coverage while employees are on job-protected medical leave, “does not create or supplement employer benefits” as did the WFMLA.  Sherfel at *71.

Likewise, the Senate report accompanying the FMLA stated explicitly that state family leave laws “including leave laws that provide continuation of health insurance or other benefits . . . are not preempted by ERISA.”  S. Rep. No. 103-3, at 38 (1993).  SB 299 provides precisely the kind of “greater” leave rights that the drafters of the FMLA intended to preserve and encourage.  The Sherfel court’s analysis and reliance on the Supreme Court’s decision in Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983), does not support preemption of SB 299.  Instead, Shaw can be read to support the argument against preemption.  In Shaw, the Supreme Court held that ERISA cannot be construed to impair any federal law, and to the extent that the state Human Rights Law at issue in Shaw provides a means of enforcing Title VII’s commands, preemption of the Human Rights Law would impair federal law.  The Supreme Court in Shaw held that insofar as state laws prohibit employment practices that are lawful under Title VII, preemption would not impair federal law since Title VII is neutral on the subject of all employment practices it does not prohibit.  Quite the opposite is true with respect to the FMLA, which the DOL has determined unambiguously expresses Congress’ intention to encourage states to provide more substantial family and medical leave rights.  Aurora Med. Group v. Dep’t of Workforce Development Equal Rights Div., 236 Wis. 2d 1, 19-21 (2000).  SB 299 furthers that purpose; ERISA preemption of SB 299 would thus impair the FMLA.

There are also practical considerations.  Benefit plans are designed, and certain employers are required to comply, with federal laws that mandate continued healthcare coverage during certain leaves.  SB 299 does not significantly complicate the administration of ERISA plans, as it does not require providing coverage to employees who are not already covered by a medical plan. As the country attempts to muddy through a national health care crisis, California has taken a positive step to protect hard working pregnant workers from lapses in insurance coverage.  SB 299 should be exalted, not attacked, because it ensures that pregnant women are not forced to choose between risking their health by returning to work early, or taking doctor-recommended leave but losing their health insurance benefits.  SB 299 not only survives ERISA preemption, it is an important model for other states ensuring basic health care protections for their workers.

Michelle L. Roberts is a partner at Springer-Sullivan & Roberts LLP, a firm specializing in ERISA disability benefits claims.

Mia Munro is a Staff Attorney at Equal Rights Advocates, a nonprofit legal organization dedicated to protecting and expanding economic and educational access and opportunities for women and girls.

Earlier this year in conjunction with the introduction of the House version of the bill, ERA released a ground-breaking report highlighting the importance of the new law for working women and their families. Entitled Expecting a Baby, Not a Lay-Off: Why Federal Law Should Require the Reasonable Accommodation of Pregnant Workers, the report traces 12 years of success of similar legislation in California. The report is available online at http://www.equalrights.org/media/2012/ERA-PregAccomReport.pdf.

“Working families need and want to keep working. ERA strongly supports the PWFA because similar protections under California law make the case for federal change,” said Noreen Farrell, ERA’s Executive Director. “Pregnant women are working with accommodations. Businesses are benefitting from happy and productive long-term employees. It is a win-win.”

To hear the stories of pregnant workers and the simple accommodations that they need but are denied at work, read The Refusal to Accommodate Pregnant Workers: Real Accounts of the Devastating Consequences for Workers and Their Families, compiled by a coalition of national women’s advocacy organizations and Equal Rights Advocates.

About Equal Rights Advocates
Equal Rights Advocates (ERA), founded in 1974, is a national civil rights organization dedicated to protecting and expanding economic and educational access and opportunities for women and girls. Through its campaign approach—incorporating public education, legislative advocacy, and litigation—ERA seeks to assist women and girls throughout a life-long continuum: ensuring equality in their educational experience, combating sex discrimination in the workforce, and advocating for workplaces hospitable to working families. To learn more about ERA’s work, visit www.equalrights.org.

The Paid Family Leave (PFL) law established the country’s first family leave insurance program in California. The PFL program provides virtually all California workers with income replacement for up to six weeks when they need to take time off from work to care for a new child or a seriously ill family member. The PFL program is entirely funded by workers’ contributions to the State Disability Insurance fund, and research shows that the program has offered many positive benefits to both workers and employers.

According to a report co-authored by Ruth Milkman, Professor of Sociology at the City University of New York (CUNY) Graduate Center and Academic Director of CUNY’s Murphy Labor Institute, though most California workers are already paying into this program, many are still unaware of their right to use it when they need it the most. Latino and immigrant communities, renters, and low-wage workers with less education who would most benefit from the law are least likely to know about it.

“Every day I work with women who are the primary breadwinners and caregivers for their families and they are struggling to get by,” said Nicole Marquez, attorney at Equal Rights Advocates, a non-profit organization that assists low-wage workers with legal issues, including monolingual Spanish-speaking Latina clients. “These are the women who need to know about their rights under the Paid Family Leave Law—that they can take the time to recover from giving birth, or to take care of an ill parent without their family slipping into poverty.”

ERA’s role in the Coalition has been instrumental in ensuring that more workers in California are aware of their rights. For example, ERA provides a toll-free multilingual advice and counseling line, where people can call and get information about their legal rights under the PFL law. Additionally, ERA helped develop a bilingual informational video (in English and Spanish).

To mark the 10th year anniversary of the PFL law, the California Work & Family Coalition is conducting a year-long statewide outreach and education campaign to reach underserved communities with information about the program. The Coalition has developed free bilingual resources in English and Spanish including a poster on six key California laws that help parents, an informational video on the State Disability Insurance and Paid Family Leave programs, and a website about the PFL program. In addition, the Employment Development Department (EDD) that administers the PFL program offers brochures in multiple languages including Cambodian, Chinese, Korean, Laotian, Spanish, Thai and Vietnamese. To view these resources and learn more, visit www.paidfamilyleave.org.

Equal Rights Advocates is a nonprofit legal organization dedicated to protecting and expanding economic and educational access and opportunities for women and girls. To learn more about our work, visit www.equalrights.org.

On May 8, 2012, the Pregnant Workers Fairness Act (PWFA) was introduced by U.S. Representatives Jerrold Nadler (D-NY), Jackie Speier (D-CA), Susan Davis (D-CA), and other legislators. HR 5467 would require employers to provide pregnant workers with reasonable accommodations to enable them to continue working during a financially crucial time in their lives.

“Working families need and want to keep working. ERA strongly supports the Pregnant Worker Fairness Act because similar protections under California law make the case for federal change,” said Noreen Farrell, ERA’s Executive Director. “Pregnant women are working with accommodations. Businesses are benefiting from happy and productive long-term employees. It is a win-win.”

The Report first examines why current federal law has not consistently ensured the minor accommodation of employees who are able to work during their pregnancies. It then tracks the development of state laws that require accommodations for pregnant workers, with a particular focus on the sweeping success of California’s pregnancy accommodation law, as support for change at the federal level.

The California data considered in ERA’s Report – ERA’s Hotline and experience with clients, cases based on state pregnancy accommodation laws, and statistical data about complaints filed with California’s state administrative agency – provide important insight into how California employees and business have fared since California’s pregnancy accommodation law went into effect in 2000.

Key findings of include:

• The number of court and administrative decisions involving California’s pregnancy accommodation law is very low, suggesting that the law has not prompted a flood of litigation.
• The accommodations sought are generally modest, reasonable, and easily met by employers
•  Accommodation laws are particularly important for protecting low-wage hourly workers.
•  Pregnancy accommodations often involve practices helpful to all employees and can benefit the employer’s bottom line.
•  California’s pregnancy accommodation law has not prompted more pregnancy discrimination.  In contrast to federal law discrimination charges, which have risen by 54 percent since 1997, the number of pregnancy discrimination charges filed with California’s state agency has decreased since 1997.

The Report contains a number of case studies that show the need for the new federal law. The story of Maria is a case in point. Maria handles security duties for a California employer. When Maria discovered that she was pregnant, she requested a stool to sit on and more frequent duty rotation so she could move more throughout the day. Her employer refused to accommodate her pregnancy limitations and placed her on involuntary early leave. ERA intervened on Maria’s behalf and informed the employer about the requirements of California’s pregnancy accommodation law. After a productive brainstorming session exploring possible solutions, the matter was quickly resolved without undue stress to Maria and without litigation. Rather than sit home without pay, Maria continued to be a productive employee for months. She preserved her Family and Medical Leave Act (FMLA) leave for when she needed it most.

Women in other states who are profiled in the report were not so lucky. Angie, a train conductor in Mississippi, was forced to take three extra months of unpaid leave instead of allowing her to work with the occasional assistance of willing co-workers. The stress and financial strain was immense for Angie, who was already anxious about becoming the sole support for her new family. Equal Rights Advocates was limited by federal and Mississippi law in its ability to assist Angie.

Celebrate Mother’s Day by supporting the PWFA at www.equalrights.org

Originally published by the California Work & Family Coalition

In over 22 states throughout the US, state and local laws protect family caregivers from discrimination at work.  Sadly, California is not one of these states.  After two failed attempts to include family caregivers as a protected class under the employment provisions of the California Fair Employment and Housing Act (FEHA), we hope that the third time’s a charm.  AB 1999, authored by Assemblymember Julia Brownley (D-Santa Monica), co-sponsored by Equal Rights Advocates (ERA), California Employment Lawyers Association (CELA), and the Center for Worklife Law, would clarify that employers cannot discriminate against employees based on family caregiving responsibilities.

Family responsibilities discrimination (FRD) is discrimination against employees based on their family care obligations, and it’s on the rise.  FRD may include discrimination against pregnant workers, mothers and fathers who actively participate in child care, and workers who care for aging parents, ill or disabled spouses or other family members.  AB 1999 would impact a wide range of caregivers at all stages of life, from infant care to elder care and everything in between.

In today’s tough job market, many workers may feel especially pressured to hide their family caregiving responsibilities at work because they fear that being labeled as a caregiver may make them vulnerable to layoffs and other adverse actions.  At ERA, we see this issue come up on a near daily basis through our Advice and Counseling Hotline, a toll-free hotline where we provide callers with information about their legal rights relating to sex discrimination at work and at school.  Some of our callers have been told things like, “Work should be your number one priority, not your family.” One worker was scolded for having more than one child by a supervisor who claimed to have limited her own family size to one child so she could maintain her commitment to work.

In fact, our callers’ experiences are not uncommon. The majority of American workers have some family caregiving responsibilities outside of work.  One in four employed men and women have elder care responsibilities, nearly 50 percent of employees say they have missed work due to elder care responsibilities, and nearly one in 10 workers have caregiving responsibilities for both elders and children.  Low-income families are especially likely to feel the strain of work/life conflict because they often cannot afford to pay someone else to help with child or elder care.

Although caregiver discrimination is painfully common, no California or federal statute expressly prohibits discrimination based on family responsibilities.  As a result, most caregiver cases are brought using a patchwork of claims under federal and state anti-discrimination and leave laws.

And while FRD is not expressly prohibited in most state and in federal statutes, one study found a nearly 400% increase in the number of FRD cases filed between 1996 and 2005 as compared to the number filed in the decade prior.  The increase in family responsibilities discrimination cases indicates that employers do not yet understand their legal risks and obligations in this area.  AB 1999 would provide much needed guidance for employers by clarifying what constitutes unlawful discrimination against caregivers, and would also help workers better assert their rights by making those rights more clearly defined.

In 2007 and 2009, similar legislation was proposed attempting to add “familial status” to employment anti-discrimination protections.  In 2007, SB 836 (Kuehl) passed through both the Assembly and Senate, but was ultimately vetoed by Governor Schwarzenegger.  In 2009, AB 1001 (Skinner) was introduced in the State Assembly but was held in the Assembly Appropriations Committee.

AB 1999 would not only benefit a wide range of caregivers who struggle daily to balance the demands of work and family, but would also greatly impact those in need of care at a time when we’re seeing record cuts to social services.  Governor Brown’s proposed FY 2012-13 budget calls for the elimination of the statewide system of Caregiver Resource Centers that have provided comprehensive support and vital services to generations of caregivers in California.

It couldn’t be a more critical time to support California caregivers.  We encourage you and your organization(s) to get involved.  For additional information about AB 1999, please contact:

Jamie Dolkas, Equal Rights Advocates Staff Attorney at jdolkas@equalrights.org; or

Mariko Yoshihara, CELA Political Director at mariko@cela.org

Jamie Dolkas is a Staff Attorney at Equal Rights Advocates.  She is a contributing author in the recently released book, Women Who Opt Out: The Debate over Working Mothers and Work-Family Balance, Edited By Bernie D. Jones (NYU Press 2012), available online at http://nyupress.org/books/book-details.aspx?bookId=5826.

If you or someone you know would like information about legal rights relating to sex discrimination at work or at school, contact Equal Rights Advocates’ Advice and Counseling Hotline at 1(800) 839-4372.

Full press release here:  California Paid Family Leave Law benefits thousands