California Expands Whistleblower Protections and Anti-Retaliation Provisions

by Sayema Hameed

In October 2013, California Governor Jerry Brown signed into law Senate Bill 666, Assembly Bill 263 and Senate Bill 496 to expand whistleblower protections and anti-retaliations provisions in California.  These three bills address whistleblowing, immigration status and claims regarding unpaid wages.  These bills also confirm that whistleblowers are not required to exhaust administrative remedies to pursue a civil cause of action for whistleblower retaliation.  These significant changes in the law took effect on January 1, 2014.

An Overview of California’s Disability Insurance (DI) and Paid Family Leave (PFL) Programs

by Sayema Hameed

California’s State Disability Insurance (SDI) is a partial wage-replacement insurance plan for eligible California workers. The SDI programs are state-mandated and funded through employee payroll deductions. SDI provides affordable, short-term benefits to eligible workers.  Workers covered by SDI are eligible for two wage-replacement programs: Disability Insurance (DI) and Paid Family Leave (PFL).

California Governor Brown Signs SB 292 To Amend FEHA: Sexual Desire Not Necessary To Prove Sexual Harassment

by Sayema Hameed

On Monday, August 12, 2013, Governor Jerry Brown signed into law Senate Bill 292, which amends the Fair Employment and Housing Act (“FEHA”), Government Code Section 12940, to state as follows:

Sexually harassing conduct need not be motivated by sexual desire.

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Photo Credit: Pixabay

This amendment, authored by California Senate Majority Leader Ellen M. Corbett (D-East Bay), is aimed at protecting the rights of individuals who are sexually harassed in the workplace and was proposed in direct response to the Court of Appeal’s decision in Kelley v. Conco Companies (2011) 196 Cal.App.4th 191.

California Law Regarding Employee Access To Personnel Files

by Sayema Hameed

As of January 1, 2013, California Labor Code Section 1198.5 has been amended to give employees new rights to access their personnel files.  The amended statute explicitly gives former employees the same right as current employees to inspect and obtain a copy of their personnel records.  In addition, the current or former employee can authorize in writing a representative to inspect or receive a copy of the employee’s personnel file.

Read on to learn what you need to know about employer rights and responsibilities under this statute.

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Photo Credit: Pixabay

Sanchez v. Swissport, Inc.: Pregnant Employee Who Was Fired After Exhausting Pregnancy Disability Leave Stated A Claim For FEHA Employment Discrimination

by Sayema Hameed

What happens when a pregnant employee who exhausts all of her vacation time and pregnancy disability leave cannot return to work because she is disabled by a high risk pregnancy?  In the case of Ana G. Fuentes Sanchez, she was fired by her employer, Swissport, Inc., due to her failure to return to work.

Ms. Fuentes Sanchez filed suit against Swissport, alleging pregnancy discrimination under California’s Fair Employment and Housing Act (“FEHA”), Government Code Section 12900 et seq.  The trial court concluded that she failed to state a claim under FEHA because her employer had given her the maximum leave allowed under the Pregnancy Disability Leave Law, Government Code Section 12945.  The Court of Appeal, however, reversed the trial court, concluding that the plaintiff sufficiently stated a cause of action under FEHA for employment discrimination.  Sanchez v. Swissport, Inc. (filed February 21, 2013, Second District, Div. Four, Case No. B237761).

California Supreme Court Rules On Mixed Motive Defense in FEHA Employment Discrimination Case: Harris v. City of Santa Monica

by Sayema Hameed

The California Supreme Court has issued an important decision on the use of the “mixed motive” defense in employment discrimination cases brought under California’s Fair Employment and Housing Act (“FEHA”), ruling that employers will not be liable for damages such as back pay in employment discrimination cases where the employee would have been fired for legitimate business reasons in the absence of the discrimination.

FEHA prohibits employment discrimination because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation.  In order to prove employment discrimination, a plaintiff must show that the unlawful discrimination was a “motivating factor” or reason for the employer’s adverse employment action (such as termination, demotion, etc.) against the employee.

Employers commonly assert the “mixed motive” defense to defeat employment discrimination claims.  Under the mixed motive defense, if the employer can prove that it would have made the same adverse employment decision based on a legitimate reason, standing alone, even if no discrimination was present, then the employer will not be liable under FEHA.

In Harris v. City of Santa Monica (Cal. Sup. Ct. Case No. S181004, filed February 7, 2013), the California Supreme Court was asked to determine whether FEHA allows the “mixed motive” defense.  The Supreme Court held as follows:

We hold that under the FEHA, when a jury finds that unlawful discrimination was a substantial factor motivating a termination of employment, and when the employer proves it would have made the same decision absent such discrimination, a court may not award damages, backpay, or an order of reinstatement. In light of FEHA’s express purpose of not only redressing but also preventing and deterring unlawful discrimination in the workplace, the plaintiff in this circumstance could still be awarded, where appropriate, declaratory relief or injunctive relief to stop discriminatory practices.  In addition, the plaintiff may be eligible for reasonable attorney’s fees and costs.

California Assembly Bill 1964 – Workplace Religious Freedom Act of 2012 – In Effect January 1, 2013

by Sayema Hameed

On January 1, 2013, California bill AB 1964, the “Workplace Religious Freedom Act of 2012,” went into effect.  AB 1964, signed into law by California Governor Jerry Grown, amends California’s Fair Employment and Housing Act (“FEHA”) to explicitly state that religious dress and grooming practices are covered by FEHA’s protections against religious discrimination.

California’s New Pregnancy Disability Leave (PDL) Regulations

by Sayema Hameed

California’s new Pregnancy Disability Leave regulations took effect on December 30, 2012. The new regulations, which can be found in Title 2 of the California Code of Regulations, Sections 7291.2 through 7291.18, were adopted to provide clarity and guidance to employers and employees regarding their respective rights and responsibilities concerning pregnancy, childbirth and related medical conditions under California’s Fair Employment and Housing Act, California Government Code Sections 12940-12951 (“FEHA”).