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INSIDE THIS ISSUE:

New California Laws IncludeExemptions from Meal Rules

California Supreme Court to Rule on NumerousEmployment Law Cases

Reminder: 2011 is TrainingYear for Sexual HarassmentPrevention

Jackson Lewis News

Jackson Lewis Retail Industry Blog

Go Electronic!

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A BULLETIN ON EMPLOYMENT, LABOR, BENEFITS AND IMMIGRATION LAW FOR CLIENTS AND FRIENDS OF JACKSON LEWIS LLP

Winter 2010

All We Do Is WorkSM

Discrimination on the basis of pregnancy, child-birth, or related medical conditions constitutes

unlawful sex discrimination and is prohibited underseveral federal statutes: the Family and MedicalLeave Act (FMLA), the Pregnancy DiscriminationAct (PDA), and, under certain circumstances, theAmericans with Disabilities Act (ADA). These lawsapply to all 50 states and are designed to ensure thatemployers (1) do not discriminate on the basis ofrace, color, religion, sex, or national origin whenthey provide family or medical leave, and (2) treatfemale employees who have a disability caused bypregnancy in the same way employers would treatother employees who have a temporary medical disability.

Principal Federal LawsThe FMLA provides that a new parent (includingfoster and adoptive parents) may be eligible for 12 weeks of leave that may be used for care of thenew child. To be eligible, the employee must haveworked for the employer for 12 months prior to taking the leave and the employer must have a specified number of employees.

The PDA, which amended Title VII of the CivilRights Act, forbids pregnancy-based discriminationwhen it comes to any aspect of employment, includ-ing hiring, firing, pay, job assignments, promotions,layoff, training, fringe benefits such as leave andhealth insurance, and any other term or condition ofemployment. If a woman is temporarily unable toperform her job due to a medical condition relatedto pregnancy or childbirth, the employer must treather in the same manner as any other temporarilydisabled employee. For example, the employer mayhave to provide modified tasks, alternative assign-ments, disability leave, or unpaid leave.

The ADA does not recognize a normal pregnancy as an impairment, and generally pregnancy is not a disability for purposes of the law. However, inlimited circumstances, a significant complicationduring an otherwise routine pregnancy that restrictsa major life activity may be deemed a disability for purposes of the ADA, obligating an employer to provide a reasonable accommodation to the pregnant employee.

Laws Can Overlap or Violate One AnotherThe FMLA, PDA, and ADA sometimes cover pregnancy-based leave concurrently and overlapoccasionally. For instance, because the ADA andTitle VII (the PDA) cover private employers with15 employees or more and the FMLA covers privateemployers with 50 workers or more, privateemployers with 50 employees or more are coveredconcurrently by the FMLA, the ADA, and the PDA.

A leave policy may comply with one of the laws asit runs afoul of another. For example, an employee is protected by antidiscrimination laws such as TitleVII regardless of how long they have been on thejob, but an employee is not eligible for FMLA leaveuntil the individual has been employed for 12months. Thus, an employer policy that denies preg-nancy leave during the first year of employment, but provides it for other medical conditions, woulddiscriminate against pregnant women in violation of Title VII. Additionally, a neutral policy that pro-hibits any employee from taking sick or short-termdisability leave during the first year of employmentcould have a disparate impact on women and thusviolate Title VII.

State Pregnancy Disability LawsSome states have enacted their own pregnancy disability laws, adding to the mix of statutesdesigned to end pregnancy-based discrimination.Under federal regulations (29 CFR §825.701(a)),nothing in the FMLA supersedes any provision ofstate or local law that provides greater family ormedical leave rights than those provided by FMLA.An employer must provide leave under whicheverstatutory provision that provides the greater rightsto employees.

A Review of PregnancyDisability Discrimination Under Federal and State Law

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California Family Rights Act (CFRA), may requestan additional 12 weeks of unpaid leave for bondingwith the employee’s new child. There is no eligibili-ty period to take a pregnancy-disability leave.

If an employee is disabled due to pregnancy, child-birth, or related medical conditions, she also may be entitled to take unpaid pregnancy disability leavefor up to four months in addition to the 12 weeks of family and medical leave provided under FMLAor the CFRA. All female state employees disableddue to pregnancy, childbirth, or related medical condition are eligible for this benefit.

At its October 19, 2010, meeting, the FairEmployment and Housing Commission announcedthat it would consider for adoption new, revised regulations on pregnancy, childbirth, or relatedmedical conditions.

Colorado – Colorado has not enacted a medicalleave or pregnancy leave law that applies to employ-ees in the private sector. Persons inquiring aboutmedical or pregnancy leave should contact the U.S.Department of Labor with respect to the FMLA.

Colorado does not require paid leave for workerswith disabilities. Individuals with questions regard-ing disability and employment discrimination issues should contact the Colorado Civil RightsDivision, the U.S. Equal Employment OpportunityCommission, or an attorney for information andguidance.

Hawaii – When a child is born, the mother may be eligible for Temporary Disability Insurance (TDI)benefits. An employee must have at least 14 weeksof Hawaii employment during each of which shewas paid for at least 20 hours and earned not lessthan $400 in the 52 weeks preceding the first day of disability. The 14 weeks of employment need not be consecutive nor with only one employer. The employee also must be in current employmentto be eligible.

TDI benefits paid or payable to an employee aresolely to partially replace the wage loss resultingfrom his or her inability to work. The employer orinsurance carrier is prohibited from receiving benefitassignments, in whole or in part, to pay for a debt or obligation the employee incurred. Benefits alsoare exempt from levy, execution, attachment, andgarnishment, except for child support with a Family Court order.

Additionally, the Hawaii Family Leave Law providesfour weeks of protected leave for the mother orfather to care for the child, 10 days of this leave maybe paid if the employer has a policy that provides forpaid time off.

The following describes pregnancy disability andleave laws enacted by certain states:

Alaska – Alaska pregnancy laws echo federal law,including the PDA and FMLA, and are enforced bythe Alaska State Commission for Human Rights. Inaddition, the Alaska Family Leave Act (AFLA)requires covered public employers to provide up to18 weeks of unpaid, job-protected leave to eligibleemployees for certain family and medical reasons.

Arizona – Arizona law adopts the provisions of federal law, including the PDA and FMLA. In addi-tion, “parental leave” (any combination of annualleave, sick leave, compensatory leave, or leave with-out pay taken by an employee due to pregnancy,childbirth, miscarriage, abortion, or adoption ofchildren) is allowed to state employees upon requestsubject to the following conditions:

• An employee may take sick leave only for periodsof disability.

• Parental leave for childbirth, miscarriage, abor-tion, or adoption will not exceed 12 weeks, unlessthe agency head approves a longer duration.

• An agency will not require an employee toexhaust all annual, sick, or compensatory leavebefore taking leave without pay.

• An employee will specify the number of hours of annual, sick, or compensatory leave, and leavewithout pay to be used when requesting parentalleave.

• If leave qualifies for FMLA leave, an agency willcount the leave as FMLA leave.

An employee returning to work from leave withoutpay taken as part of a parental leave will be returnedto the position occupied at the start of the leave. Ifthis position no longer exists, the agency will con-duct a reduction in force.

California – Under the California FairEmployment and Housing Act (FEHA), pregnancydisability leave permits a female employee up tofour months of leave for the period during whichshe is disabled due to pregnancy, childbirth, or arelated medical condition. She is considered disabledif she is unable to perform one or more essentialfunctions of her job due to her pregnancy or relatedhealth condition. She is required to provide medicalverification from her doctor. During the period of disability, the employee may use any accruedleave the employer makes available to temporarilydisabled employees. The employer maintains theemployee’s health coverage for up to 12 weeks eachyear under FMLA. After the pregnancy disabilityleave ends, the employee, if eligible under the

EDITORIAL BOARD:

Jamerson C. Allen, Esq.415-394-9400AllenJ@jacksonlewis.com

Mark S. Askanas, Esq.415-394-9400AskanasM@jacksonlewis.com

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Michael J. Lotito, Esq. 415-394-9400 LotitoM@jacksonlewis.com

Mei Fung So, Esq. 212-545-4000 SoM@jacksonlewis.com

This Update is provided for informa-tional purposes only. It is not intendedas legal advice nor does it create anattorney/client relationship betweenJackson Lewis LLP and any readers or recipients. Readers should consultcounsel of their own choosing to discuss how these matters relate totheir individual circumstances.Reproduction in whole or in part isprohibited without the express writtenconsent of Jackson Lewis LLP.

This Update may be considered attorney advertising in some states.Furthermore, prior results do not guarantee a similar outcome.

Jackson Lewis LLP represents manage-ment exclusively in workplace law andrelated litigation. Our attorneys areavailable to assist employers in theircompliance efforts and to representemployers in matters before state and federal courts and administrativeagencies. For more information, pleasecontact the attorney(s) listed or theJackson Lewis attorney with whom you regularly work.

© 2010, Jackson Lewis LLP

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Nevada – If an employer grants leave with pay,leave without pay, or leave without loss of seniorityto employees for sickness or disability because of amedical condition, it is an unlawful employmentpractice to fail or refuse to extend the same benefitsto any female employee who is pregnant. Theemployee must be allowed to use the leave beforeand after childbirth, miscarriage, or other naturalresolution of her pregnancy, if the leave is granted,accrued or allowed to accumulate as a part of heremployment benefits.

Utah – It is a discriminatory or prohibited employ-ment practice for an employer to refuse to hire orpromote, or to discharge, demote, or terminate anyperson, or to retaliate against, harass, or discriminatein matters of compensation or in the terms, privi-leges, and conditions of employment against anyperson otherwise qualified because of pregnancy,childbirth, or pregnancy-related conditions.

Effective July 1, 2010, a school district or charterschool must allow a public school employee to useup to six weeks of accrued leave for the birth oradoption of a child. The employee must give 30days’ notice before taking accrued leave.

An eligible state employee is allowed up to 12workweeks of family and medical leave each calendar year for any of the following reasons:

• Birth of a child

• Adoption of a child

• Placement of a foster child

• A serious health condition of the employee

• Care of a spouse, dependent child, or parent witha serious medical condition

An employee on FMLA leave must continue toreceive the same health insurance benefits theemployee was receiving prior to the commencementof FMLA leave, provided the employee pays theemployee share of the health insurance premium.An employee on FMLA leave also must receive anyadministrative leave given for non-performance-based reasons if the leave would have been given had the employee been in a working status.

Making your way through the maze of state and federal laws covering pregnancy discrimination and leave can be confusing. The employment lawattorneys at Jackson Lewis are here to help you avoidproblems where these laws conflict or overlap.

This law, which goes into effect on January 1, 2011,includes definitions of the specific types of employ-ees and occupations exempted from the meal periodrules.

Leave for Organ and Bone Marrow Donation(SB 1304). Existing law requires that Californiastate employees who have exhausted all availablesick leave be permitted to take a leave of absencewith pay for up to 30 days for the purpose of organdonation, and up to five days for bone marrow dona-tion. SB 1304 adds Sections 1508 to 1513 to theLabor Code to require private employers with 15employees or more to permit employees to take similar paid leaves of absence for organ and bonemarrow donation, and to restore an employeereturning from such leave to the same position theemployee held when the leave began, or to an equiv-alent position. The law prohibits a private employerfrom interfering with an employee taking such leaveand from retaliating against an employee either fortaking such leave or opposing an unlawful employ-ment practice related to such leave. The law alsocreates a private right of action for an aggrievedemployee to seek enforcement of these provisions.

This law takes effect January 1, 2011, and the rights provided under SB 1304 cannot be denied by a collective bargaining agreement or employeebenefit plan entered into on or after that date.

Despite an unprecedented 100-day budgetimpasse, California managed to pass several

significant labor and employment bills. The mostnotable include the following:

Meal Period Exemption (AB 569). Section 512 ofthe Labor Code, with certain exceptions, prohibitsan employer from requiring an employee to workmore than five hours per day without providing ameal period and, notwithstanding this five-hourrule, authorizes the Industrial Welfare Commissionto adopt a working condition order permitting ameal period to begin after six hours of work if theorder is consistent with the health and welfare ofaffected employees.

AB 569 exempts from these provisions employees in a construction occupation, commercial drivers,employees in the security-services industryemployed as security officers, and employees of elec-trical and gas corporations or local publicly ownedelectric utilities if those employees are covered by avalid collective bargaining agreement containingspecified terms, including meal period provisions.

New California LawsInclude Exemptionsfrom Meal Rules

Cal.App.4th 949 (2005). The Cicairos court ruledthe employer there had not proved it had providedits employees with required meal periods. Theplaintiffs claim that Cicairos holds employers mustmake employees stop working to take meal breaks.

If the Supreme Court upholds Brinker and Brinkley,employers will have new flexibility. Otherwise, theymay have to force employees to stop working formeal periods, even where an hourly employee prefersto work through a meal period.

Sullivan v. Oracle Corp., S170577. The CaliforniaSupreme Court granted the request by the U.S.Court of Appeals for the Ninth Circuit to decide the following certified questions of California lawpresented in a matter pending in the Ninth Circuit:

• Does the California Labor Code apply to overtimework performed in California for a California-based employer by out-of-state plaintiffs in thecircumstances of this case, such that overtime pay is required for work in excess of eight hoursper day or in excess of 40 hours per week?

• Does Business and Professions Code section17200 [et seq.] apply to the overtime workdescribed in question one?

• Does section 17200 [et seq.] apply to overtimework performed outside of California for aCalifornia-based employer by out-of-state plain-tiffs in the circumstances of this case, if theemployer failed to comply with the overtime provisions of the federal Fair Labor Standards Act (29 U.S.C. § 207 et seq.)?

By separate order, the Ninth Circuit withdrew itspublished panel opinion, pending a decision by theCalifornia Supreme Court on the above certifiedquestions. Therefore, the Ninth Circuit’s originaldecision (Sullivan v. Oracle Corp., 547 F.3d 1177 (9th Cir. 2008)) is no longer good law.

ArbitrationSonic-Calabasas A, Inc. v. Moreno, S174475.This case presents the question of whether a manda-tory employment arbitration agreement (requiringboth parties to submit to binding arbitration “alldisputes” involving employment) can be enforcedbefore the conclusion of an administrative proceed-ing concerning an employee’s statutory wage claimconducted by the Labor Commission.

Anumber of cases pending before California’sSupreme Court involve significant labor and

employment issues. Following is a short list:

Wage and HourBrinker Restaurant v. Superior Court(Hohnbaum), S166350. Meal and rest periodclaims have dominated California wage-hour litiga-tion for the last several years. This case involves perhaps the most significant issue awaiting the high court’s consideration and resolution: the properinterpretation of California’s statutes and regulationsgoverning an employer’s duty to provide meal andrest breaks to hourly workers. Brinker has been consolidated for consideration with Brinkley v. PublicStorage, Inc., S168806, another meal and rest breakcase.

Both Brinker and Brinkley decided that the state-lawmandate (requiring employers to provide meal peri-ods for nonexempt employees who will work morethan five hours, and to give workers a chance to rest during the day) means employers need onlyauthorize and permit rest periods and provide mealperiods, not ensure such periods are taken. Mealperiods are not required for every five consecutivehours worked, and rest periods need not be in themiddle of each work period.

In contrast, the Brinker plaintiffs argue that the lawrequires an employee to take a meal break no laterthan the end of every five hours of work (California’sDivision of Labor Standards Enforcement has fol-lowed this interpretation for many years). They alsoclaim that employers must assure that each employ-ee stops work and takes time for lunch, regardless ofthe employee’s wishes in the matter.

The Supreme Court may have granted review ofBrinker and Brinkley due to their apparent conflictwith the state Fourth District Court of Appeal’sdecision in Cicairos v. Summit Logistics, Inc., 133

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tic violence abuse. AB 2364 revises various provi-sions of the State’s Unemployment Insurance Codegoverning eligibility for unemployment benefits. By a small amount, the new law increases the number of persons who may be eligible to receiveunemployment benefits.

Eligibility for Unemployment Benefits (AB2364). Existing law provides for the payment ofunemployment compensation benefits to eligibleindividuals who are unemployed through no fault oftheir own because they left their employer’s employto protect their children or themselves from domes-

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California SupremeCourt to Rule onNumerous Employment Law Cases

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The Court of Appeal reversed the trial court’s deci-sion that the arbitration agreement violated publicpolicy, and held that in the agreement the employeewaived his right to an administrative hearing.And based on the agreement’s clear language, theemployee had to arbitrate all employment claimsother than the administrative remedies listed in theagreement as exceptions to its “all disputes” cover-age. Because the agreement contained no exceptionfor administrative procedures before the LaborCommissioner, the employee could not pursue aBerman proceeding for his unpaid vacation claim.

DiscriminationHarris v. City of Santa Monica, S181004. TheCourt will decide if the “mixed motive” defenseapplies to employment discrimination claims underthe Fair Employment and Housing Act. Harrisinvolved a bus driver-trainee who claimed she was fired because she was pregnant. The employerargued she was terminated due to successive tardi-ness and two minor traffic accidents, and not due to her pregnancy.

The trial court rejected the employer’s request thatthe jury be instructed on the employer’s mixed-motive defense. Under this defense, if the jury findsthat the employer’s disputed action was actuallymotivated by both discriminatory and nondiscrimi-natory reasons, the employer is not liable if it canestablish by a preponderance of the evidence that its legitimate reason, standing alone, would haveinduced it to make the same decision.

An employer may not, however, prevail in a mixed-motive case by offering a legitimate and sufficientreason for its decision if that reason did not motivateit at the time of the decision. Neither may anemployer meet its burden by merely showing that at the time of the decision it was motivated only inpart by a legitimate reason. The essential premise ofthis defense is that a legitimate reason was presentand, standing alone, would have induced theemployer to make the same decision.

The appellate court reversed a judgment in theemployee’s favor and remanded the case for a newtrial, holding that the court erred and prejudicedthe employer by not giving the jury the instructionon the mixed-motive defense.

PreemptionCalifornia Grocers Ass’n v. City of Los Angeles,S176099. The issue before the California high courtis whether the state’s food safety laws preempt alocal ordinance that requires a grocery store, after achange of ownership, to retain the employees of theformer owner for a 90-day transition period. Thetrial court enjoined enforcement of the ordinance,finding it was preempted by the California Retail

Food Code (CRFC), Health and Safety Code §113700 et seq., based on the legislative intent tofully occupy the field of health and sanitation standards for retail food facilities.

The city of Los Angeles and intervenor L.A. Alliancefor a New Economy appealed the judgment enjoin-ing enforcement of the ordinance, contending thelaw’s purpose was unrelated to health and sanitationstandards, but was to provide job security to groceryworkers in the event of a change in ownership.

The Court of Appeals decided that the ordinancerequired successor grocery employers to employexperienced workers in order to maintain health and safety standards during the transition to newmanagement. The Court found “the ordinanceenters into a field fully occupied by state law” andwas preempted by the CRFC. Moreover, by forcingemployers to hire the predecessor’s employees, theordinance affects the collective bargaining process by imposing on the employer an obligation to bargain or interferes with the employees’ right to require the employer to bargain with their representative. The Court therefore ruled that the ordinance was also preempted by the federalNational Labor Relations Act.

Other CasesHarris v. Superior Court (Liberty Mutual),S156555. Do claims adjusters employed by insur-ance companies fall within the administrativeexemption (Cal. Code Regs, tit. 8, § 11040) to therequirement that employees are entitled to overtimecompensation?

State Building & Construction Trades Councilv. City of Vista, S173586. Does California’s prevailing wage law apply to a charter city when the city contracts to construct public works projectswith municipal funds?

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The Department of Fair Employment and Housinghas the authority to penalize employers who fail tocomply with the training requirement. The lawstates that compliance with AB 1825 is not adefense to a sexual harassment claim and, converse-ly, that a supervisor’s failure to receive training isnot grounds for establishing liability for harassmentunder the Fair Employment and Housing Act.

Jackson Lewis Training ProgramsJackson Lewis has built its practice and reputationby helping clients reduce employment litigationthrough management education on legal trends,judicial developments, and statutory and regulatorycompliance. We have developed management train-ing programs for minimizing sexual harassment,and we regularly conduct educational conferencesand training programs nationwide for employers andtheir management teams, in-house attorneys andhuman resource professionals on a wide range ofissues.

Jackson Lewis’ training programs are tailored tomeet AB 1825 compliance rules. For more informa-tion, contact the Jackson Lewis attorney with whom you regularly work.

The deadline for training under AB 1825, theCalifornia law designed to instruct supervisory

employees and managers in the prevention of sexualharassment at the worksite, is December 31, 2011.

AB 1825 (now codified at Cal. Gov. Code §12950.1) became law on January 1, 2005, andrequires employers with 50 employees or more toprovide two hours of classroom or other effectiveinteractive training and education regarding sexualharassment prevention to supervisory employeesevery two years (the first training deadline wasDecember 31, 2005). New supervisors must betrained within six months of being promoted to asupervisory position and, thereafter, every two years.

The required training must take the form of “infor-mation and practical guidance” regarding federaland state laws concerning the prohibition of, andthe prevention and correction of, sexual harassmentand the remedies available to victims of such harass-ment. The training must be provided by “trainers or educators with knowledge and expertise in theprevention of harassment, discrimination, and retaliation” and must include practical examplesaimed at instructing supervisors.

Employers have to track compliance with AB 1825by keeping training records indicating the date and type of training provided and the supervisor-trainee’s name as well as the name of the instructor.These records must be maintained for at least twoyears.

Reminder: 2011 isTraining Year for SexualHarassment Prevention

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Jackson Lewis is pleased to announce that Leonora“Lenny” Schloss has joined the firm’s Los Angelesoffice as Partner. Ms. Schloss has substantial experi-ence litigating single plaintiff and class action dis-crimination, harassment, retaliation, wrongful ter-mination, and wage/hour cases in state and federalcourts and agencies. She also advises and trainsemployers in preventive measures for day-to-dayemployment problems, drafts policies and agree-ments, conducts wage/hour classification audits andtrainings, and handles employment investigations.

Ms. Schloss is a graduate of Columbia UniversitySchool of Law and received her bachelor’s degreefrom St. Louis University. She is a member of PhiBeta Kappa and is recognized in Who’s Who ofAmerican Women.

Our Blogs Keep You Updated on the Laws that Affect YouNo need to wait until the next issue of The WestCoast Employer to find out what’s happening.Jackson Lewis blogs provide updated information on employment law issues. Following are two of our latest:

• Jackson Lewis’ California Workplace Blogprovides regularly updated analysis and commen-tary on California workplace law issues and developments from our employment law experts.You’ll find us at http://www.californiaworkplacelawblog.com/.

• Jackson Lewis’ Benefits Law Advisor Blogcovers significant developments on the full rangeof employee benefits, including employee pension,health and welfare, and fringe benefit plans. Wealso cover emerging issues in executive compensa-tion arrangements and employment agreements,and employee benefit plans in corporate mergersand acquisitions, among other complex issues.Check out our latest blog updates athttp://www.benefitslawadvisor.com/.

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