Managing Pregnant Employees

Managing Pregnant Employees

Employers often have a difficult time understanding how to manage pregnant employees. Although employers are concerned about the temporary loss of an employee, they are unable to replace the mother without a potential lawsuit. At the same time, employers fear that pregnant employees who become injured on the job may blame their employers.

Pregnancy is a difficult issue for businesses to approach correctly. Understanding the basics of pregnancy discrimination law will greatly help an employer avoid lawsuits.

Federal Law 

Like most laws, pregnancy discrimination is divided between the state and federal levels. For instance, the Pregnancy Discrimination Act (PDA) makes it illegal for employers with 15 or more employees to discriminate on the basis of pregnancy or pregnancy-related disabilities. Employers cannot terminate or punish a woman for being pregnant or for having pregnancy-related issues.

If a future mother is late to work because she spent the morning vomiting, the employer cannot punish her. However, the law only protects disabilities related to pregnancy. If that same employee was constantly late for work prior to pregnancy, pregnancy would not be a defense.

Federal law can also protect the mother’s right to leave for childbirth and her right to care for the new born child. The Family and Medical Leave Act (FMLA) gives eligible employees up to 12 weeks of unpaid medical leave. “Eligible” refers to employees working for government employers or private employers with over 50 employees. The employee must have worked at least 12 months prior to leave and at least 1,250 hours over the course of those months. In return, the mother has the right to return to her original job or an equivalent one.

When a mother can breastfeed an infant at work is a relatively new and untested area of law. The Patient Protection and Affordable Care Act (ObamaCare) gives mothers the right to breastfeed at work. If an employee requests it, the employer must give the mother a private place to feed her infant. The “private place” cannot be a bathroom, but it can be any other room in the building provided that co-workers, customers, and other people don’t accidently wander in.

California Law

Although the Constitution prohibits states from contradicting federal law, states can offer greater protection than federal law. California provides pregnant employees with a few extra days of leave. More importantly, California gives pregnant workers the right to ask for an accommodation. An accommodation is a reasonable request by an employee which does not pose an undue burden to the employer. If the employer fails to provide that request, the employer is discriminating against the employee.

Pregnancy accommodations should be tied to the mother’s health and comfort. Some accommodations are very simple. For example, a woman who typically stands at work may request a chair for a few months. Complying with this simple request can prevent a major lawsuit if something goes wrong during the pregnancy. Keep in mind that the employee should make the decision whether she requires an early leave or whether she can continue working with an accommodation.

Peter Clarke

Peter Clarke, JD is the content manager for LegalMatch in South San Francisco.  He can be reached at peter.clarke@legalmatch.com.

 

Read More

Use of Credit Reports in Employee Hiring

Employee privacy is a recurring issue for California employers.  Many companies use credit reports when screening job candidates.  Under federal and California law, a job candidate must give permission for the employer to obtain the credit report.  Also, before taking any adverse action based on the report, liking turning down the job candidate, the employer must provide the candidate with a copy of the report and a disclosure of rights the candidate has.

California law also says that an employer shall not use a credit report for employment purposes unless the report is for hiring certain types of employees.  In specific, credit reports can be used only to hire managers, state Department of Justice employees, law enforcement personnel, a person for which the information in a report is required by law to be disclosed or obtained, a person with regular access to information that could be used for identity theft, a person with spending or contracting authority, a person that involves access to trade secrets, or a person with regular access to more than $10,000 in cash each day.  These laws do not apply to financial institutions.

California law also says that if an employer is going to use a credit report in hiring, it must provide the candidate with a notice that identifies the reason for obtaining a credit report.  The employer must also offer a copy of the credit report to the candidate and provide a copy upon request.

As a practical matter, the bases for using credit reports under California law correspond to the kinds of jobs for which employers are currently obtaining credit reports.  The positions described in the law are for positions that require trustworthy personnel, and the categories are fairly broad.  Accordingly, California law may not, in reality, significantly narrow the range of jobs for which credit reports are typically obtained.  It would, however, prevent employers from routinely using credit reports in a blanket fashion for hiring.  In any case, employers should check their employment policies and checklists to make sure they are not overusing credit reports when they hire new employees.

Stephen S. Wu

Stephen S Wu

 

Attorney Stephen Wu is a partner in the law firm of Cooke Kobrick & Wu LLP in downtown Los Altos.  He can be reached at (650) 917-8045 or at swu@ckwlaw.com.

Read More