California Labor Law: Caution: Pregnant Women at Work
"Nancy was a few months pregnant and didn't want to be around all those fumes every night, plus she has asthma," says her husband Jorge. "She talked to her employers about it but they threw a fit so she brought them a doctor's note. They got even madder, saying it wasn't a real note and they were going to phone her doctor. Then they started telling other employees not to get pregnant like Nancy, just to try to get out of work."
Nancy was a shift manager and had never missed work, neither had she taken any sick leave. Her immediate boss treated her like a five-year-old and used tactics that a grade-school teacher in the past century might resort to. "On Sunday night he wrote in the log book that everything went well and nobody was harmed by fumes, just to ridicule Nancy," says Jorge. "He was definitely out to get her. He started telling people that he had 'a firing list and Nancy is on top.' As soon as Nancy told them she was pregnant, they were jerks to her."
"So we told the manager if this keeps up we would find a way to resolve the problem. Nancy wrote them a letter saying she was being discriminated against but they didn't do anything about it. Then she wrote an official letter to the main manager and he had to show it to the district manager. We don't know what happened behind the scenes but they sure changed their tune within a few days of receiving the letter." Nancy will soon be taking maternity leave and has been promised her job when she returns.
Tiffany was a certified trainer for El Torrito's and had worked there for just over a year when a new manager came on board. "As soon as the new manager found out I was pregnant, she became very nasty to me," says Tiffany," and fired me two weeks later."
The excuse the new manager used to get rid of Tiffany was an altercation that occurred between Tiffany and Odie, another server. "Odie started yelling at me so I told him to stop acting like an asshole," says Tiffany. Three co-workers witnessed the argument and heard everything Tiffany said. "I continued working in my section then when I got an order, I overheard Odie tell another manager that I called him a 'faggot'. I never said that.
Two supervisors told me just to ignore him and I worked for the next few days; I just brushed it off. I took Sunday off and I was scheduled to work Monday, but the new manager phoned and told me I was under investigation because I called Odie a 'faggot'. I told her my side of the story and that I had witnesses. That word has never come out of my mouth; I have many gay friends and I would never use this derogatory term.
So I decided to be sneaky. I called the hostess and asked if Odie was working. He was. A few days went by and I called work and asked what was going on. Nothing. Then I phoned corporate office. But Odie had also called corporate office and told his side of the story. They didn't believe me.
On Wednesday the manager told me to come in and bring my uniform. 'I am sorry, we have to let you go, here is your last pay check in cash,' she said. I started crying--I have never been fired from a job in my life. I couldn't believe it. My co-workers, the witnesses, are willing to vouch for me, but they were never asked to come forward, they were never questioned.
Right after I was fired, one of the witnesses told them she was pregnant??"she was fired as well.
I am petite and I was showing at almost five months. There was no way I could find another job. I applied to several places but who is going to hire a pregnant woman? I was on unemployment for about three months and after it ran out they wanted me to get on disability. My husband has a good job so I didn't apply.
I should have been given six weeks maternity leave from El Torrito's. I can't think of any reason to be fired other than the fact that they didn't want me to take time off. You would think they would have investigated. Instead they lied and didn't conduct any investigation. I went to the labor board and they said that since I worked for an at-will employer, I could be fired at any time. But I was wrongfully discriminated against so I believe I have a case??"my employer violated the California labor law."
Generally, if the plaintiff can establish she was discriminated against for being pregnant, the settlement value of the case is there. Who is going to say no to a pregnant woman? A pregnant woman should have a lot of leniency.
However, if you are pregnant and employed by a small business, you need to be careful regarding how you request limitations. Too often, when a pregnant woman begins to show, she is either terminated when she announces her limitations as prescribed by her doctor or expressed by her (as in Nancy's case when she didn't want to be around toxic fumes).
Larger companies have large HR departments and attorneys, and generally they are more sophisticated about pregnancies.
The California Fair Employment and Housing Act states that:
It explicitly prohibits employers from harassing, demoting, terminating, or otherwise discriminating against any employee for becoming pregnant, or for requesting or taking pregnancy leave. The Act applies to all employers that regularly employed five or more full-time employees in the preceding year.
The California Pregnancy Disability Leave Law ("PDLL") is part of the California Fair Employment and Housing Act, and requires employers who employ 5 or more employees to provide employees who are disabled by their pregnancy a reasonable period of leave, not to exceed four months. An employee who is disabled by her pregnancy and entitled to PDLL leave may take the leave all at once, or in increments. An employer is not required to pay wages to an employee taking PDLL leave, unless it has a policy of continuing the payment of wages for other types of temporary disability leaves.
However, the employer may require the pregnant employee to use, or the employee may elect to use, any accrued sick leave during the period of leave. For most purposes, employees who are on pregnancy disability leave must be treated the same as employees on other types of disability leave in terms of pay, benefits and other terms and conditions of employment. There is no length of service requirement, so even recently hired employees are eligible for this leave.
In addition, in California, once the employee has given birth she may be entitled to an additional 12-weeks of leave "for the reason of the birth of a child" under the California Family Rights Act ("CFRA"), which is California's version of the FMLA. Entitlement to CFRA leave for birth of a child depends on, 1) whether the employer employs more than 50 employees within a seventy five mile radius; and 2) Whether the employee worked more than 1250 hours in the 12 months preceding the first day of the requested CFRA leave or any pregnancy disability leave; and 3) Whether the employee has more than one year of service with the employer.
If you have been discriminated against on the basis of pregnancy, you may be entitled to recover damages for emotional distress, lost wages, and more.