Parental leave policies are back in the news.  Jones Day, one of the nation’s largest law firms, faces legal action claiming its parental leave policy is discriminatory.  The policy at issue provides 10 weeks of paid parental leave for biological parents (regardless of gender) who seek to be primary caregivers.  In addition, the policy grants biological mothers eight (8) weeks of disability leave.  This policy, on its face, should pass muster given EEOC guidance that biological mothers disabled as the result of childbirth may be given additional leave benefits. However, in the complaint filed yesterday, plaintiffs allege that in practice, the firm gave women 18 weeks of combined leave regardless of whether or not the women were actually disabled. The plaintiff’s contend that the grant of 18 weeks of leave for adoptive parents supports their position that leave was intended as bonding leave rather than disability leave.

This lawsuit underscores the importance of policy and practice being consistent and equal without regard to gender. The plaintiff’s view the firm policy as treating fathers less favorably, rather than accepting the firm’s stated intention of treating disabled mothers more favorably.  Washington D.C., where plaintiffs worked, does not have state disability insurance (SDI).  However, California and other states’ SDI programs presume a six-week disability period for a biological mother delivering vaginally and an eight-week disability period for cesarian delivery.  In light of the SDI presumptions, I don’t think the Jones Day policy was unreasonable in providing all birth mothers with a presumed eight-week disability period.  But, the courts may not agree with me.

You may recall recent settlements based on parental leave policies that were facially discriminatory or disparately impacted fathers, or can remind yourself of those details here.

In light of the nuanced applications and continued media scrutiny on the value of paid parental leave in the workplace, companies should review their written policies and implementation practices to ensure compliance with this changing area of the law.

The complaint also alleges retaliation and gender-based pay disparity.

Father’s Day came early for the class of new dads who settled their gender discrimination lawsuit last week regarding JPMorgan Chase’s parental leave policy. As we discussed here, this lawsuit, and the one against Estee Lauder that settled last year, shed light on the importance of treating new parents equally in the workplace, regardless of their sex. With the topic of parental leave in the news and at the forefront of political debate, there is still no clear answer on how much leave is the right amount or how to transition new parents back into the workplace most effectively. However, the EEOC has made clear that leave policies must offer the same amount of time for new moms and new dads, with a caveat. The policies at issue in both cases involved a “primary” and “secondary” caregiver distinction.  This distinction, of which parental leave advocates are critical, is permitted so long as the employer is not enforcing the policy in a discriminatory manner. For example, a company cannot assume that a woman is the “primary caregiver” or require a new father to prove that he will assume “primary” caregiving responsibilities.  

Of course, new moms who are disabled as the result of giving birth may also be entitled to paid disability benefits either by the state or under a company policy.  The leave is job protected under California’s Pregnancy Disability Leave (PDL), and birth mothers can stack PDL next to their pure parental leave or state Paid Family Leave (PFL). Some companies are going one step further in expanding benefits.  I have seen a handful of employers reconsidering their “Pregnancy Leave” policies too.  In a move toward increasing benefits, some companies have broadened paid disability benefits to cover all disabled employees.  Their rationale, in part, goes something like this: Having a paid pregnancy disability policy, but not paying disability leave for non-pregnancy disabilities adversely impacts women with infertility-related disabilities or other workers with a range of potential disabilities.  If you have an existing parental leave policy or are considering adopting one, make sure to consider the logistics of enforcement and seek counsel on this evolving area of employment law.



If the EEOC’s recent lawsuit against Estee Lauder is any indication of things to come, now is a good time to review your parental leave policy.  The crux of the policy at issue is a grant of six weeks of paid parental leave for a primary caregiver and two weeks for a secondary caregiver.  On its face, it seems lawful and non-discriminatory, but what about in practice?

A week before the EEOC filed suit, I was at a cocktail party chatting about parental leave with a business owner.  We discussed different trends in these types of policies and the concept of “primary” and “secondary” caregiver delineations.  “How do you know if someone is really a primary caregiver?” he asked.  “What if you know the father is definitely not the primary caregiver but insists he is for purposes of the parental leave policy?” Good questions.  I paused and responded that I wouldn’t recommend challenging the caregiver status and would operate on the honor system.

In the Estee Lauder case, the practice was to assume the mother is the primary caregiver unless the father proves otherwise or the birth is through a surrogate.  This assumption treats men less favorably than women and is the foundation of this lawsuit based on gender discrimination.

I have seen, and even drafted, numerous policies relying on caregiver status and have not seen any implementation issues based on gender.  But, in light of these recent lawsuits, I’ll be adjusting my recommendations.  Some issues to consider:

  1. Whether the policy treats men and women differently based on gender stereotypes (e.g. maternity vs. paternity)
  2. How parental leave coordinates with any state or local paid parental leave (information on San Francisco’s required policy here)
  3. How parental leave coordinates with any disability policy, as policies that seek to deduct state disability payments from parental leave policies treat disabled mothers less favorably than non-disabled fathers
  4. Ensure compliance with PDL, FMLA and CFRA in conjunction with any disability and/or parental leave policy
  5. With pending litigation, the law in this area could change soon, so seek counsel to be sure you are up to date

We told you already that San Francisco will require employers to provide eligible workers with fully paid parenting leave for up to six weeks. State benefits pay roughly 55% of the employee’s wages. Employers will be required to make up the difference.

Since it’s adoption, the City has already changed when the requirements take effect. Currently, the ordinance applies to employers with 50 or more employees on January 1, 2017. It applies to employers with 35-49 employees on July 1, 2017 and those with 20-34 employees on January 1, 2018.

Copyright: poznyakov / 123RF Stock Photo
Copyright: poznyakov / 123RF Stock Photo

In determining the size of the employer, don’t just count employees in San Francisco. An employer with a single, San Francisco employee will be covered if it has the necessary number of employees anywhere.

Are you thinking that six weeks’ paid time off is a good reason to have a baby? Don’t be too hasty. As of 2014, it supposedly cost $402,112 to raise a child in San Francisco.

You can read more about the ordinance here.

The following post was contributed by Jaemin Chang.

We have come a long way!

I had the pleasure of attending the dedication of former SF Mayor and State Assembly Speaker Willie L. Brown, Jr.’s archive to San Francisco State University Library on April 4, 2016.  One of his manila folders was labeled “Labor/Employment,” and an article from 1974 entitled “California Upheld on Denial of Disability Pay for Pregnancy” sat on the top.

Archive article

This article, written by Linda Mathews, discussed the U.S. Supreme Court case, Geduldig v. Aiello, 417 U.S. 484 (1974).  U.S. Supreme Court Justice Ruth Bader Ginsburg (a law professor at Columbia at the time) was quoted as saying, “This decision has terrible implications” for working women, especially low income earners.

The Geduldig case challenged California’s disability insurance system which denied temporary disability pay to women with normal pregnancies. It is difficult to imagine that our State championed denial of coverage to pregnant women, but that was the convention of our thinking back in 1974.

Fast forward to the present. California has some of the most expansive laws covering pregnancy disability and paid family leaves.  San Francisco being at the forefront passed an ordinance on April 5, 2016, requiring employers to pay up to 6 weeks of fully paid time off for new parents.  California is already one of the few states that offer paid parental leave, where workers receive 55% of their pay from the state’s Worker’s Compensation insurance program. Under the new ordinance, San Francisco employers are required to fund the remaining 45% of the pay for up to six weeks.

This new law will take effect January 2017:  employers with 50 employees or more must comply by January 1, 2017, and employers with 20 or more employees must comply by July 1, 2017.


JC WB Photo

Thanks to Rosa Hernandez, a summer associate and soon-to-be 3rd-year student at UC Berkeley Law School for this post.

Be honest, you’re getting sick of quarantine with your kids right? It’s okay, we won’t tell anyone. Remember when being a parent was great and kids still had that new baby smell? That early childhood bonding was supposed to prepare us for times like these, right?

Back on January 1, 2018, California’s “New Parent Leave Act” began requiring employers to offer 12 weeks of unpaid job protected leave if they have between 20 and 49 employees. This leave is meant to allow new parents to bond with a newborn child, adopted child, or foster child within a year of their birth or placement. The Act prohibits discrimination or retaliation against an employee for taking this leave.

However, to qualify for this leave employees must be working for a covered employer, in a work site where the employer employs at least 20 employees, have worked a minimum of 1,250 hours in the 12 months before taking leave, and employees must be taking the leave for the purpose of bonding with the child.

For employers, figuring out what parental leave and disability leave an employee qualifies for can be difficult as regulations frequently change or overlap. Consulting legal counsel can help unravel it. Here are a few frequently asked questions about the New Parent Leave Act.

Frequently asked Questions:

Q: What does job protected leave mean?

 A: In general, the employer must guarantee before the employee’s leave begins that the employee will be reinstated to the same or a comparable position when they return from leave.

Q: Do employers have to pay for leave provided under the New Parent Leave Act?

A: No, the 12 weeks under the New Parent Leave Act is unpaid leave. However, employers must continue the employee’s coverage in the employer’s health insurance plan during the leave.

Q: Do male employees qualify for this leave?

A: Yes, the language of this law is gender-neutral and leave under the New Parent Leave Act is available to a parent regardless of their gender.

Q: What if I employ both parents seeking leave?

A:  Employers are not required to provide simultaneous leave to both parents seeking leave to bond with the new child. The employer may choose to, but is not required to grant simultaneous leave to both parents. The New Parent Leave Act does not require employers to grant leave that would total more than 12 weeks.

Q: What happens if the employee doesn’t come back?

 A: If an employee does not return from leave after the total period of leave they qualify for, the employer may be able to recover the individual cost of the health plan premium the employer paid for the employee to retain their health coverage during the leave.

But the employer cannot recover these payments if the employee did not return due to the onset of a serious health condition, a continuation or recurrence of a serious health condition, or for circumstances beyond the employee’s control.

 Q: Do employees have to choose between bonding leave or disability leave?

A: No. This leave does not prevent employees from taking other leave that they also qualify for. As an example, the New Parent Leave Act does not prevent a person disabled by pregnancy from taking up to four months of job-protected leave if the employee qualifies for that leave.

Q: How is this different from leave under California’s Family Rights Act or the Family Medical Leave Act?

A: CFRA and FMLA leave apply when the employer has 50 or more employees. The New Parent Leave Act extends those requirements to employers with 20 to 49 employees. Also, while the New Parent Leave Act only applies to births, adoptions, or foster placements, CFRA and FMLA also apply to leaves taken for other reasons (such as an employee’s or family member’s serious health condition).

There are few things I love more in life other than dogs and beer. So when I saw this article I was delighted! A beer company, called BrewDog, has decided to pay its employees a week of new puppy leave dubbed “pawternity” or “mutternity” leave when an employee gets a new puppy or adopts a dog.

29893089 – dog drinking beer tosa inu cute puppy lying on the grass and drinking beer

In my adult life I have raised three puppies, and each time I took “puppyernity leave” for the first week the puppy was home. Many clients, colleagues, and even opposing counsel were super supportive (and requested pictures). For those who love pets, especially puppies, they understand how hard that first week can be, and how little sleep you get.  Raising a puppy (or adopting a dog) is a tremendously joyous time, but it is also a big time commitment!

On a related issue, many clients have asked me if the various paid sick leave statutes coming up in cities all over the country allow time off for sick pets. My answer has been “not yet.” Unless, of course, you live in the city of Emeryville, and need sick time to care for a guide dog, signal dog, or service dog.

So let’s give a shout out to San Francisco, the most liberal city in the US. Come on now. Get on the puppy train. Let’s get some puppy leave ordinance drafted and expand sick leave to include pets. Oh, and while you are at it, make it mandatory to allow pets into all work spaces! Ok, maybe that one can wait. But are you really going to let a beer company based in Glasgow do more for employees (and their canine babies) than a business in San Francisco?

Earlier in the week, Jaemin Chang gave us this post that provided a historical perspective on San Francisco’s new paid parenting leave ordinance. Here’s some practical advice on the ordinance that appeared in our latest Labor & Employment Alert:

On April 5, 2016, San Francisco adopted a Paid Parental Leave Ordinance. California already offers Paid Family Leave that provides up to six weeks of wage replacement benefits to workers who take time off to care for a seriously ill family member; or to bond with a newborn or a child recently placed through adoption or foster care. The existing state benefit, paid for with deductions from employees’ wages, covers approximately 55% of the employee’s wages, up to maximum benefit amount of $1,129 per week.

Copyright: anyka / 123RF Stock Photo
Copyright: anyka / 123RF Stock Photo

Under the new San Francisco ordinance, businesses with 20 or more employees (including part-time and temporary workers) will be required to pay the remaining 45% for employees taking the leave to bond with a newborn or recently placed child. The law takes effect January 1, 2017 for employers with 50 or more employees. Those with 35 to 49 employees join the party on July 1, 2017 and those with 20 or more employees on January 1, 2018.

To be eligible, employees must have worked with the employer for at least 90 days before the leave starts, must work at least 8 hours per week in San Francisco, and must spend 40% or more of their work time for the employer in San Francisco. The employee may take the time off anytime within the first year after the child is born or is placed through foster care or adoption.

Employers seeking more information on this new ordinance are encouraged to contact any of the labor and employment attorneys in our San Francisco office and to monitor further developments on this California Employment Law Blog.

As the new year begins and I trade my ski boots for my office heels, I’m committed to getting organized for 2019. Specifically, I have compiled a list of issues to keep on my radar for the upcoming year, and I thought I would share them.

1) Keeping up with Local Developments- Though California municipalities, especially San Francisco, have led the way in passing more employee-protective local laws, such ordinances are popping up all over the country…and in unexpected places. If you hire outside the state, don’t assume California’s protective laws will automatically cover you.  Do the research or find local counsel to assist, so you don’t botch the fact that, for example, Michigan has a new sick leave law, Philadelphia passed a new fair workweek bill or Connecticut prohibits salary history inquiries!

2) Independent Contractor Classification- This is a widespread issue across industries that is still evolving.  The effects of the Dynamex case still remain to be seen, as under the Dynamex court’s ABC test, very few workers typically classified as contractors will pass the test.  Unless all three prongs of the new test are met, employers are at risk for misclassification penalties.  Last month alone, several clients have called lamenting that workers they classified as 1099 contractors filed for unemployment, thereby putting the Employment Development Department on notice of a potential misclassification issue and potentially triggering an audit.

3) Addressing Marijuana at Work- While marijuana is still an illegal substance under federal law and the Americans with Disabilities Act does not protect its use, even for medicinal purposes, state laws are in flux and new case law is trickling in. In 2018, courts in Rhode Island, Massachusetts and Connecticut have offered workplace protections for employees utilizing medical marijuana and I expect this trend to continue.

4) Leave law Interactions- We get calls on the intricacies of leave law interactions every day.  With the plethora of local paid sick leave laws, the new Parental Leave Act and the old, but always confusing, PDL, CFRA and FMLA leaves, every leave of absence is unique.  The growing trend of expansive reasonable accommodations that can extend an employee’s leave of absence is another reason to keep this issue top of mind and keep current on emerging case law.

5) New Anti-Harassment Training- All California employers with five or more employees need to conduct mandatory harassment prevention training in 2019.  Even if your supervisors completed training in 2018, the new law requires both supervisory and non-supervisory employees to be trained (or retrained) by January 1, 2020.  Find out how to book one of our Fox attorneys to satisfy your interactive training requirement.

6) Adequate Investigations Post #MeToo- The past year, a side effect of the #TimesUp initiative has resulted in cases of wrongful termination following an inadequate investigation.  As detailed here, employers have certain obligations to both an accuser and an accused when investigating claims of harassment in the workplace.  Failure to complete a fair, prompt and thorough investigation could lead to liability beyond the initial harassment complaint.

Do you want to know the secret of achieving pay equity in the workplace (at least in the long term)?  Well, it is really about the dads. Yes, that’s right.  The more paid time off given to fathers, the more likely it is the a company will achieve long term pay equity.  Why you ask?

Because when time off for babies and kids becomes a parental issue, and not a women’s issue, then women stop being punished (whether directly or indirectly) for taking time off to give birth and raise kids.  And if you are wondering if women really are set back by being pregnant or active parents, then read this recent article in the New York Times.  Women are set back.  Having kids can be a career killer. There is a documented motherhood penalty.

This is why parental leave policies, as opposed to maternity and paternity leave policies, are the wave of the future.  If your business has not revised its time off policies for all parents (whether female/male, gay/straight, birth parent/non-birth parent), then it is time to consider it.  Otherwise, you just could be the next company in the news (and not in a good way).

Oh, and by the way, having a policy is one thing.  But actually encouraging dads to use it is (instead of punishing them for it, whether overtly or covertly) is another critical step.

Happy father lying on sofa holding baby girl and playingIn honor of Father’s Day (albeit a week late), let’s hear it for the dads! Especially if it ultimately helps the moms get paid the same as those dads!