Court of Appeal Increases Protections for Pregnant Workers

In Sanchez v. Swissport, Inc. (February 21, 2013) 2013 WL 635266, the Court of Appeal ruled employees fired for not returning to work after a pregnancy can still sue for pregnancy discrimination even though the employee exhausted all permissible leave available under the Pregnancy Disability Leave Law (PDLL).

In this case of first impression, the court explained that an employee who exhausts all of her statutory pregnancy disability leave may still state a claim for employment discrimination under FEHA because the remedies of the PDLL are meant to “augment, rather than supplant, those set forth elsewhere in the FEHA.” The statutory leave of four months available under the PDLL is “in addition to” the remedies set forth in FEHA governing pregnancy, childbirth, and pregnancy-related medical conditions. Compliance with the PDLL, thus, does not relieve an employer of its obligations under FEHA, including the obligation to provide a reasonable accommodation (which may in some cases exceed four months) to an employee disabled by pregnancy, so long as the accommodation does not impose an undue hardship on the employer.

In this case, the employee said Swissport terminated her because she was pregnant, was unable to work during her high-risk pregnancy, refused to grant her a reasonable accommodation in the form of allowing her to remain on leave until she gave birth, and terminated her because she sought such reasonable accommodations for her disability. The court concluded that these allegations were sufficient to state claims for sex and disability discrimination and retaliation in violation of FEHA.

PERB Rejects Employer Claim Factfinding Is Limited to Impasse Over CBAs

In San Diego Housing Commission v. Public Employment Relations Board, San Diego Superior Court Case No. 37-2012-00087278, the Housing Commission claims mandatory fact-finding only applies to negotiations over a master collective bargaining agreement.  In a recent filing, however, PERB rejected the employer's claims and clarified that AB 646 applies to all collective bargaining disputes, not just impasse in collective bargaining agreement negotiations.  The case started after a union representing Housing Commission employees and the Commission reached impasse over the effects of a layoff.  The union requested factfinding and filed the appropriate paperwork with PERB.  The Commission then filed a lawsuit against PERB, trying to get a judge to order it not to process the request so it could impose without factfinding.

The Meyers-Milias-Brown Act gives unions the right to "request that the parties' differences be submitted to a factfinding panel."  (Gov. Code § 3505.4.)  In this case, the employer wants to add the words "about a master collective bargaining agreement" to qualify "differences" and limit the scope of mandatory fact-finding so that it can impose on the union without a neutral evaluation.  However, PERB explained to the Court that "an MOU is simply a written memorialization of the parties' agreement following negotiations on matters within the scope of representation."  The MMBA's requirement to meet and confer is not limited to collective bargaining agreements typically negotiated once a year or less frequently, indeed, as PERB noted, the term "collective bargaining agreement" does not even appear in the MMBA. Therefore, PERB argued, since factfinding applies to all disputes, "once an employee organization requests the parties' 'differences' be submitted to factfinding...participation in factfinding is mandatory."  The next hearing in the case is March 1, 2013.