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.

Court Rules NLRB Appointments Unlawful, Calls Into Question 200 Decisions

In Noel Canning v. National Labor Relations Board (D.C. Cir., Jan. 25, 2013, 12-1115) 2013 WL 276024, the Court of Appeals for the D.C. Circuit ruled President Obama's January 4, 2012 recess appointments to the National Labor Relations Board were unconstitutional.   As a result, the NLRB's decisions since that time are now being called into question and may be unenforceable.  

The Recess Appointments Clause is part of the federal Constitution.  It says, "The President shall have power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."  This case was about what counts as "the Recess of the Senate" and what does not, with the President arguing the Senate was in recess on January 4, 2012 and the petitioner arguing it was not.  Ultimately, the Court decided the Senate was not recess, reasoning that "The Recess" means only breaks between official sessions of Congress and not other breaks during a session.  As a result, the Court found the Senate was not in recess on January 4, 2012 and the President's appointments to NLRB are therefore invalid.

The affects of the decision on unclear.  The NLRB's official position is that the ruling only applies in one case.  However, others believe it calls into question most of the NLRB's 2012 decisions, including several involving social media.

PERB Reaffirms Employers Must Negotiate Number of Affected Employees in Layoffs

In Salinas Valley Memorial Healthcare System (2012) PERB Dec. No. 2298-M, the Public Employment Relations Board reaffirmed and elaborated about employers' duty to negotiate with unions about layoffs related to labor costs.

PERB has held employers do not have to negotiate about the decision to layoff.  However, employers still have a duty to meet and confer with unions about the implementation, impacts, and effects of a layoff.  Some of the established layoff effects are post-layoff workload and safety and conditions of remaining employees.  This case clarifies what counts as implementation and impacts that the employer must meet and confer about.

Here, the employer initially said it wanted to layoff 79 people "at the end of the year."  The union demanded to meet and confer over the timing, number, identity of the employees to be laid off.  The employer claimed it did not have to meet and confer about those details, asserting a "management prerogative."  PERB rejected that claim.  PERB explained "the implementation (timing of the layoff, and the number and identity of  employees to be laid off) and the impact and effects on remaining employees, including workload and safety, were mandatory subjects for meeting and conferring prior to the implementation of the layoff."  As a result, PERB decided the union stated a prima facie case for an unfair labor practice.

CalPERS Sees Huge 13.3% Increase is Assets

The Sacramento Bee reports CalPERS beat forecasts and had another big year in investment returns, increasing the value of its portfolios by 13.3%.  The Bee reports CalPERS' stocks gained 17.2%, its real estate holdings went up 12.8%, and its private equity portfolio saw a 12.2% return.  CalPERS has been recovering strong from 2008-2009 when it saw significant losses because of the economy.  The 13.3% increase follows CalPERS' impressive 20.8% increase in 2011 and greatly exceeds the 4.5% estimate that Stanford relied on to make dire projections in December 2011.