By Marisa S. Ratinoff and Amy Messigian

In a matter of first impression, the California Court of Appeal held last month that an employee who exhausts all permissible leave under the Pregnancy Disability Leave (“PDL”) provisions of the California Fair Employment and Housing Act (“FEHA”) and is terminated by her employer may nevertheless state a cause of action for discrimination.

In Sanchez v. Swissport, Inc., the plaintiff, a former employee of Swissport, alleged that she was diagnosed with a high risk pregnancy requiring bed rest in February 2009 and was due to give birth in October 2009. The plaintiff alleges that she made Swissport aware of her condition and need to remain on bed rest until after the birth of her child. However, with three months remaining in her pregnancy, the plaintiff was terminated by Swissport in July 2009 after exhausting her 4-month PDL entitlement as well as her accrued vacation. The plaintiff alleges that she would have been able to return to work shortly after October 2009 and that her employer never engaged in the interactive process in order to identify available accommodations, such as the extended leave of absence she had requested.

At the trial court level, Swissport challenged the lawsuit on the grounds that the plaintiff had exhausted her PDL entitlement and that no further leave was required. The trial court agreed and the plaintiff appealed. Reversing the decision, the Court of Appeal stated that an employee’s entitlements under PDL are supplemental to the general non-discrimination provisions of FEHA.

While an employer must provide 4 months of PDL to an employee disabled by pregnancy without regard to the hardship to the employer, its duty continues after PDL has been exhausted to engage in the interactive process with the employee to determine whether it may accommodate the disability. Continuing the leave of absence may be a possible accommodation if it will not be an undue hardship to the employer.

This case presents a cautionary tale to employers who base termination decisions simply on the exhaustion of a guaranteed leave entitlement under state or federal law. In all cases, where an employee exhausts their guaranteed leave entitlement but seeks to continue his or her leave of absence due to disability, employers should consider whether an extended leave of absence may be accommodated. If it will be difficult to accommodate an extended absence in the employee’s current position, an employer may also consider transferring the employee to a comparable vacant position and continuing his or her leave of absence from that position. Discussing available options with counsel is highly recommended.

By: Marisa S. Ratinoff and Amy B. Messigian

Exempt or non-exempt: That is the question.  One of the most difficult areas in wage and hour law for retailers is properly classifying their managerial employees for purposes of determining if overtime need be paid or meal and rest breaks provided.  Long has been the rule that the actual duties the employee performs will determine if he or she is misclassified.  While this is often frustrating to retailers, whose assessment of an individual’s job duties may be a judgment call as to whether they meet or do not meet the specific requirements of an exemption, the fact that an individual analysis is required may prevent class certification.

The California Court of Appeal just affirmed a trial court’s denial of class certification for Sears, Roebuck and Co.’s managers and assistant managers, holding too many individualized issues existed for the misclassification claims to be resolved on a class wide basis.  While the employees’ job descriptions may provide a uniform basis for class-wide resolution, the required assessment of each manager’s or assistant manager’s actual job duties did not.

Accurate job descriptions are critical but equally as important, and what often gets neglected, is understanding the duties the employee actually performs.  The employee’s actual duties will determine the outcome of a single plaintiff’s misclassification claim and provide a defense to class-wide misclassification claims.