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Moderator: Phyllis W. Cheng, Director, Department of Fair Employment & Housing

Program Number 6 PROPOSED AMENDMENTS to the california family rights act regulations. Moderator: Phyllis W. Cheng, Director, Department of Fair Employment & Housing

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Moderator: Phyllis W. Cheng, Director, Department of Fair Employment & Housing

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  1. Program Number 6 PROPOSED AMENDMENTS to the california family rights act regulations Moderator: Phyllis W. Cheng, Director, Department of Fair Employment & Housing Panelist: Chaya M. Mandelbaum, Chair, DFEH Fair Employment & Housing Council, Partner, Rudy, Exelrod, Zieff & Lowe, L.L.P. Panelist: Dale L. Brodsky, Councilmember, DFEH Fair Employment & Housing Council, Partner, Beeson, Tayer & Bodine

  2. Introduction Background on SB 1038. Authority of the Fair Employment and Housing Council. FEH Council’s Regulatory Projects. Proposed Amendments to the California Family Rights Act. Recent CFRA/FMLA Case Law Regulatory Timeline. Invitation to submit public comment.

  3. Background on SB 1038 • Eliminated the DFEH’s former sister agency, the Fair Employment and Housing Commission (Commission), operative January 1, 2013. (Stats. 2012, c. 46 (S.B.1038), § 34, eff. June 27, 2012, operative Jan. 1, 2013; Legis. Counsel’s Dig., Sen. Bill 1038 (46 Stat. 2012) (Reg. Sess.) Summary Dig. p. 3.) • Transferred the former Commission’s regulatory function to the DFEH Fair Employment & Housing Council. (Ibid.) • Ended administrative adjudication of FEHA claims. (Ibid.) • Provides for free mandatory dispute resolution by the DFEH. (Ibid.) • Authorizes the DFEH to file cases directly in court. (Ibid.) • Authorizes the DFEH to collect attorney fees and costs when it is the prevailing party in FEHA litigation. (Ibid.)

  4. Fair Employment and Housing Council Authority Seven-member Council within the DFEH. (Gov. Code, § 12903.) Council Chairperson and members appointed by the Governor and confirmed by the Senate. DFEH Director serves as nonvoting ex officio council member. (Gov. Code, § 12903.) Primary role is rulemaking and holding public hearings on FEHA‐related issues. (Gov. Code, § 12935, subds. (a) & (c.) Council can meet at any place within the state and function in any office of the Department. (Gov. Code, § 12935, subd. (a)(3). ) Council members receive $100 per diem plus travel expenses. (Gov. Code, § 12905.)

  5. Completed: • Changes without Regulatory Effect. (See Cal. Code Regs., tit. 2, § 11001 et seq. andConversion Chart). Noticed for Public Comment and Hearing: • Proposed Amendments to the California Family Rights Act Regulations. • Notice of Proposed Rulemaking. • Initial Statement of Reasons. • Text of Proposed Amendments to the California Family Rights Act Regulations. Pending: • Selected FEHA Employment Regulations. • New Housing Regulations. Future Regulatory Projects: • Government Code sections 11135-11139.5 Regulations. • Ralph Civil Rights Act Regulations. • Unruh Civil Rights Act Regulations. Follow regulatory activity on FEH Council’s webpage at www.dfeh.ca.gov. Fair Employment and Housing Council’s Regulatory Projects

  6. Regulatory updates guided by the Administrative Procedures Act Factors:Necessity – Need for a regulation to effectuate the purpose of the statute.Authority – Statutory authority to make changes to the regulation.Clarity – Regulations crafted so that they will be easily understood by those affected by them.Consistency – In harmony with existing statutes, court decisions and regulations.Reference – The statute that the regulations will aid, in this case CFRA.Nonduplication – The notion that the regulations shouldn’t serve the same purpose as the statute or unnecessarily incorporate statutory language and provisions themselves into the regulations.

  7. California Fair Employment and Housing Council

  8. Proposed Amendments to the California Family Rights Act(Proposed Cal. Code Regs., tit. 2, §§ 11087-11097)

  9. Reviewing the Proposed Text of the Regulatory Language This part of the presentation consists of a chronological review of the text of the Adopted Proposed Amendments to the CFRA Regulations. Please access the text at the link below: http://www.dfeh.ca.gov/res/docs/Council/CFRA%20Regulations/Text%20of%20Proposed%20Amendments%20to%20CFRA%20Regulations%20final.pdf

  10. Recent CFRA | FMLA case law

  11. Election to take FMLA/CFRA Leave Escriba v. Foster Poultry Farms, Inc. (9th Cir. 2014) 743 F.3d 1236 Employee at poultry processing plant expressly declined FMLA leave and instead asked employer for two weeks’ vacation to visit her ailing father in Guatemala. Once there, employee decided two weeks was impracticable, but failed to contact employer for additional time off, even though her husband also worked there. Employer then terminated employee under the “three-day no-call, no-show rule.” Employee sued former employer, alleging violations of FMLA, CFRA and California public policy. The District Court entered judgment for employer, denied employee's motion for judgment as a matter of law, and denied employer costs. Both parties appealed. The Ninth Circuit affirmed, holding that: An employee can affirmatively decline to use FMLA leave; Employer did not interfere with employee's FMLA rights; Substantial evidence showed that employee elected not to take FMLA leave; Any error by district court in admitting evidence of employee's prior FMLA leave was harmless; and District Court did not err in denying costs to employer, as prevailing party.

  12. Request and Certification for Taking CFRA Leave Olofsson v. Mission Linen Supply (2012) 211 Cal.App.4th 1236 Employer had posted the required notice of the CFRA/FMLA family leave eligibility requirement. When employee informally asked for family leave to visit his ailing mother in Sweden, employer told employee that he was required to fill out a leave form and get medical certification, that approval had to come from human resources, that he could not assume the leave had been approved, and that he could not check the eligibility box on the application form himself. Employee nonetheless left for Sweden without meeting these requirements. More than 10 days after he requested leave, employee turned in a letter from his mother's doctor stating that she had been ill, but not the required form or medical certification. The trial court entered judgment in favor of employer on estoppel grounds, and employee appealed. The Court of Appeal affirmed, holding that: Instructions that employee should train together with relief employee were not tantamount to instructions that request for family leave had been approved; and Employer did not remain silent when it had a duty to speak to employee about request for family leave.

  13. Disability Leave after Exhaustion of PDL/CFRA Leave Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331 Employee diagnosed with a high-risk pregnancy received a temporary leave of absence for bed rest. After exhausting her leave time, consisting of her accrued vacation time in addition to the time allotted by PDL and CFRA, employer abruptly terminated her. Employee alleged that she was fired because of her pregnancy, her pregnancy-related disability and/or her requests for accommodations; that employer failed to engage her in a timely, good faith interactive process in order to identify available accommodations, such as the extended leave of absence she had requested, so that she could remain employed.; and that the reasonable accommodations necessitated by her pregnancy and pregnancy-related disabilities would not have created an undue hardship or adversely impacted the operation of employer’s business. The trial court dismissed the action and employee appealed. The Court of Appeal reversed, holding that: On issue of first impression, FEHA may require more disability leave for a pregnant employee than the Pregnancy Disability Leave Law; and Leave until childbirth would be reasonable accommodation for inability to work during high-risk pregnancy.

  14. Transfer due to Restructuring Rogers v. County of Los Angeles (2011) 198 Cal.App.4th 480 Long-time county employee brought action against county for violation of CFRA, alleging that county interfered with her CFRA rights and retaliated by transferring her to a noncomparable position after 19 weeks of medical leave. The county made the transfer after the new CEO restructured many county operations consistent with her overall vision for operating the organization. The trial court entered judgment on special jury verdict for employee, and county appealed. The Court of Appeal reversed, holding that: The right to reinstatement under the CFRA expired when 12-week protected leave period expired, and Restructuring of office was a legitimate, nondiscriminatory reason for employee's transfer which precluded retaliation claim.

  15. Public Comment PUBLIC HEARING The Council held public hearings on April 7, 2014, at the University of California, Irvine, School of Law, and on June 2, 2014, at the California Public Utilities Commission, San Francisco. WRITTEN COMMENT The Council received written comment, which period closed at 5:00 p.m. on June 2, 2014.

  16. Further Public Comment NEXT STEPS The Council is reviewing the comments received. Further amendments will be adopted at the October 6, 2014, 10 am-4 pm,meeting of the Council at UC San Diego Extension, 9600 N Torrey Pines Rd, Room 115, La Jolla, CA 92037 Thereafter, following approval by the Office of Administrative Law, further Proposed Amendments to the CFRA Regulations will be noticed and published to those who formerly submitted comments for another 15-day comment period.

  17. Thank you www.dfeh.ca.gov contact.center@dfeh.ca.gov fehcouncil@dfeh.ca.gov (800) 884-1684 TTY (800) 700-2320

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