Protecting Your Rights at Work – Part Three

Protecting your rights at work: Part 1 – Part 2

Questions Posed:

• What are my rights at work with respect to maternity leave?
• I know that places of employment are required to provide a safe space for new mothers to pump (i.e., a lactation room). If I work in a building where that is not practical due to a lack of space, what can I reasonably expect/request?

If you are an expecting or a new mother, congratulations on the new addition to your family!  Your maternity leave and lactation rights are likely to vary depending on your employer and location.  To understand your rights, you should first check your company’s own HR policies because those policies may be more generous than federal, state, or city law.  However, federal, state, and local laws set a minimum bar that your employer must meet if located in certain jurisdictions and/or if it employs the requisite number of employees.

No Discrimination:  Under the federal Pregnancy Discrimination Act, if your company employs fifteen or more employees, your company must treat pregnancy, pregnancy-related illnesses, and childbirth the same as it treats other medical conditions or short-term disabilities, such as providing accommodations, alternative assignments, or leave if you are unable to perform your job due to pregnancy.  Your employer also cannot alter the terms and conditions of your employment—refuse to hire you, promote you, force you to go or stay on leave, deny you fringe benefits, or deny you pay increases—while you are on maternity leave.  Under California law, these rights extend to employers with five or more employees.¹  Other states vary.

Unpaid Maternity Leave:  Under federal and California law, if your company employs fifty or more employees and you have worked there full-time for one year or part-time for at least 1,250 hours in the previous twelve months, you are entitled to up to twelve weeks of unpaid leave each year to care for a newborn or adopted child.  You must be given your original or comparable job upon your return, and your employer must continue to provide health benefits while on leave (but you may be required to pay your portion of the premiums).  There are, however, some loopholes.  For instance, employers may deny maternity benefits to salaried employees within the highest-paid ten percent of their workforce if letting them take leave would create a “substantial and grievous injury” to its business.²  California’s Fair Employment and Housing Act also provides four months of maternity leave for any pregnancy-related disability.

Paid Leave:  There is no paid leave required under federal law.  Some states, however, such as California, provide a form of paid leave by ensuring wage replacement through temporary disability insurance (for disability due to pregnancy, childbirth, or related medical conditions) or paid family leave benefits (to bond with a new child).  In California, wage replacement only covers up to fifty-five percent of the mother’s wages.  Some cities, such as San Francisco, require employers to provide supplemental compensation to employees receiving California Paid Family Leave for purposes of bonding with a new child up to forty-five percent of the mother’s wages, meaning that in San Francisco the employee is made whole (subject to a weekly maximum benefit amount) for the lost wages.³

Lactation Accommodation:  Under both federal and California law, if you are still nursing when you return to work, you are entitled to unpaid reasonable break time to pump.⁴  Your employer is also required to provide a private space that is not a bathroom to pump.  If your employer believes that it would be impractical to create such a space, your employer must prove that doing so would impose an undue hardship on the business.⁵

Enforcing Your Rights:  If you suspect that your employer is not following the law or its own handbook of benefits, you may want to take the following steps:

Take Notes:  If you are concerned about the fairness of your employer’s actions, document the dates, personnel involved, and events that transpired even if you are unsure about whether your employer is complying with the law.

Seek Help:  Depending on how comfortable you feel with your employer’s internal grievance procedure, you may want to seek help from Human Resources or, alternatively, from your own attorney.  Because this area of the law has many potential standards governing your employer’s conduct, it is important to determine what rules apply to your locality.  There are also time limits for pursuing any claims you may have against your employer.  An attorney can advise you as to the applicable laws governing your employer and what time limits apply to you in asserting legal claims.

Preserve Your Rights:  If you are considering legal action against your employer, you will need to file a complaint with the Equal Employment Opportunity Commission (EEOC) and/or your state agency (such as the California Department of Fair Employment and Housing).  This is a necessary step before you can file a lawsuit in court, and you must file your complaint within strict time limits, which can range from 45 days for certain government employees to one year (or more) depending on the state or locality in which you are employed and the type of claim you are raising.  Although you can file an agency charge without a lawyer, it is recommended that you retain a lawyer before filing such a complaint to make sure that you include the necessary details to preserve your legal rights.  

Becoming a mother is both challenging and wonderful, and I encourage you to reach out to the growing community of working mothers who code for support.  While this blog post addresses maternity-related issues, it is not intended to be a comprehensive guide to your rights.  If you have specific questions about your personal situation, consult with an attorney who can provide advice tailored to your individual questions, employer, and state.  

¹. Fair Employment and Housing Act, Gov. Code § 12945.

². 29 C.F.R. § 825.216(b).

³. This amount is subject to a maximum weekly benefit amount of $1,173.

⁴. Section 7(r) of the Fair Labor Standards Act.

⁵. Undue hardship depends on a variety of factors, such as the difficulty or expense of compliance in comparison to the size, financial situation, and nature of the business.