California has what are probably the most generous pregnancy and parental leave laws in the country. Employees are entitled to take a “reasonable period” of leave — up to four months — during the time when they are disabled by pregnancy, childbirth, or related conditions. This time off might run concurrently with an employee’s 12 weeks of allowed leave under the federal Family and Medical Leave Act (FMLA). However, it does not run concurrently with an employee’s right to take parental leave under the California Family Rights Act (CFRA). Leave for pregnancy-related disability is not covered by CFRA. Although this might at first glance sound ungenerous, the effect is the opposite: An employee who uses all four months of pregnancy disability leave is still entitled to 12 weeks of CFRA leave for parenting after the child is born.

And, California is one of only a handful of states that pay employees for this time off. California’s temporary disability insurance program, which covers pregnancy-related disability, pays employees up to 55% of their usual wages while they are unable to work due to pregnancy and childbirth. Once the employee has her child and recovers from giving birth, California’s paid family leave  (part of the temporary disability insurance program) kicks in, to pay benefits for six weeks of parental leave.

Last week, the California Court of Appeal for the Second District issued an opinion that might stretch these rights even further. The Court found that an employee who has used up her four months of pregnancy disability leave may be entitled to yet more time off, as a reasonable accommodation for a disability related to pregnancy. In this case (Sanchez v. Swissport), the employee had a very high risk pregnancy. She was put on bed rest almost eight months before her due date. Therefore, when she used up her four months of pregnancy disability leave, she was still months away from giving birth and finally getting out of bed. Her employer fired her after she exhausted her pregnancy disability leave and used up all of her accrued time off.

Sanchez sued, claiming that her employer fired her because of her pregnancy and should have given her additional time off as a reasonable accommodation for her disability. Although the trial court threw her case out, the Court of Appeal reinstated it. Even though the employer gave Sanchez the full four months of pregnancy disability leave required by law, the Court found that this fact didn’t conclusively defeat her claims. The right to pregnancy disability leave and the right to a reasonable accommodation are distinct: Fulfilling one doesn’t necessarily satisfy the other. As the Court pointed out, California’s Fair Employment and Housing Commission recently amended its pregnancy discrimination regulations to address this issue. (The regulation states that an employee who has used up her four months of pregnancy disability leave may yet be entitled to leave as a reasonable accommodation for a disability, whether or not that disability is related to her pregnancy.)

The Court of Appeal didn’t determine that Sanchez was entitled to additional leave: It decided only that she might be, and that she should have the opportunity to present facts supporting her claims. Her employer will also have this opportunity: It can argue, for example, that allowing Sanchez to take additional time off would pose an undue hardship, or that such an accommodation wouldn’t be “reasonable” under the circumstances. However, at least in the Second District of California (which includes Los Angeles), employers can no longer assume that a pregnant employee’s time off can be capped at four months of pregnancy disability leave plus three months of CFRA leave following childbirth for parenting.

In last week’s State of the Union address, President Obama spoke of many things. Not shoes and ships and sealing wax, but immigration reform, proposals to stop gun violence, climate change, and energy policy. The proposal that seemed to get the most press afterwards, however, was his call to raise the minimum wage to $9 (from the current rate of $7.25 an hour) and tie further increases to the cost of living.

Perhaps one reason this got the most press is that it’s so concise. Unlike, for example, immigration reform or steps to halt climate change, raising the minimum wage is simple and straightforward. The details of the proposal are clear. No comprehensive plan is necessary, and there aren’t a lot of moving parts. Of course, that doesn’t mean the proposal is without controversy. The Chamber of Commerce has long opposed increases in the minimum wage, and other business groups have come out against any increases.

What would be the practical effect of the President’s proposal? Currently, 19 states and the District of Columbia require employers to pay a higher minimum wage than the federal rate of $7.25 an hour. As of today, however, only one state — Washington — has a minimum wage of at least $9. As a practical matter, this means wages would go up in virtually every state if the rate were raised all at once. (Except in cities that have their own higher minimum wages. In San Francisco, for example, employers must pay at least $10.55 an hour; where I work, in Berkeley, vendors with the city must pay at least $13.03 an hour with medical benefits, or $15.20 an hour without.)

On February 6, 2013, the Department of Labor issued its final regulations implementing statutory amendments to the FMLA. These regulations incorporate the amendments Congress passed in 2010. Among other things, the 2010 amendments:

• tweaked the way eligibility and hours are calculated for flight crews
• expanded the right to take qualifying exigency leave to cover not only employees with family members in the National Guard and Reserves, but also employees with family members in the regular armed forces, and
• expanded the right to take military caregiver leave to cover not only employees with family members who were seriously injured while on active military duty, but also employees with family members who exacerbated a preexisting injury while on active duty and employees with family members who are veterans suffering from a serious injury incurred while on active duty.

About a year ago, the Department of Labor issued proposed regulations implementing these provisions and seeking input from the public on a few key issues, including how to implement the leave provision to care for a veteran. Rather than issuing proposed regulations on this topic, the Department decided to hold off until it had received comments and issued its final regulations. As a result, the Department delayed the effective date of this provision. Until it issued final regulations defining the key terms (including who qualifies as a veteran and what constitutes a serious injury for a veteran), the Department took the position that employers were not legally required to provide this type of FMLA leave.

That has now changed. As of the effective date of the final regulations (March 8, 2013), employers are now required to provide FMLA leave to employees who need time off to care for a family member who is a veteran and suffered a serious injury while on active duty.

The final regulations have changed military family leave in a few important ways:

• Veterans defined. One of the reasons why Congress amended the FMLA was to allow time off for employees to care for family members who had served in the military and later manifested serious health problems, notably PTSD. The final regulations define “serious injury,” and make clear that injuries are covered whether they manifest before or after the veteran leaves the military. The veteran must have been in the military in the five years before the employee first takes FMLA leave. However, the time between the Congressional amendments (October 28, 2009) and the effective date of the final regulations (March 8, 2013) doesn’t count against this five-year limit. The Department excluded this time because employers weren’t required to give leave to care for an injured veteran during this period. 
• Qualifying exigencies expanded. As required by Congress, the final rule expands qualifying exigency leave to cover not only family members who are members of the National Guard and Reserves, but also family members who are in the regular armed forces and are deployed to a foreign country. This type of leave is intended to allow employers to handle practical matters arising from a family member’s deployment. The final regulations make a few changes to this type of leave. For example, employees may take up to 15 days off for a family member’s rest and recuperation leave (the previous limit was five days). The final regulations also add a new type of qualifying exigency leave, to allow employees to take time off to make arrangements for a military family member’s parent who is incapable of self-care. For example, the employee might need to hire a caretaker for the parent, tour care facilities, and so on.

The Department of Labor has issued a helpful FAQ set on the final regulations.

Last week, the federal Court of Appeals for the D.C. Circuit decided an appeal of an unfair labor practices case from the National Labor Relations Board (NLRB). (The case is Noel Canning v. NLRB.) The facts of the case are not complicated: An employer and a union had a dispute as to whether the two had reached an agreement, in their final negotiating session, about how much of a proposed pay raise would go into the pension fund. The employer claimed no agreement had been reached, and it rejected the union’s vote on the matter. The union claimed an agreement had been reached, and that the employer committed an unfair labor practice by refusing to treat it as a collective bargaining agreement.

As to those facts, the union won the appeal. But the rest of the opinion eclipsed the victory. The Court found that three of the NLRB’s five members were appointed in violation of the Constitution. If this interpretation is adopted by the Supreme Court, it means not only that the Board lacks a quorum and has no authority to do anything (the Supreme Court decided that two members won’t cut it in 2010); it probably also means the NLRB won’t have enough Board members to act any time soon — unless and until the Democrats get a filibuster-proof majority in the Senate.

Why? The Board has been extremely active in trying to enforce and expand employee rights of late — and one side of the Congressional aisle is not happy about it. As I’ve posted recently, the NRLB has made a recent priority of enforcing employee rights to speak to each other about the terms and conditions of employment, whether on social media sites or during workplace investigations that the employer would prefer to keep confidential. The NLRB also tried to issue a couple of regulations that would have benefited employees, one to require employers to post a notice of labor rights and the other to speed up union elections. Both regulations were stopped by lawsuits filed by pro-business groups. How do Congressional Republicans feel about the NLRB? Here’s John Boehner’s view: “The Obama administration has consistently used the NLRB to impose regulations that hurt our economy by fostering uncertainty in the workplace and telling businesses where they can and cannot create jobs.” In fact, most of the Republican Senators and Speaker Boehner filed briefs in last week’s lawsuit, on the side of the employer.

Republican opposition to President Obama’s nominees to the Board led to the case last week. Presumably because he felt his nominees would be subjected to a filibuster (and therefore, not confirmed), the President appointed them pursuant to the recess appointments clause of the Constitution, which doesn’t require Senate confirmation. (This has become common practice by frustrated presidents of late, both Democrat and Republican.) However, the Court of Appeals found that the President’s appointments didn’t meet the constitutional requirements. First of all, the Court found that such appointments may be made only during “the” recess — in other words, the break between Senate sessions — not during any recess in Senate business. Because the President appointed his nominees during an “intrasession” recess, those appointments were not truly recess appointments. Second, the Court found that the recess appointment power may be used only to fill vacancies that arise during that same recess, which was not the case for the three seats the nominees were appointed to fill. This second requirement will limit the recess appointment power to near extinction.

This is one Court of Appeals’ opinion. Notably, the Board itself has said that it “respectfully disagrees” with the decision, and will continue to perform its duties. It will take a Supreme Court decision to decide the issue once and for all. But if the Court upholds this decision, recess appointments will be much less common. Which means nominees will get to their posts only if confirmed by the Senate, where filibusters and threats of same have held up even routine appointments. If you were thinking the change to the Senate filibuster rules would solve this problem, it won’t: Despite being called “filibuster reform,” those rules don’t do much to the filibuster. They speed up debate on lower-level nominees, but the debate has to start before it can gain steam — and the rules still require a cloture vote (60 votes or more) for that.

This week, the Department of Labor’s Wage and Hour Division issued its first Administrator’s Interpretation of the new year. The Interpretation clarifies who qualifies as an adult “son or daughter” for whom an employee may take time off under the Family and Medical Leave Act (FMLA).

The FMLA allows employees to take time off to care for a son or daughter with a serious health condition. If the child is 18 or older, however, additional requirements apply. The child must not only have a serious health condition for which he or she is in need of care, but must also have a disability (as defined by the Americans with Disabilities Act) that renders the child incapable of caring for him- or herself.

These requirements were already in place, set out in the law and regulations. The Interpretation makes these additional points:

• The adult child’s disability may begin after the child turns 18. Previously, there was some confusion about a parent could take FMLA leave to care for a child who became disabled as an adult or only for a child who was under the age of 18 at the onset of the disability. The Interpretation makes clear that the age of onset isn’t a factor. For example, an employee may take FMLA leave to care for a 30-year-old child who becomes disabled as the result of a car accident or cancer diagnosis. 
• The more lenient standards adopted in the ADA Amendments Act (ADAAA) apply to the FMLA. The ADAAA eased the requirements for proving a disability in order to ensure coverage for more people. For example, a disease that would be disabling when active counts as a disability, even when it is in remission. (For more on the ADAAA, see Nolo’s article ADA Amendments:  More Protections Against Disability Discrimination.) This broader standard is to be used when determining whether an adult child has a disability.
• Not every disability will qualify under the FMLA, however. The adult child must also be incapable of self-care, which will not be the case for every disability. Someone is incapable of self-care only if that person requires “active assistance or supervision” in at least three activities of daily living. These include basic activities such as grooming and hygiene, bathing, dressing, and eating. They also include things like cooking, shopping, maintaining a home, using public transportation, and so on. An adult child whose disability is in remission or controlled by medication may be fully capable of self-care; therefore, the child’s parent would not be entitled to time off under the FMLA.
• Employees may be able to use regular FMLA leave to care for an adult child who is injured in military service. Currently, the FMLA gives employees whose children suffer a serious illness or injury while serving in the military the right to take 26 weeks of leave in a single 12-month period. However, this leave entitlement doesn’t renew every year, like the other types of FMLA leave (for which an employee may take only 12 weeks off per year). Unless the adult child suffers a new injury, or another of the employee’s children is also injured, the employee’s right to take 26 weeks off is a one-time-only entitlement. The Interpretation clarifies that an employee who has used up this leave may, in the following year, be entitled to take regular FMLA leave if the adult child’s serious injury qualifies as a disability and renders the child incapable of self-care. This will be a significant relief to parents of wounded service members, whose injuries often require extended or even life-long assistance.

You can find detailed information on every aspect of the FMLA, including how it dovetails with the requirements of the ADA, in The Essential Guide to Family and Medical Leave.

If you’ve gotten a paycheck since the beginning of 2013, you’ve no doubt noticed one effect of the fiscal cliff deal Congress reached last week: It did not extend the payroll tax holiday. Employees had been getting a break on their Social Security taxes, but now it’s over. The tax on Social Security went back up by 2% to its former level, resulting in lower paychecks for everyone.

I’ve fielded a few questions this week from people wondering if there’s anything else in the 11th hour deal that should interest them, given that they don’t earn enough to be affected by the expiration of the Bush tax cuts on very high earners. The answer, as always, is that it depends. There were certainly extensions and changes that trickle down to the 99%, starting with the extension of the Bush tax cuts for the rest of us. Here are a few of the job-related items:

• If you are out of work, you no doubt know about this one: The federal government extended its emergency unemployment benefits program. For unemployed people who have exhausted the benefits available from their state, this program provides additional weeks of benefits. The program was set to expire at the end of 2012. 
• Employees can continue to exclude from their income — and therefore,  not pay tax on — certain benefits paid by their employers, including educational assistance and adoption assistance. The bill also allows employers to continue claiming tax deductions or credits for certain benefits, such as child care.
• The CLASS Act is gone. This program was part of the larger healthcare reform legislation. It created a long-term care insurance program to be paid by payroll withholding from employee paychecks, if employers opted to participate in the program. Critics claimed it was inadequate at both ends, from the funding to be paid in to the benefits to be paid out. I don’t know enough about it to weigh in, but no matter: The program got killed.

Finally, a very restricted group of employees — the ones who created this mess in the first place — got a pay freeze. So if you are a Senator or Congressperson, you will just have to continue living on your $174,000 annual salary. If you are the majority or minority leader of either house, you get $193,400. And if you are John Boehner, you will have to budget yourself to only $223,500 a year. Performance-based salaries? You be the judge.

The morning papers reported that our elected representatives “celebrated” New Year’s Eve a day early, staying up past midnight on December 30th trying to hammer out a deal to avoid the fiscal cliff. Despite making slow progress towards each other, the two sides so far haven’t managed to come up with just the right combination of continuing tax cuts, extension of unemployment benefits, tweaks to the formula for calculating how much Social Security benefits will increase for inflation, estate tax changes, fixes for the alternative minimum tax, tax increases for capital gains, and . . . wait, have I left anything out? As you can see, there are plenty of moving parts.

But deal or no deal, there seems to be one thing we can say for certain: Payroll taxes are going up. After enjoying a reduced rate for a couple of years, every wage earner in this country is going to have to pay an additional 2% of their income to the IRS to fund Social Security. We all use to fork over 6.2% of our paychecks to the IRS for Social Security; our employers had to pay the same amount per employee. In 2010, however, President Obama signed a law that reduced worker contributions to 4.2% (employers still had to contribute the higher amount). This temporary measure is expiring tomorrow, and one of the few things Republicans and Democrats seem to agree on is that they aren’t planning to extend it. Given that it was a fairly obvious example of robbing (future retiree) Peter to pay (still working) Paul, this seems like a sensible choice, if an unhappy one for all of us working stiffs.

Here’s hoping your holidays are happier than Melissa Nelson’s. Nelson was working as a dental assistant when her boss, James Knight, fired her because she posed a threat to his marriage. Knight, whose wife also worked in the dental office, apparently found Nelson so irresistible that he just couldn’t work with her any longer. In other words, she was fired, Knight admitted, for being too darn hot. Nelson, who is married with children, had worked in the office for nine years before being sent packing.

Last week, the Iowa Supreme Court put a lump of coal in Nelson’s stocking when it found that she had no claim against Knight for sex discrimination. The court found that Nelson wasn’t fired because she was a woman, but because Knight found her so attractive. Even though that attraction presumably wouldn’t have existed had Nelson been male, the court found that this decision wasn’t ultimately based on gender, but on personal feelings. The court found it persuasive, for example, that Knight had hired another woman to take Nelson’s place.

Generally speaking, courts in employment cases have found that attraction isn’t about gender per se, but about chemistry. After all, the boss who favors his paramour isn’t treating all women the same; by definition, he is favoring one woman at the expense of others (and men, too). A male boss with an attraction problem discriminates, legally, only when he treats women similarly. In the case of favoritism, a boss who made sex the price of favorable treatment — and made the “product” available to anyone willing to pay — would cross the line. In this case, the court stated that it might have ruled differently if Knight fired a number of women because he was attracted to all of them.

But on reading the court’s opinion, it’s hard to avoid feeling that they have missed much of the point. This case is so chock full of gender stereotyping, it feels like we’ve traveled back in time to the days when women were first entering the workforce. For example:

• Knight’s argument is that Nelson’s very presence in his office was the problem — not his inability to control himself. Even in his own telling, Knight’s problem was that he feared he would be unable to stop himself from trying to have an affair with Nelson. This hearkens back to . . . well, to the Garden, really. Women are sexual, corrupting, the source of temptation. It’s not what women do or how they act; it’s just what they are. That’s how this case became about the hot employee and not about the boss with the active imagination. (Speaking of the Garden, Nelson had the pleasure of being fired by the tag team of Knight and his pastor, who sat silently while Knight read a prepared statement informing Nelson that their “relationship had become a detriment to Knight’s family.” )
• Despite Knight’s efforts to paint himself as a family man trying to protect the sanctity of his marriage, the evidence tells a different story. In fact, this could easily have been a sexual harassment case. Knight admitted telling Nelson that if she saw a bulge in his pants, she could conclude that her clothing –scrubs, according to her! — was too tight. He also told her it was a good thing he only found her tops too tight, because if she also wore tight pants, he would “get it coming and going.” Knight said that Nelson told him she and her husband had infrequent sex; his response was that this would be like having a Lamborghini — her — in the garage and never driving it. He also texted her a question about her orgasms. Strangely, few of these facts have made it into news reports about the case, nor did they figure in the court’s analysis. Somehow, this case still seems to be about the old-fashioned family man, possibly misguided but trying to do the right thing. And not about the icky horn-dog boss.
• Speaking of stereotypes, you have got to feel a bit sorry for Knight’s wife, who not only had to witness all of this at work but whose jealousy was blamed for the firing. In fact, the Iowa Supreme Court framed the central question of the case like this: “Can a male employer terminate a female employee because the employer’s wife, due to no fault of the employee, is concerned about the nature of the relationship between the employer and the employee?” Oh the jealous wife, ruining everyone’s workplace fun, frowning on comments about bulging pants and orgasms. What a killjoy.
• For me, the strangest fact of the case comes with even more stereotypes. After firing Nelson, Knight — again, with his pastor — had a meeting with Nelson’s husband. Knight reassured him that his wife had not done anything wrong or inappropriate, but had to be fired because Knight was afraid he would one day try to have an affair with her. In other words, I just fired your wife because I really want to have sex with her, but I want you to know it’s not her fault. And I’m so glad we could talk out your wife’s firing, man to man.

Workplace complaints and investigations can polarize a workplace. If your company has to investigate sexual harassment, bullying, or other serious problems, chances are good that employees will be talking about it and choosing sides. Of course, some of this is inevitable: We’re only human, right? But employers often try to minimize the fallout — in lost productivity, damaged reputations, or even changed stories and manufactured evidence — by requiring confidentiality. Employees who are interviewed as part of an investigation are routinely told that they may not discuss the investigation with other employees and may not reveal the facts they learn during the interview.

In the past few months, however, a couple of government agencies have cautioned employers not to go too far in trying to stop employee discussions. First, the National Labor Relations Board (NLRB) weighed in. In the case of Banner Estrella Medical Center, an HR consultant asked employees who had made a complaint not to discuss the matter with coworkers while the investigation was ongoing. The NLRB found that this request violated employees’ rights to discuss the terms and conditions of employment with each other. Prohibiting employee discussions of an ongoing investigation is allowed only if the employer can show that it has a legitimate business justification outweighing the employees’ rights. For example, if a witness needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated, or the employer needed to prevent a cover-up, the NLRB indicated that these facts could justify a confidentiality requirement. However, the requirement must be based on facts specific to the investigation, rather than a general, blanket approach to all investigations.

The Equal Employment Opportunity Commission (EEOC) has also questioned broad confidentiality requirements. As Lorene Schaefer reports in a blog post, the Buffalo, New York, office of the EEOC sent an employer a letter about its confidentiality policy. The EEOC stated that threatening to discipline or fire employees who discussed a sexual harassment complaint with anyone was illegal retaliation. Discussing harassment complaints with others is a form of “protected opposition” to illegal practices under Title VII. The letter also indicated that employees subject to such a confidentiality rule might believe they could be disciplined or fired for discussing harassment with the EEOC.

So what should employers do, in light of these opinions? It appears that blanket “gag orders” might create some risk going forward. However, a more limited confidentiality rule (for example, one that asks employees not to discuss what is said in the actual investigative interviews, as opposed to the underlying facts) could still pass muster. And, if you have specific concerns, based on the facts of the case, about falsification of evidence or witnesses talking to each other to “get their stories straight,” the NLRB opinion would still allow a confidentiality requirement. However, there are still a lot of grey areas here.

What’s more clear: Employers should do what they can on their end to maintain confidentiality. This includes, for example, revealing only the facts necessary to conduct a thorough interview. The accused employee must be told all of the allegations, but not every witness will need to hear the details. Employers should also take this as yet another cue to be speedy in conducting the investigation. The quicker a complaint is investigated and laid to rest, the less time there is for workplace chatter to do damage.

Seems like only a few months ago that the Supreme Court narrowly upheld President Obama’s health care reform law. That decision, combined with the President’s reelection and Democratic gains in both the House and Senate, appeared to spell the end of the fighting over whether the law would go into effect. Although there are still plenty of disputes over how the law will be implemented, what the final regulations will say, and so on, the core question of the law’s validity seemed to be settled.

Until last week, when the Court once again entered the Obamacare fray. The Court had previously dismissed a lawsuit brought by Liberty University challenging the health care law, based on its holding last summer that the individual mandate to purchase insurance was constitutional. Liberty University asked the court to reconsider, and last week it did. The Court vacated its decision not to hear the case, granted Liberty’s petition for rehearing, and sent the case back to the Fourth Circuit Court of Appeals. Once that Court issues a decision, the case could once more find its way back to the Supreme Court, as early as next year.

There are two issues in the Liberty case. The school is challenging the law’s employer mandate: the requirement that employers with more than 50 employees either provide health insurance for employees that meets certain financial and coverage requirements or pay a fine. The school is also challenging the law’s requirement that health care plans (whether purchased by an employer or an individual) must include contraceptive coverage, without a copay.

For more information on what the health care law requires, see Health Care Reform: What Employers and Employees Need to Know.