. . . AS A PUBLIC EMPLOYEE
Note: The following is presented for general informational purposes only. It is not intended and should not be relied on in connection with any specific individual situation. Public employee rights may be granted or curtailed by federal, state, and local laws and regulations, by court and administrative law decisions, and by the terms of an applicable memorandum of understanding between a public entity and the exclusive bargaining agent(s) for its employees.
This information will be supplemented from time to time so check back often.
You may not be discriminated against in your employment because of any of the following:
- Sex, including pregnancy or gender
- Sexual orientation
- Marital status
- National origin
- Disability (either mental or physical, including HIV and AIDS)
- Medical condition
- Age (40 or older)
You may elect to first file a grievance with your employer, since most MOUs contain language prohibiting discrimination. If the grievance process does not successfully resolve your claim you may file your claim with a government agency. Discrimination claims in California can be filed with the California Department of Fair Employment and Housing (DFEH), or the federal Equal Employment Opportunity Commission (EEOC).
The law prohibits sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. The following are examples of sexual harassment:
- Unwanted sexual advances
- Offering employment benefits in exchange for sexual favors
- Actual or threatened retaliation for reporting sexual harassment
- Leering, making sexual gestures, or displaying sexually suggestive objects, pictures, images, or posters
- Making or using derogatory sexual comments, epithets, slurs, or jokes
- Sexual comments, including graphic comments about an individual’s body, sexually degrading words to describe an individual, or suggestive or obscene letters, notes, or invitations
- Physical touching or assault, or impeding or blocking the movement of another
Employers must take all reasonable steps to prevent harassment and discrimination. If harassment occurs, an employer is required to take effective action to prevent any further harassment or discrimination. Employers are also required to develop and implement a sexual harassment prevention policy which should include:
- A procedure for employees to make complaints
- A means to inform the complainant of his or her rights
- A thorough, objective and complete investigatory process, including interviews with anyone who has information regarding the matter, a determination following the investigation, and communication of the results to the complainant, the alleged harasser, and appropriate other individuals directly concerned
- A commitment to take prompt and effective corrective action to stop any harassment and to ensure that it will not continue, communicating such action to the complainant
If an employer knows or should have known that a non-employee (such as a customer or third party contractor) has sexually harassed an employee and fails to take immediate and appropriate corrective action, the employer may be held liable for the actions of the non-employee.
Employees who have more than twelve months of service with an employer and have worked at least 1,250 hours for the employer in the 12-month period immediately preceding the commencement of leave are entitled to leave under the California Family Rights Act (CFRA). An eligible employee may:
- Take unpaid leave to bond with a newborn, adopted, or foster child
- Take unpaid leave to care for a parent, spouse, or child with a serious health condition, or for the employee’s own serious health condition
- Full-time employees may take leave up to 12 work weeks in a 12-month period, which does not have to be taken in one continuous period of time. Part-time employees may take leave proportionate to the number of hours actually worked vs. the hours worked by a full-time employee.
- An employer can require 30-day advance notice of the need for a CFRA-qualifying leave. If the leave is unexpected, notice is to be given as soon as possible after the employee’s discovery of the need for leave. Notice can be written or verbal and should include the expected date of commencement and anticipated duration. An employer must respond to a leave request within 10 calendar days.
- An employer may require written communication from the health care provider of the child, parent, spouse, or employee with a serious health condition stating the reasons for the leave and the probable duration of the condition.
- Employees are entitled to take CFRA leave in addition to any leave entitlement they may have for Pregnancy Disability Leave. Leave taken for the birth or adoption of a child must be completed within one year of the birth or adoption.
- An employer is not required to pay an employee during CFRA leave and may require the employee to use accrued vacation or other accumulated paid leave other than sick time, unless the leave is for the employee’s own serious health condition, in which event the use of sick time can be required.
- If the employer provides health benefits under a group plan, it must continue to make these benefits available during the leave.
- An employee is also entitled to accrual of seniority and participation in other benefit plans.
- After CFRA leave, an employee is guaranteed a return to the same or a comparable position and can request the guarantee in writing.
- If the same position is no longer available, the employer must offer a position that is comparable in terms of pay, location, job content, and promotional opportunities, unless the employer can prove that no comparable position exists.
- An employee is not entitled to reinstatement if the employee would have been otherwise laid off or terminated.