By Rachel Hulst

As a woman, young mom and employment lawyer, I’ve never been more popular amongst my friends.  These are friends who, until recently, knew nothing about what I actually did for work.  Yes, they knew I was an attorney.  But that knowledge was only accompanied by a few lawyer jokes and the age old question: have you seen the movie “A Few Good Men”?  “You can’t handle the truth!  Do you use that line in court?”  I didn’t have the heart to tell them, “no”.

Eleven years in, I’m finally gaining true respect amongst my peers.  Why is that?  Well, they are working women who have now found themselves in a predicament: pregnant and no clue what they are entitled to under California law.  And frankly, I don’t blame them.  They are not alone.  Many other women, HR professionals, company handbooks and even lawyers find this a difficult inquiry.

And really, it is difficult.  There are multiple statutes with all these acronyms (FMLA, CFRA, PDA, FEHA, ADA, PFL) that overlap and intertwine, depending on your particular situation and your particular inquiry.  Some statutes deal with leave time, some deal with pay, some deal with “bonding”, some deal with disabilities and some combine near all of the above.  How in the world do we piece this all together?

I must admit, when I got pregnant, I felt empowered, knowing that I actually knew my legal rights.  Normally, I’m advising employers and rewriting handbooks to ensure their legal compliance of these leave laws, but now it took on a different meaning. So, after sharing my knowledge with yet another expecting friend recently, I felt compelled to write about it.

Like anything in life, there’s some good news and some bad news.  The good news for expectant mothers is that California is probably the most employee-friendly state when it comes to maternity leave.  The bad news is that employers are not required to provide any paid leave.  But, you probably have to move to another country to get those kinds of benefits anyway.

Here’s the basic premise.  It is easiest to think about the inquiry in terms of two questions: 1) how much leave time (time off) am I entitled to? 2) do I get any pay?

Leave Time

The standard pregnant woman in California will be entitled to 4 ½ months leave time (with guaranteed job protection).  Legally, this is how it is broken down:

The Pregnancy Disability Act (“PDA”, a section of California’s Fair Employment and Housing Act “FEHA”) provides for up to four months of leave time for disabilities related to pregnancy, childbirth or related medical conditions.  Note that the PDA applies to all employers with five or more employees, which includes part time workers employed on a regular basis.  There is no length of service requirement under the PDA so you’re covered even if you just started in a new position.  These same pregnancy related disabilities could also be considered “serious health conditions” covered under the Family Medical Leave Act (“FMLA”).  The FMLA provides for job protected leave for up to 12 weeks for serious health conditions.  It applies to all employers with 50 or more employees within a 75 mile radius and generally, an employee is required to have worked at least 1250 hours in the previous year.  Accordingly, a woman who just gave birth is simultaneously covered under both the PDA and FMLA for a leave of absence following childbirth.  Specifically, she is considered disabled for 6 weeks if she has a vaginal birth and 8 weeks after a Cesarean birth=6-8 weeks leave time +

The California Family Rights Act (“CFRA”) provides for 12 additional weeks for bonding with your child.  Note that like FMLA, the CFRA applies to all employers with 50 or more employees within a 75 mile radius and generally, an employee is required to have worked at least 1250 hours in the previous year =12 weeks

6-8 weeks+12 weeks=18-20 weeks (approximately 4 1/2 -5 months of job protected leave)

Now, of course, there are caveats.

Additional Disabled Status

If you have a pregnancy or childbirth related disability that qualifies under the PDA/FEHA your leave extends from 6-8 weeks up to 4 months.  So, that 4 ½ months could amount to a total of 7 months (4 months disability plus 12 weeks of “bonding time”). However, you must actually be disabled during that entire 4 month period which is why the typical pregnant woman will not be entitled to this much leave.  In the unusual circumstance that a woman has a lingering disability beyond 4 months as a result of pregnancy, she may be entitled to additional leave time as an accommodation under the general provisions of the FEHA relating to disabilities.

Intermittent Leave

While an employer is not required to give you time off for general morning sickness, the four months does include periodic time off for severe morning sickness or if you need to take time off for prenatal care.

Smaller Companies

If you (1) worked at the company for less than a year with less than 1250 hours worked in that year; and/or (2) there are less than 50 employees working for the company within a 75 mile radius of your location of employment than you are not entitled to the 12 weeks for bonding—leaving you with only 6-8 weeks time off.

Change in Company Status During Leave

And while generally an employer is required to keep your job open during the 4 ½ month period, there are certain situations, ie: layoffs, that may preclude the employer from doing so.

Pay

While rare, some employers do provide paid maternity leave.  If an employer provides paid leave for other temporarily dsiabled employees, paid leave must all be provided for pregnant employees.  Those employees who are not entitled to such pay from their employer, are entitled to pay from the state.  As long as you are an employee (and not an independent contractor), who’s employer pays into state disability insurance (“SDI”), you are entitled to state disability benefits for 6-8 weeks that amounts to approximately 60 percent of your salary for the time that you are disabled.  Note that these are disability benefits so they are not taxed.

You are also entitled to receive 6 weeks of pay under the Paid Family Leave (California is one of just a few states who has this law) for bonding with your child.  That is also offered through the same agency that governs SDI payments (The Employment Development Department, “EDD”) and also amounts to about 60 % of your salary, but those benefits are taxed.

If you’re lucky enough to work in San Francisco, you are also able to use up to 9 days of accrued sick pay a year for days that you are out on pregnancy leave.  Of course, on the days you receive this pay, you will not be entitled to pay from the state.

Even more than expectant moms, the employers I advise need to be aware of these laws—handbook policies are often out of date and do not consider each and every potential statute that needs consideration.  Failure to inform HR representatives about how these laws interact and failure to explain them accurately to employees could open up employers to unnecessary law suits.  So, we all gain from this knowledge.  Perhaps one day it’ll be simpler; for now, I remain a popular guest at cocktail parties.

For more information:

SDI/Pregnancy link to EDD:

http://158.96.229.240/direp/difaq1.htm#Pregnancy

PFL link to EDD:

http://www.edd.ca.gov/Disability/FAQs_for_Paid_Family_Leave.htm

By Jonathan Allan Klein

On December 30, 2009, the California Court of Appeal, Fourth Appellate District, affirmed an award of Summary Judgment we obtained for our client in 2008.  On appeal, in Hunter v. Rite Aid (Case No. E047552 — not cited for publication), the Court agreed with the trial court that since Plaintiff admitted he was an underperforming employee, he could not meet the prima facie showing that he was qualified for the job or performing it competently as required by Guz v. Bechtel.

Furthermore, the Court agreed, as a matter of law, that Rite Aid afforded Plaintiff reasonable accommodations for his injured pinky, including medical leave, assistance from other employees and nonphysical work assignments.   Also, since Plaintiff did not request any further accommodations, Rite Aid, as a matter of law, complied with its good faith interactive process obligations.

Read the opinion HERE.

By Jonathan Allan Klein

On December 24, 2009, the Nevada Supreme Court, in a case of first impression, held that pharmacies do not have a duty to unknown third parties injured by the pharmacy’s patients.  In Sanchez v. Wal-Mart (125 Nev. Adv. Op. No. 60, 2009), the Court confronted a significant issue for pharmacies.

In this case, our client, Rite Aid, and many of Las Vegas’ pharmacy chains, were sued concerning prescriptions filled to a patient who was allegedly abusing the prescriptions.  That patient eventually got into an automobile accident, killing one person and severely injuring another.  The estate of the deceased, and the injured individual, sued the pharmacies, alleging they should not have filled the prescriptions for the patient, because the Nevada Board of Pharmacy had issued notices that this patient was on a watch-list for potential abuse of medications.

However, the Supreme Court agreed with the trial court’s decision dismissing the case, holding that the pharmacies had no duty to these unknown third parties, and that the Board of Pharmacy regulations do not create rights to sue in state court.  The decision is a significant victory for our client, and for all pharmacies doing business in Nevada.

Read the decision at http://www.nevadajudiciary.us/index.php/advancedopinions/609-sanchez-v-wal-mart-stores

Summary by Rebecca B. Aherne, Esq.

On November 23, 2009, the Fourth Appellate District filed its opinion in Howell v. Hamilton Meats & Provisions, Inc., holding that under the collateral source rule the plaintiff was entitled to recover the full amount of billed medical expenses without reduction for the amount not incurred because of the discount given to plaintiff’s insurer by treating hospitals.

Factual and Procedural Background

Plaintiff, Rebecca Howell, was injured when the automobile she was driving was struck by a truck driven by an employee of Hamilton Meats who negligently made an illegal U-turn across the lane in which Howell was traveling.  Howell was treated for her injuries at Scripps Hospital and CORE Medical Center.  She underwent two fusion spinal surgeries, and surgical procedures that took bone from her hip in an attempt to repair her neck.  The full amount of her medical bills was $130,978.63.

Howell had private health care insurance through PacifiCare which agreed to indemnify her for medical charges covered by her plan in exchange for her premium payments, subject to her responsibility for deductibles and co-payments.  Prior to receiving treatment, Howell agreed to be financially responsible for all charges for the medical services provided by Scripps and CORE.  PacifiCare had contracts with Scripps and CORE to satisfy bills incurred by plan members who obtained care from those providers.  Pursuant to those contracts, Scripps and CORE agreed to accept $59,691.73 as payment in full for the services rendered to Howell.

At trial, Hamilton Meats argued that Howell’s recovery for medical expenses should be limited to $59,691.73, the amount paid by PacifiCare.  Howell contended that under the collateral source rule she was entitled to the gross amount of the medical bills- $130,978.63.  The court allowed Howell to present evidence at trial of the full amount of the medical bills reserving for post-trial the question of whether the jury’s award for past medical expenses should be reduced.  The jury awarded Howell compensatory damages in the amount of $689,978.63, including damages for past medical expenses in the amount of $189,978.63.  Hamilton Meats brought a post-trial motion seeking an order reducing the verdict for past medical expenses to $59,691.73.  Howell argued that under the collateral source rule, she was entitled to recover the full amount of the reasonable value of the past medical expenses paid or incurred as a result of her injuries and not just what her private health care insurer paid to her medical providers.  The court granted Hamilton Meat’s motion stating that the reduction was consistent with the principle that a plaintiff is entitled to recover the amount that would make her whole, but not over-compensate her.  Howell appealed the order.

Judicial Holding and Analysis

The appellate court reversed the trial court’s order on the ground the reduction of the award for past medical expenses violated the collateral source rule, and held Howell was entitled to recover the full reasonable amount of past medical expenses as awarded by the jury.

The measure of damages is the amount which will compensate for all detriment proximately caused by the defendant.  Economic damages for past medical expenses are limited to a reasonable amount that was paid or incurred, whether by the plaintiff or a collateral source (such as plaintiff’s health care insurer) for reasonably required medical care and services that the plaintiff received and were attributed to the defendant’s tortious conduct.  Pursuant to the collateral source rule, if an injured party receives some compensation from a source wholly independent of the defendant, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the defendant.  The rule embodies the concept that a person who has invested premiums to assure her health care should receive the benefits of her thrift and the defendant should not garner the benefits of the plaintiff’s providence.  The benefit that is directed to the injured party should not be shifted so as to become a windfall for the defendant.  Juries should not be advised that the plaintiff can recover compensation from a collateral source.  Payments made to, or benefits conferred on, the injured party by a source other than the defendant are known as “collateral source benefits.”

Howell incurred a detriment in the form of personal financial liability when she executed agreements to be financially responsible for all charges for the medical services provided to her.  Her personal liability for the charges was a form of compensable pecuniary detriment or loss.  As a result of the negligent driving of Hamilton Meats’ employee, she entered into financial arrangements and became obligated to pay those charges incurred with her money, a collateral source such as her health care insurance, or a combination of the two.  The court concluded that the extinguishment of a portion of Howell’s debt to Scripps and CORE was a benefit to Howell because she was no longer personally liable for that portion of the debt she personally incurred in obtaining medical treatment.  This benefit to Howell was a collateral source benefit because it was conferred on her as a direct result of her own thrift and foresight in procuring private health care insurance through PacifiCare, a source wholly independent of the defendant.  Howell, as a person who has invested insurance premiums to assure her medical care, should receive the benefits of her thrift, and Hamilton Meats, as the party liable for Howell’s injuries, should not garner the benefits of Howell’s providence.  The law allows Howell to keep this collateral source benefit for herself because she was responsible for the benefit by maintaining her own insurance.

Comments and Implications

In its opinion, the court addressed, but did not follow, two cases cited by Hamilton Meats – Hanif v. Housing Authority (1988) 200 Cal.App.3d 635 and Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4^th 298.  Hanif was a personal injury action brought on behalf of a minor struck by an automobile on the defendant public housing authority’s property.  The court concluded the plaintiff was entitled to recover up to, and no more than, the actual amount expended or incurred for past medical services so long as that amount is reasonable, and thus held his entitlement to damages for past medical services was limited to the actual amount paid by Medi-Cal, rather than the total amount billed.  The Howell court distinguished Hanif on the ground that the plaintiff in Hanif did not have private health care insurance and incurred no personal liability for the medical charges billed to Medi-Cal, and therefore suffered no compensable pecuniary detriment or loss beyond the amount that Medi-Cal actually paid.  In Nishihama, the plaintiff was injured when she tripped and fell on a crosswalk maintained by the city.  The jury awarded the plaintiff the sum of $17,168 for past medical expenses even though the hospital accepted from plaintiff’s health insurer the amount of $3,600 as payment in full.  The court of appeal held the trial court erred in permitting the jury to award the plaintiff an amount in excess of $3,600 for the services provided by the hospital.  The Howell court refused to rely on the decision in Nishihama, because it was based on an analysis of the hospital’s lien rights rather than on an analysis of the collateral source rule.

The court commented that changes to the collateral source rule should be made by the legislature rather than by piecemeal development in the judicial system.  This concern has been stated by other courts as well.  It is likely the Supreme Court will accept this case for review because of the diverse opinions of the appellate courts.         

On October 21, 2009, in Obiajulu v. Rite Aid (before the United States District Court, District of Nevada), we successfully obtained summary judgment against a plaintiff suing for various forms of discrimination and retaliation.  In that case, the Court agreed with our arguments that plaintiff had not established any triable issues of material fact sufficient to defeat summary judgment.  This is our fourth consecutive victory against this plaintiff – we have won at the labor arbitration level, twice at the district court (he filed 2 separate “unrelated” lawsuits) and before the 9^th Circuit Court of Appeals.  We await results of his last appeal.  Read the decision HERE.

Jonathan Allan Klein and Annmarie Liermann, and their co-authors, won the distinguished G. Duffield Smith Outstanding Publication Award for their 2008 article – “Making the Possible Impossible: Medicare Reimbursement Problems”, which was published in the February 2008 edition of For The Defense. This award, given annually by DRI, was formally presented at DRI’s October 2009 Annual Meeting, held this year in Chicago. Read the article HERE.

The article discussed the pitfalls of the Medicare Secondary Payer Act and provided tips for navigating settlement of claims where Medicare has a right to reimbursement.  According to DRI, the article received tremendous feedback from readership of For the Defense, with several other organizations and law firms requesting permission to reprint or redistribute copies to their members.  Read DRI’s summary of the award HERE.

Kelly, Hockel & Klein, P.C., relocated its office in November, 2009.  In preparing for the move, KH&K realized that it would have several items of office furniture and equipment that would no longer be needed in its new space.  After researching different donation and reuse options, KH&K successfully donated all of its items for donation to two Bay Area non-profits – Marin Services for Women and Sonoma Mountain Business Cluster.  A special thank you to iReuse for handling the removal and redistributing of the furniture and equipment ensuring a smooth transition of these items to good homes!

See attachment here.

Jonathan Allan Klein was selected as a Northern California “Super Lawyers” by San Francisco magazine in each of its 2005-2008 editions. Continue reading →

On behalf of Safeway, Jonathan Allan Klein and Annmarie Liermann recently obtained an Order sustaining a Demurrer filed on Safeway’s behalf in a Trazodone case filed in Alameda County, California. Continue reading →

In Armstrong v. Rite Aid, et al., the U.S. District Court granted Rite Aid’s motion to dismiss Continue reading →