DO YOU KNOW YOUR RIGHTS UNDER FMLA AND CFRA?

Taking care of yourself and your family means that you sometimes need to take time off due to serious illness or injury. In other cases, you deserve time to be with that new baby when he or she comes home. Both federal and state law help protect these rights, which means that you can do what you need to do without jeopardizing your job.

The California Family Rights Act and the federal Family Medical Leave Act both allow employees to take time away from their jobs to care for a serious health condition suffered by themselves or their family members or to bond with their newborn children. Many of the provisions of the two acts overlap, but there are differences. First, if you are planning to ask your employer for leave under FMLA or CFRA, you need to understand what rights each of them provides.

Do I qualify to take time off under CFRA and FMLA?

To qualify for CFRA leave, your employer must meet the following criteria:

  • Private employers: Employ a minimum of 50 people for at least 20 weeks a year in the preceding or current calendar year. Those 50 employees include:
    • Commissioned employees
    • Employees who received no compensation
    • Part-time employees
    • Employees on leave who are expected to return to active employment
  • Public employers: No limitation on a number of employees.

Under CFRA, you must:

  • Be employed for a minimum of 12 months
  • Worked 1,250 hours during the 12 months preceding when you want to take leave
  • Work for an employer with a minimum of 50 people working within 75 miles of your worksite

If you and your employer meet these conditions, you may apply for leave under either FMLA or CFRA.

How much time is available under CFRA and FMLA?

The acts entitle you to a total of 12 weeks within 12 months. How you take the leave is up to you, but it cannot exceed this maximum. One exception for this falls under FMLA, where you may take a total of 20 weeks off if you care for an ill or injured member of the United States Armed Forces.

Any sick and vacation leave you to accumulate during the course of your employment could help offset the fact that you ordinarily do not receive pay during leave under CFRA or FMLA. Your employer must provide you with the position you left or a comparable one (including same pay and benefits) upon your return.

Other rules for you and your employer exist under both acts. Before applying for leave under either act, consult an attorney to be sure that you and your employer qualify and to discover what rights and responsibilities each of you must adhere to before, during and after your leave. Too many people fail to understand leave under the CFRA and FMLA, and disputes often arise. Your attorney can help avoid any disputes or help resolve them if they already occurred.

GOVERNOR VETOES BILL TO EXTEND FAMILY LEAVE RIGHTS AT SMALL BUSINESSES

The United States is thought of a leader in many areas, but we appear to be behind on one issue: family leave. The U.S. is currently the only industrialized country in the world that does not ensure a job once parents return from family leave. Recently California work-life advocates pushed for a bill which would have required small businesses to guarantee employees’ jobs after parental leave. The bill was vetoed by Governor Jerry Brown.

The bill would have required small businesses of fewer than 49 employees to give employees up to six weeks off of work after childbirth or adoption. Governor Brown said that the reasoning behind the veto was that the law would bring yet another expensive restriction to small businesses which already face enough challenges.

California law still goes beyond federal law

Fortunately larger employers are currently required by law to provide job protection after family leave under the federal Family and Medical Leave Act (FMLA). Parents can take up to 12 weeks off without pay after childbirth or adoption without losing their jobs.

In California, despite Gov. Brown’s recent veto, workers also still have certain protections that go beyond the federal FMLA. Under the California Family Rights Act (CFRA), an employee at a business that employs 50 or more people can take unpaid leave not only for the birth or adoption of a child, but for caregiving purposes for a close family member (child, parent or spouse).

Even further assistance is available through the state’s temporary disability program. This program is called Paid Family Leave (PFL). It is part a larger program called the State Disability Insurance Program (SDI). Under the program all workers who take family leave can receive up to 55 percent of their wages for up to 6 weeks.

Most families cannot take the additional coverage

Although anyone can use the disability program, employees at smaller companies could still find themselves unemployed in the end. According to the U.S. Department of Labor only 16 percent who were eligible for leave under the FMLA took it, and only one in five were due to a pregnancy. Instead of taking time away for their new baby many parents are pressured into using their small amount of vacation time or skipping parental leave all together.

If your employer has discriminated against you or a loved one for the birth of a child then contact an attorney. You and your family have rights under California law and may be eligible to recover damages in a law suit.

NURSE WRONGFULLY FIRED FOR FMLA LEAVE

A Kaiser Permanente nurse in California is alleging retaliation after she took approved leave to care for a sick relative. The woman had reportedly taken leave under the Family Medical Leave Act and the California Family Rights Act to care for her mother, who had been the recipient of a total hip replacement. The nurse was fired shortly before returning to work at the medical facility, according to her complaint.

While the woman was on leave, her supervisor allegedly left harassing messages on the woman’s phone. She criticized the nurse for taking excessive time away from work, and she also demanded that the woman come back to her job. The nurse was also allegedly harassed when she returned to work, as her supervisor placed her on mandatory suspension for behavior that showed a “conflict of interest.” The woman was ultimately fired after several months of this behavior, losing her job in early December 2012.

The woman’s complaint shows that the retaliatory behavior stemmed from her decision to legally leave work to care for her mother. The nurse says she is part of a protected class of workers because of her mother’s illness, and she should be shielded through FMLA and CFRA provisions. Even though she told her employers about her mother’s medical conditions, she was still fired, ostensibly in violation of federal law.

The woman is seeking financial compensation for retaliation, along with discrimination, harassment and hostile work environment. These problems violated the Fair Employment and Housing Act. The woman is seeking compensatory damages, along with special, economic and punitive damages. It is not clear how much she is seeking in connection with the case.

People who have suffered employment wrongs may be entitled to financial compensation because they are unable to work. Redress for such employment violations can be used to provide for lost income, slander and libel toward individual reputation and other civil employment claims.

Source: Courthouse News Service, “Took care of mom, fired from Kaiser, nurse says,” Philip A. Janquart, April 2, 2013

WRONGFUL TERMINATION CLAIM MOVES FORWARD FOR EXECUTIVE CHEF

In California, there may be a legitimate cause for termination for employees. However, by that same token, there are cases where an employee is let go and that termination is a violation(s) of state or federal law. Such was the case when the Thunderbird Country Club let its executive chef go after the chef suffered a life-threatening illness. That same chef has now won a key ruling in his wrongful termination claim.

The chef is suing the club in U.S. District Court on grounds that his rights under the Family Medical Leave Act (FMLA) were violated. On November 2 of this year, the judge hearing the case granted the man’s request for summary judgment, which allows the case to move forward into the damages phase. Judge Gee wrote, “Thunderbird fails to raise a genuine issue of material fact as to whether it terminated (the chef) due to a legitimate business need.”

According to court documents, the chef suffered severe complications after a surgery for a hernia and had to be placed into a medically induced coma for two months. In August of 2010, the man was brought out of the coma and sent home. By the time he returned to work, the club had hired another executive chef stating that the man’s “key management” position exempted him from Family Medical Leave Act rules. This case is set to go to jury trial in January.

When employees believe that they have wrongful termination claim, one possible step forward would be to contact an experienced California area attorney who specializes in this field of law. An attorney may be able to assist the employee in determining if a legitimate cause for termination exists or if it does not. If not, an attorney may be able to share with the employee what the available options are for the individual.

Source: The Desert Sun, “Ruling in wrongful termination suit favors former Thunderbird chef,” Blake Herzog, Nov. 8, 2011