California Employee Rights Advocate : California Labor Attorney & Lawyer : Southern CA Employment Law : Los Angeles, Orange County : United Employees Law Group

When a close family member is ill, you most likely want to be able to care for that individual without worrying about the effect on your job. There are two primary protections in California for employees that need time off to care for an ill family member: (1) paid family leave insurance and (2) “kin care” leave.

1. Paid family leave (PFL) is administered by the California Employment Development Department and provides up to six weeks of benefits to employees who must take time off to care for a “seriously ill” child, spouse, parent, or domestic partner. 

2. In general, employers are not required to provide paid sick leave, but if they do, they are required to comply with California’s kin care law found in California Labor Code, Section 233.  “Sick leave” is defined as “accrued increments of compensated leave” for use related to an employee’s medical condition. Section 233 allows employees to take half of their sick leave that would accrue in a calendar year to care for an ill child, parent, spouse, domestic partner, or child of a domestic partner.McCarther v. Pacific Telesis Group,  the California Supreme Court restricted the scope of available kin care leave. Specifically, the Court considered the issue of whether Section 233 applies where an employer’s sick leave policy provides for an uncapped number of compensated days off, but does not provide for accrual of any specific sick leave. In a unanimous decision, the Court held that Section 233 “does not apply to any and all forms of compensated time off for illness.” It reasoned that because the statute defines “sick leave” as "accrued increments of compensated leave," it only applies to "to employers that provide a measurable, banked amount of sick leave." The Court further found that Section 233 does not apply to policies where it would be impossible “to ascertain, with precision, an employee’s kin care leave entitlement.” The statute bases kin care leave entitlement to sick leave accrued during a six month period. With an unlimited leave policy, it would be impossible to determine the amount of time an employee could use for kin care; therefore, Section 233 cannot apply to these types of policies. The overall impact of the McCarther decision on California workers remains to be seen, but it is clear that the Court is increasingly scrutinizing provisions of the California Labor Code.

If you believe your employer has wrongfully denied you kin care leave or taken adverse action against you for taking kin care leave, you can file a complaint with The California Division of Labor Standard Enforcement. It is also advisable to contact an experienced California labor law attorney for an explanation of your rights and an unbiased analysis of your situation.

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On March 18, 2010, President Obama signed into law the Hiring Incentives to Restore Employment (HIRE) Act. The bill is designed to encourage job growth by providing tax incentives to businesses willing to hire unemployed workers. These incentives take two forms: (1) social security tax exemptions and (2) tax credit.

• Social Security Tax Exemption

The HIRE Act exempts employers from paying the 6.2% social security tax for new employees hired after February 3, 2010 and before January 1, 2011. However, the new employee must have been previously unemployed or worked less than 40 hours per week for at least 60 days and does not replace another employee. The bill encourages businesses to hire early in the year because savings accrue as payroll is processed. The tax relief applies to all employers, including non-profit organizations and universities, and there is no cap as to the total amount of tax relief that can be claimed by an employer. 

• Tax Credit

For each qualifying new employee, the employer may claim an income tax credit. The amount is either $1,000 for each employee hired after February 3, 2010 and retained for at least a year, or 6.2% of wages paid to the qualifying employee over the period of a year, whichever is less. Unemployed workers should be aware that employers may ask them to sign an affidavit indicating they have not been employed or employed for no more than 40 hours per week during the 60 day period prior to beginning their new employment. This is a requirement under the new legislation. 
Thankfully, in IR-2010-33, the IRS announces it is in the process of developing a standard form that can by used by all employers to obtain the required statement. 

According to IRS Commissioner Doug Shulman, these tax incentives will “offer a much- needed boost to employers willing to expand their payrolls, and businesses and non-profits should keep these benefits in mind as they plan for the year ahead.” The tax benefits primarily benefit those employers who are filling new jobs, but the benefits are also available to employers who are filling existing positions where the former employee left voluntarily or for cause. 

President Obama asserted that this new bill will “promote a strong, dynamic private sector” that will drive job creation. He stated that “…our economy is now growing again and we may soon be adding jobs instead of losing them. The jobs bill I’m signing today is intended to help accelerate this process.” He further indicated that although the bill was necessary, it is only one in a series of bills designed to encourage job growth.  

While Democrats champion the HIRE Act, the bill is not without criticism. Many Republicans believe the bill will have little impact on unemployment. As reported by CBS News, there are estimates of roughly $250,000 new jobs by the end of the year, but “the Associated Press notes that this is a relatively insignificant figure in light of the fact that 8.4 million jobs have been lost in the recession.” 

While the ultimate effect of the bill remains to be seen, unemployed California workers should take solace in the fact that strides are being made toward new job creation. If you are an unemployed worker and have questions about your unemployment status or concerns regarding inquiries made by potential employers, do not hesitate to contact an experienced California labor law attorney.
 

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California labor laws and California leave laws are designed to protect employees from unlawful discharge, discrimination and harassment. When an employee gets sick or hurt, it is common for them to sometimes feel that their job may be at stake. This is the reason why employees are covered under federal and California labor laws called the Family Medical Leave Act (FMLA)  and the analogous California Family Rights Act (CFRA), respectively.

Who is eligible?
FMLA/CFRA unfortunately does not cover all employees, only those that:

• Worked at least one year for their employer,
• Worked at least 1,250 hours in the past year, and
• Whose employer has at least 50 employees working within 75 miles of the employee’s worksite

Pursuant to a U.S. Department of Labor June 2007 report , according to the report, the eligibility requirements for FMLA/CFRA indicate that only 76.1 million workers out of 141.7 million total U.S. employees, or 53%, are eligible for FMLA protection (the other 47% have to rely on their employer’s leave policies).

How much medical leave is allowed pursuant to FMLA/CFRA?
Pursuant to FMLA/CFRA rules, workers are entitled to take a maximum of 12 weeks of unpaid medical leave in order to care for a newly born child, a newly adopted child, a serious illness affecting a family member or an illness of their own (pursuant to FMLA, but not CFRA, this does include incapacity due to pregnancy, having a child or a related medical conditions). Employees may be entitled to an extension of leave in addition to the 12 week allowable leave, if the employee has a mental or physical disability that requires the leave to be extended in order to accommodate the disability (subject to the employee making the employer aware of the disability and work restrictions). It is unlawful under federal and California labor laws for employers to treat employees differently or retaliate directly or indirectly for taking medical leave. An employee who takes medical leave also has a right of reinstatement to their same position unless they are a “key employee”.

Is an Employee Entitled to Pay While Taking Leave?
Employees taking leave under FMLA/CFRA (and PDLL)  are not entitled to be paid for this leave.
An employer, however, may voluntarily agree to pay you for all or a portion of uncovered medical leave, or apply your unused sick leave/vacation time.

Medical Leave and California Labor Law Attorneys
Due to the financial strain on many employers, some are seeking ways to downsize staff. It is critical that before taking leave an employee consults with a California labor law lawyer.

If you have questions about medical leave, knowledge is power. It is important to talk to a California labor law attorney to be certain you know your rights.

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Everyone wants to be unique and special and if you are a California worker, you have some very unique and special rights under California labor law. Recently, the Seyfarth Shaw law firm released a new edition of Cal-Pecularities, a publication explaining how California employment law is different from the law in other states. At over 200 pages in length, the book covers a wide range of issues from the common wage and hour disputes to the more rare cases of excessive cell phone use and HIV/drug testing. The book in its entirety can be viewed at www.seyfarth.com/dir_docs/publications/2010CalPec.pdf 

As pointed out by the Seyfarth Shaw, California employment law is in many instances much more expansive than federal law. Some of the more dominant examples include the following:

• California Fair Employment and Housing Act (FEHA): The FEHA prohibits any employer from engaging in discriminatory acts or retaliating against any employee who files a complaint of discrimination.
• Wage and Hour Laws: California has distinct laws regarding misclassification of employees, “off the clock” pay, rest and meal periods, pay for travel time, and bonus pay.
• Employee Privacy Rights: Unlike other states, California privacy provisions apply to both government and private employers. This includes a variety of activities, including background checks, emails, voice mails, and video surveillance.
• California Family Rights Act: California law has a very liberal policy regarding family leave. If you are a pregnant woman, you can take 12 weeks of leave from work under the Family Medial Leave Act, but under California law you can take up to 4 months.

The “novelty” of California labor law perhaps began with the passage of the Private Attorney General Act of 2004. This law allows citizens to pursue civil penalties on behalf of the State of California Labor and Workforce Development Agency as long as there is formal notice and waiting procedures are followed. In essence, the aggrieved employee is allowed to act as an attorney general. Any resulting recovery is split between the parties with the LWDA receiving 75% and the employee receiving 25%.  This law gives employees a great deal of power to bring lawsuits to enforce the more obscure provisions of the California labor code.

If you have any questions regarding your employment rights, you should contact a knowledgeable California labor law attorney.

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Since the recession, more and more men are contacting California labor law attorneys to make claims of sexual harassment in the workplace. According to the U.S. Equal Employment Opportunity Commission (EEOC), 16.4% of all sexual harassment claims were filed by men in 2009, which is up from 15.4% in 2006.  While there are instances of women sexually harassing men, the reported cases mainly consist of men harassing other men. This trend can be explained in part by the recession. The recent economic downturn has impacted men far greater than women. The Bureau of Labor has reported that from September 2008 to January 2010, 4.4 million men compared to 2.3 million women lost their jobs. Because they fear for their livelihood, some men use harassment as a way to humiliate or control co-workers who they percieve as a threat. The behavior most often takes the form of comments about their genitalia, sexually suggestive simulations, and lewd comments. The rationale is that by creating a hostile environment, a co-worker will have a lower job performance and, therefore, become a more likely candidate to be laid off. States with higher unemployment rates have seen the greatest increase in harassment claims filed by men. For example, in California the percentage of claims filed by men rose from 18.7% in 2007 to 23.6% in 2009.  States with a lower unemployment rate such as Nebraska actually saw the number of claims decline. It should also be noted that these numbers may not be totally accurate as many instances of male harassment go unreported due to embarassment and the appearance that one is weaker than another.

Same-sex harassment has only been recognized by the legal system for a little more than 20 years. Typically, in the case of male on male harassment, the plaintiff must show that the work conditions are so permeated with discriminatory intimidation, ridicule, or insult that they consititute a “hostile” or “abusive” environment. If the plaintiff’s claims of harassment are objectively and subjectively reasonable, then he has a viable case against the employer. The only caveat is that the plaintiff must have viewed the conduct as inappropriate or unwelcomed at the time it occurred.

Sexual harassment claims should not be taken lightly by employers as violations come with stiff penalties. The most recently publicized case has involved The Cheesecake Factory restaurant. The EEOC filed suit against the eatery after six workers claimed they were repeatedly harassed, including allegations of fondling and sexual simulation. The company ended up settling the dispute for $340,000.00.  Another high profile case concerned three employees at McDonald’s who claimed the manager consistently made sexually related comments and physical advances. The restaurant chain setteled that case for $90,000.00.

Another component to the rise in harassment is that many companies are cutting costs by eliminating their sexual harassment training. Many managers simply do not know how to recognize and resolve sexual harassment issues. Typically, sexual harassment seminars should be provided on a yearly basis.

If you believe you have been the victim of sexual harassment, contact an experienced California labor law attorney to learn about your legal rights.
 

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