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

If you are a working family member of a military service member or a member of an airline flight crew, proposed regulations to the Family and Medical Leave Act (FMLA) may provide you with several additional employment benefits. The FMLA was originally designed to help employees take leave from work for family and medical reasons without risk of losing their job or health benefits. The Act applies to public agencies, public and private elementary schools, and companies with 50 or more employees. An employee that has worked for any of the aforementioned employers for at least 12 months or at least 1,250 hours over the course of 12 months is entitled to up to to 12 weeks of unpaid leave per year.  In 2009, President Barack Obama signed into law the National Defense Authorization Act for Fiscal Year 2010 and the Airline Flight Crew Technical Corrections Act. These acts extended FMLA benefits to both military service members and airline flight crews who had previously been disqualified. Now it is expected that the Department of Labor (DOL) will propose amendments to these Acts to further expand their coverage. 

The National Defense Authorization Act provides that certain family members of soldiers on active duty may be allowed to take extended leave from their jobs for reasons including, but not limited to, preparing for deployment, making child care and financial arrangements, attending pre-employment and post-employment activities, and caring for an injured active duty service member or previously injured veteran. On May 28, 2010, the House of Representatives approved a bill that would amend the Act to allow the spouse, children and parents of a deployed service member to take at least two weeks of unpaid leave, even if they are not covered under the FMLA. 

The Airline Flight Crew Technical Corrections Act extends FMLA benefits to pilots, flight attendants, and other flight crew workers. Normally, most flight crew members would not qualify for FMLA benefits because they are paid for only “in-flight” time and not for the hours they are on duty between flights or on layovers. The Act provides that flight employees quality for FLMA if they are paid 60 percent of the airline’s monthly work schedule or for at least 504 hours. 

New regulations to both of the aforementioned Acts are expected to take place before November. There may also be revisions to other aspects of the Act previously enacted by the Bush administration. Although the exact changes have not been specified, the DOL has indicated that it will conduct a study next year to evaluate how families are using the FMLA. 

When applying for FMLA, be sure that you use the most current DOL-issued forms. If you take the proper steps and believe your employer has improperly denied you leave, do not hesitate to contact a knowledgable California labor law attorney for a thorough evaluation of your case.

• Email This
• Print
• Comments
• Trackbacks

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. The section further prohibits employers from refusing employees to use sick leave to provide kin care or taking adverse actions against an employee who uses sick leave to provide kin care. 

On February 18, 2010, in the case of 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.

• Email This
• Print
• Comments
• Trackbacks

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.

• Email This
• Print
• Comments
• Trackbacks

Have you ever had a family emergency and had difficulty getting time off work? Well, new legislation could expand the circumstances under which you are entitled to leave from work. February 19, 2010 is the deadline for state legislators to introduce new bills for the year. Because of the state’s dire economic state, the Senate President pro tem Darrell Steinberg  has limited the number of bills that each Senator may introduce. Nonetheless, there are several bills that will be proposed in favor of California workers.

Assembly member Swanson  plans to propose AB 1666 and AB 1667,  which would expand leave under the California Family Rights Act. AB 1666 pertains to sick leave for employees. Under existing law, employees who have had worked for at least one year are entitled to take up to 12 workweeks for family care and medical leave. “Family care and medical leave” is defined as leave for the birth of a child or a serious health condition of the employee or the employee’s child, parent, or spouse. This bill would expand the definition to include any illness that has been declared a national or state pandemic.  AB 1667 would further expand the circumstances for leave to include the serious health condition of a sibling.

The other piece of important legislation is the bereavement leave bill to be sponsored by the California Employment Lawyers Association.  Back in 2007, the California legislature had considered SB 549,  which would have allowed employees to take bereavement leave upon the death of a family member, but the bill was vetoed by the governor. Current California law does not provide leave for employees to grieve, make funeral arrangements, or attend funeral services. Employees who leave work for these reasons are subject to termination without legal recourse. This bill would grant employees up to 4 days of unpaid time off upon the death of a family member without reprisal or discharge. 

If you need to take leave from work, whether it is due to illness, the birth of a baby, or the death of a family member, there are some ways to make the transition easier for both you and your employer.

Strategy:

1. Ask yourself if a leave of absence is absolutely necessary. You may want to consider options such as taking vacation time, sick days, or reducing your hours. 

2. If you are leaving for an extended period of time, take time to consider your budget including everyday expenses and medical bills, if any.

3. Check to see if you qualify for workers compensation, employment insurance, disability benefits, or any other benefits, and make your claim as soon as possible.

4. Notify your boss of your situation and try to make arrangements with your co-workers to cover your duties while you are gone.

5. When you can return, be sure to consider your duties and ability. You may want to ask your employer for reduced hours or more flexible hours.
 

• Email This
• Print
• Comments
• Trackbacks