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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Have your unemployment benefits dried up? Are you buried under a mountain of debt? If that’s the case, the federal government may help to dig you out. On November 6, 2009, President Obama signed into law HR 3548 (PL 111-92), which provides for the temporary availability of additional Emergency Unemployment Compensation (EUC) to those unemployed workers whose benefits have expired or will expire before the end of the year. In states with unemployment over 8.5%, benefits will be extended by 14 weeks with the potential for an additional six weeks, for a total of 20 weeks.

According to the Bureau of Labor Statistics, the California unemployment rate in September 2009 was 12.2% and ranked the fourth highest in the nation; therefore, the new law will have a direct impact on the state. The California Employment Development Department (EDD) has estimated that 285,000 residents may be eligible for the new extension.  Unfortunately, workers are not likely to see benefits for several weeks. The law is confusing and will be difficult for the state to implement.

One obstacle is the adjustment to the tiers of unemployment benefits. Prior to enactment of the new law, there were only two extensions available to qualified workers. Tier 1 provided for a maximum of 20 additional weeks of EUC in all states and Tier 2 offered an additional 13 weeks of EUC in states with an unemployment rate of more than 6% for 3 consecutive months. The new legislation bolstered Tier 2 and added Tiers 3 and 4. Tier 2 now provides up to 14 weeks of EUC in all states regardless of the unemployment rate. Tier 3 offers 13 weeks of EUC in states with an unemployment rate of at least 6%. Finally, Tier 4 provides an additional 6 weeks of benefits in states with an unemployment rate of at least 8.5%.

Another difficulty with the new legislation is that while it extends the availability of EUC, it does not extend the filing deadline. All claims under any tier must be filed by December 31. This deadline is problematic because the 14 weeks of EUC available under Tier 2 must be exhausted before one can apply for the additional six weeks of benefits available under Tier 4. Since there are less than 14 weeks left in the year, it is impossible for anyone to apply for Tier 4 benefits.  Consequently, these benefits will only be available if Congress passes additional extension legislation before the December 31 deadline.

Strategy:

If you are one of the 100,000 California workers who have exhausted previously available unemployment benefits, you may be eligible for an extension under the new legislation. Over the next couple weeks, the EDD will be notifying employees of their potential eligibility via mail or a message on their last unemployment check. The EDD will also automatically file extensions for eligible employees. If you do not receive notification or confirmation of an extension, contact the EDD.  In the event that you believe you are entitled to an extension and have been denied this extension or your unemployment benefits all together, consult a California labor law attorney to determine your rights.
 

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