Defense of Employee Leave Policies

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Introduction: Because of the number and complexity of State and Federal employee leave laws, and the monetary damages, penalties, fees and costs that may be imposed upon employers that violate these laws, I anticipate that more and more employers will become targets of employee leave claims and lawsuits. To lessen the risk of litigation and claims, I strongly recommend that you contact my office to establish or verify compliance with State and Federal Leave Laws. For employer reference I include a brief outline of some significant State and Federal Leave laws to which employers may be subject. This outline is for reference purposes only, is not meant as a comprehensive list of employee leave laws and does not constitute legal advice.

Federal & California Military Leave Laws

Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 USC §§ 4301, et.seq.: The Federal Military Leave Law, USERRA applies to all employers regardless of size and all employees, regardless of the length of time employed and the number of hours worked. Employers are generally required to grant employees leaves for periods of military service, for periods totaling up to (5) five years, with guaranteed reemployment rights and “escalator protection” to the position that reflects with reasonable certainty the pay, benefits, seniority and other job perquisites that the returning veteran would have attained with the employer but for the period of service. California has similar military leave laws. Mil. & Vet.C. §§ 389, et.seq. Please contact my office to review compliance with these laws.

Federal Family Medical Leave Act (FMLA), As Amended

The Federal Family Medical Leave Act (FMLA), 29 U.S.C. §§ 2601, et.seq. , (which is substantially similar to California’s CFRA Leave), now includes The 2008 National Defense Authorization Act Amendments to the FMLA, which became effective on January 16, 2009. FMLA has various notice, posting, recordkeeping, duration of leave, employment status protection and reinstatement requirements that employers subject to this law must satisfy. Please contact my office to determine whether your Company is required to comply with FMLA, or to discuss the nature and extent of the compliance that is required.

Family Medical Leave Act (FMLA) Amendments:
As amended, FMLA leave now also includes:

1). Military Exigency Leave: Up to (12) twelve weeks of qualifying exigency leave to covered family members of military retirees and reservists called to active duty in support of a “contingency operation,” and 2). Wounded Warrior Care Leave: Up to (6) six months of leave for family members caring for military veterans injured while on active duty in the US Armed Forces.

Compliance with California’s Leave Laws

California’s numerous leave laws include, among others, the California Family Rights Act (CFRA), Govt. Code §§ 12945.1-12945.2, (which is substantially similar to Federal FMLA Leave); Pregnancy Disability Leave, Govt. Code § 12945; Paid Family Leave, Unemployment Ins. C.§§ 3300 et. seq.; Kin Care, Labor Code § 233; Military Spouse Leave, AB 392-Military & Veterans Code § 395.10; California’s Jury Duty Leave, Labor Code § 230, Emergency Leaves for Volunteer Firefighters, Reserve Police Officers and Emergency Rescue Personnel, Labor Code § 230.3(a); Alcohol & Drug Rehabilitation Leaves, Labor Code §§ 1025, et.seq. These State leave laws also contain various notice, posting, recordkeeping, duration of leave, leave coordination, employment status protection and reinstatement requirements that employers subject to one or more of these laws must satisfy. Please contact my office to discuss which leave laws are applicable to your Company, or to discuss the nature and extent of the compliance that is required.

Federal & California Jury Duty Leave Laws

The Federal Jury System Improvements Act of 1978, 28 USC § 1875, generally requires all employers to provide permanent employees unpaid leaves for jury service in Federal Court. California’s Jury Duty Leave Law, Labor Code § 230, prohibits all employers from discharge, discrimination or retaliation against an employee who performs jury service, on reasonable notice. Please contact my office to review your Company’s compliance with Jury Duty Leave.

Employee Claims & Lawsuits for Leave Law Violations

An employer’s failure or refusal to provide a leave authorized by law, or the employer’s failure or refusal to reinstate an employee to the same or equivalent position following such leave can be a costly mistake. In a civil lawsuit or, by filing a claim for damages with a State or Federal Agency, the affected employee may claim and recover lost earnings, the cost of care, general damages, liquidated damages, punitive damages, penalties, attorneys fees and court costs from the employer who violates State and Federal Leave Laws.

An employee’s claim for damages, due to an alleged, FMLA violation, for example, can be filed with the United States Department of Labor or filed as a lawsuit in Federal Court. An employee’s claim for damages, due to an alleged violation of one or more of California’s employee leave laws, can be filed with a variety of State agencies, including the Fair Employment and Housing Commission, the Department of Industrial Relations-Division of Labor Standards Enforcement, the Employment Development Department (depending upon which leave law has been violated), or filed as a lawsuit in State Court. It is also quite possible that any single, leave law violation may actually constitute a simultaneous violation of both State and Federal leave laws.

Defense of Employee Leave Law Violations, Including
Defense of Claims for Failure to Reinstate

My law firm will defend your Company in either State or Federal Court, or before a State or Federal Agency, in response to a claim that an employee leave law has allegedly been violated, which includes a defense to charges of discrimination, harassment and retaliation arising from disputes associated with such leaves, or the failure to reinstate an employee following such leave.