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TURNING EMPLOYER WRONGS INTO EMPLOYEE RIGHTS

*At this time, we are only conducting phone consultations, please no walk-ins.

Can I get paid for taking Family Medical Leave Act time off?

First signed into law in 1192, the federal Family and Medical Leave Act (FMLA), along with its California companion, the California Family Rights Act, does not provide for paid time off. The allowed time off (both state and federal time off runs concurrently, no fair going back-to-back for 24 weeks!). Neither law allows for payment of wages during this time; however, some larger employers may offer this as paid time either as a matter of incentive or union contract.

In California, however, we have the Paid Family Leave Act (PFL). This provides up to six weeks of partial payment for employees who take FMLA/CFRA leave to care for a spouse, child, parent or registered domestic partner with a serious health condition. It also covers child bonding within a year of birth or adoption. This payment is funded through payroll taxes, so its paid by the employee. Most employees don’t realize this and fail to ask for this leave for fear of getting fired or demoted on return.

The actual wage replacement can be up to 55 percent of the individuals’ weekly salary and if you pay into the SDI fund you are guaranteed coverage. You need to have earned at least $300 during the last 12 months. This program is available to employees regardless of the size of the employer.

A study just released shows that almost 37% of workers claimed they were afraid to apply for this program due to fear of employer retaliation. Amazingly, less than half of all workers who were eligible for PFL even knew it existed. Minimum wage earners and Latinos were among the most uninformed of this laws’ existence. Keep in mind that this is a law designed to provide income, not leave rights. There is no automatic entitlement to be returned to your job. Senate Bill 761 has been introduced in the California legislature, which would amend this law to include loss of employment. As usual, there are opinions pro and con on this law. The pro is that the law is so under-utilized now that this will increase the odds of usage by reducing the fear of retaliation for asking for the time off from your California employer. The con is that employers see it as a way for employees to take time off (with pay) and have no accountability for how that time is used. Additionally, small employers would be required to basically give 12 weeks’ off, even though the statutory scheme under California’s Government Code is to require only employers with 50 employees located within 75 miles of the workplace to offer time off.

California employment law firm Danz & Associates practices exclusively in the employment rights sector, representing technical, administrative and hourly employees throughout the state.