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TURNING EMPLOYER WRONGS INTO EMPLOYEE RIGHTS

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

Entitled to leave as California employee?

This is part two of our review of California employee’s leave law rights. In our state-wide practice, routinely 30% of our cases each year concern employer misinterpretation (always against the employee’s interest, never the other way around!) of leave rights. Our prior blogs have covered Family Medical Leave Act, Pregnancy Disability Leave Law, and the California Family Rights Act.

Many industrially-injured workers are fired while on medical leave. Employers seem to have the mistaken belief that compliance with the various rules of the Workman’s Compensation Appeals Board satisfies their obligations. Not so! Employers must comply with the California Government Code and (think of two railroad tracks) the WCAB laws. Primarily, Labor Code 132a protects industrially-injured workers from discrimination by an employer. The size of the company is irrelevant, unlike the disability laws which require 5 employees. In essence, an employer who fires an employee for filing a work comp claim violates this law. Additionally, if the industrial injury is a “protected” condition (lets say a permanent ruputured cervical disc with limitations on body movement), then the employer must engage in an interactive dialog, offer an accommodation and not discriminate.

Disability discrimination laws apply to employers with at least five employees. Substantial amendments to the Fair Employment and Housing laws in 2013 expand the definition of disability, as well as reasonable accommodations and methods by which it an be determined if an employee can perform their jobs. see, eg, Cal Cod Regs. tit. 2 sections 11064-110689c),(e).Perhaps one of the least understood rights of employees is to be assured they are not subject to discrimination based on a California employer’s “belief” that they are disabled. This is known as “regarded as”. Consider an employer who believes a gay worker has AIDS or HIV. They may not discriminate based on that belief.  While an accommodation for a disability is required, even extension of leave rights, employers are not required to grant an “indefinite” extension. In many cases, we are able to show that the leave–while not connected to a firm return date–nonetheless is not indefinite as the doctor’s prognosis was good and it could be contemplated that recovery would continue apace.Hanson vs. Lucky Stores, Inc., 74 Cal. App 4th 215 (1999).

If an employee is given sick leave, then the Labor Code per Section 233 requires that this sick leave may be used to care for a child, spouse, parent or domestic partner for up to six months. Its doubtful that many employers have that generous a sick leave policy but nice to know just in case your’s does. If your employer counts this “out” time against you, it violates Section 233. Our labor laws are enforced by the California Department of Labor Standards Enforcement.

Alcohol and Drug Rehabilitation laws require your employer to give you time off to attend treatment programs, as long as there is no hardship on the employer. The company must have 25 employees. Paid time off is not required.

If you are the victim of domestic violence, sexual assault and stalking, you have the right to take time off under any leave policy providing vacation, compensatory time off (up  to 12 weeks as provided by the Family Leave Act). You may use the leave to seek help (like a restraining order) or to assure the safety and health of a victim. As in alcohol and drug leave, your employer needs to have 25 employees.California Labor Code 1025-1027.

Called for jury duty? Run for protection under California LAbor Code 230(a).

Next blog, let’s look in-depth at No-Fault Attendance Policies. Hint: A major multi-million dollar settlement provided that under federal law, an employer may not count absences from a covered disability against an employee’s chargable absences. Major victory and proud to report it in depth next blog! We will also revisit a case involving a paraplegic employee who accumulated too may absences under the company’s no fault policy. This violated the Americans with Disabilities Act as the employer was unable to show that absolute punctuality wss an essential job function. Take care out there, don’t let employee rights become employer wrongs! Steve