Many employees are unaware of their right to take leave under the California Family Rights Act. This act is administered by the Department of Fair Employment and Housing.Today’s blog will highlight an important collateral right under this law; namely, the right to be free from retaliation for asking for or taking such leave. At Orange County employment lawyer, we routinely litigate CFRA cases.
Under the California Government Code Section 12945.2(a),(t), it is unlawful for a covered employer (generally with 50 or more employees within 75 miles of the workplace) to restrain, deny or interference with your right to take leave. Generally, you are within your rights to ask for such leave if you have not used up your annual (can be on a rolling or “last used” basis as well, the employer gets to decide that) 12 weeks of leave, and you have seen a doctor or required overnight hospitalization for the covered illness/leave. Gibbs vs. American Airlines, inc., 74 CA4th 1, 6-7 (1999).
Under the Neisendorft vs. levi Strauss & co case, 143 CA4th 509, 517 (2006), if you take CFRA leave you are guaranteed that taking this right will not result in a loss of job security or in any other employment action. This includes retaliation for asking for and taking the leave and in some cases we’ve actually seen employees terminated for this. We call this a “termination in violation of public policy.” The elements of this are:
1. Defendant is covered by CFRA (see above);
2. Plaintiff is an employee eligible to take this leave (ditto);
3. Plaintiff exercised the right to take leave;
4. Plaintiff suffered an adverse employment action such as termination, suspension or demotion because of this right.
Once you have submitted your leave request, your employer is charged with knowledge of your CFRA rights. If you are fired for such absences, the employer is liable for damages even if the leave was recorded as “unexcused”. Avila vs. Continental Airlines, Inc., 165 kCA4th 1237, 1260 (2008). the burden is on the employer to share a bona fide reason for the adverse action. Also, you may not sue your supervisor or HR Director personally (unlike federal FMLA). Retaliation is considered solely an employer’s duty.
We have handled hundreds of CFRA and FMLA cases through the years. There are many administrative burdens (such as filing a timely claim with the proper agency) to successful achieve before filing in court. We’d be happy at Orange County employment attorney to review these with you.