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Employee Leave Laws: Compliance and Litigation

Get the book you need to accurately calculate, track, and comply with California and federal employee leave entitlements. Confidently advise employees or employers on any leave-related question, including litigating leave law claims. Make sure your clients are in compliance with all applicable regulations.

Get the book you need to accurately calculate, track, and comply with California and federal employee leave entitlements. Confidently advise employees or employers on any leave-related question, including litigating leave law claims. Make sure your clients are in compliance with all applicable regulations.

  • Family and Medical Leave Act and its interaction with the California Family Rights Act
  • Calculating leave entitlements
  • Numerous charts and examples to clarify complex calculations
  • Pregnancy, disability, and other leaves
  • Vacations, sick leave, holidays, and paid time off
  • Bringing an action to enforce leave law rights
  • Responding to leave law claims
  • Litigating leave law claims: discovery, summary judgment, trial, and attorney fees
  • Settlement and alternative dispute resolution 
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Get the book you need to accurately calculate, track, and comply with California and federal employee leave entitlements. Confidently advise employees or employers on any leave-related question, including litigating leave law claims. Make sure your clients are in compliance with all applicable regulations.

  • Family and Medical Leave Act and its interaction with the California Family Rights Act
  • Calculating leave entitlements
  • Numerous charts and examples to clarify complex calculations
  • Pregnancy, disability, and other leaves
  • Vacations, sick leave, holidays, and paid time off
  • Bringing an action to enforce leave law rights
  • Responding to leave law claims
  • Litigating leave law claims: discovery, summary judgment, trial, and attorney fees
  • Settlement and alternative dispute resolution 

1

Leave Under the Family and Medical Leave Act and the California Family Rights Act

Sharon A. Terman

Elizabeth Kristen

Conor Ahern

Julia C. Parish

  • I. SCOPE OF CHAPTER 1.1
    • A. History and Purpose of the Acts 1.2
    • B. Basic 12-Week Leave Entitlement 1.3
    • C. Longer Leave May Be Available
      • 1. Pregnancy Leave 1.4
      • 2. Military Caregiver Leave 1.5
      • 3. Accommodation of Disability 1.6
    • D. How FMLA and CFRA Interact
      • 1. Leaves Run Concurrently 1.7
      • 2. Greater Benefit Applies 1.8
  • II. COVERED EMPLOYERS
    • A. Private Employers
      • 1. General Rule of Coverage 1.9
        • a. "Engaged in Commerce" or "Industry or Activity Affecting Commerce" 1.10
        • b. Fifty-Employee Threshold 1.11
        • c. Twenty Calendar Work Weeks in Current or Preceding Calendar Year 1.12
      • 2. Corporations 1.13
      • 3. Successors-in-Interest 1.14
        • a. Balancing of Equities Test 1.15
        • b. FMLA Regulations 1.16
        • c. Merger or Transfer of Assets Not Required 1.16A
        • d. Employee of Successor Has Continuous Entitlements 1.17
      • 4. Joint Employers 1.18
        • a. Determining Existence of Joint Employment Relationship
          • (1) FMLA/CFRA Regulations 1.19
          • (2) Moreau v Air France Factors 1.20
        • b. Primary Employer Provides Leave and Benefits 1.21
      • 5. Integrated Employers 1.22
      • 6. Person Acting in Interest of Employer 1.23
    • B. Public Employers 1.24
    • C. Elementary and Secondary Schools 1.25
  • III. ELIGIBLE EMPLOYEES
    • A. General Requirements 1.26
      • 1. Employed for 12 Months 1.27
        • a. Determined at Start of Leave 1.28
        • b. Effect of 7-Year Break in Service 1.29
      • 2. Worked at Least 1250 Hours 1.30
        • a. Standards for Determining Hours 1.31
        • b. Effect of Employee's Military Service 1.32
        • c. Teachers on Academic Year 1.33
        • d. Airline Flight Crews 1.34
      • 3. Worksite With 50 Employees Within 75 Miles 1.35
        • a. Subsequent Change in Number of Employees Irrelevant 1.36
        • b. Worksite Defined 1.37
      • 4. Requalification 1.38
    • B. Former Employees 1.39
    • C. Estoppel When Employer Misrepresents Employee's Eligibility 1.40
  • IV. QUALIFYING REASONS FOR LEAVE
    • A. Serious Health Conditions, Child Bonding, and Military Exigencies 1.41
      • 1. California Variation: Pregnancy Exception 1.42
      • 2. California Variation: Domestic Partners 1.43
    • B. Definitions
      • 1. "Spouse" 1.44
      • 2. "Child" or "Son or Daughter" 1.45
      • 3. "In Loco Parentis" 1.46
      • 4. "Parent" 1.47
    • C. Birth of Child 1.48
    • D. Adoptive or Foster Child 1.49
    • E. Employee's Own Serious Health Condition 1.50
      • 1. "Serious Health Condition" 1.51
        • a. Inpatient Care 1.52
        • b. Continuing Treatment 1.53
        • c. Treatment of Substance Abuse 1.54
      • 2. Unable to Perform Essential Functions of Job 1.55
    • F. Family Medical Care
      • 1. Spouse, Child, or Parent With Serious Health Condition 1.56
      • 2. "Caring For" Defined 1.57
    • G. Qualifying Exigencies
      • 1. Twelve Weeks of Family Military Leave 1.58
      • 2. What Constitutes Qualifying Exigency 1.59
    • H. Military Caregiver Leave 1.60
      • 1. Current Service Member 1.61
      • 2. Recent Veteran 1.62
  • V. AMOUNT OF LEAVE
    • A. Twelve Weeks in 12-Month Period ("Leave Year") 1.63
      • 1. Employer Determines "Leave Year" 1.64
      • 2. Multi-State Employers 1.65
      • 3. Holidays 1.66
      • 4. Overtime 1.67
      • 5. When Spouses/Parents Work for Same Employer 1.68
    • B. Intermittent or Reduced-Schedule Leave 1.69
      • 1. Qualifying Reasons 1.70
      • 2. California Variation: Short Bonding Leave 1.71
      • 3. Prerequisites to Leave
        • a. Reasonable Effort to Avoid Disruption 1.72
        • b. Medical Necessity 1.73
        • c. Permission for Intermittent Bonding 1.74
      • 4. Calculating Leave Taken 1.75
      • 5. Exempt Employee Status 1.76
      • 6. Temporary Transfer to Alternative Position 1.77
      • 7. When Leave Is Not Physically Possible 1.78
      • 8. Special Rules for School Employees 1.79
    • C. Service Member Care Leave
      • 1. Twenty-Six Weeks in 12-Month Period 1.80
      • 2. Determining 12-Month Period 1.81
  • VI. EMPLOYER'S POSTING AND NOTICE REQUIREMENTS
    • A. Posting Notice of Leave Rights
      • 1. "In Conspicuous Places" 1.82
      • 2. Form and Content of Poster 1.83
      • 3. Non-English-Speaking Workforce 1.84
      • 4. Civil Penalty for Willful Failure to Post Notice 1.85
    • B. Notice in Employee Handbook and to New Employees 1.86
  • VII. PROCEDURES FOR REQUESTING AND GRANTING LEAVE
    • A. Advance Notice of Procedures Required 1.87
    • B. Employee's Responsibility to Give Notice of Need for Leave
      • 1. Timing of Notice
        • a. When Need for Leave Is Foreseeable 1.88
        • b. When Need for Leave Is Unforeseeable 1.89
        • c. Determining Whether Need for Leave Is Foreseeable or Unforeseeable 1.89A
        • d. Employee Need Only Give Notice Once 1.90
        • e. Employee's Failure to Give Timely Notice
          • (1) May Delay Start of Protected Leave 1.91
          • (2) Employer Must Have Provided Notice of Deadlines 1.92
          • (3) Employer May Waive Deadlines 1.93
      • 2. Manner of Giving Notice 1.94
      • 3. Content of Notice
        • a. Information Sufficient to Make Employer Aware of Need for Leave 1.95
        • b. Employer's Duty to Inquire Further When Notice Is Unclear 1.96
        • c. Compliance With Employer Policy 1.97
        • d. Employer May Waive Notice Requirements 1.98
        • e. Constructive Notice 1.99
      • 4. When Leave Is for Planned Medical Treatment 1.100
    • C. Employer's Response to Employee's Notice of Need for Leave 1.101
      • 1. Eligibility Notice
        • a. Timing, Form, and Contents 1.101A
        • b. New Notice for Subsequent Leaves 1.101B
      • 2. Rights-and-Responsibilities Notice 1.101C
        • a. Timing and Form 1.101D
        • b. Required Contents 1.101E
        • c. Additional Contents as Needed 1.101F
        • d. Notice of Changed Information for Subsequent Leaves 1.101G
      • 3. Designation Notice 1.101H
        • a. Basis for Designation 1.102
          • (1) When Employee Merely Requests Paid Time Off 1.103
          • (2) Employee May Expressly Decline FMLA Designation 1.103A
        • b. Timing and Form of Designation Notice 1.104
        • c. Contents of Designation Notice 1.104A
        • d. Written or Oral Notice of Amount of Leave to Be Counted Against Entitlement 1.104B
        • e. Retroactive Designation 1.105
      • 4. Effect of Failure to Provide Notices or Properly Designate 1.106
      • 5. Resolution of Disputes 1.106A
    • D. Medical Certifications 1.107
      • 1. Employer Must Provide Notice of Certification Requirement 1.108
      • 2. Employee's Deadline to Provide Certification
        • a. Fifteen Days After Request 1.109
        • b. When Failure to Meet Deadline May Be Excused 1.110
      • 3. Employee Must Provide Any Necessary Authorizations 1.111
      • 4. Contents of Certification
        • a. FMLA
          • (1) General Rules 1.112
          • (2) Additional Information for Intermittent or Reduced-Schedule Leave Requests 1.113
          • (3) DOL or Employer-Drafted Forms 1.113A
          • (4) Certification When Leave Is to Care for Covered Service Member
            • (a) Information From Health Care Provider 1.113B
            • (b) Information From Employee or Covered Service Member 1.113C
            • (c) DOL or Employer-Drafted Forms 1.113D
            • (d) Documents Deemed Sufficient Certification 1.113E
            • (e) Employer May Not Penalize Employee for Administrative Delays 1.113F
        • b. CFRA
          • (1) Leave to Care for Covered Family Member 1.114
          • (2) Leave for Employee's Serious Health Condition 1.115
          • (3) Certification Need Not Reveal Serious Health Condition or Other Information 1.116
        • c. CFRA Certification Form Should Be Used in California 1.117
      • 5. Employer's Use of Additional Medical Information 1.118
      • 6. Incomplete or Insufficient Certification 1.119
      • 7. "Negative" Certification 1.119A
      • 8. Failure to Provide Certification 1.120
      • 9. Recertification
        • a. When Employer May Request Recertification 1.121
        • b. Contents of Recertification 1.122
        • c. Time for Submission 1.123
      • 10. Authentication and Clarification 1.124
      • 11. When Employer Doubts Validity of Medical Certification
        • a. Second Opinion 1.125
        • b. Third Opinion 1.126
      • 12. Certification for Qualifying Exigency Leave 1.126A
        • a. Required Information 1.126B
        • b. Verification 1.126C
        • c. Employer's Duty to Maintain Confidentiality of Medical Certifications 1.126D
  • VIII. RETURNING TO WORK
    • A. Right to Reinstatement
      • 1. Same or Equivalent Position 1.127
      • 2. What Constitutes Equivalent Position 1.128
        • a. Equivalent Pay 1.129
        • b. Equivalent Benefits 1.130
          • (1) Must Not Require Requalification for Benefits 1.131
          • (2) Accrued Benefits 1.132
        • c. Substantially Similar Terms and Conditions of Employment 1.133
          • (1) Duties and Responsibilities 1.134
          • (2) Same or Similar Worksite 1.135
          • (3) Same Shift and Schedule 1.136
          • (4) Employee May Request Different Position 1.137
    • B. Limitations on Right to Reinstatement
      • 1. No Greater Rights Than if Employee Had Not Taken Leave 1.138
      • 2. Position Was Eliminated or Reduced 1.139
      • 3. Employee Is Unable to Perform Job 1.140
      • 4. Employer May Deny Reinstatement of "Key Employee" 1.141
        • a. Who Qualifies as Key Employee 1.142
          • (1) "Salaried Employee" 1.143
          • (2) Highest Paid 10 Percent of Employees 1.144
        • b. "Substantial and Grievous Economic Injury" 1.145
        • c. Notification Requirements for Key Employees
          • (1) General Notice 1.146
          • (2) Notice When Employee Is Determined to Be Key Employee 1.147
          • (3) If Key Employee Does Not Return to Work 1.148
          • (4) May Request Reinstatement 1.149
      • 5. Failure to Provide Fitness-for-Duty Certification 1.150
      • 6. Fraudulently Obtained Leave 1.151
    • C. Periodic Reports of Employee's Intent to Return to Work 1.152
    • D. Employer May Not Force Employee to Take Leave for Longer Period 1.153
    • E. Fitness-for-Duty Certification 1.154
      • 1. Contents 1.155
      • 2. Clarification and Authentication 1.156
      • 3. Multiple Certifications for Intermittent or Reduced-Schedule Leave 1.157
      • 4. Failure to Provide Certification 1.158
  • IX. COMPENSATION DURING LEAVE
    • A. Leave Is Generally Unpaid 1.159
    • B. Substitution of Vacation, Sick Leave, or Other Paid Leave
      • 1. FMLA
        • a. Employee May Opt to Substitute Employer Provided Paid Leave for Unpaid FMLA Leave 1.160
        • b. Limitations 1.161
        • c. Employee May Affirmatively Decline FMLA Leave 1.162
        • d. Employer May Require Substitution 1.163
      • 2. CFRA 1.164
    • C. Employer Policy 1.165
    • D. Limitation on Substitution of Other Paid Leave 1.166
    • E. Exempt Employees 1.167
    • F. State Disability Insurance Program 1.168
      • 1. Disability Insurance 1.169
      • 2. Paid Family Leave 1.170
  • X. EFFECT OF LEAVE ON EMPLOYEE BENEFITS
    • A. Health Insurance Benefits
      • 1. Employer Must Maintain Coverage During Leave 1.171
      • 2. Changes to Coverage During Leave 1.171A
      • 3. When Employer May Discontinue Coverage 1.171B
      • 4. Payment of Premiums
        • a. Employee Must Continue to Pay Share During Leave 1.172
        • b. Employee's Failure to Pay Premiums 1.172A
      • 5. Employee May Choose to Drop Coverage 1.173
      • 6. When Employee Does Not Return to Work 1.174
    • B. Benefit Level, Vesting, and Seniority 1.175
    • C. Other Health and Welfare Benefits 1.176
  • XI. ENFORCEMENT AND REMEDIES
    • A. Theories of Liability 1.177
    • B. Remedies Under the FMLA 1.178
    • C. Remedies Under the CFRA 1.179

2

Pregnancy, Disability, and Other Leaves

Rachel S. Hulst

  • I. SCOPE OF CHAPTER 2.1
  • II. PREGNANCY LEAVE LAWS
    • A. Pregnancy Disability Leave Law (PDLL) 2.2
      • 1. Relationship to PDA 2.3
      • 2. Relationship to FMLA and CFRA 2.4
      • 3. Relationship to ADA and FEHA 2.5
      • 4. Covered Entities 2.6
      • 5. Eligible Employees 2.7
      • 6. Qualifying Reason for Leave
        • a. "Disabled by Pregnancy, Childbirth, or a Related Medical Condition" 2.8
          • (1) Disability Based on Employee's Inability to Perform Job 2.9
          • (2) Disability Based on Employee's Health Needs 2.10
        • b. Existence of Disability Must Be Determined by Health Care Provider 2.11
      • 7. Length of Leave
        • a. "Reasonable Period" Up to 4 Months 2.12
        • b. Per Pregnancy, Not Per Year 2.13
        • c. Calculating Leave Entitlement
          • (1) Determined by Employee's Normal Work Schedule 2.14
          • (2) Intermittent or Reduced-Schedule Leave 2.15
            • (a) Transfer 2.16
            • (b) Reinstatement After Transfer 2.17
          • (3) Impact of Holidays and Temporary Closures 2.18
        • d. If Employer Has More Generous Leave Policy 2.19
      • 8. Terms of Leave
        • a. Generally Unpaid 2.20
        • b. Use of Accrued Benefits
          • (1) Sick Leave 2.21
          • (2) Vacation and Other Time Off 2.22
        • c. Continuation of Group Health Coverage
          • (1) Up to 4 Months in 12-Month Period 2.23
          • (2) No Credit Against CFRA Entitlements 2.24
          • (3) Recovery of Premiums From Employee 2.25
        • d. Maintenance of Other Benefits, Seniority, and Employee Status 2.26
      • 9. Notices
        • a. Employer's Responsibilities
          • (1) "Reasonable Advance Notice" of Rights Under the PDLL 2.27
            • (a) Required Postings 2.28
            • (b) When Employee Informs Employer of Pregnancy or Need for Leave 2.29
            • (c) Employer Handbook or Annual Distribution of Notice 2.30
            • (d) Non-English-Speaking Workforce 2.31
          • (2) Consequences of Failure to Give Notice 2.32
        • b. Employee's Responsibilities
          • (1) "Timely" Notice of Need for Leave 2.33
          • (2) Consequences for Failure to Provide Notice 2.34
        • c. Employer's Response to Notice of Need for Leave 2.35
      • 10. Medical Certification
        • a. May Be Required as Condition of Granting Leave 2.36
        • b. Impact of HIPAA and CMIA 2.37
        • c. Deadline for Requesting Certification 2.38
        • d. Required Contents 2.39
        • e. Deadlines for Providing Certification 2.40
        • f. Inadequate or Incomplete Certification 2.41
        • g. Consequences for Failing to Provide Certification 2.42
        • h. Less Stringent Sick or Medical Leave Certification Requirements 2.43
      • 11. Right to Reinstatement 2.44
        • a. Agreed-on Return Date 2.45
        • b. New or Uncertain Return Date 2.46
        • c. When Employee Is Laid Off During Leave 2.47
        • d. When Leave Is Extended Under the CFRA 2.48
        • e. When Employee Remains on Disability Leave 2.49
        • f. Permissible Defenses
          • (1) To Same Position 2.50
          • (2) To Comparable Position 2.51
    • B. Pregnancy Discrimination Act (PDA) 2.52
      • 1. Covered Employers 2.53
      • 2. Covered Employees 2.54
      • 3. Leave Entitlement
        • a. Equivalent to Leave Available to Other Temporarily Disabled Employees 2.55
        • b. Exception for Occupationally Disabled Employees Likely Abrogated 2.56
        • c. Employer May Offer More Generous Leave to Employees Disabled by Pregnancy 2.57
        • d. Procedures to Determine Ability to Work 2.58
        • e. Mandatory Use of Accrued Vacation 2.59
        • f. Conditions Not Covered by PDA 2.60
      • 4. Reinstatement Rights 2.61
      • 5. Enforcement and Remedies 2.62
  • III. DISABILITY-RELATED LEAVES
    • A. Americans with Disabilities Act (ADA)/Fair Employment and Housing Act (FEHA) 2.63
      • 1. Covered Employers 2.64
      • 2. Covered Employees 2.65
      • 3. Leave Entitlement 2.66
        • a. Determining Whether Leave Is Reasonable Accommodation 2.67
        • b. Determining Length of Leave 2.68
    • B. Rehabilitation Act of 1973 2.69
    • C. Work-Related Disabilities 2.70
      • 1. Failure to Reinstate as Violation of Lab C §132a 2.71
      • 2. Reasonable Business Necessity Defense 2.72
      • 3. No Intermittent Leave When Injury Becomes "Permanent and Stationary" 2.73
    • D. Disability Leave Under Employer Policy 2.74
  • IV. OTHER LEAVE LAWS
    • A. School Leaves
      • 1. For School Suspension (Lab C §230.7) 2.75
      • 2. For Participation in School Activities (Lab C §230.8)
        • a. Leave Entitlement 2.76
        • b. Parents Who Work for Same Employer 2.77
        • c. Mandatory Use of Vacation, Personal Leave, or PTO 2.78
        • d. Documentation 2.79
        • e. Remedies 2.80
    • B. Victims of Domestic Violence, Sexual Assault, or Stalking (Lab C §§230(c), 230.1)
      • 1. Leave Entitlement 2.81
      • 2. Definitions 2.82
      • 3. Interaction With the FMLA 2.83
      • 4. Use of Vacation, Personal Leave, or Other Time Off 2.84
      • 5. Notice Requirements
        • a. For Employers 2.84A
        • b. For Employees 2.85
      • 6. Reasonable Accommodation 2.86
        • a. Types of Accommodations 2.87
        • b. Certification of Need for Accommodation 2.88
        • c. New Accommodation 2.89
        • d. When Accommodation Is No Longer Needed 2.90
      • 7. Prohibitions and Enforcement 2.91
    • C. Crime Victims
      • 1. Labor Code §230.2
        • a. Leave Entitlement 2.92
        • b. Use of Vacation, Sick Leave, or Other Time Off 2.93
        • c. Notice 2.94
        • d. Prohibitions and Enforcement 2.95
      • 2. Labor Code §230.5
        • a. Leave Entitlement 2.96
        • b. Use of Vacation, Personal Leave, or Other Time Off 2.97
        • c. Notice 2.98
        • d. Prohibitions, Remedies, and Enforcement 2.99
    • D. Organ and Bone Marrow Donation (Lab C §§1508—1513)
      • 1. Leave Entitlement 2.100
      • 2. Use of Sick Leave, Vacation, or PTO 2.101
      • 3. Interaction With FMLA/CFRA 2.102
      • 4. No Break in Service; Maintenance of Health Plan Coverage 2.103
      • 5. Written Verification 2.104
      • 6. Reinstatement 2.105
      • 7. Prohibitions and Remedies 2.106
    • E. Voting (Elec C §§14000—14001) 2.107
    • F. Service as Election Official (Elec C §12312) 2.108
    • G. Jury Duty
      • 1. Jury System Improvements Act of 1978 (28 USC §1875) 2.109
        • a. Notice of Need for Leave 2.110
        • b. Enforcement; Appointment of Counsel 2.111
        • c. Remedies 2.112
        • d. Attorney Fees 2.113
      • 2. State Law (Lab C §230(a)) 2.114
    • H. Service as Witness (Lab C §230(b)) 2.115
    • I. Volunteer Emergency Personnel (Lab C §§230.3—230.4)
      • 1. Prohibition Against Discharge or Discrimination 2.116
        • a. Exception When Public Safety at Risk 2.117
        • b. Notification Requirements for Health Care Providers 2.118
      • 2. Leave for Training 2.119
      • 3. Definitions 2.120
    • J. Military Service
      • 1. Federal Law: USERRA 2.121
        • a. Covered Employers 2.122
          • (1) Successors-in-Interest 2.122A
          • (2) Multiple Employers 2.122B
        • b. Eligible Employees
          • (1) Most Employees Regardless of Length of Service 2.123
          • (2) "Service in a Uniformed Service" 2.124
        • c. Leave Entitlement 2.125
        • d. Interaction With Other Leave Laws and Employer Policies 2.126
        • e. Employee Obligations
          • (1) Notice of Leave 2.127
          • (2) Notice of Intention to Return to Work 2.128
          • (3) Documentation 2.129
        • f. Employer Obligations
          • (1) Pay Issues 2.130
          • (2) Benefits 2.131
          • (3) Reinstatement
            • (a) Eligibility 2.132
            • (b) Prompt Reemployment Required 2.132A
            • (c) Reemployment in Escalator Position 2.132B
              • (i) Reasonable Certainty Standard 2.132C
              • (ii) When Service Is for Period of 90 Days or Less 2.132D
              • (iii) When Service Is for Period of More Than 90 Days 2.132E
        • g. Protection Against Discrimination and Termination 2.133
        • h. Remedies 2.134
      • 2. State Law
        • a. Leave Entitlements
          • (1) Member of Federal Reserves, National Guard, or Naval Militia
            • (a) Employees of Private Employers 2.135
            • (b) Public Employees
              • (i) Leave Entitlement 2.136
              • (ii) Compensation During Leave 2.137
              • (iii) Right to Reinstatement 2.138
          • (2) Member of State Military Reserves 2.139
        • b. Prohibition Against Discharge or Discrimination; Remedies 2.140
    • K. Accommodation of Religious Beliefs 2.141
    • L. Accommodation for Drug or Alcohol Rehabilitation Programs 2.142
    • M. Accommodation for Adult Literacy Education Programs 2.143
    • N. Civil Air Patrol Leave
      • 1. Leave Entitlement 2.144
      • 2. Covered Employers; Eligible Employees 2.145
      • 3. Notice and Certification 2.146
      • 4. Prohibited Acts 2.147
      • 5. Reinstatement; Maintenance of Benefits 2.148
      • 6. Enforcement 2.149

3

Vacations, Sick Leave, Holidays, and Paid Time Off

Stephen M. Murphy

John F. Hyland

  • I. SCOPE OF CHAPTER 3.1
  • II. VACATION LEAVE
    • A. Private Employers
      • 1. No Right to Paid Vacation Leave Absent Agreement or Policy 3.2
      • 2. Vacation Leave Constitutes Deferred Wages 3.3
      • 3. Waiting Period Permitted for New Employees 3.4
      • 4. Accrual: Lump Sum or Pro Rata 3.5
      • 5. Restrictions on Manner of Taking Vacation Permitted 3.6
      • 6. No Forced Use of Vacation 3.7
      • 7. "Use It or Lose It" Policies Not Permitted 3.8
        • a. Exception: Collective Bargaining Agreement 3.9
        • b. No Voluntary Waiver Permitted 3.10
      • 8. Cap on Vacation Accrual Permitted 3.11
      • 9. Unlimited Vacation 3.12
      • 10. Payment of Accrued Vacation Leave on Termination 3.13
        • a. Timing of Payment 3.14
        • b. No Offset for Vacation Leave Advances 3.15
        • c. Consequences for Failure to Pay 3.16
          • (1) Administrative Claim or Civil Action 3.17
          • (2) Statute of Limitations 3.18
          • (3) When Cause of Action Accrues 3.19
      • 11. ERISA May Preempt California Law for Funded Vacation Plans 3.20
    • B. Public Employers
      • 1. Right to Paid Vacation Must Be Based on Statute, Ordinance, or MOU 3.21
      • 2. Educational Employees 3.22
      • 3. Court Employees 3.23
  • III. SICK LEAVE
    • A. California's Paid Sick Leave Law 3.24
      • 1. Chart: Summary of Provisions 3.24A
      • 2. Covered Employees 3.25
      • 3. Covered Employers 3.26
      • 4. Sick Leave Accrual
        • a. When Accrual Begins 3.27
        • b. Rate of Accrual—Three Methods 3.28
        • c. PTO as Alternative to Paid Sick Leave 3.29
        • d. Permissible Cap on Accrual 3.29A
      • 5. Use of Accrued Sick Leave
        • a. When Employee May Use Sick Leave 3.30
        • b. Required Notice 3.31
        • c. Permissible Reasons to Use Sick Leave
          • (1) For Health Condition of Employee or Family Member 3.32
          • (2) For Reasons Resulting From Status as Victim of Domestic Violence, Sexual Assault, or Stalking 3.33
        • d. Leave Cannot Be Conditioned on Finding Replacement Worker 3.34
        • e. Employee Determines Amount of Sick Leave Needed; Employer Limit 3.35
      • 6. Carryover of Unused Sick Leave 3.36
      • 7. No Compensation for Unused Sick Leave on Separation From Employment 3.37
      • 8. Reinstatement of Sick Leave on Rehiring 3.38
      • 9. Calculating Rate of Pay 3.38A
      • 10. Employer Notice and Posting Requirements 3.39
      • 11. Recordkeeping 3.40
      • 12. Prohibited Employer Actions
        • a. Denial of Use of Sick Leave 3.41
        • b. Discrimination or Retaliation for Use of Sick Leave 3.42
        • c. Rebuttable Presumption of Retaliation 3.43
      • 13. Enforcement and Penalties
        • a. Administrative Enforcement by Labor Commissioner 3.44
          • (1) Available Remedies 3.45
          • (2) Available Administrative Penalties 3.46
        • b. Civil Action by Labor Commissioner or Attorney General 3.47
        • c. Employer Defenses 3.48
      • 14. No Preemption of Policies or Statutes Providing Greater Benefit 3.49
      • 15. Employers Operating in Multiple Jurisdictions 3.50
      • 16. Interaction With FMLA/CFRA Leave 3.51
    • B. Kin Care Law (Lab C §§233—234) 3.52
      • 1. Applies to "Sick Leave" as Defined in Law 3.53
      • 2. Amount Available to Use 3.54
      • 3. Permissible Uses of Sick Leave 3.55
      • 4. Prohibited Employer Conduct 3.56
      • 5. Policies Against Abuse of Sick Leave Permissible 3.57
      • 6. Remedies and Enforcement 3.58
      • 7. Interaction With Paid Sick Leave Law 3.59
      • 8. Interaction With FMLA/CFRA 3.60
    • C. Paid Sick Leave for Federal Contractors 3.60A
      • 1. Covered Contracts
        • a. Must Be "New Contract" 3.60B
        • b. Must Be Specific Type of Contract 3.60C
        • c. Performance Must Be Within United States 3.60D
        • d. Excluded Contracts 3.60E
      • 2. Covered Employees 3.60F
      • 3. Accrual Rate 3.60G
      • 4. Accrual Cap 3.60H
      • 5. Permissible Uses 3.60I
      • 6. Enforcement of Rights
        • a. Complaint With Wage and Hour Division 3.60J
        • b. Investigation and Conciliation 3.60K
        • c. Remedies and Sanctions 3.60L
    • D. Local Paid Sick Leave Ordinances
      • 1. Berkeley Minimum Wage Ordinance 3.60M
      • 2. Emeryville Minimum Wage and Paid Sick Leave Ordinance 3.60N
      • 3. Los Angeles Minimum Wage Ordinance 3.60O
      • 4. Oakland Minimum Wage Ordinance 3.60P
      • 5. San Diego Earned Sick Leave and Minimum Wage Ordinance 3.60Q
      • 6. San Francisco Paid Sick Leave Ordinance 3.60R
      • 7. Santa Monica Minimum Wage Ordinance 3.60S
  • IV. PAID TIME OFF (PTO) 3.61
    • A. Treated as Vacation Leave 3.62
    • B. Interaction With Paid Sick Leave Law 3.63
  • V. HOLIDAYS
    • A. Private Employers Not Required to Provide Holidays 3.64
    • B. Public Employers 3.65
      • 1. Table: State and Federal Holidays 3.66
      • 2. When Holiday Falls on Saturday or Sunday 3.67
      • 3. State Employees
        • a. Paid Holidays Provided by Statute 3.68
        • b. MOU Controls if Conflict 3.69
      • 4. Counties and Cities 3.70
    • C. Special or Limited Holidays 3.71
    • D. Floating Holidays 3.72
    • E. Day of Rest 3.73
    • F. Religious Holidays 3.74
  • VI. BEREAVEMENT LEAVE
    • A. Private Employers 3.75
    • B. Public Employers 3.76
  • VII. SABBATICALS 3.77
    • A. Must Be Offered in Nondiscriminatory Manner 3.78
    • B. Factors Distinguishing Sabbatical From Vacation 3.79
    • C. No Payment Required on Termination 3.80
    • D. Judicial Sabbatical Program 3.81

4

Leave Law Interactions and Calculating Leave Entitlements

John F. Hyland

  • I. SCOPE OF CHAPTER 4.1
  • II. CHART: SUMMARY OF MAJOR LEAVE ENTITLEMENTS 4.2
  • III. LEAVE LAW INTERACTIONS
    • A. General Considerations 4.3
    • B. Greater Benefit Applies 4.4
    • C. Family and Medical Leave Act (FMLA) and California Family Rights Act (CFRA) 4.5
      • 1. Leaves Generally Run Concurrently 4.6
      • 2. When Leaves Do Not Run Concurrently
        • a. Improper Designation 4.7
        • b. Pregnancy-Related Leaves
          • (1) Pregnant Employees Covered by FMLA But Not CFRA 4.8
          • (2) Leave to Care for Pregnant Family Member 4.9
        • c. Leave to Care for Registered Domestic Partner 4.10
        • d. Leave to Care for Same-Sex Spouse 4.11
        • e. Leaves Related to Military Service
          • (1) FMLA Leave for "Qualifying Exigencies" 4.12
          • (2) Military Caregiver Leave 4.13
        • f. Bonding Time When Both Parents Work for Same Employer 4.14
      • 3. Other Differences Between FMLA and CFRA
        • a. Employee Notice Requirements 4.15
        • b. Intermittent Leave for Bonding Time 4.16
        • c. Public Employees 4.17
        • d. When Employee Requests Vacation, Sick Leave, or Paid Time Off (PTO) 4.18
        • e. Medical Certifications
          • (1) Permissible Contents 4.19
          • (2) Authentication and Clarification Inquiries 4.20
          • (3) Second and Third Opinions 4.21
          • (4) Recertification 4.22
    • D. Pregnancy Disability Leave Law (PDLL) 4.23
      • 1. Interaction With FMLA
        • a. May Run Concurrently With FMLA 4.24
        • b. Not Limited to One Allotment in 12-Month Period 4.25
        • c. Use of Accrued Leave During PDLL Leave
          • (1) Employer May Not Require Use of Vacation or PTO 4.26
          • (2) Table: Use of Accrued Leave During Otherwise Unpaid Leave Periods 4.26A
        • d. Reinstatement Rights 4.27
        • e. Leave for Nonpregnant Spouse or Domestic Partner 4.28
      • 2. Interaction With CFRA
        • a. Generally Begins When PDLL Leave Ends 4.29
        • b. Reinstatement Rights 4.30
      • 3. Interaction With ADA and FEHA 4.31
        • a. Additional Leave as Reasonable Accommodation 4.32
        • b. Covered Employers 4.33
        • c. No Set Time Limit 4.34
    • E. Americans with Disabilities Act (ADA) and Fair Employment and Housing Act (FEHA)
      • 1. Leave as Reasonable Accommodation 4.35
      • 2. Covered Employers
        • a. Requisite Number of Employees 4.36
        • b. Religious Organizations 4.37
      • 3. Differing Definitions of "Disability" 4.38
      • 4. Interaction With FMLA and CFRA 4.39
        • a. FMLA Regulations 4.40
        • b. Leaves May Run Concurrently 4.41
        • c. "Disability" Versus "Serious Health Condition" 4.42
        • d. Covered Employers 4.43
        • e. Eligible Employees 4.44
        • f. FMLA/CFRA Leave or Position With Reasonable Accommodation 4.45
    • F. Workers' Compensation Leave 4.46
      • 1. May Run Concurrently With FMLA/CFRA Leave 4.47
      • 2. May Qualify as Accommodation for Disability Under ADA or FEHA 4.48
    • G. Employer's Leave Policies and Collective Bargaining Agreements 4.49
    • H. Vacation, PTO, and Sick Leave
      • 1. Interaction With FMLA/CFRA 4.49A
      • 2. Interaction With PDLL 4.49B
      • 3. Interaction With Disability Leave Under ADA/FEHA 4.49C
    • I. Other Leave Laws 4.50
  • IV. CALCULATING AND TRACKING LEAVE ENTITLEMENTS 4.51
    • A. FMLA and CFRA
      • 1. In General: 12 Work Weeks During 12-Month Period 4.52
        • a. Method One: Calendar Year 4.53
        • b. Method Two: Fixed Leave Year 4.54
        • c. Method Three: Year Measured From Date Leave Begins 4.55
        • d. Method Four: Rolling 12-Month Period 4.56
      • 2. Military Caregiver Leave
        • a. Twenty-Six Weeks During Single 12-Month Period 4.57
        • b. Measured From Date Leave Begins 4.58
          • (1) Entitlement Applied on Per-Covered-Service-Member, Per-Injury Basis 4.59
          • (2) When Combined With Other Types of FMLA Leave 4.60
      • 3. Airline Flight Crews 4.61
      • 4. Intermittent Leave 4.62
        • a. Full-Time Employees 4.63
        • b. Part-Time Employees 4.64
        • c. Employees With Variable Work Weeks 4.65
        • d. Exempt Employees 4.66
        • e. Physical Impossibility 4.67
        • f. New Schedule 4.68
        • g. School Employees 4.69
        • h. Airline Flight Crews
          • (1) In General: Up to 72 Days of Leave 4.70
          • (2) Military Caregiver Leave 4.71
      • 5. Holidays
        • a. Leave Taken in Full-Week Increments 4.72
        • b. Leave Taken in Less Than Full-Week Increments 4.73
      • 6. Temporary Employer Shutdowns During Leave 4.74
      • 7. Overtime 4.75
    • B. PDLL
      • 1. Four-Month Limit 4.76
      • 2. Intermittent Leave 4.77
      • 3. Holidays and Temporary Closures 4.78
      • 4. When Pregnancy Disability Leave Becomes Bonding Time Leave 4.79
    • C. ADA and FEHA 4.80

5

Bringing an Action to Enforce Leave Law Rights

Lorrie T. Peeters

  • I. SCOPE OF CHAPTER 5.1
  • II. CASE INTAKE AND INITIAL CONSIDERATIONS
    • A. Information Gathering
      • 1. From the Client
        • a. Before Initial Interview 5.2
        • b. At Initial Interview 5.3
          • (1) Employment History 5.4
          • (2) Information About Alleged Leave Law Violation 5.5
          • (3) Exit Agreements and Internal Grievances 5.6
          • (4) Contact With Governmental Agencies 5.7
          • (5) Employee's Damages 5.8
          • (6) Information About Employer 5.9
      • 2. From Other Sources 5.10
    • B. Assessing the Case 5.11
      • 1. Determining Which Leave Laws Apply 5.12
        • a. Basic Requirements
          • (1) FMLA/CFRA 5.13
          • (2) PDLL 5.14
          • (3) ADA/FEHA 5.15
        • b. Common Violations 5.16
      • 2. Merits of Legal Claims 5.17
        • a. FMLA/CFRA
          • (1) Two Theories of Recovery 5.18
            • (a) Divergent Conceptions of Interference Claims 5.19
            • (b) Differing Standards of Proof 5.20
            • (c) Case May Involve Both Theories 5.21
          • (2) Other Considerations 5.22
        • b. PDLL 5.23
        • c. ADA/FEHA 5.24
      • 3. Plaintiff's Credibility 5.25
      • 4. Assessing Defendant Employer 5.26
    • C. Statutes of Limitations
      • 1. FMLA 5.27
      • 2. FEHA (Including CFRA and PDLL) 5.28
      • 3. ADA 5.29
      • 4. Miscellaneous Leave Statutes 5.30
      • 5. Wrongful Termination in Violation of Public Policy 5.31
    • D. Representation Agreement 5.32
  • III. BEFORE FILING THE COMPLAINT
    • A. Consider Prelitigation Settlement 5.33
    • B. Conduct Informal Discovery 5.34
      • 1. Prior Judicial or Administrative Proceeding 5.35
      • 2. Medical Records 5.36
      • 3. Witnesses 5.37
    • C. Exhaust Administrative Remedies 5.38
      • 1. Include All Incidents of Interference or Retaliation 5.39
      • 2. Include All Defendants 5.40
      • 3. Amend Charge if Necessary 5.41
    • D. Consider Whether Claim Must Be Submitted to Arbitration 5.42
  • IV. SELECTING THE PROPER COURT
    • A. State or Federal Court? 5.43
    • B. Avoiding Removal 5.44
    • C. If Case Is Brought in Federal Court 5.45
  • V. DRAFTING THE COMPLAINT 5.46
    • A. Naming Defendants 5.47
    • B. Pleading Specific Causes of Action 5.48
      • 1. Statutory Claims
        • a. FMLA/CFRA 5.49
          • (1) Pleading Interference Claim 5.50
          • (2) Pleading Retaliation Claim 5.51
        • b. PDLL 5.52
        • c. ADA/FEHA (Failure to Accommodate) 5.53
      • 2. Wrongful Termination in Violation of Public Policy 5.54
      • 3. Infliction of Emotional Distress 5.55
    • C. Pleading Exhaustion of Administrative Remedies 5.55A
    • D. Pleading Remedies 5.56
      • 1. Compensatory Damages
        • a. FMLA 5.57
        • b. FEHA (Including CFRA and PDLL) 5.58
      • 2. Liquidated Damages Under the FMLA 5.59
      • 3. Punitive Damages 5.60
      • 4. Declaratory and Injunctive Relief (Including Reinstatement) 5.61
      • 5. Attorney Fees and Costs 5.62
  • VI. SAMPLE FORMS, CHECKLIST, AND QUESTIONNAIRE
    • A. Checklist: Intake Screening 5.63
    • B. Questionnaire: Confidential Client Intake 5.64
    • C. Form: Prelitigation Settlement Proposal 5.65
    • D. Form: Sample Complaint 5.66

6

Responding to Leave Law Claims

Marina C. Gruber

  • I. SCOPE OF CHAPTER 6.1
  • II. PRELITIGATION MATTERS
    • A. Receiving Notice of Claim 6.2
      • 1. Demand Letter 6.3
      • 2. Internal Grievance Procedures 6.4
    • B. Instituting a Litigation Hold 6.5
    • C. Undertaking a Factual Investigation
      • 1. Gather Information From Employer-Client
        • a. Gather Information About Employee and Alleged Leave Law Violation 6.6
        • b. Collect Relevant Documents 6.7
        • c. Interview Knowledgeable Employees 6.8
      • 2. Request Information From Other Sources 6.9
    • D. Evaluating Employee's Claims 6.10
    • E. Assessing Litigation Costs 6.11
    • F. Responding to Administrative Charge 6.12
    • G. Responding to Employee's Demand Letter 6.13
      • 1. Reinstatement Offer
        • a. Benefits 6.14
        • b. Risks 6.15
        • c. Preparing the Reinstatement Offer 6.16
      • 2. Settlement Offer 6.17
    • H. Considering Corrective Action 6.18
    • I. Avoiding Post-Termination Causes of Action
      • 1. Limit Discussion Among Employees 6.19
      • 2. Limit Discussion With Future Employers 6.20
  • III. INSURANCE COVERAGE ISSUES
    • A. Policy May Cover Leave Law Claims 6.21
    • B. Policy May Exclude Certain Employment-Related Claims 6.22
  • IV. RESPONDING TO THE COMPLAINT
    • A. Commonly Asserted Claims in Leave Law Cases 6.23
      • 1. FMLA/CFRA 6.24
      • 2. PDLL 6.25
      • 3. ADA/FEHA 6.26
      • 4. Wrongful Termination in Violation of Public Policy 6.27
    • B. Other Claims 6.28
    • C. Consider Whether Case May Be Removed to Federal Court
      • 1. Grounds for Removal
        • a. Diversity Jurisdiction 6.29
        • b. Federal Question Jurisdiction 6.30
      • 2. Deciding Whether to Remove 6.31
    • D. Consider Filing a Demurrer or Motion to Dismiss 6.32
      • 1. Reasons to File a Demurrer or Motion to Dismiss 6.33
      • 2. Reasons Not to File a Demurrer or Motion to Dismiss 6.34
      • 3. Common Grounds in Leave Law Cases 6.35
    • E. Consider Filing a Motion to Strike 6.36
    • F. Consider Filing a Motion for Judgment on the Pleadings 6.37
    • G. Answering the Complaint
      • 1. Required Contents 6.38
      • 2. Admissions and Denials 6.39
      • 3. Affirmative Defenses
        • a. Generally Waived if Not Included in Answer 6.40
        • b. Common Affirmative Defenses in Leave Law Cases
          • (1) Statute of Limitations 6.41
          • (2) Collateral Estoppel 6.42
          • (3) Failure to Exhaust Internal Grievance Procedure 6.43
          • (4) Failure to Exhaust Administrative Remedy 6.44
          • (5) Limited Individual Liability 6.45
  • V. RESOLVING COMPLAINTS
    • A. Demand for Arbitration 6.46
    • B. Offer of Judicial Reference (CCP §638) 6.47
    • C. Offer to Compromise (CCP §998) 6.48
  • VI. SAMPLE FORMS
    • A. Form: Freedom of Information Act Request 6.49
    • B. Form: Employer's Response to DFEH Administrative Charge 6.50
    • C. Form: Employer's Response to Demand Letter 6.51
    • D. Form: Answer 6.52

7

Litigating Leave Law Claims: Discovery, Summary Judgment, Trial, and Attorney Fees

Anthony J. Oncidi

Jose (Joe) Perez

Keith A. Goodwin

  • I. SCOPE OF CHAPTER 7.1
  • II. DISCOVERY
    • A. Plaintiff's Goals 7.2
    • B. Defendant's Goals 7.3
    • C. State Versus Federal Discovery Procedures
      • 1. Trial Court Delay Reduction Act (TCDRA) 7.4
      • 2. Federal Rule of Civil Procedure 26 7.5
    • D. Discovery Tools
      • 1. Interrogatories
        • a. General Rules
          • (1) Under Federal Rules of Civil Procedure 7.6
          • (2) Under California Code of Civil Procedure 7.7
        • b. Use in Leave Law Cases
          • (1) Plaintiff's Interrogatories 7.8
          • (2) Defendant's Interrogatories 7.9
      • 2. Document Requests 7.10
        • a. Checklist: Plaintiff's Documents 7.11
        • b. Checklist: Defendant's Documents 7.12
      • 3. Depositions
        • a. Plaintiff's Considerations 7.13
          • (1) If Employer Is a Corporation 7.14
          • (2) If Decision Was Made Above Supervisor 7.15
        • b. Defendant's Considerations 7.16
      • 4. Requests for Admission
        • a. General Rules 7.17
        • b. Use in Leave Law Cases 7.18
      • 5. Physical or Mental Examinations
        • a. When Permitted
          • (1) Under Federal Law 7.19
          • (2) Under State Law 7.20
        • b. Use in Leave Law Cases 7.21
        • c. Tactical Considerations 7.22
    • E. Expert Witnesses
      • 1. When Expert Testimony Is Admissible 7.23
      • 2. Deciding Whether to Use Expert 7.24
      • 3. Use of Experts in Leave Law Cases 7.25
        • a. Existence of "Incapacity" 7.26
        • b. Calculation of Leave Entitlement 7.27
        • c. Plaintiff's Damages 7.28
      • 4. Benefits of Deposing Opposing Expert 7.29
    • F. Privacy Rights
      • 1. General Principles 7.30
      • 2. Privacy Issues in Leave Law Cases
        • a. Medical Information 7.31
        • b. Financial Information 7.32
        • c. Social Media 7.33
      • 3. Protective Orders
        • a. In Federal Court 7.34
        • b. In State Court 7.35
  • III. SUMMARY JUDGMENT
    • A. Tactical Considerations
      • 1. Evaluating the Risks and Benefits 7.36
      • 2. Narrowing the Issues Before Moving for Summary Judgment 7.37
    • B. Allocation of Burdens on Summary Judgment
      • 1. General Rules 7.38
      • 2. Under Particular Leave Laws
        • a. FMLA 7.39
          • (1) Interference Claims 7.40
          • (2) Retaliation Claims 7.41
        • b. CFRA 7.42
        • c. FEHA (Including PDLL) 7.43
        • d. ADA 7.44
    • C. Common Grounds for Summary Judgment in Leave Law Cases
      • 1. FMLA/CFRA 7.45
      • 2. PDLL 7.46
      • 3. ADA/FEHA 7.47
  • IV. TRIAL
    • A. Development of Case Theme 7.48
    • B. Presentation of Evidence 7.49
    • C. Jury Instructions 7.50
  • V. ATTORNEY FEES, COSTS, AND INTEREST
    • A. Entitlement Under Federal Leave Statutes
      • 1. FMLA 7.51
      • 2. ADA 7.52
      • 3. Pregnancy Discrimination Act (PDA) 7.53
      • 4. Other Federal Leave Statutes 7.54
    • B. Entitlement Under State Leave Statutes
      • 1. FEHA 7.55
      • 2. Other State Leave Statutes 7.56

8

Settlement and Alternative Dispute Resolution

Hillary Jo Benham-Baker

Julia Campins

  • I. SCOPE OF CHAPTER 8.1
  • II. SETTLING LEAVE LAW CASES
    • A. Deciding Whether to Settle 8.2
      • 1. Plaintiff's Considerations 8.3
      • 2. Defendant's Considerations 8.4
    • B. Evaluating the Case 8.5
      • 1. Assess Client's Willingness to Settle 8.6
      • 2. Analyze Legal Issues 8.7
      • 3. Project Litigation Costs 8.8
      • 4. Consider Impact of Insurance Coverage 8.9
      • 5. Evaluate Damages 8.10
      • 6. Consider Nonmonetary Remedies 8.11
    • C. Settlement Procedures 8.12
      • 1. Determining When to Settle 8.13
      • 2. Obtaining Settlement Authority 8.14
      • 3. Offers to Compromise (CCP §998) 8.15
    • D. Court-Supervised Settlement Conferences 8.16
    • E. Drafting the Settlement Agreement
      • 1. Typical Provisions
        • a. Mutual and General Releases 8.17
          • (1) Excluding Other Matters 8.18
          • (2) Parties Bound 8.19
          • (3) Effect on Certain Statutory Claims 8.20
        • b. Denial of Liability 8.21
        • c. Employee Status 8.22
          • (1) Rehire Versus Reinstatement 8.23
          • (2) Waiver of Rehire Rights 8.24
        • d. Employment References 8.25
        • e. Purging Employee Files 8.26
        • f. Confidentiality 8.27
        • g. Waiver of Unknown Claims (CC §1542) 8.28
        • h. Nondisparagement 8.29
        • i. Liquidated Damages 8.30
        • j. Attorney Fees and Costs 8.31
        • k. Payments 8.32
        • l. Controlling Law and Enforcement 8.33
      • 2. Execution 8.34
      • 3. Tax Considerations 8.35
  • III. ALTERNATIVE DISPUTE RESOLUTION 8.36
    • A. Mediation 8.37
      • 1. Factors to Consider in Deciding Whether to Mediate 8.38
      • 2. When Mediation May Be Inappropriate 8.39
      • 3. Determining When to Mediate 8.40
        • a. Prefiling Mediation 8.41
        • b. Mandatory Postfiling Mediation 8.42
      • 4. Determining Who Should Attend the Mediation 8.43
      • 5. Checklist: Premediation Steps 8.44
      • 6. Preparing the Mediation Brief 8.45
      • 7. Mediated Settlement Agreement 8.46
    • B. Contractual Arbitration 8.47
      • 1. Validity of Arbitration Agreement 8.48
        • a. Issues Outside Scope of Arbitration Agreement 8.49
        • b. Grounds for Revocation 8.50
          • (1) Unconscionability 8.51
          • (2) Denial of Certain Statutory Rights or Public Policy Claims 8.52
        • c. Waiver 8.53
      • 2. Arbitration Procedures 8.54
        • a. Discovery 8.55
        • b. Evidentiary Hearing 8.56
        • c. Costs 8.57
  • IV. FORM: SAMPLE TOLLING AGREEMENT 8.58

 

EMPLOYEE LEAVE LAWS: COMPLIANCE & LITIGATION

(1st Edition)

May 2017

TABLE OF CONTENTS

 

File Name

Book Section

Title

CH05

Chapter 5

Bringing an Action to Enforce Leave Law Rights

05-063

§5.63

Checklist: Intake Screening

05-064

§5.64

Questionnaire: Confidential Client Intake

05-065

§5.65

Prelitigation Settlement Proposal

05-066

§5.66

Sample Complaint

CH06

Chapter 6

Responding to Leave Law Claims

06-049

§6.49

Freedom of Information Act Request

06-050

§6.50

Employer’s Response to DFEH Administrative Charge

06-051

§6.51

Employer’s Response to Demand Letter

06-052

§6.52

Answer

CH07

Chapter 7

Litigating Leave Law Claims: Discovery, Summary Judgment, Trial, and Attorney Fees

07-011

§7.11

Checklist: Plaintiff’s Documents

07-012

§7.12

Checklist: Defendant’s Documents

CH08

Chapter 8

Settlement and Alternative Dispute Resolution

08-044

§8.44

Checklist: Premediation Steps

08-058

§8.58

FORM: SAMPLE TOLLING AGREEMENT

 

Selected Developments

May 2017 Update

Leave Under the Family and Medical Leave Act and the California Family Rights Act

  • A plaintiff can show "continuing treatment under the FMLA and CFRA in more than one way. See Soria v Univision Radio Los Angeles, Inc. (2016) 5 CA5th 570, 602, in §1.53.

  • Although the employer did not require employees to work any specified amount of overtime, if an employee chose to sign up and was selected for overtime, he or she was then required to work and a missed overtime shift could be counted against leave entitlement. See Hernandez v Bridgestone Americas Tire Operations LLC (8th Cir 2016) 831 F3d 940, 947, in §1.67.

  • Regardless of whether the employee's need for leave is foreseeable or unforeseeable, the basic rule is that an employee's notice must be sufficient to make the employer aware that the employee needs potentially FMLA- or CFRA-qualifying leave. See Bareno v San Diego Community College Dist. (2017) 7 CA5th 546, 566 (physician's note placing employee "Off Work" and including onset date for condition and probable duration is sufficient notice under CFRA), and Moore v Regents of Univ. of Cal. (2016) 248 CA4th 216, 249 (informing employer of need to take leave for surgery to implant device for heart condition was sufficient notice of need for CFRA-qualifying leave), in §1.95.

  • It is not the employee's burden to offer all necessary details to permit the employer to determine the FMLA's applicability; rather, "in the absence of a request for additional information, an employee has provided sufficient notice to his employer if that notice indicates reasonably that the FMLA may apply." See Coutard v Municipal Credit Union (2d Cir 2017) 848 F3d 102, 111, in §1.95.

  • Under the CFRA, an employer bears a burden to inquire further if an employee's notice was unclear. See Moore v Regents of Univ. of Cal. (2016) 248 CA4th 216, 249, in §1.96.

  • The plaintiff failed to show that his employer's explanation for termination was pretextual because the evidence "paints the picture of an employee who used FMLA leave to avoid interrupting his vacation, and then gave a variety of inconsistent explanations for his behavior upon his return." See Sharif v United Airlines, Inc. (4th Cir 2016) 841 F3d 199, 206, in §1.151.

Pregnancy, Disability, and Other Leaves

  • A reasonable jury could conclude that the county's policy imposed a significant burden on pregnant employees when the policy categorically denied light duty accommodations to pregnant women while making such accommodations available to occupationally injured employees. See Legg v Ulster County (2d Cir 2016) 820 F3d 67, 75, in §2.55.

  • An employer's decision to place the plaintiff on a leave of absence "cannot be described as a lawful accommodation of a physical disability" because the jury found that the plaintiff could perform essential functions of the job with or without accommodation. See Wallace v County of Stanislaus (2016) 245 CA4th 109, 134, in §2.67.

  • USERRA does not supersede arbitration clauses in employment agreements, because those clauses do not reduce, limit, or eliminate rights under the Act. See Ziober v BLB Resources, Inc. (9th Cir 2016) 839 F3d 814, 817, in §§2.126, 2.134.

  • An arbitration clause containing terms that violate USERRA is not invalid; rather, "the plain language of [38 USC §4302(b)] contemplates modification of an agreement by replacing USERRA-offending terms with those set forth in USERRA." See Bodine v Cook's Pest Control (11th Cir 2016) 830 F3d 1320, 1327 (emphasis in original), in §2.126.

Vacations, Sick Leave, Holidays, and Paid Time Off

  • The Department of Labor Standards Enforcement (DLSE) has concluded that the provision of the Healthy Workplaces, Healthy Families Act of 2014 governing the calculation of the rate of pay for exempt employees does not apply to employees qualifying as exempt under either the outside sales exemption or the commissioned sales exemption. For employees classified as exempt under either of those exemptions, the employer must calculate the rate of pay using one of the methods provided under the Act for nonexempt employees. The DLSE also concluded that in calculating the rate to pay an exempt employee for paid sick leave, the employer need not factor in the amount of any nondiscretionary bonus that the employee earns. See DLSE Opinion Letter (Oct. 11, 2016) in §3.38A.

  • The provisions of local paid sick leave ordinances recently passed in Berkeley, Emeryville, Los Angeles, Oakland, San Diego, San Francisco, and Santa Monica are set out in §§3.60M—3.60S.

Leave Law Interactions and Calculating Leave Entitlements

  • If an employee's normal work week includes overtime, the employer must include those hours in calculating the employee's leave entitlement. In addition, when an employee who normally works mandatory overtime cannot do so because of an FMLA/CFRA-qualifying reason, the employer may count the missed overtime hours against the employee's leave entitlement. See Hernandez v Bridgestone Americas Tire Operations LLC (8th Cir 2016) 831 F3d 940, 947 (although employer did not require employees to work any specified amount of overtime, if employee chose to sign up and was selected for overtime, he or she was then required to work and employer could count missed overtime against leave entitlement), in §§4.63, 4.75.

Litigating Leave Law Claims: Discovery, Summary Judgment, Trial, and Attorney Fees

  • The McDonnell-Douglas burden-shifting framework is applicable in cases involving CFRA retaliation claims. See Bareno v San Diego Community College Dist. (2017) 7 CA5th 546, 560, and Moore v Regents of Univ. of Cal. (2016) 248 CA4th 216, 248, in §7.42.

  • The court found a triable issue on whether informing an employer of the need to take leave for surgery to implant a device for a heart condition constituted the exercise of the employee's rights under the CFRA. See Moore v Regents of Univ. of Cal. (2016) 248 CA4th 216, 248, in §7.45.

  • The employer could not have acted with the requisite retaliatory animus because the relevant decision-maker lacked knowledge that the plaintiff was on protected leave (i.e., the plaintiff failed to establish a causal connection between the leave and the adverse employment action). See Chase v U.S. Postal Serv. (1st Cir 2016) 843 F3d 553, 559 (supervisor knew plaintiff was on leave because of workplace injury, but reasonably understood leave to be workers' compensation leave), in §7.45.

  • The plaintiff did not give proper or adequate notice of his or her need for FMLA or CFRA leave. See Bareno v San Diego Community College Dist. (2017) 7 CA5th 546, 566 (triable issue whether plaintiff gave her employer adequate notice when she called supervisor and told her she would not be at work because she needed to seek medical attention, then later e-mailed her supervisor that she would be out on medical leave, and finally submitted document from health care provider indicating that he was placing plaintiff "off work"), in §7.45.

About the Authors

CONOR AHERN received his B.A. in 2008 from the University of Virginia and his J.D. in 2015 from Harvard Law School. Mr. Ahern is a fellow at the ACLU's Women's Rights Project in New York City. During law school, he was a clinical intern at Greater Boston Legal Services and the Lawyers' Committee for Civil Rights of Boston as well as a summer fellow at the Gender Equity & LGBT Rights Project at the Legal Aid Society-Employment Law Center (LAS-ELC) in San Francisco.

HILLARY JO BENHAM-BAKER is a founding partner in the law firm of Campins Benham-Baker LLP, San Francisco, where she represents employees in discrimination, whistleblower retaliation, and wage-and-hour matters. A substantial part of Ms. Benham-Baker's practice focuses on family responsibilities, discrimination, and leave retaliation/interference issues. She received her B.A. with honors from Pitzer College and her J.D. from the University of California, Hastings College of the Law, where she was awarded the Tony Patiño Fellowship. Ms. Benham-Baker serves on the Executive Committee of the Alameda County Bar Association's Labor and Employment Law Section. She is also a member of the California Employment Lawyers Association and the American Bar Association's Section of Equal Employment Opportunity. Ms. Benham-Baker has been named as a Northern California "Rising Star" by Super Lawyers magazine for the years 2011—2014.

JULIA CAMPINS is a partner in the law firm of Campins Benham-Baker LLP, San Francisco. She received her B.A. from Columbia College and her J.D. from Columbia University School of Law. Ms. Campins is an Executive Editor of Employment Discrimination Law (ABA-BNA 5th ed, 2013; and Supplements). She is also the author of the "Equitable Remedies" chapter in Employment Damages and Remedies (Cal CEB) as well as chapters in Class Action Fairness Act: Law and Strategy (ABA-BNA 2013). Ms. Campins previously served as co-editor of the American Bar Association's Section of Litigation: Class Actions and Derivative Suits newsletter, for which she wrote several articles. She has also written articles in the ABA Labor and Employment Law Section's Employee Benefits Committee newsletter and the National Employment Lawyers Association's publication, The Employee Advocate. She is a frequent speaker on employment and civil rights issues. In 2013 and 2014, Ms. Campins was named a Northern California "Super Lawyer." In 2011 and 2012, Super Lawyers magazine named her a "Rising Star" among Northern California attorneys. Ms. Campins specializes in representing employees and plaintiffs in employment discrimination, civil rights, and employee benefits actions.

KEITH A. GOODWIN is an associate in the Labor and Employment Law Department of Proskauer Rose LLP, Los Angeles. He received his B.A. (summa cum laude) from California Polytechnic State University and his J.D. from Columbia University School of Law. Mr. Goodwin represents public, private, and nonprofit employers in trade secret misappropriation, discrimination, harassment, retaliation, wage-and-hour, and wrongful discharge cases.

MARINA C. GRUBER is an associate in the San Jose office of Littler Mendelson P.C., where she represents employers in matters concerning discrimination and sexual harassment, wage-and-hour claims, wrongful termination cases, the Family Medical Leave Act, and the California Family Rights Act. She also counsels employers regarding employment handbooks, policies, and procedures. Ms. Gruber regularly publishes materials and speaks on matters concerning California employers, including legislative changes and compliance with prevailing wage laws. Ms. Gruber received her B.A. from the University of California, Berkeley, and her J.D. from Cornell University Law School. In 2013, 2014, and 2015, she was named a "Rising Star" by Super Lawyers magazine.

RACHEL S. HULST, an experienced employment attorney and workplace investigator, is a partner in the law firm of Hulst & Handler LLP, a firm dedicated to helping solve workplace problems before they escalate to litigation. The firm services clients in the San Francisco Bay Area and beyond. For over 16 years, before founding Hulst & Handler LLP, Ms. Hulst represented companies in all types of employment litigation cases (single plaintiff and class actions) before California state and federal courts and administrative agencies and counseled employers on employment law issues. Ms. Hulst received her B.A. from the University of California, San Diego (Provost Honors), and her J.D. from Golden Gate University School of Law, where she graduated in the top 20 percent of her class.

JOHN F. HYLAND practices exclusively in the area of employment law. Before forming Rukin Hyland Doria & Tindall, he was Of Counsel with Paul, Hastings, Janofsky & Walker LLP in the firm's San Francisco office, where he advised and represented companies in state and federal court actions covering all areas of employment law, including wrongful termination, discrimination, harassment, disability law, employee privacy, employee leaves, and wage-and-hour issues. Mr. Hyland regularly conducts training seminars and presents on a wide array of employment law issues. Law & Politics magazine selected him as one of its Northern California Super Lawyers each year from 2006 through 2012 and again in 2014. San Francisco's Best Lawyers named him in its 2012 edition and The Best Lawyers in America selected him for inclusion in its 2012, 2013, and 2014 editions. Mr. Hyland received his B.S. from St. Joseph's University in Philadelphia and his J.D. from Golden Gate University School of Law, where he graduated in 1995 with highest honors and first in his class. While at Golden Gate, he served as a contributing author and associate editor of the Golden Gate Law Review.

ELIZABETH KRISTEN is the Director of the Gender Equity & LGBT Rights Project and a Senior Staff Attorney at the Legal Aid Society-Employment Law Center (LAS-ELC) in San Francisco, where she represents workers in cases involving violations of the family and medical leave laws as well as cases involving gender, pregnancy, disability, sexual orientation, national origin, and race discrimination. She received her B.A. from Miami University and her J.D. from the University of California, Berkeley, School of Law. Before beginning her work at LAS-ELC in 2002 as a Skadden Fellow, Ms. Kristen clerked for the Honorable James R. Browning on the Ninth Circuit Court of Appeals in San Francisco. She is a member of the American Association of University Women, the National Employment Lawyers Association, and the California Employment Lawyers Association and she is a past Board member of the Pride Law Fund. In 2012—2013, she served as a Harvard Law School Wasserstein Public Interest Fellow. She was a lecturer at the University of California, Berkeley, School of Law from 2008 to 2013 and is currently a member of CELA Voice. In 2015, she received a "California Lawyer of the Year" award from California Lawyer magazine.

STEPHEN M. MURPHY, who earned his undergraduate degree from College of the Holy Cross in 1977 and his J.D. from the University of San Francisco in 1981, maintains a solo practice in San Francisco, specializing in plaintiffs' employment litigation. Mr. Murphy handles a wide range of employment issues, including wage-and-hour, wrongful termination, Family and Medical Leave Act, discrimination, and harassment claims. He has been honored as a Top 100 Northern California Super Lawyer, listed in Best Lawyers, and honored as the "Trial Lawyer of the Year" for 2008 by the San Francisco Trial Lawyers Association. He has lectured and contributed articles to numerous legal journals and is a contributing author of Wrongful Employment Termination Practice: Discrimination, Harassment, and Retaliation (2d ed Cal CEB), California Basic Practice Handbook (Cal CEB), and Handling a Wrongful Termination Action (Cal CEB Action Guide).

ANTHONY J. ONCIDI is a partner in the Los Angeles office of Proskauer Rose LLP, where he heads the firm's Labor and Employment Department. Mr. Oncidi received his B.A. (cum laude) from Pomona College and his J.D. from the University of Chicago Law School. His practice focuses on representing employers and management in all aspects of employment law, including wage-and-hour class actions and cases involving wrongful termination, trade secret violations, restrictive covenants, and whistleblower, harassment, and discrimination claims. He also advises and counsels clients on employment-related matters. Mr. Oncidi is the author of Employment Discrimination Depositions (Juris Publ'g 2013), co-author of Proskauer on Privacy (PLI 2014), and is a regular columnist for the Los Angeles Daily Journal and the California Labor and Employment Law Review, the official publication of the Labor and Employment Law Section of the State Bar of California

JULIA C. PARISH, an update author of chapter 1 in 2016, is a Staff Attorney with the Work and Family Program and SURVIVE Projects and Director of the Healthy Mothers Workplace Coalition at the Legal Aid Society-Employment Law Center (LAS-ELC) in San Francisco. Ms. Parish assists with the project helplines and provides legal advice, know-your-rights workshops, and direct legal services for workers struggling with family and medical crises. She received both her B.A. and J.D. from the University of California, Berkeley, and she received an M.S. in Teaching from Pace University.

LORRIE T. PEETERS is an employment law attorney practicing in both California and Illinois. Ms. Peeters represents primarily employees in workplace disputes, although she also provides management with compliance training and counseling. She concentrates her litigation and negotiation practice in the areas of family and medical leave and wage law and also represents clients with matters involving claims of discrimination and retaliation. She received her B.A. in 2002 from Northwestern University and her J.D. in 2006 from the Loyola University Chicago School of Law. After law school, she joined Caffarelli & Siegel Ltd. as an Associate Attorney and became a Partner in 2013. She currently works as Of Counsel for Caffarelli & Associates Ltd.

JOSE (JOE) PEREZ is an associate in the Labor and Employment Law Department of Proskauer Rose LLP, Los Angeles. He received his B.A. from the University of Puerto Rico, his Master's in Management from the Judge Business School at the University of Cambridge, and his J.D. from the University of California, Berkeley, School of Law. Mr. Perez works on a wide variety of employment litigation matters, including leave of absence, wage-and-hour, discrimination, and privacy claims. He counsels clients on strategic corporate planning, reductions in force, and overtime exemptions, and he assists clients in drafting employment policies and practices under state and federal laws.

SHARON A. TERMAN is the Director of the Work and Family Program and a Senior Staff Attorney at the Legal Aid Society-Employment Law Center (LAS-ELC) in San Francisco. Ms. Terman represents workers with family and medical leave claims as well as claims of pregnancy, gender, and disability discrimination. She also provides legal advice to low-income workers, engages in community education, and participates in legislative advocacy to expand workers' rights. She received her B.A. with highest distinction from the University of California, Berkeley, and her J.D. with distinction from Stanford Law School. After law school, she clerked for the Honorable Richard A. Paez of the Ninth Circuit Court of Appeals before joining LAS-ELC as a Skadden Fellow. She is the 2011 recipient of the Stanford Law School Miles L. Rubin Public Interest Award, and she was named a 2015 Northern California "Rising Star" by Super Lawyers.

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