California FMLA Lawyers
Life happens. The Family and Medical Leave Act of 1993 (FMLA) allows covered employees to take job-protected leave for certain family or medical circumstances. When your employer doesn’t allow you to take leave from work, this can leave you feeling uncertain and scared. Our California FMLA lawyers can help. Call the Myers Law Group today for a consultation.
Why Might Someone Need FMLA?
You can opt to take leave for the following reasons:
- Taking care of your child after giving birth.
- Taking care of your spouse, parent, or child who has a serious health condition.
- Taking time to treat a serious health condition of your own
This is granted by your employer and it is your right to take you leave. If they do not let you take this leave they can get in serious trouble, and you have a right to a claim. You can opt for unpaid leave.
Making a Plan for Legal Action
You can take legal action if your employer does one of the following:
- Refuses to grant you rights to FMLA regulated leave.
- Fires you or discriminates against you for bringing concerns forward about your leave not being granted.
From there, you can consider talking to a California FMLA lawyer. You can sit down for a consultation to get the information you need to get started.
A lawyer will help you make a plan of action. You will know exactly what you need to do to start your claim. You will get a step-by-step on how to take legal action against your employer. Call today.
How FMLA is Enforced
The FMLA is enforced by the US Department of Labor’s employment standards administration. It is in the wage and hour division. Whether you were working for the state, working for the government or working for a private business, these federal regulations are there to protect your rights.
We can take your claim to the US Department of Labor. They can investigate. Also, you can work with your attorney to file a lawsuit against your employer for violating your rights. That’s what we do best. We can set you on the path to success.
You Are Protected from Retaliation
The Family and Medical Leave Act (FMLA) permits an employee to take up to 12 weeks of unpaid leave during any 12-month period for pregnancy complications, maternity or paternity leave, care of the employee’s own serious health condition, or care of an immediate family member (spouse, child, parent) who has a serious health condition. A serious health condition entitling an employee to FMLA leave is any illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider.
Eligibility for FMLA
Here are some circumstances that would allow you to take FMLA leave:
- You have worked for your employer for at least one year
- You have worked for your employer for at least 1,250 hours over the past year before you went on leave
- You work in a company that has at least 50 workers who work within 75 miles of the workplace
The FMLA protects you from being fired, passed up for a promotion, or being demoted by your employer based on your leave requirement. You have the options of getting reinstated in the company and getting benefits from winning a lawsuit. That would include your lost wages, lost benefits, or any other damages you faced because of this experience.
You have to put your employer on notice for your leave. Typically speaking you don’t have to say that this leave is specifically related to FMLA. You do have to let them know exactly why you need to take leave. That might be to be with your baby after your wife gives birth or to take care of your ailing mother. Your employer has to give you this leave as it is legally protected.
If you are taking leave twice for the same reason, then you have to say that it is FMLA protected leave. This is because you need to let your employer know that this is legally protected leave, and not something up for their discretion to grant you.
You have to give your job at least 30 days of advanced notice if you know that you will need to take leave. Obviously this isn’t possible in emergency situations of course. That is the exception to this rule. Your employer can ask you why you take emergency FMLA leave to make sure that it is protected by the law.
Frequently Asked FMLA Questions
What should I do if my FMLA rights have been denied or violated?
Over the last year, we’ve represented employees who had claims under both the Family Medical Leave Act and the California Family Rights Act. The FMLA, the Family Medical Leave Act, is the federal statute; the CFRA, the California Family Rights Act is basically California’s version of the FMLA. We’ve had cases in which we represented employees who are current employees of an employer, and that employer violated the CFRA or the FMLA because they refused to provide leave under the CFRA or the FMLA or failed to compensate the employee while they were out in a manner which was consistent with the CFRA or the FMLA.
More often than not, unfortunately by the time they contact the firm, it’s a situation in which the employer has received notice that the employee needs leave, and the employer simply denies the leave and terminates them, or the employee requests the leave, is denied, and then the employee has no other option but to quit.
Both the FMLA and the CFRA protect employees that qualify to have up to 12 weeks of leave per year. You’re entitled to the same position that you had at the time that you took the leave, and you’re also entitled not to be retaliated against for taking the leave. If you feel that you’ve been retaliated against or if you feel that your rights have been interfered with, as it relates to either the FMLA or the CFRA, it’s important for you to talk to an attorney that can answer your questions. If you have any questions regarding your rights under either the CFRA or the FMLA, or your rights under the Fair Employment and Housing Act, and whether or not you’re entitled to a leave as a form of reasonable accommodation, feel free to give us a call. I’m happy to answer any questions that you may have.
What is important to know about FMLA in California?
I routinely receive calls regarding employees that have taken leave under the FMLA, the Family Medical Leave Act. The FMLA is actually a federal statute, and it protects employees who become disabled or need to take medical leave either for themselves or for a family member. There’s specific requirements as to who’s eligible to take leave under FMLA and how long that leave is available.
While many people actually call the office regarding FMLA leave, for the most part we actually don’t ever file a claim under FMLA. We actually file claims, typically, under the CFRA, the California Family Rights Act. The CFRA is California’s version of the FMLA. There’s various reasons why we file claims under the CFRA and not the FMLA. The CFRA provides the same type of protection as the FMLA. It actually covers more disability and more conduct than the FMLA does. It also allows us to file claims within state court, rather than having to file a claim in federal court.
A lot of times when employees take leave under the CFRA, they take 12 weeks of leave. At the end of the 12 weeks of leave, their employer tells them that they’re on unprotected leave and that they can be terminated for any reason because they burned through their 12 weeks of FMLA leave. Our firm spends a lot of time litigating issues as to what protections an employee has, once that employee goes through 12 weeks of leave. A lot of times employers are just simply incorrect. The fact that you’ve actually used 12 weeks of leave under the CFRA doesn’t mean that your continued leave is unprotected.
There’s another area of the law called the Fair Employment and Housing Act, FEHA. FEHA also requires an employer to provide additional leave beyond 12 weeks, if that employee needs it as a form of reasonable accommodation, and it doesn’t require an undue burden upon the employer.
If you’ve taken leave or you have questions regarding leave, or you’re at a point where you’ve actually gone through your 12 weeks of CFRA leave or FMLA leave, and you still need additional leave, and the employer isn’t willing to give it to you, or you have any questions with regard to leave, it’s important that you find an attorney that can answer those questions for you. It’s important for you to find an attorney that’s litigated both FMLA claims, CFRA claims and FEHA to make sure those questions are answered. If I can answer any of those questions, please feel free to give me a call here at the office. Thank you.
Which employees are entitled to FMLA rights in California?
Here at the firm, we get a good number of calls regarding employees that have had to take leave away from their employer and whether or not they’re entitled to take medical leave under the FMLA. We spend a good amount of time identifying how big the employer is and how many hours the employee worked in the last year. In order to qualify for leave under the FMLA and California’s CFRA, the California Family Rights Act, you have to work for an employer that has more than 50 employees in a 75 mile radius, you have to have worked for more than a year, and you have to have worked more than 1250 hours over the past year. If you worked for the employer for more than a year and you worked for more than 1250 hours over the past year, and they have more than 50 employees in a 75 mile radius, then you’re arguably entitled to leave under the Family Medical Leave Act and the California Family Rights Act.
Those are all pretty fact-specific questions. Are there 50 employees in a 75 mile radius? Sometimes you’ve worked for two employers; you worked for a temp agency for nine months, and then you got hired on and you’ve worked for your current employer for ten months, but you’ve reported to the same location. Those are fact-intensive questions as to whether or not those times and those hours count towards your qualifying for FMLA or CFRA.
Regardless of whether or not you qualify for leave under CFRA or FMLA, it’s also important to note that there’s other leaves that are available to you. For example, the Fair Employment and Housing Act requires an employer to provide leave for a medical condition if it’s not an undue burden. FEHA doesn’t require the employee to work for more than a year. FEHA applies from day one that you got there. The Fair Employment Housing Act doesn’t require that you work a certain number of hours or that they have 50 employees in a 75 mile radius.
Sometimes, with regards as to whether or not an employee is entitled to leave after 12 weeks have expired, the employer says that you’ve burned through your CFRA and that you’ve burned through your FMLA time. The employer says, “You either have to come back now, or I’ll terminate you.” What employers don’t understand is, in addition to the CFRA leave and the FMLA leave, employees are entitled to additional leave under the Fair Employment and Housing Act. Even though you’ve done your 12 weeks of leave seeking medical care, you may need some additional time to finish up your treatment or you need additional leave because you have treatment every Tuesday or every Friday. Under the Fair Employment and Housing Act, you very well could still be entitled to leave beyond the 12 weeks.
If you or a family member have a condition that requires you to be away from work, whether it’s for up to 12 weeks or whether it’s more than 12 weeks, understand that under California law you have protection under various statutes. If I can answer any of those questions, please feel free to give me a call here at the office. Thanks.
What actions are considered unlawful under FMLA in California?
Last week I was in a deposition of a client that we were representing and the issue came up as to what the employer’s obligation was under the the Family Medical Leave Act and, in California’s version, the California Family Rights Act. In this situation, the employee unfortunately had a medical condition that prevented the employee from being at work for ten weeks. They had a medical operation and underlying medical treatment that prevented them from doing any work for a ten-week period.
After that ten week period, they had follow-up visits. The follow-up visits happened every Friday, but, as a result of the treatment, that employee couldn’t work for a day or two after the follow up treatment. The employee typically worked Monday through Friday, so they were seeking leave under FMLA every Friday so they could go seek follow up treatment for a ten-week period. The Family Medical Leave Act and the California Family Rights Act are pretty similar. They provide for 12 weeks of leave per year, either on a continuous basis for ten weeks or on an intermittent basis, or a combination. In this circumstance, they had family medical leave or CFRA leave for a ten-week period to be followed up by intermittent leave, so every Friday they would take off for leave.
The employer actually gave this employee the ten weeks off, but when she said she needed time off every Friday to go seek treatment, the employer said no and they terminated her. We spent a lot of time just establishing that, at the time they made that decision, she still actually had two weeks of FMLA leave available, basically ten days. Under FMLA and CFRA, you can take that FMLA leave on an intermittent basis, every Friday, to go seek treatment, or three times a week if you needed that treatment. Under the FMLA and the CFRA, you’re entitled to that leave. You’re also entitled to a situation not to be retaliated against for taking that leave or interfering with your ability to take that leave.
Even when all your leave is taken under the CFRA and the FMLA of 12 weeks, please understand you still might have protection under California’s Fair Employment and Housing Act as a form of reasonable accommodation. Even if all your treatment isn’t done within that 12 weeks and you still need a little bit more time to go get better, unless the employer can show that it’d be an undue burden to keep that position available to you or not terminate you, you have leave available to you as a form of reasonable accommodation beyond the 12 weeks.
Out of all the areas of law that we do, calculating how much leave an employee is entitled to, as to whether or not it’s an undue burden to keep the position available, is one of the hardest areas of the law that we practice. If you have questions as to what your entitlement is at your current employer, or if you’re no longer working for a company because you took FMLA leave, or the employer told you that you didn’t have any more leave and they had to terminate you, whatever the case might be as it relates to your disability, if you have questions, feel free to give us a call. I’m happy to answer any questions that you may have.
Is my employer obligated to pay me during family medical leave?
One issue that comes up is, if you take leave, is you employer obligated to pay you while you’re out on Family Medical Leave Act, or a lot of times, what we’d call the California Family Rights Act. For the most part, the answer is, no, your employer isn’t required to pay you while you’re out on FMLA leave or CFRA leave. With that being said, if you have leave available to you, either paid time off or vacation or sick leave, the employer has to make that available to you.
Sometimes, if you’re disabled as a result of an underlying injury, in addition to being compensated from your employer through paid time off, vacation, or sick leave, once that money is exhausted you might be able to file a claim for state disability. It’s also important to note that if you’re taking leave as a result of an injury at work, you should understand that in addition to taking leave under the Family Medical Leave Act you also should look at whether or not you should file a claim for workers’ compensation and receive disability payments or wage replacement payments while on workers’ comp.
While an employer isn’t required to pay you while you’re out on FMLA leave, there are various ways to get paid while on FMLA. If you have any questions about whether or not there is money there to be paid to you while you’re on FMLA, feel free to give us a call. We can identify what rights you have under FMLA or CFRA and whether or not the employer is obligated to compensate you while you’re out on leave, or other resources that might be available. Thanks.
Call Our California FMLA Lawyers
You deserve to be treated fairly. If you need to take leave, you should be granted that. When your employer doesn’t provide you what you need, we are here to help. Call us today. Our lawyer is happy to help.
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