a majority of employees in California struggle with work-life balance.
An individual may be striving for that promotion at work, finding time
to go to their kid's soccer game, praying they will finally pay off
their student loans, and still finding a moment to hit the gym so they
can stay in good health. The average Californian tries to do it all. But
what happens when a serious illness gets thrown into the mix for the
employee himself or an immediate family member? Or, what if an employee
is injured and needs surgery which will require time off from work to
recover? More importantly, what if you take a leave of absence and as a result, you are fired? A leave of absence resulting in a termination might mean you were fired for an illegal reason. An Employment Lawyer
is the type of lawyer who handles these types of situations. If you are
thinking you may need an Employment Lawyer, here are some points to
consider that you may not have known.
- The number of people you work with may be important
seems odd, but the number of people employed by the organization or
company you work for may be a significant factor in whether you have a leave of absence
claim. There is a 50/75 rule which means there need to be 50 employees
at your job-site, or 50 employees within a 75-mile radius of your job
site. For example, you may work for a company that only has 20 employees
in your building, that means you don't meet the 50 employee standard.
However, if the company has another branch 25 miles away from your
job-site and has 30 employees on-site, that may suffice to meet the
requirement. Here, the 50/75 rule is likely met because the branch is
within the 75- mile radius requirement and adding the branch's employees
equals 50 employees total.
- Being sick or injured isn't the only type of recognized leave
Aside from taking time off
for their own illness or injury, an employee may take leave to care for
a member of the family who is seriously ill. Also, an employee may take
a leave of absence because they are pregnant or for the initial receiving of an adopted or foster child.
- Your leave may last up to 12 weeks
As an employee, you may have the right to take up to 12 workweeks for your leave of absence.
The 12 workweek leave is permitted in a 12 -month time frame. Keep in
mind though, your employer has some discretionary power on how the
12-month period is measured. For example, an employer can decide to
measure it as a calendar year instead of measuring the 12- months
starting on the day the employee took their leave.
- You get the best protection the law provides
There are multiple statutes that overlap and provide protection for an employee's right to a leave of absence.
Although multiple statutes covering leave complicates the process, the
good news is that an employee who has taken or needs to take leave is
entitled to utilize the statute that provides the best protection and
most rights for their particular circumstances.
- Your employer can give you more time off than the law requires and you can hold them to it
employer has to meet certain standards the law sets out for providing
leave to employees. But, if your boss is generous, he or she is entitled
to exceed those standards and you may be able to enforce what they
promised. For example, Brad is an employee at a marketing agency and
takes a medical leave to have corrective surgery on his shoulder. Even though he was entitled to 12 weeks of medical leave
by law, his employee handbook states that he has 14 weeks. After he
took 14 weeks leave for his surgery his boss replaced him and told Brad
they no longer had a position for him at the agency. Here, even though
by law was only entitled to a 12-week leave, because he was promised 14
weeks in the employee handbook, he may have a claim against his boss
for violating the company's own standard.
- In most situations, you can't be replaced or demoted
If you take a medical leave of absence
that is covered by the law, you are entitled to have your original
position restored back to you or another position that is equal. For
example, Tammy was a full-time employee at a multinational package and
delivery company working in the financial accounting sector. She took a
leave of absence to care for her child because he was suffering from a
serious illness. Upon Tammy's return, the head supervisor of the
department told Tammy he had to replace her and now she must work in
customer service as a customer service representative. Tammy was
devastated by this news because this meant a huge pay-cut for her in
comparison to her position in finance. In addition, she was over
qualified for the new position. Here, not only was Tammy replaced, she
was moved to a position that was considered a demotion from her original
position and it was not equal in pay or department. Tammy might have a
claim against her employer for violating her right to take a leave of
absence to care for her son.
is an exception if the employee taking leave or did take leave was in a
significant position such as a CEO or was high-up in management. In a
situation such as this, an employer may not be required to hold the
employee's original position.
After requesting or insisting for leave of absence
or taking a leave of absence, your boss can not demote you or fire
because you took the leave. By mistreating you, singling you out,
demoting you, or transferring you after you put a request in for taking a
leave of absence may indicate retaliatory behavior. This basically
means your boss is not allowed to punish you or make your job more
difficult specifically because you took a leave of absence. This may be
considered retaliation which is prohibited by law in California. In taking all of these points into account, if you have an employment situation that involves issues with you taking a leave of absence, you should reach out to an Employment Lawyer.