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Explaining California Paid Family Leave and the new California Family Rights Act

California has 2 plans to help employees when they have a family emergency, or the birth of a new baby.  For years, California has had the Paid Family Leave (PFL) Act which applies to all employees and employers in California.  It is paid out of a fund that is deducted from employee paychecks along with unemployment and State Disability.  In fact, the employee goes to the EDD to file for PFL.  It provides about 60% of normal wages for the employee for up to 6 weeks away from work while they bond with a new baby or care for a family member.

California also has the CPFL which mirrors the Federal FMLA that you may have heard about.  This applies to businesses with 50 + employees.  Employers were having a problem following California law at the same time as meeting Federal FMLA standards.  So, we now have an updated California Family Rights Act which helps bridge the gap for employers and employees in this program.

ONE VERY IMPORTANT THING TO KNOW……

If you provide health care for your employees, you must continue the coverage for the length of the leave up to 12 weeks.  So, if you have a stated policy that says any leave longer than 2 months will be turned over to COBRA benefits….that will not apply in this case.

Below is the CFLA from the Cal.gov website:

 

California Family Rights Act (CFRA)

 

The California Family Rights Act (CFRA) (Gov. Code, § 12945.2) was established to ensure secure leave rights for the following:

Birth of a child for purposes of bonding

Placement of a child in the employee’s family for adoption or foster care

For the serious health condition of the employee’s child, parent or spouse

For the employee’s own serious health condition

Benefits

An employer is not required to pay an employee during a CFRA leave, except when an eligible employee elects, or the employer requires, the employee to use any accrued vacation time or other accumulated paid leave other than accrued sick leave.

However, if CFRA leave is for the employee’s own serious health condition, the employee may elect or the employer may require the employee to use any accrued vacation time or other accumulated paid leave, including any accrued sick leave. Additionally, the employee may elect to use accrued sick leave for any other reason mutually agreed to by the employer.

An employer must continue health care coverage for employees during their CFRA leave

If the employer provides health benefits under any group health plan, the employer has an obligation to continue providing such benefits during an employee’s CFRA leave. This obligation commences on the date leave first begins. The obligation continues for the duration of the leave(s), up to a maximum of 12 work weeks in a 12-month period.

An employer must continue other benefits during an employee’s CFRA leave

During the period of CFRA leave, the employee is entitled to accrual of seniority and to participate in employee benefit plans, including life, short-term or long-term disability or accident insurance, pension and retirement plans, and supplemental unemployment benefit plans to the same extent and under the same conditions as would apply to any other leave granted by the employer for any reason other than CFRA leave.

Eligibility Requirements

CFRA leave

An employee may take an unpaid leave for the birth of a child for purposes of bonding, for placement of a child in the employee’s family for adoption or foster care, for the serious health condition of the employee’s child, parent, or spouse, and for the employee’s own serious health condition.

Health condition

Serious health condition means illness, injury (including on-the-job injuries), impairment, or physical or mental condition of the employee or a child, parent or spouse of the employee that involves either:

In-patient care (i.e., an overnight stay) in a hospital, hospice, or residential health care facility

Continuing treatment or supervision by a health care provider

Employers covered under CFRA

Employers subject to CFRA are those who do business in California and employ 50 or more part-time or full-time employees, including non-profit religious organizations. Covered employers also include the State of California and any of its political and civil subdivisions, and cities and counties, regardless of the number of employees.

Requirements employee must satisfy to be eligible to take a CFRA leave

To be eligible for CFRA leave, an employee must be either a full-time or part-time employee working in California, have more than 12 months (52 weeks) of service with the employer, have worked at least 1,250 hours in the 12-month period before the date the leave begins, and work at a location in which the employer has at least 50 employees within 75 miles radius of the employee’s work site.

Leave Requirements

The maximum CFRA leave entitlement

Leave under the California Family Rights Act (CFRA) may total up to 12 workweeks in a 12-month period. It does not need to be taken in one continuous period of time.

How the 12-month period is calculated

An employer may choose how to compute the 12-month period in which the 12 workweeks of leave entitlement occurs, using any of the four calculation methods listed below. An employer must apply the chosen method consistently and uniformly to all employees.

The calendar year

Any fixed “leave year” of 12 months, such as a fiscal year, a year required by State law, or a year starting on an employee’s anniversary date

The 12-month period measured from the date an employee’s first CFRA leave begins

A rolling 12-month period measured backward from the date an employee uses any leave

The CFRA leave may be added onto pregnancy disability leave

At the end of an employee’s period(s) of pregnancy disability leave, a CFRA-eligible employee may request a CFRA leave of up to 12 workweeks for reason of birth of her child if the child has been born by this date. There is no requirement that either the employee or child have a serious health condition nor is there a requirement that the employee no longer be disabled by her pregnancy, childbirth, or related medical condition before taking CFRA leave for reason of birth of her child.

The minimum duration for a CFRA leave taken for the birth, adoption, or fostercare placement of a child

Basic minimum duration of a CFRA leave is two weeks when the leave is taken for the birth, adoption, or fostercare placement of a child. However, an employer shall grant a request for a CFRA leave of less than two weeks duration on any two occasions. In addition, leave taken for the birth, adoption, or fostercare placement of a child must be completed within one year of the qualifying event. Where CFRA leave is taken for the serious health condition of a parent, child, or spouse or for the serious health condition of the employee, leave may be taken intermittently or on a reduced-work schedule when medically necessary, as determined by the health care provider of the person with the serious health condition. However, an employer may limit leave increments to the shortest period of time the employer’s payroll system uses to account for absences.

There are limitations to the CFRA leave entitlement

If both parents are eligible for CFRA leave but are employed by the same employer, that employer may limit leave for the birth, adoption, or foster-care placement of their child to 12 workweeks in a 12-month period between the two parents. No other limitations restrict these parents from taking a CFRA leave for other qualifying reasons.

Notification

An employee must give advance notice if he/she wants to take a CFRA leave

An employee shall provide at least verbal notice sufficient to make the employer aware the employee needs CFRA qualifying leave. The notice shall state the reason for the leave and its anticipated timing and duration. An employer may require 30 days advance notice before CFRA leave is to begin if the need for the leave is foreseeable. If 30 days is not feasible (e.g., not knowing when leave will be required to begin, a change in circumstances, or a medical emergency), notice must be give as soon as feasible. Under all circumstances, it is the employer’s responsibility to designate leave, paid or unpaid, as CFRA leave. In addition, the employer shall respond to a leave request as soon as possible but no later than ten calendar days after receiving the request.

An employer must inform employees of notice requirements

An employer shall provide notice to his/her employees of the right to request a CFRA leave and shall post the notice in a conspicuous place or places where employees tend to congregate. If the employer publishes a handbook describing other kinds of personal or disability leaves available to its employees, the employer shall include a description of CFRA leave in its next edition. The employer may include both pregnancy disability leave and CFRA leave requirements in a single notice.

Reinstatement

An employer must reinstate the employee at the end of his/her CFRA leave

Upon granting an employee a CFRA leave, the employer must guarantee reinstatement to the same or comparable position and provide the guarantee in writing upon the request of the employee. Employment in a comparable position means employment in a position that is virtually identical to the employee’s original position in terms of pay, benefits, and working conditions, including privileges, perquisites, and status. It must involve the same or substantially similar duties and responsibilities, skill, effort, and authority, must be performed at the same or geographically proximate work site, and ordinarily means the same shift or same or equivalent work schedule.

Reasons why an employer could deny reinstatement to an employee on CFRA leave

An employer may deny reinstatement to an employee if his/her position ceased to exist, such as in a lay-off. An employer may also deny reinstatement if the employee taking the leave is a key employee (salaried and among the highest paid 10 percent) and the denial of reinstatement is necessary to prevent substantial and grievous economic injury to the operations of the employer. However, the employer must notify the employee of the intent to refuse reinstatement at the time the employer determines the refusal is necessary as well as give the employee a reasonable opportunity to return to work.

 

This is from the Ca.gov site for fair employment and housing regarding CFRA

“BRIDGE TO JUSTICE”-YOUR GOVERNMENT WORKING AGAINST YOUR INTERESTS

The US Department of Labor has combined forces with the American Bar Association to create “Bridge to Justice” to help employees connect with lawyers who will help them sue their employers for abuses of the FMLA, FLSA and other labor laws.  You can read the entire text from the Department of Labor website below.  I have highlighted a couple of very important passages for you to concentrate on.  I hope you find this useful.  Please leave your comments as we would like to have a lively discussion on this issue.  Here is the link to share….https://www.dol.gov/whd/resources/ABAReferralPolicy.htm

Wage and Hour Division (WHD)

BRIDGE TO JUSTICE: Wage and Hour  Connects Workers To New ABA-Approved Attorney Referral System

Many workers across the country still struggle to obtain basic employment protections under the nation’s minimum wage, overtime, and family medical leave laws.  When denied these protections, the workers are unable to fully contribute to their local communities and businesses.  Over the past two years, the U.S. Department of Labor’s Wage and Hour Division (Wage and Hour Division) has added 350 new investigators and stepped up its efforts to help these workers through both complaint-driven and targeted enforcement.  In a typical year, over 35,000 workers contact the Wage and Hour Division for help, including the 25,000 who need assistance with their minimum wage, overtime, or family medical leave claims – and this number does not even include many more workers who do not contact us after their rights have been violated.

Although the Wage and Hour Division is able to help the vast majority of these workers recover denied wages or lost jobs through conciliation, settlement, or, with the Solicitor of Labor, litigation, every year there are thousands of workers whose claims we cannot resolve because of limited capacity.  In recognition of the fact that the Wage and Hour Division cannot remedy every violation of the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA), Congress provided workers the right to pursue their own private litigation (private right of action) under these laws.

In the past, for those workers it did not have the capacity to assist, the Wage and Hour Division simply informed the workers that, even though they may have valid claims under the FLSA or the FMLA, the Wage and Hour was declining to pursue their claims further and that they have a private right of action under the applicable statute.  However, attempting to exercise rights on their own, or finding an attorney with the necessary experience and subject matter expertise to represent them, are significant and difficult obstacles to these workers obtaining justice.  When it is difficult for workers to pursue redress for denied rights, it makes it easier for those employers who exploit their workers to obtain an unfair competitive advantage, which denies law-abiding employers a level playing field.

Thanks to an unprecedented collaboration between the Wage and Hour Division and the American Bar Association Standing Committee on Lawyer Referral and Information Service (ABA LRIS), the Wage and Hour Division will now connect these workers to a local referral service that will, in turn, provide the workers with access to attorneys who may be able to help.  This collaboration will both provide workers a better opportunity to seek redress for FLSA and FMLA violations and help level the playing field for employers who want to do the right thing.

Beginning on December 13, 2010, when FLSA or FMLA complainants are informed that the Wage and Hour Division is declining to pursue their complaints, they will also be given a toll-free number to contact the newly created ABA-Approved Attorney Referral System.  If complainants choose to call the toll-free number, they will be advised of the ABA-approved LRIS providers in their area.  The complainant may then contact the provider and determine whether to retain a qualified private-sector lawyer.

In addition, when the Wage and Hour Division has conducted an investigation, the complainant will now be provided information about the Wage and Hour Division’s determination regarding violations at issue and back wages owed.  This information will be given to the complainants in the same letter informing them that the Wage and Hour Division will not be pursuing further action, and will be very useful for attorneys who may take the case.  The Wage and Hour Division has also developed a special process for complainants and representing attorneys to quickly obtain certain relevant case information and documents when available.

FAQs About the ABA-Approved Attorney Referral System 

Q: Why do the Wage and Hour Division and workers need the ABA-Approved Attorney Referral System? A:  Although the Wage and Hour Division resolves the vast majority of complaints it receives, it does not have the capacity to pursue them all.  For example, the Wage and Hour Division received over 35,000 complaints in FY 2009 and over 40,000 complaints in FY 2010.  In each of these years, the Wage and Hour Division informed approximately 10% of complainants that it was declining to pursue or resolve their FLSA or FMLA claims and that they have a private right of action.  The ABA-Approved Attorney Referral System will now provide these workers with a reliable way to seek qualified private legal representation.

Q: At what point might the Wage and Hour Division inform a complainant about the toll-free number to access the ABA-Approved Attorney Referral System? A: Typically, a complainant will be provided the toll-free number for the ABA-Approved Attorney Referral System at one of four stages:

    1. At the complaint intake stage, if workers decide not to file a complaint or say they would prefer to pursue her private right of action;
    2. At the complaint review stage, if the reviewing manager determines, based on the Wage and Hour Division’s national and regional priorities and the office’s current resources and workload, that giving the complainant the ABA’s toll-free number provides the worker with the quickest access to justice;
    3. After an attempt at conciliation, if the employer refuses to remedy a violation but, based on the same criteria used at the complaint review stage, the manager decides that giving the complainant the ABA’s toll-free number is a better option than further investigating or litigating the complaint, or;
    4. After an investigation, if the case is not resolved through settlement, the Wage and Hour Division may decide, often in consultation with the Department’s Office of the Solicitor, to leverage the resources of the private bar by providing the complainant the ABA’s toll-free number.

Q: What are the Wage and Hour Division’s priorities? A: Given the Wage and Hour Division’s resources limitations, it has to set enforcement priorities in a way that will make the biggest impact for the greatest number of workers.  Although specific initiatives will vary from year to year and from region to region, generally the Wage and Hour Division prioritizes cases involving minimum wage and overtime violations against low wage and vulnerable workers, child labor, recidivist employers, retaliation or discrimination, or criminal violations. In addition, as described in the Department’s Strategic Plan for Fiscal Years 2011-2016, the Wage and Hour Division is targeting “fissured” industries — those sectors that increasing rely on a wide variety of organizational methods that have redefined employment relationships: subcontracting; third-party management; franchising; independent contracting; and other contractual forms that alter who is the employer of record or make the worker-employer relationship tenuous and less transparent.  These industries include the agricultural, construction, janitorial, and hotel/motel industries.

Q: What information will a worker be provided from the Wage and Hour Division when the worker receives the referral information? A: How much information the Wage and Hour Division gives the worker will depend on at what stage the referral is given and whether there has been an investigation.  At all stages, the Wage and Hour Division will give the worker a toll-free number to call as well as instructions on using the ABA-Approved Attorney Referral System.  If this information is provided verbally at the complaint intake stage, no other information will be provided because the Wage and Hour Division will not have any further information about the complaint.  If the complaint is declined at the complaint review stage, the worker will be sent a letter that includes this information, along with a statement that the Wage and Hour Division did not investigate the worker’s complaint.  At the conciliation state, the complainant will be notified by letter that will include information about the complaint and the Wage and Hour Division’s attempt at conciliation.  The amount of information available at the conciliation stage will vary.

If the Wage and Hour Division has completed an investigation, it will send the complainant a letter with the Wage and Hour Division case number, the violations found, and the amount of back wages owed.  Complainants will also get a form that will allow them or an authorized attorney representative to quickly obtain certain items from the investigation case file.

Q: How does the ABA-Approved Attorney Referral Document Request process work? A: A complainant who has received the toll-free number to the ABA-Approved Attorney Referral System after a Wage and Hour Division investigation will also receive a form to request the most relevant documents from her case file.  These documents include the complainant’s own statement, the Wage and Hour Division’s back wage computations for the complainant, and copies of any documents the complainant provided to the Wage and Hour Investigator.  The Wage and Hour Division will provide these documents expeditiously.  The form also allows the worker or authorized attorney representative to request the case narrative from the file; however, it explains that requesting the narrative will delay the Wage and Hour Division’s response because it must be redacted.  The letter sent to the complainant with notification of the Wage and Hour Division’s decision to not pursue the case will also include information about the violations found and back wages owed to the complainant.

All other documents in the case investigation file must be requested through the Freedom of Information Act.

Q: What other types of documents are available in the case investigation file? A: The contents of a Wage and Hour investigation file vary from case to case.  Please note, however, that certain information in the file is always redacted under the Freedom of Information Act, including the names, contact information, and identifying characteristics of any other complainants or witnesses, and information about the employer protected by the Trade Secrets Act.

Q: How does the ABA-Approved Attorney Referral System work? A: The ABA-Approved Attorney Referral System is built on a pre-existing network of local and state LRIS programs that are “ABA-LRIS approved,” meaning they have complied with the ABA model rules concerning the operation of public service lawyer referral programs.  There are nearly 70 ABA-approved LRIS programs throughout the country.  The majority of these are operated by state and local bar associations.  Building on this system, the ABA is creating a toll-free number for use by workers with FLSA and FMLA complaints nationwide that will connect them to the local and state LRIS programs.  This phone system will be available in both English and Spanish.

Q: How will the toll-free number help connect workers to an attorney? A: When workers call the toll-free number, they will enter their employer’s zip code or their own zip code, and will be given recorded information on the ABA-approved attorney referral provider in the appropriate geographic area.  The caller will then contact the referral provider for assistance in locating an attorney.

Q: Will the attorneys to whom the individual is referred be experienced in FLSA and FMLA matters? A: Yes, the participating ABA-approved referral providers have created subject matter panels in both FLSA and FMLA, and attorneys who wish to join those panels and accept referrals must demonstrate an objective measure of expertise in these areas of law, according to the standards established by the local referral provider and in accordance with the ABA’s Model Rules for Lawyer Referral Services.

Q: What are the ABA’s Model Rules for Lawyer Referral Services? A: Although the ABA is really the expert on this issue, the important components of the model rules, from the Department’s perspective, are the requirements that referral providers confirm that the attorney is licensed, has malpractice insurance, and has the proper experience to accept referrals in a particular area of law if they wish to be on a subject matter panel.

Q: Will the Department of Labor guarantee that individuals who are being turned away will be given legal assistance from a private attorney? A: No, the Department cannot guarantee that a complainant will be able to find an attorney interested in providing representation.  WHD is providing this telephone number to the ABA-Approved Attorney Referral System as a service to those who may be seeking assistance.  WHD does not guarantee the accuracy of the information provided through this telephone number or by any ABA-approved attorney referral provider, or that an attorney will accept any case.  In addition, WHD is not endorsing the services of any lawyer to whom a complainant may be referred, or guaranteeing the results of any services.  Providing this telephone number creates no liability on the part of the government.

Q: How will the Wage and Hour Division know if these referrals are being accepted or if the cases are being resolved by the private bar? A: The ABA will provide the Wage and Hour Division with aggregate information about the numbers of referrals accepted and the outcome of those cases.

Q: I’m an attorney and I would like these cases to be referred to me.  How do I participate in the ABA-Approved Attorney Referral System? A:  Participating state and local bar association lawyer referral programs are listed on  https://www.abanet.org/legalservices/lris/attorneyapprovproginfo.html   Please contact these state and local bar associations for membership information in the respective LRIS.  Membership in the respective bar association is not required, but there is a membership fee for participating in the lawyer referral program.