Currently, 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
It 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
Your 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.
There 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.