Employee Rights Attorney

Mission Viejo, California

Q: Our employee manual states that maternity leave is granted for birth or adoption of a child. Originally HR told me I could take time off with pay for adoption. When I asked for this information in writing, it changed to I can take time off with no pay, but my job will be guaranteed. What are my rights?

A: “Generally, California laws do not require companies to pay for maternity leave,” says Peter W. Taylor, employee rights attorney, Don D. Sessions Law Corp., Mission Viejo. “The California Family Rights Act (CFRA) does guarantee up to twelve weeks of unpaid leave after the birth or adoption of a child, as well as for the care of a sick family member or your own serious illness. The CFRA is only applicable if you have been working for a company for more than one year, have worked at least 1,250 hours in the previous year, and the company has more than fifty employees within seventy five miles.

“A new bill was recently signed into law that will eventually provide up to six weeks of paid leave for CFRA circumstances. This will be paid through the California State Disability System and will be available in July 2004.

“In the meantime, your best bet is to look at your company’s policy manual to see whether tic states that the company will pay for mortality leave. If it does, you should qualify for leave with pay. If the manual does not indicate the leave will be paid, you are not legally entitled to be paid for your maternity leave. Your company will regard its original oral indication to you simply as a mistake. Since you did not detrimentally rely on the initial interpretation, you will probably have no breach of contract claim either.”

by Patrick E. Turner

Employee Rights Attorney

Mission Viejo, California

Q: Can you please provide more information on using up to one half of one’s paid sick leave to care for a sick wife based on a new law?

A: “The law you’re referencing is California Labor Code section 233, which was added by statute in 1999 and amended in 2001,” says employee rights attorney Patrick E. Turner of Don D. Sessions Law Corp., Mission Viejo. “Under the provisions of this statute, an employer must permit employees to use half of their accrued sick time to ‘attend to an illness of a child, parent, spouse, or domestic partner of the employee.’ Unlike California’s Family Rights Act (CFRA), which provides up to 12 weeks’ unpaid leave but requires a minimum number of employees at an employer, there’s no minimum number of employees referenced in this statute. Use of leave under this Labor Code section will not extend the maximum period of leave to which an employee is entitled under CFRA, so the use of this sick time runs concurrently.

“The same conditions and restrictions to using sick leave for the employee’s own illness will apply to the use of sick leave for the care of a family member. For example, if the employer requires doctor certification for absences in excess of three days, the employer can also require a similar doctor certification of the family member’s illness.

“Any employee who is terminated, threatened with termination, demoted, suspended, or in any other manner discriminated against from suing or attempting to use sick time for the care of a family member consistent with this statute, can file a complaint (with the state or sue).”

“There are two main types of pension plans-a defined benefit plan and a defined contribution plan. Both involve employer funding. It is not permissible to deny service accruals and salary credits to employees over age 65.

“An employer can limit the number of years of service or participation required in the pension plan but cannot base the limitations on a participant’s age. You need to look at the specific terms and conditions of the retirement plan to determine if employer contributions are limited by a permissible reason.

“Collecting a retirement pension income while actively working in the same job for the same employer would be inconsistent with general retirement principles. Some types of work, such as teaching, permit limited continued employment after retirement. Normally, you are not allowed to work full time for the same employer after you retire.”

Employee Rights Attorney

Mission Viejo, California

Q: After working three months at a company, I suddenly had to go on sick leave for bladder problems and rheumatoid arthritis. After my first week, off, the company direct deposited a week’s pay into my bank account. I thought it was sick pay. Then it happened again. I immediately called, and they said they were retrieving the money and also requested that I pay back the first check. I agreed to do so when I returned to work. When they found out my return date was uncertain due to upcoming surgery, they fired me. They said they needed to replace me and “clear the books.” They also requested the money back. Is that legal?

A: “Although you are not eligible for the statutory 12 weeks’ unpaid medical leave because of short tenure with the company, you may have other rights,” says employee rights attorney Stephen C. Kimball of Don D. Sessions Law Corp., Mission Viejo. “If they fired you because of your illness, not your absence, you may have a claim for discrimination. If your work contributed to your illness, you may have a workers’ compensation claim and a retaliation claim as well. Review company sick, vacation or personal leave policies, if any, to make sure they were followed.

“If the company agreed to be paid back only if you returned to work, they may have breached the agreement because they terminated you. Otherwise, the company has the right to request a return of the money and expect you to pay it back. If you refuse, they could sue you.

“As a practical matter, you could request to keep the money, in light of your termination. They may allow this. It doesn’t hurt to ask.”

“But the employer can terminate your husband if he would have been laid off regardless of the leave.

“The employer also can refuse to reinstate a ‘key’ employee-one who receives a salary and ranks among the top 10% of the employees in pay. The company also can refuse to reinstate an employee if that is considered necessary to prevent substantial and grievous economic injury to the employer’s operations.

“There are certain notices that the employer must give to be able to use the ‘key’ employee exception.

“Evaluate if the lack of work excuse is simply a pretext. If your husband has more experience and tenure than his peers, perhaps other people should have been laid off instead.

“He also might be protected under other rules that prohibit discrimination. The employer might be liable, for example, if it decided to lay off your husband rather than attempting to make accommodations for his worsened eye condition.

“Have your case evaluated by an attorney and attempt a forced reinstatement, a reasonable settlement with termination, or a lawsuit. In the alternative, you could file a claim with the Department of Fair Employment and Housing or the Equal Employment Opportunity Commission for the medical leave or discrimination violations.”

Employee Rights Attorney

Mission Viejo, California

Q: “Recently, my company asked me to sign a contact that would severely harm my future career if I were to ever leave.

“I would not be able to work in my profession for several years, and then with very strict guidelines.

“I have repeatedly told them I would not sign this. So have other employees. Now they have sent me a letter saying not getting this back to them will be reflected on the quarterly evaluations.

“Is this legal?”

A: “Society promotes freedom of employment, and under California law, most of these noncompetition agreements are unenforceable.

“One of the main exceptions involves an agreement signed by someone who sells an interest in a company to the buyer for whom he or she will work. But even these exceptions must be extremely limited in duration and in geographic application.

“Companies often avoid the problems related to noncompetition agreements by requiring employees to sign ‘trade secrets” agreements. Even though laws restrict the use of trade secrets even without an agreement, employees should be very careful in signing any agreement that restricts their right to future employment in any way.

“Retaliation for your refusal to sign the agreement may also be illegal. You certainly can assert your rights not to sign an illegal agreement.

“As a practical matter, you might want to have an attorney look at the proposed contract and give you detailed suggestions of how it is illegal and improper. You could then list some of those reasons in an informal, cordial letter that explains your refusal to sign, and at the same time documents the issue.”