I need to find some clarification on the Family Leave Act for the State of California.

I work for a company with less than 50 employees. We have one such employee who has abused time off and now is requesting family leave for her father's illness. FMLA states you must have 50 employees to comply but the state of California doesn't seem to have that same stipulation.

Is this the case? Where would I find out the full compliance regulations on this matter?

Thanks,
Laura

It's my understanding that the state version DOES have that same provision.

Megan? Michael?

Here's what I found out -
With less than 50 employees, you do not have to extend the leave to your employee. It is solely at the discretion of the employer.
California does, however, have a paid leave through State Disability. An employee must submit a request for the time off and they must fill out their own paperwork to receive this benefit. An employer does not have to keep the employee's job during this time.
An employee receives 55% of their pay for 6 weeks from SDI (up to $768.00/week).

The only caution I would urge is if you are close to 50 employees, as both the CA and federal version "count with both hands" - meaning that the government might consider people that you wouldn't think to count (like independant contractors and part time employees).

We are closer to 35 employees.

The paid family leave has nothing to do with the employeer having to grant time off/hold a postion. It is simply a means of providing income to the person when they take time off for this reason. It does not effect the employer's UI, as this money is taken from the SUI that is deducted from the employees check.

According the EDD representative I spoke with, the employee must get prior approval from their workplace to take the six weeks off if they intend to keep their job position.

The money is actually from the SDI deductions and, yes, it is paid by the employee's contributions.

If the leave is protected (50 employees within 75 miles, one year tenure, at least 1250 hours worked in the last year) then they need to notify the employer, but the employer must approve. If they do not qualify, just getting the leave approved does not mean their job is protected - the company can change its mind (although I don't recommend that companies do so).

Our stores are already understaffed and this individual is aware of said fact. She has bragged openly that she intends to move away and that she has been abusing her sick time.

At this point, if her desire is to seperate via this manner, I am not opposed. I am opposed to the fact that she is jeopardizing the company with vague innuendos and a lack of concrete dates/planning.

I just want to be sure we are in FULL COMPLIANCE with the law. Her father is and has been quite ill for the majority of her life. That she would want time off to tend to him is understandable. However, the truth is she wants 55% of her pay for six weeks at the time she moves away.

It is not my desire to punish her in the least. But, there is absolutely NO WAY I can keep her job position available as it is the first position I will need to fill, along with hiring 3-4 more individuals.

I hope that makes sense.

As long as you are counting everyone that conceivably could be an employee and not getting 50, I would give her a memo that her attendance is an issue and if she takes one more day off in the next 90 days she will be fired. She can still get her paid family leave- she just won't have a job to come back to once it is over.

Won't she be eligible for unemployment if she opts to take another day off?

Also, she was put on salary quite some time ago and her job position has been restructured in a way that she is now working considerably less and abusing her "flexibility". I would like to switch her back over to hourly effective immediately. Can I do this?

Won't she be eligible for unemployment if she opts to take another day off?

Possibly, but you have the argument that it is insubordination if you give her the memo first. In any case, it is cheaper to pay her unemployment than to pay her salary.


Also, she was put on salary quite some time ago and her job position has been restructured in a way that she is now working considerably less and abusing her "flexibility". I would like to switch her back over to hourly effective immediately. Can I do this?
Yes, you can switch her to hourly.

Bagelsmom, while one can never know for certain about unemployment claims, I had one very memorable case where an employee was denied unemployment on the basis of excessive absence because I was able to show the DET written warnings signed by the employee telling her in no uncertain terms that the next time she took a day off work for any reason not protected by law (and she was not eligible for FMLA) she would be fired.

She did; she was; she filed; she was denied.

From an employeer stand point, it would be perferrable for her to recieve the family leave paymen then the unemployment payment. Since the FL comes out of HER checks but the unemployment could negatively effect your rates.

As I read it, the Paid Family Leave comes out of SDI. This is solely money that the employee contributes. How can that negatively impact my rates since it's not coming out of our fund?

You are misunderstading. What I was saying is that it is better for an employee to go out on disability/family leave because this DOES NOT effect the employeer.

If they quit/terminate and apply for and get unemployment this could effect your rates.

If she is terminated, it will be due to her absences. I did take the liberty of drafting her a letter and presenting her with it yesterday in our meeting.

California Family Rights (CFRA) has the same points of eligibility as FMLA. Since you have less than 50 employees, you don't have to follow FMLA nor CFRA leave laws. You can deny your employee leave without consequence. However, keep in mind if your employees accrue sick leave each pay period, you must allow them to take up to half their yearly accrual of sick leave for FS (Family Sick) reasons--this is KinCare law.

phelberg, please check the dates on the messages before replying. This thread is 6 weeks old.