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Thread: CFRA/FMLA as applicable to school employees -California

  1. #1

    Default CFRA/FMLA as applicable to school employees -California

    For teachers in a non-union, private, California school who are on a school year contract (they work 190 odd days):
    1.Does mentioning the start date & end date of the school year change the at-will nature of the job even though a paragraph in the agreement describes the at-will nature of the job?

    2.a.If they went on FMLA, owing to non-work related injury, in the prior school year and have not worked a single day during the current school year, is the current agreement still valid (the school chose not to terminate them at the end of 12 week FMLA/CFRA)?
    2.b. Would the fact that they were or were not paid some sick pay that was carried forward from last school year change the answer to 2.a

    3. How do school breaks affect CFRA and FMLA? I have heard that breaks of five days or more do not count towards FMLA. What about CFRA if the school is closed for day five days or say two days of the week?
    3.b How is the work week calculated for employees working @ less than 100%. Would the work week for a .6 FTE be 3 work days long?

    4.a For CFRA (bonding) that runs after pregnancy disability has ended, can the school force the employee to take 12 weeks in minimum 2 week duration?
    4.b What must be the minimum gap between the various two week periods? The CA Fair Housing and Employment Commision site states that they “Basic minimum leave duration is two weeks for CFRA-only baby bonding leave. But, employer must grant a request for leave of less than two weeks’ duration on any two occasions.”
    4.c What if the employee has sick leave available & misses work owing to sick baby multiple times, after the two occasions of <2weeks of planned CFRA leave?


    I am not confident so please let me know if any parts of any questions do not make sense. Also, thoughts on any related matters will be greatly appreciated
    Thanks!

  2. #2
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    Quote Originally Posted by LegalQuestions View Post
    For teachers in a non-union, private, California school who are on a school year contract (they work 190 odd days):
    1.Does mentioning the start date & end date of the school year change the at-will nature of the job even though a paragraph in the agreement describes the at-will nature of the job?

    2.a.If they went on FMLA, owing to non-work related injury, in the prior school year and have not worked a single day during the current school year, is the current agreement still valid (the school chose not to terminate them at the end of 12 week FMLA/CFRA)?
    2.b. Would the fact that they were or were not paid some sick pay that was carried forward from last school year change the answer to 2.a

    3. How do school breaks affect CFRA and FMLA? I have heard that breaks of five days or more do not count towards FMLA. What about CFRA if the school is closed for day five days or say two days of the week?
    3.b How is the work week calculated for employees working @ less than 100%. Would the work week for a .6 FTE be 3 work days long?

    4.a For CFRA (bonding) that runs after pregnancy disability has ended, can the school force the employee to take 12 weeks in minimum 2 week duration?
    4.b What must be the minimum gap between the various two week periods? The CA Fair Housing and Employment Commision site states that they “Basic minimum leave duration is two weeks for CFRA-only baby bonding leave. But, employer must grant a request for leave of less than two weeks’ duration on any two occasions.”
    4.c What if the employee has sick leave available & misses work owing to sick baby multiple times, after the two occasions of <2weeks of planned CFRA leave?


    I am not confident so please let me know if any parts of any questions do not make sense. Also, thoughts on any related matters will be greatly appreciated
    Thanks!
    I will try to answer these questions to the best of my knowledge.

    1. Maybe. Simply mentioning that the school year runs from x date to x date is not likely to change the at will nature of the job unless the contract creates some reasonable expectation that the job is not at will. Without reading the contract, I can't say. It could be argued either way.

    2a. Again, without reading the contract, it's hard to say. However, if they have a current contract, previous use of FMLA/CFRA would not in itself invalidate the contract. The use of CFRA should not be used against the employee in any way.
    2b. I don't see how the use of sick pay is relevant, however, maybe I don't really understand what you're asking here.

    3a. Yes, under CFRA, if the business is closed for one or more weeks, that time cannot be counted as CFRA. Any closure of less than this time can be counted.
    3b. The 12 weeks is counted as the employee's normal working hours/days. So, if the employee is not full time, the 12 weeks is calculated on a pro rata basis.

    4a. No, the employer cannot force bonding time.
    4b. There is no minimum gap. Minimum duration is 2 weeks and yes the employer must allow leave in less than 2 week increments on any two occasions.
    4c. If the baby's illness is not CFRA qualifying, the employee should be treated as any other employee needing time off to care for a sick child.

    Hope that is somewhat helpful.

  3. #3

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    Belated thanks for the response.
    Regarding 2b what I was thinking was that if we pay the employee for the current year then it becomes to difficult to argue the validity of the current year contract (vs when the employee does not get paid any pay at all whether for worked or sick days).

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    Quote Originally Posted by LegalQuestions View Post
    Belated thanks for the response.
    Regarding 2b what I was thinking was that if we pay the employee for the current year then it becomes to difficult to argue the validity of the current year contract (vs when the employee does not get paid any pay at all whether for worked or sick days).
    I guess I don't really understand what you are asking. Are you attempting to invalidate the current contract because the employee has not worked? The important thing to remember is that eligible employees are entitled to FMLA/CFRA and PDL and are guaranteed reinstatement. You cannot use FMLA/CFRA or PDL against the employee in any way. Your decisions regarding the employee must be made without regard to their use of protected leave. So, if you can say that a certain decision would have been made regardless of the use of leave, that decision is probably legally justifiable. But if you make an adverse decision because of the employee's use of leave, you are asking for problems.

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    Yes, trying to invalidate the current contract because the employee has not worked. Their job was protectino was offered for way longer than period they had under FMLA and they continue to be out now.
    My line of thinking was: If a new employee signs the contract & never shows up for work they cannot hold us responsible for salaries & benefits since they never worked so what was promised in return in not owed to them. In this case if we pay sick pay for the first few days then the contract becomes active...
    Sorry for confusing you as I am not fully clear in my mind. Just sounding off my thoughts to see if they have any legal basis

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    Once their legally protected leave ends, you owe them only whatever your contract states. You can not use the fact that they took legally protected leave against them but you can legally use the "extra" non mandated leave as a reason not to reinstate. It is not at all uncommon for schools to have "extra" leave options beyond what is leagally mandated for all employers. Frequently that leave comes with rules or conditions of its own such as not guaranteeing reinstatement.

    I am not in your state but we have similar policies. We not infrequently get teachers who sign contracts but take an entire year or more off following the birth of a child. Once they get beyond the FMLA period, reinstatement is no longer guaranteed. When they opt to return, they are placed in any vacant position for which they are qualified. Again, that is our rule. We treat those who are off an entire year (or semester) for other reasons the exact same way.
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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