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CFRA for remote employee California

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  • CFRA for remote employee California

    I am a remote employee for a company on the east coast living in Northern California. I work from home. I have worked for the company for almost 4 years and they have about 75 employees at their worksite on the east coast.

    They say that I am not eligible for CFRA because I do not work at a work site that has 50 employees within 75 miles. I understood that the company just had to have at least 50 employees within 75 miles of the company, wherever it was.

    Are they right- am I not eligible for CFRA?

    Thanks in advance.

  • #2
    They're correct. There must be 50 employees at the site at which you work OR within a 75 mile radius of where you work. The number of employees on the east coast doesn't matter for CFRA/FMLA purposes.

    Comment


    • #3
      Thank you so much Beth3.

      As a follow up question- they have waived the 50/75 restriction on FMLA but not on CFRA. Are they allowed to waive the restriction on one law while refusing to do it on the other?

      Many thanks for your help.

      Comment


      • #4
        A company cannot waive a FMLA restriction. They can give you as much leave as they desire if you do not qualify for other leaves. So they can give you 12 weeks of leave but it would not be FMLA since you do not qualify for it.

        Comment


        • #5
          Thank you HRinMA.

          I guess it's not in my benefit to point out to them that they can't waive the restriction on FMLA?

          They did all of this through a lawyer so it's odd that they're trying to do something against the law.

          I guess I would also be covered by CA PDL, however I don't believe that protects my job.

          I am basically looking for guidance- how can I respond to my HR in the way that best benefits me and gives me the most time off?

          Comment


          • #6
            A company cannot waive a FMLA restriction.

            I think this is technically correct, but the company can still designate an employee's time off as FMLA, even if the ee does not qualify. The law gives the bare minimum of what must be done, and a company can always choose to be more generous than the law requires.

            However, the company is in danger of setting a precedent by being more generous than the law requires. Thereafter, each ee in a similar situation would need to get similar treatment, or run the risk of being sued to get equal treatment.

            they have waived the 50/75 restriction on FMLA but not on CFRA.

            Can you have them confirm that your time offered would at least be designated as FMLA? That would be up to 12 weeks of job-protected leave.

            Comment


            • #7
              I guess it's not in my benefit to point out to them that they can't waive the restriction on FMLA?

              Just to clarify, your employer CAN waive the 50/75 restriction for FMLA and offer you 12 weeks of leave time. They just can't attribute the leave time to any potential FMLA entitlement you might have. Should conditions change radically in your location and suddenly they have sufficient employees in your area so that you become eligible for FMLA and you need leave for another reason, they can't say "Sorry, you already took 12 weeks of FMLA this year." This is really just a technical legal aspect and barely worth talking about under these circumstances since your employer obviously isn't going to open up a division in your area all of a sudden.

              If your employer is willing to give you 12 weeks of maternity leave (which is what I presume we're talking about), it's a gift. Yes, they can extend "faux" FMLA leave to you and not CFRA. They don't have to do either. Just take the 12 weeks and run.

              Comment


              • #8
                Originally posted by werewife View Post
                I guess I would also be covered by CA PDL, however I don't believe that protects my job.
                Ca PDL is job protected leave and covers California employers with 5 or more
                employees.

                (It's up to 4 mos. of leave for disability caused by pregnancy, childbirth, or related medical conditions
                subject to medical certification that an actual disability exists.)
                Last edited by Betty3; 06-02-2011, 08:44 PM. Reason: add info
                Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                Comment


                • #9
                  Thanks very much JJ Brown, Beth3 and Betty3 (you two must be sisters...)

                  HR has designated the time off as FMLA, presumably to give me the job protected leave, in line with our Employee Handbook. Faux or no. And yes, this is all for maternity leave.

                  I might move in the future to a site where we do hit the 50/75 rule, so conceivably could use FMLA in the future

                  A different employee took a leave of absence of 6 months for presumably health reasons last year, so the company has already set a bit of a precident, I just don't know how to use it to my advantage.

                  And as I understand you Betty3, PDL only covers California companies? Not California residents as such? So working for an east coast company would exclude me from even PDL?

                  Thank you all!

                  So really I'm getting fake leave for 12 weeks....how odd. Huge disappointment obviously as I've been expecting 12 weeks + 12 weeks of REAL leave...

                  Comment


                  • #10
                    Yes, you're getting fake leave but it'll feel like real leave.

                    Comment


                    • #11
                      Originally posted by werewife View Post
                      And as I understand you Betty3, PDL only covers California companies? Not California residents as such? So working for an east coast company would exclude me from even PDL?
                      What are the key differences between FMLA/CFRA and PDL?
                      A. Eligibility requirements
                      1. PDL covers all California employers with 5 or more employees.
                      2. PDL has no requirement for hours worked/years of service
                      Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                      Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                      Comment


                      • #12
                        Originally posted by werewife View Post
                        And as I understand you Betty3, PDL only covers California companies? Not California residents as such? So working for an east coast company would exclude me from even PDL?
                        This statement assumes that where a company is headquartered makes a difference. Mostly it does not for labor law purposes. Any employer with employees working in CA is a CA employer. Any employee working in CA is a CA employee subject to CA labor law.
                        "Reality is that which, when you stop believing in it, doesn't go away".
                        Philip K. **** (1928-1982)

                        Comment


                        • #13
                          Agree, having an employee/employees working in the state would be considered
                          having a business presence in the state (nexus) & would be considered an employer
                          in that state.

                          add PS - OP, Just for your info - you wouldn't be a Ca. employee if you were a resident but
                          didn't work there. (worked elsewhere) It's where you work - in this case Ca.
                          Last edited by Betty3; 06-02-2011, 09:03 PM. Reason: add PS
                          Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                          Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                          Comment


                          • #14
                            It's not in state and out of state; it's the number of miles. We'd be giving you the same answers if you were the sole employee in San Diego and your employer's headquarters, with all the other employees, was in Sacramento.
                            The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                            Comment


                            • #15
                              Agree, I think Beth hit it on the head in post #2 - at least 50 employees where you
                              work (your work location) or within 75 miles of where you work. (for FMLA/CFRA)
                              Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                              Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                              Comment

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