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California Family Rights Act Expansion: What You Should Know

FMLA

California Family Rights Act Amended to Expand Benefits for Employees

Governor Newsom signed S.B. 1383 into law on September 17, 2020. It expanded the benefits afforded to employees under the California Family Rights Act (“CFRA”).  S.B. 1383 broadens the scope of employers who are subject to CFRA. CFRA is the California State law “equivalent” to Family Medical Leave Act (“FMLA”)—which is a federal law. Equivalent is in quotation marks because CFRA has much broader protections for employees than FMLA.

It is helpful to think of federal labor and employment laws as a floor, not a ceiling. In other words, many federal labor and employment laws provide the bare minimum protection to workers in the US—and employers may not provide less than these minimum protections. However, each state has the ability to pass state laws that provide greater protections to employees than federal law.

Further, employers have the option to provide greater protections than those required by federal law (FMLA) and/or state law (CFRA).  In this example, FMLA is the “floor,” which provides the minimum protection to employees in every state across the US—provided the employer has 50 or more employees. FMLA assists employees in the US who wish to take time off for qualifying reasons—typically related to the serious health condition of either the employee or an employee’s family member.

California is a great example of a state that consistently passes state laws that require its employers to provide more protection than federal law–in other words–the “floor.”

S.B. 1383 requires smaller employers with as few as five employees to offer the benefits afforded under CFRA. Clearly—CFRA covers a lot more employers than FMLA. It provides California residents the ability to take leave for qualifying reasons at a much greater proportion than FMLA. In addition, S.B. 1383 expands the qualifying reasons an employee can use to take family and medical leave. The new law also increases the number of categories of family members for whom leave may be taken.

Employees Eligible to Take Leave Under the CFRA

To be eligible for the leave benefits under the CFRA, an employee must have at least 12 months of service working for their employer, and they must have worked at least 1,250 hours in the prior 12-month period.

Smaller Employers Now Subject to CFRA

Prior to the enactment of S.B. 1383, the CFRA only applied to employers with fifty or more employees, which was the same threshold as FMLA.  Under the amended CFRA, employers with five or more employees must now comply with CFRA and provide up to 12 weeks of job-protected leave to eligible employees for covered reasons.

New Reasons Available to Employees to Take Leave Under the CFRA

Prior to the enactment of S.B. 1383, an employee could take leave under the CFRA to care for a spouse, domestic partner, parent, or child.  With the enactment of S.B. 1383, an employee can also take CFRA leave to care for grandparents, grandchildren, and/or siblings.

S.B. 1383 also expands qualifying exigencies related to an employee’s family member who is called to active military service. This amendment aligns CFRA with the FMLA provision that enables FMLA to be used for qualifying military exigencies.

Stacking CFRA and FMLA Leave Benefits

The expanded benefits under CFRA create the possibility that, in certain circumstances, an employee could access leave benefits under both the CFRA and FMLA to get a total of 24 weeks of job-protected leave. This is because CFRA allows an employee to use leave benefits to care for family members that are not covered by the FMLA.  In this unique situation, leave under the two laws technically will not run concurrently, allowing for the possibility of an employee exhausting their 12 weeks of leave under the CFRA while still being entitled to 12 weeks of leave under FMLA (for a different reason that qualifies under FMLA).

Summary

As you can see, this CFRA amendment greatly expands the leave benefits available to employees working for a broader array of employees who meet specific statutory requirements. In addition to the expanded leave benefits under CFRA, employees in California are also able to take four months of pregnancy disability leave, which employers with five or more employees must already provide to qualifying employees.

Have Questions About the CFRA? Contact an Experienced San Francisco Employment Lawyer

If you have questions about CFRA or other labor and employment law issues, contact Rissell Law today at (415) 874-7288  or  (714) 881-5988

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Overview of California’s Silenced No More Act

When a California employer asks an employee to sign a non-disclosure agreement, it is important to know there are new restrictions and requirements that must be met for that agreement to be valid. Specifically, the Governor of California signed S.B. 331 (i.e., the Silenced No More Act) into law. This new law amends California’s Fair Employment and Housing Act to clarify that non-disclosure agreements cannot restrict an employee’s ability to disclose information related to claims of sexual harassment, assault, discrimination, or retaliation.

Additionally, non-disclosure agreements entered on or after January 1, 2022, cannot prohibit an employee from disclosing allegations of harassment or discrimination based on any protected category, not just sex. Protected categories include race, sexual orientation, religion, color, national origin, ancestry, disability, medical condition, and age.

New NDA Restrictions

Below are some of the most notable restrictions and limitations placed on California employers who ask an employee to enter into a non-disclosure agreement:

  • An employer cannot require an employee to sign a non-disparagement agreement that has the purpose or effect of denying the employee the right to disclose information about unlawful acts that occurred in a workplace setting.
  • An employer cannot require the release of claims or rights under S.B. 331 in exchange for a raise or bonus or as a condition of employment or continued employment.
  • An employer is required to include the following language in any agreement that restricts an employee’s ability to disclose information:
    • “Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful.”

New Restrictions and Limitations for Severance Agreements

In addition to non-disclosure agreements, S.B. 331 expands the restrictions and limitations placed on severance agreements. For example, a severance agreement may not prohibit a former employee from disclosing information about unlawful workplace acts unless:

  • the provision is part of a settlement agreement to resolve an employment discrimination-related claim that the employee filed in court, “before an administrative agency, in an alternative dispute resolution forum, or through an employer’s internal complaint process”; and
  • the employer provided notice to the employee, along with an opportunity to retain an attorney.

In addition, an employer must provide an employee or former employee at least five days to consider any severance agreement the employer offers the employee. The employer is also required to explain the employee’s right to consult an attorney regarding the severance agreement.

Summary

If an employer asks you to enter into a non-disclosure agreement or offers a severance package that is accompanied by a severance agreement, make sure to review the provisions in light of the new restrictions and limitations set forth in S.B. 311. Please note that S.B. 311 applies to agreements entered into on, or after, January 1, 2022.

Have Questions About an NDA or Severance Agreement?

Contact an Experienced San Francisco Employment Lawyer

If you have questions about specific provisions within a non-disclosure agreement or severance agreement, contact our San Francisco Employment lawyers at the Rissell Law Firm. We offer free, confidential consultations to discuss your legal concerns and answer specific questions applicable to your potential case.  Take action and schedule your consultation time here.

The California Civil Rights Department (“CRD” formerly known as the “DFEH”) has released an FAQ page regarding this law.

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Overview of Paid Sick Leave Benefits Available to Employees in California

In California, qualifying employees are entitled to sick leave benefits set forth in Labor Code Section 233. This code section was amended in 2016 and broadened the protections afforded to employees who needed to sick leave. For example, the 2016 amendments broadened the scope of when sick leave benefits could be used, including:

  • Diagnosis, care, or treatment of an existing health condition of an employee
  • Preventive care for an employee
  • Diagnosis, care, or treatment of an existing health condition of, or preventive care for family members of an employee including parents, parents-in-law, children, spouses, registered domestic partners, grandparents, grandchildren, and/or siblings
  • Diagnosis, care, or treatment for employees who were the victim of domestic violence, sexual assault, or stalking

Frontloaded Sick Leave Benefits

Another modification to California’s Paid Sick Leave Law includes the requirement that employers provide employees with 24 hours of “frontloaded” paid sick leave, or at least one hour of sick leave for every 30 hours worked on an accrual basis, to be used for specified sick leave purposes consistent with the state law. In addition, the Paid Sick Leave Law and Labor Code Section 233 authorize employers to cap an employee’s annual use of sick leave to the greater of 24 hours or half of the amount of sick leave an employee accrued in a year.

Basically, this means that the greater of either 24 hours of sick leave, or the first one-half of an employee’s annual sick leave accruals (e.g., first 48 hours of sick leave where 96 hours are accrued annually) are statutorily protected pursuant to Labor Code Section 233.

Employees possess the sole discretion to specify whether they utilized sick leave benefits for their personal use, or for one of the protected reasons under the law. For example, an employee is able to indicate to their employer that they opted to take sick leave taken for their own illness and therefore the sick leave time taken should not count towards the amount of sick leave benefits protected under Labor Code Section 233. This means greater flexibility and broader access to sick leave benefits for employees.

No Obligation to Find “Cover” for Your Work Shift

Another important aspect of California’s Paid Sick Leave law is that employers are prohibited from requiring employees to find coverage for a particular shift (if you work at a job with a specific shift schedule) in the event an employee needs to use paid sick leave benefits. This prohibition reduces the burden placed on employees during a time when they may be unwell or caring for a loved one who is unwell. In addition, this prohibition highlights the fact that locating a temporary employee or modifying shift schedules is a responsibility best handled by the employer.

Taking Sick Leave to Attend a Doctor’s Appointment

A common question asked by employees is whether an employer is allowed to take disciplinary action if the employee opts to take a paid sick day to attend a doctor’s appointment. Generally, the answer is no, an employer is not authorized to take any type of disciplinary action simply because an employee used accrued paid sick leave to attend a doctor’s appointment. This prohibition is primarily due to the anti-retaliation provisions within California Labor Code Sections 233, 234, and 246.5.

For example, Section 246.5(c)(1)states that an employer “shall not deny an employee the right to use accrued sick days, discharge, threaten to discharge, demote, suspend, or in any manner discriminate against an employee for using accrued sick days, attempting to exercise the right to use accrued sick days, filing a complaint with the department or alleging a violation of this article, cooperating in an investigation or prosecution of an alleged violation of this article, or opposing any policy or practice or act that is prohibited by this article.”

Additionally, Labor Code Section 234 states that an employer absence control policy in California that counts sick leave taken pursuant to Section 233 as an absence that may lead to or result in discipline, discharge, demotion, or suspension “is a per se violation of Section 233.”

Local Ordinance Sick Leave Policies

It is important to note that local sick leave ordinances contain additional requirements and protections. For example, many local ordinances, such as the San Francisco and Oakland Paid Sick Leave Ordinances, do not permit an annual cap on the ability of an employee to use their accrued sick leave.

Contact Our San Francisco Employment Law Attorney

If your employer is attempting to discipline you for taking sick leave or is denying compensation for accrued sick leave, contact the Rissell Law Firm to schedule a free, confidential consultation so we can discuss your legal options. You can easily schedule a consultation here.