• California Expands "Parental" Time Off Rights
  • November 5, 2015 | Authors: Katherine A. Hren; Richard S. Rosenberg
  • Law Firm: Ballard Rosenberg Golper & Savitt LLP - Glendale Office
  • As part of Governor Brown's marathon legislative session on October 11, 2015, he signed into law a revision to the Family-School Partnership Act which greatly expand your employees' rights to job-protected leave. The new rights take effect on January 1st.

    What is the Existing Law? Under existing law, employers with 25 or more employees are required to permit employees with school age children to take up to 40 hours of job protected leave (unpaid) to attend to their kid's school activities. The employee must be either the parent or legal guardian of the child, or a grandparent having custody of the child. Children covered are those who are either enrolled in a licensed child day care facility, kindergarten or grades 1 to 12.

    If the employee and child meet these requirements, then the employee is entitled to take job protected leave for up to 40 hours each year to participate in school activities. The only restriction is that the business may limit the leave to just 8 hours in any one month and may require the employee to provide "reasonable notice" of the absence. The law did not define "reasonable notice", putting employers at risk of a violation if the employee offered just about any amount of advance notice.

    How will the Law Change?
    The new law expands these parental time off rights in several material respects.

    First, the new law no longer requires the child to be in a "licensed child day care facility". Leave rights must be offered so long as the child is under the care of a "licensed child care provider".

    Second, while existing law only permits time off for a parent to participate in "school activities", the new law permits employees to also take time off: "to find, enroll, or reenroll the child in a school or with a licensed child care provider".

    Third, the new law also expands the definition of "parent" beyond biological parents to include a legal guardian, stepparent, foster parent or grandparent of the child or any person who stands in loco parentis to the child.

    Fourth, in recognition of the exigencies of parenting, the new law also adds a new emergency leave provision to require the employer to grant a covered parent time off to address a so-called "child care provider or school emergency." This term is defined to mean that an employee's child cannot remain in a school or with a child care provider due to any one of the following:
    • The school or child care provider has requested that the child be picked up, or has an attendance policy, excluding planned holidays, that prohibits the child from attending or requires the child to be picked up from the school or child care provider;
    • Behavioral or discipline problems;
    • Closure or unexpected unavailability of the school or child care provider, excluding planned holidays; or
    • A natural disaster, including, but not limited to, fire, earthquake, or flood.
    Further, in the case of emergency leave, the usage rules are relaxed so that the employee may use as many of the 40 hours as needed (no 8 hour/month limit) and the employee is relieved of the obligation to give reasonable advance notice due to the unplanned nature of the event precipitating the need for time off.

    As written, the law requires a great deal of flexibility on the part of employers. For example, the law will permit covered parents to leave work 20 minutes early for so-called emergency matters over 100 times per year. It seems that a simple request by the child's care provider to pick up the child early would be sufficient, in addition to the several other reasons listed in the new law.

    Also, while the new law permits an employee to ask for documentation of the need for the time off, this provision offers little protection to the employer because the new law states that "documentation" means whatever written verification of parental participation the school or licensed child care provider deems appropriate and reasonable. As such, it appears as though the employer is left with no choice but to accept whatever documentation is provided and may not question the reasonableness of the documentation.

    Fifth, the new law strengthens the anti-retaliation provisions in the existing law. The new law prohibits employers from terminating, demoting, or in any other manner discriminating against an employee as a result of the employee's exercise of the right to take time off. This means that an employer cannot discipline employees under an attendance policy or otherwise, when arriving late, leaving early or otherwise taking time off for one of the many reasons in the law.

    Also, all people managers must be trained to avoid expressing disapproval when employees inform them of the need to be absent for a reason covered by the law. Such comments are in many cases the smoking gun evidence that employees rely upon when asserting that they were victims of unlawful discrimination or retaliation for taking or asking for this leave. The law assumes that employers will shoulder a certain amount of inconvenience without making the employee feel bad for having taken advantage of these new rights.

    What this means for you. Employers should immediately review and update all parental leave policies to ensure compliance with these changes. Additionally, employers should review internal procedures for receiving, documenting, recording and tracking employee time off requests and usage under the new law. Be sure that the employee is not accumulating attendance demerits for using the time authorized by law.

    With the rapidly changing job-protected leave laws, it is vital that all people managers and persons responsible for receiving, processing, and administering leave requests fully understand the nuances of the new law and how it interacts with the already complex set of existing leave laws. Given the expansive reasons permitted for time off under the new law, the lack of notice requirements, and the flimsy documentation required, the new law opens the door for potential abuse by employees as well.

    To that end, the Firm has developed a proprietary ½ day training program for executive team and supervisory level employees called "Managing Employees Who Can't or Won't Work". It is intended to provide the people managers in your business with tools they need to avoid running afoul of this and the many other federal and state laws that grant employees protected time off.