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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 34066
Experience:  Retired (mostly)
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I live in California and work as a full-time remote employee

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I live in California and work as a full-time remote employee for a company in the state of Oregon. I am preganant and will be going out on maternity leave soon. I was recently notified by my HR dept that I am technically not eligible for FMLA due to the "50 employees within a 75 mile radius" eligibility requirement. They are "gratuitously" honoring FMLA for me, and at the same time are telling me they will not be recognizing the FMLA guidelines under the state of CA which are much more generous than federal guidelines. I am a bit frustrated by this eligibility clause as our company has over 350 employees, several of which are remote workers. Does this eligibility clause hold true and is there anyway to work around it. I travel significantly for work, and I was looking forward to having this time to bond with my baby before having to travel again.
Submitted: 3 years ago.
Category: California Employment Law
Expert:  socrateaser replied 3 years ago.
Under the U.S. Department of Labor FMLA Regulations, 29 C.F.R. 825.111(a)(2):

  • For employees with no fixed worksite, e.g. , construction workers, transportation workers ( e.g. , truck drivers, seamen, pilots), salespersons, etc. , the “worksite” is the site to which they are assigned as their home base, from which their work is assigned, or to which they report. For example, if a construction company headquartered in New Jersey opened a construction site in Ohio, and set up a mobile trailer on the construction site as the company's on-site office, the construction site in Ohio would be the worksite for any employees hired locally who report to the mobile trailer/company office daily for work assignments, etc. If that construction company also sent personnel such as job superintendents, foremen, engineers, an office manager, etc. , from New Jersey to the job site in Ohio, those workers sent from New Jersey continue to have the headquarters in New Jersey as their “worksite.” The workers who have New Jersey as their worksite would not be counted in determining eligibility of employees whose home base is the Ohio worksite, but would be counted in determining eligibility of employees whose home base is New Jersey. For transportation employees, their worksite is the terminal to which they are assigned, report for work, depart, and return after completion of a work assignment. For example, an airline pilot may work for an airline with headquarters in New York, but the pilot regularly reports for duty and originates or begins flights from the company's facilities located in an airport in Chicago and returns to Chicago at the completion of one or more flights to go off duty. The pilot's worksite is the facility in Chicago. An employee's personal residence is not a worksite in the case of employees, such as salespersons, who travel a sales territory and who generally leave to work and return from work to their personal residence, or employees who work at home, as under the concept of flexiplace or telecommuting. Rather, their worksite is the office to which they report and from which assignments are made. [emphasis added]

BotXXXXX XXXXXne, employer is wrong, and if it refuses to provide you with FMLA leave benefits, then you can sue in federal court.

For a employment rights atttorney referral, see this link.

Hope this helps.

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socrateaser, Lawyer
Satisfied Customers: 34066
Experience: Retired (mostly)
socrateaser and other California Employment Law Specialists are ready to help you
Customer: replied 3 years ago.
Ok - this seems more in alignment with what I would expect as a remote employee. Thank you. My follow-up question has to do with FMLA guidelines. If I am indeed eligible for FMLA under federal guidelines, then would my company have to comply with the CA state guidelines since I live in and pay CA taxes, along with CA State Disability Ins? Like I indicated before, the FMLA guidelines in CA are much more generous than OR or Federal guidelines. Since it's your goal to educate

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, I am just trying to determine for what I am eligible. It would seem that my company, even after conferring with a CA employmet lawyer, is still misinformed regarding FMLA requirements. They have also recently stated that anyone missing more than 3 days of work due to medical illness has to submit for FMLA, even if you are using paid leave. I thought the guidelines were 7 or more??? Your additional help is greatly appreciated...
Expert:  socrateaser replied 3 years ago.
Very tough issue:

1. California applies FMLA to its own laws, and also has its own laws re pregnancy (California Family Rights Act -- CFRA and Pregnancy Disability Leave Law -- PDLL). The short version of the combination of laws is that a California employee can take FMLA and PDLL leave simultaneously, so as to obtain four months of pregnancy leave, and then add another 12 weeks under the CFRA.

However, in order to qualify for PDLL, unlike with FMLA/CFRA, the employee must actually suffer a disability pre- or pos-tnatal, related to the pregnancy. A physician must certify that the employee has such a disability -- otherwise, the employee's benefits would be limited to 12 weeks.

2. Assuming you can do all of this, then we have the problem that you are asserting that your principal place of employment for FMLA/CFRA benefits is in Oregon. However, CFRA cannot apply to an Oregon employee, so if you assert that you are actually an Oregon employee for the purposes of the FMLA, then you are also an Oregon employee for the purposes of the CFRA, which means that you would have no CFRA benefit rights.

Re PDLL, Ca Department of Fair Employment and Housing regulations (2 CCR § 7291.2(h)) defines an "employer" (among other things) as including employers covered by the FEHA." The FEHA defines employer as "any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities." This would appear to include emplpyers located outside of California, and which employ employees in California.

Assuming this is true (I have no case law confirming or rejecting this theory), then you would be entitled to PDLL and FMLA benefits, but not CFRA benefits -- which means four months maximum leave.

The only way to test this theory is in court or by complaint to the DFEH. If you do, you will probably be the test case, so I can't tell you how you will fare.

Hope this helps.

NOTICE: My goal here is to educate others about the law. I am always available to answer your follow-up questions after you click Accept – however, if you do not click Accept, the website gets paid, and I receive nothing. This is true, even if you are on a subscription plan. So please click Accept, so that I will be able to continue to provide this service for others in the future.


And, if you need to contact me again, please put my user id on the title line of your question (“To Socrateaser”), and the system will send me an alert. Thanks!


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