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N Cal Atty
N Cal Atty, Attorney
Category: California Employment Law
Satisfied Customers: 8152
Experience:  Since 1983
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my sister died. I have a home office, but my company claims

Resolved Question:

my sister died. I have a home office, but my company claims it as an office location on my business cards an in lit. They say I did not qualify for family leave because I don't work in a proper office with 50 or more employees. I was told by a legal student that under CA law that i was entiltled to 3 days paid leave when a death in the immediate family occurs if you work for a company that has a total of 50 fulltime employees. (this is 3 days in addition to the 2 wks of leave given to employees in our company for sick and vacation leave.)


 


What am I entitled to? please specify statute so I can relay to my HR department


 


I had to max vacation leave and take many unpaid days


...3 days of pay is worth alot of money to me. pls help!

Submitted: 2 years ago.
Category: California Employment Law
Expert:  N Cal Atty replied 2 years ago.
I'm sorry to hear this.

http://www.californiawagelaw.com/wage_law/2011/05/employment-law-update-california-bereavement-leave-bill-put-to-vote.html
states:
Last year, the California Legislature passed AB 2340, a bill to allow employees up to three days of unpaid bereavement leave upon the death of certain family members. The bill was vetoed by Governor Schwarzenegger.

The above link notes that there is a similar Bill that is pending in the Legislature now, but it has not yet been enacted.

Bereavement Leave is Not Available Under the FMLA, see
http://federalfmla.typepad.com/fmla_blog/2007/04/bereavement_lea.html
but it can be if the request is phrased properly.

The above link notes the case of Stubl v. T.A. Sysm., Inc., 984 F. Supp. 1075 (E.D.Mich. 1997). In Stubl, the court found that the employee provided sufficient information to alert the employer that the leave might be FMLA-qualifying. There, the employee stated that "I am taking this leave of absence based on my personal loss caused by the death of Keith Jr. with regards XXXXX XXXXX personal health." The Court reasoned that the notice in Stubl was sufficient because the employee tied his need for leave to his own physical or mental condition as a result of the death of a family member.

It is not relevant that 50 people do not work at your office if there are 50 within 75 miles:

"To be eligible for FMLA benefits, an employee must:
work for a covered employer;
have worked for the employer for a total of 12 months;
have worked at least 1,250 hours over the previous 12 months; and
work at a location in the United States or in any territory or possession of the United States where at least 50 employees are employed by the employer within 75 miles."
From
http://www.dol.gov/whd/regs/compliance/whdfs28.htm

I hope this information is helpful.
N Cal Atty, Attorney
Satisfied Customers: 8152
Experience: Since 1983
N Cal Atty and 3 other California Employment Law Specialists are ready to help you
Customer: replied 2 years ago.

Thanks.

 

PS. Would not have found the following update without your help....

 

CURRENT BILL STATUS for A.B. No. 325
From:
http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_0301-0350/ab_325_bill_20111010_status.html


MEASURE : A.B. No. 325
AUTHOR(S) : Bonnie Lowenthal (Coauthor: Monning).
TOPIC : Employee's right to bereavement leave.
+LAST AMENDED DATE : 09/02/2011

LAST HIST. ACT. DATE: 10/09/2011
LAST HIST. ACTION : Vetoed by Governor.
VETOED

COMM. LOCATION : SEN APPROPRIATIONS
COMM. ACTION DATE : 07/11/2011
COMM. ACTION : Do pass as amended.
COMM. VOTE SUMMARY : Ayes: 06 Noes: 03 PASS

TITLE : An act to add Section 230.5 to the Labor Code, relating
to employee rights.

 

TYPE OF BILL :
Inactive
Non-Urgency
Non-Appropriations
Majority Vote Required
Non-State-Mandated Local Program
Fiscal
Non-Tax Levy

Expert:  N Cal Atty replied 2 years ago.
Thank you for accepting my answer, and thank you very much for the bonus!

I am surprised that Governor Brown rejected this. Here is his statement:
http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_0301-0350/ab_325_vt_20111009.html

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