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LawTalk
LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 27889
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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my daughter, living in California, has been waiting for an

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my daughter, living in California, has been waiting for an appointment with a specialist regarding a growth on her vocal chords that will need surgery. She has finally recieved a date for an appointment and has requested in advance a day off for the appointment and test. If she does not make this time she is pushed out to a future date at which time she will have to request time off again. Her employer has told her that thaey do not have to honor requests for a doctor visit. She can not afford to loose her job but she needs to get this medical condition handled ASAP. Is there a Family Care Act in California and does she have the legal right to get this day off. This is a serious matter and she has had to wait over a month to get this time with the specialist who can handle this problem and surgery. In addition her job requires the constant use of her voice and she has been cautioned by the doctors about over use and that surgery is needed soon and the only option
Submitted: 2 years ago.
Category: California Employment Law
Expert:  LawTalk replied 2 years ago.
Good morning,

I'm very sorry to hear of your daughter's situation.

To be eligible for leave under the FMLA or the CFRA in California, an employee must be either a full-time or part-time employee,

1. Have more than 12 months (52 weeks) of service with the employer,

2. Have worked at least 1,250 hours in the 12-month period (24 hours per week) before the date the leave begins, and


3. Work at a location in which the employer has at least 50 employees within 75 miles radius of the employee's work site.

Does this describe your daughter's employment situation?

Doug

Customer: replied 2 years ago.
i hope you recieved my last response. Need to leave in about 15 minutes for an appointment and not sure if more info coming. Do all 3 of the above criteria need to be met or only one. I do believe that the company she is with has over 50 employees within the 75 mile radius, although each may be a franchise of the parent company.
Expert:  LawTalk replied 2 years ago.
No, I did not receive your last post---unfortunately, there appears to be a bug causing this.

Does your daughter meet all 3 criteria? You only touched on one and I will presume for argument sake that it is met.

What company does she work at---a fast food joint?

Doug
Customer: replied 2 years ago.
she works for KinderCare which is a National child care center. She started about 4-5 months ago when she moved to California part to full time position. There are a number of them near her so I assume that the 50 employee rule in 75 miles is met. She has not lived there long enough to meet the time frames and she is not on any probation or training and orientation period
Expert:  LawTalk replied 2 years ago.
Good morning,

Thank you for the additional information---that is exactly what I needed.

The three criteria I provided must all be met for a CA employee to be eligible for benefits and protection under the Family Medical Leave Act, and the corresponding CA Family Rights Act. Absent the protection of one of those programs, your daughter has no legal right to force her employer to let her off for a doctor's appointment---or to prevent them from punishing her if she refuses to work and goes to the appointment.

Unfortunately, in CA, employees are presumed to be "at will." At-will employees may be terminated for any reason—at any time, even a mistaken reason, they can have their hours or pay decreased and they can suffer a cut in their benefits, so long as it's not illegal or unlawfully discriminatory. Generally, employees who work under an employment contract can only be terminated for reasons specified in the contract. In CA, an employment relationship is at-will unless there is a defined duration for the employment contract or if the contract permits termination by the employer only under specified circumstances.

Unlawful discrimination would include an employer discriminating based upon a person’s Ethnicity, Color, Religion, National Origin, Gender or Disability.

I'm very sorry, but your daughter may be forced to make a choice over whether to go to the appointment, or be disciplined by her employer---and perhaps even terminated.

Neither CA nor federal laws provide her any protection from this sort of abuse. Under the circumstances, as her employer cares so little about its employees---she really needs to reconsider even remaining an employee of theirs---at least in the long term.

I would suggest that she get a note from her family physician to the effect that she has a serious medical condition which requires immediate diagnosis testing and that a delay could result in serious medical complications. At least if she gives a report such as this to the employer and they still refuse to let her attend the examination---if they do terminate her, she will have a very good argument that she was terminated without good cause---possibly opening up the possibility of making an unemployment claim.

I wish you the best in 2012.

I understand that you may be disappointed by the Answer you received, as it was not entirely favorable to your daughter's situation. Had I been able to provide an Answer which might have given you a successful legal outcome, it would have been my pleasure to do so.

You may reply back to me using the Reply to Expert link if you have additional questions; and if you do, I ask that you please keep in mind that I do not know what you may already know or with what you need help, unless you tell me.

Kindly take a moment to rate my service to you based on the understanding of the law I provided
. I have no control over the how the law impacts your particular situation, and I trust that you can understand how it would be unfair for me to be punished by a (negative rating) ----the first 2 stars/faces----for having been honest with you about the law.

Thank you,

Doug

LawTalk, Attorney
Satisfied Customers: 27889
Experience: I have 30 years of experience in the practice of law, including employment law and discrimination law.
LawTalk and other California Employment Law Specialists are ready to help you

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