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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 7649
Experience:  Significant experience in all areas of employment law.
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Following my CA Pregnancy Disability Leave & 6 weeks of CA

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Following my CA Pregnancy Disability Leave & 6 weeks of CA Paid Family Leave (3/18-9/4), my exempt position was no longer available. I was told owner was traveling & couldn't deal with discussing new position until return, so I waited patiently. Then employer did not respond to my attempts to reach them to return to work for over a week, so I finally filed for unemployment. Now, a month later, they are ready to set a start date for a different position. This position was previously exempt paying $20k more p/year, but they have changed to non-exempt with same duties. (Note- Previous employee quit because owner had her work over 24 hours straight & meal breaks were a luxury. On several occassions, if employee did not work the crazy hours requested, the owner would say they were insubordinant, suspend them, & have them call every day until she is willing to take them back.) The position is within my normal field of work, however, I do not have the advanced Excel skills the position requires. I expressed my concern, only to be told, "you're smart, you'll figure it out." In other words, I will not be trained, and it's sink or swim. I am concerned for many other reasons: 1) skills; 2) not having childcare to work overtime, but having to sign employee handbook that states it may be required "on occassion" without notice, but employer is aware I can't accomidate; 3) break/lunch times to pump as I am still nursing; 4) Reducing me to 4 days p/week since I couldn't accomidate working Saturdays (this position has always been Mon-Fri). There has been so many other illegal/emoral actions (i.e., not paying overtime; asking me to come in when doctor put me on pregnancy disability/bed rest, etc.), it makes me scared to return.

My question is, if I turn down this position do I still qualified for unemployment? Also, when I requested my 6weeks of CA Paid Family Leave, my employer was very understanding, & I was not asked to put it in writing. Now, their saying they thought I was goingto be out longer or indefinitely. By taking the leave, am I considered to have quit my job?

Any information you can provide would be GREATLY appreciated.
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 2 years ago.
Hello and thank you for entrusting me to answer your question.

Can you please clarify whether your pregnancy disability leave was taken concurrently with your paid family leave, or afterward? Did you take baby bonding leave concurrent with your paid family leave? (So many program names here, I know)

I very much look forward to assisting you regarding this matter.
Customer: replied 2 years ago.

Took CA Paid Family Leave after disability leave. Only took CA Paid Family Leave of 6weeks as I was told FMLA did not apply to them since they have less then 50 employees.

Expert:  Patrick, Esq. replied 2 years ago.
Thank you very much for your reply.

The Pregnancy Disability Leave Law codified at Government Code 12945 permits pregnant employees to take up to four months of job leave, during which such employees cannot be terminated as a result of their absence. The California Family Rights Act (CFRA) provides for additional protected "baby bonding" leave, but as you correctly note, this leave is available only to employees who work at companies with 50 or more employees.

If an employee is not eligible for baby bonding leave, their employer is free to release them, even during Paid Family Leave, if the employee is absent for more than 4 months. This is so because, while Paid Family Leave provides wage replacement, it does not provide job protection in the same way as the other forms of leave discussed above. Thus, a change of duties, suspension or termination following the expiration of the 4 months of PDL is probably not illegal.

With regard to denying an offer for work and retaining your ability to collect unemployment benefits, the issue boils down to whether the work was "suitable." Only where an employee denies "suitable" work will they be disqualified from receiving benefits.

The Unemployment Insurance Code defines "suitable employment" as follows:

"Suitable employment" means work in the individual's usual occupation or for which he is reasonably fitted, regardless of whether or not it is subject to this division.

In determining whether the work is work for which the individual is reasonably fitted, the director shall consider the degree of risk involved to the individual's health, safety, and morals, his physical fitness and prior training, his experience and prior earnings, his length of unemployment and prospects for securing local work in his customary occupation, and the distance of the available work from his residence, and such other factors as would influence a reasonably prudent person in the individual's circumstances."

The EDD in its Benefits Determination Guide (linked below) provides that work shall be deened unsuitable if any of the following conditions exist:

- The offer of employment is from an employer who does not possess an appropriate state license to engage in the business, trade, or profession.
- The offer of employment is from an employer who does not withhold or hold in trust the employee contributions required for unemployment compensation disability benefits and does not transmit all such employee contributions to the department for the Disability Fund as required. (Note: This requirement does not apply to out-of-state employment or government employment.)
- The offer of employment is from an employer who does not carry either workers' compensation insurance or possess a certificate or self-insurance as required by the Labor Code.
- The position offered is vacant due directly to a strike, lockout, or other labor dispute.
- The wages, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality.
- The individual, as a condition of being employed, would be required to join a company union or to resign from or refrain from joining any bona fide labor organization.

See here for the above plus additional discussion regarding "suitable" work: http://www.edd.ca.gov/UIBDG/Suitable_Work_SW_5.htm

If the work is not "suitable" pursuant to the above definition, then refusal to accept that work will NOT result in disqualification of benefits.

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

If you do not have any further concerns, I would be very grateful if you would give my answer a positive rating and click submit, as this is the only way I will receive credit for assisting you. If you have any additional concerns that you would like me to address, please feel free to let me know by hitting the REPLY or CONTINUE CONVERSATION button and I will be more than happy to continue assisting you.

Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Thank you and very kindest regards.
Customer: replied 2 years ago.

Am I at fault for this seperation since I was out over four months? Does that disqualify me from collecting unemployment for the weeks after my Paid Family Leave when I was trying to return to work?

Expert:  Patrick, Esq. replied 2 years ago.
Thank you for your reply.

Generally, an employee's absence will only disqualify them from receiving unemployment if the absence demonstrates a willful disregard of the employer's interests. Provided there is a compelling reason for the absence, and bonding witha newbord child is certainty a compelling reason, unemployment benefits will not typically be denied on this basis.

See here for more information on the circumstances in which an employee's absence may disqualify them from receiving benefits: http://www.edd.ca.gov/uibdg/Misconduct_MC_15.htm#Absence

Again, I sincerely XXXXX XXXXX this information helps you and I wish you the best. If I have answered your question, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you.

Kindest regards.
Customer: replied 2 years ago.

Would the other labor code violations (no rest/meal periods, asking me to work while on disability, not paying overtime, wrongfully classifying employees as exempt that should be non-exempt) be sufficient reasons for not returning?


If I do return and have to sign employee handbook that states overtime may be required "on occasion" without notice, but they are aware that I cannot accomidate due to childcare limitations, can I be suspended without pay for insubordination?

Expert:  Patrick, Esq. replied 2 years ago.
Thank you again for your reply.

Not paying wages owed would typically constitute valid grounds to quit with "good cause."

With regard to overly demanding schedules, the EDD states as follows:

"Leaving work because of a noncompelling objection to "hours" does not constitute good cause for quitting. However, if the objection is based on a real, substantial, and compelling reason, such as injury to the claimant's health or undue hardship, the claimant would have good cause for leaving if he or she had attempted to adjust the situation with the employer prior to quitting."

If your employer was insisting on a demanding schedule that you could not possibly accomodate due to your new born child, an individual in your circumstance may be able to quit with good cause on this basis. However, as noted above, you must attempt to modify the schedule and "make it work" with the employer prior to quitting so as to not be disqualified on this basis.
Customer: replied 2 years ago.
Do they have to allow break times to pump?
Expert:  Patrick, Esq. replied 2 years ago.
Thank you again for your reply. Although this is a separate question and should be asked separately per site rules, I am happy to provide an answer.

California Labor Code sections 1030-1032 address your concern. Those sections state:

1030. Every employer, including the state and any political subdivision, shall provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee's infant child. The break time shall, if possible, run concurrently with any break time already provided to the employee. Break time for an employee that does not run concurrently with the rest time authorized for the employee by the applicable wage order of the Industrial Welfare Commission shall be unpaid.

1031. The employer shall make reasonable efforts to provide the employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee's work area, for the employee to express milk in private. The room or location may include the place where the employee normally works if it otherwise meets the requirements of this section.

1032. An employer is not required to provide break time under this chapter if to do so would seriously disrupt the operations of the employer.

So, provided that accommodating an employee to breastfeed does not "seriously disrupt" the company's operations, reasonable break times must be provided above and beyond the standard rest breaks afforded to all employees. These additional breaks (beyond the standard breaks to which all employees are entitled) are unpaid.

Again, I hope that you find this information helpful and would greatly appreciate if you would remember to provide a positive rating so that I mayr eceive credit for my answers.

Very best wishes to you moving forward.
Patrick, Esq., Lawyer
Satisfied Customers: 7649
Experience: Significant experience in all areas of employment law.
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Patrick, Esq.
Patrick, Esq.
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Significant experience in all areas of employment law.