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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Experience:  Significant experience in all areas of employment law.
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Can my companys HR dept deny me Family Leave for father to

Resolved Question:

Can my company's HR dept deny me Family Leave for father to bond if I haven't been there 12 months? I have been there about 9 months, and someone at EDD said I can but job won't be protected. It is protected if you have been there for 12 months. I have evidence of what my company said to me in this meeting saying I can't leave. I even told them what EDD said and they said "no".
Submitted: 11 months ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 11 months ago.
Hello and thank you for entrusting me to answer your question. Congratulations on your new child.

Unforutnately, the only form of protected leave available to new fathers is the "baby bonding leave" afforded through the California Family Rights Act. However, in order to be eligible for baby bonding leave pursuant to the CFRA, an employee must have worked for their employer for a minimum of 12 months and the employer must employ 50 or more total employees. Thus, if you have been employed for only 9 months, your employer would be under no legal obligation to hold your position while you take leave to be with your new born child, however poor an employment practice that may be from the standpoint of human decency.

While not a form "protected" leave (meaning your employer is under no obligaton to hold your position while you are absent), California's Paid Family Leave Law provides fathers partial wage replacement (approximately 55% of your regular wages up to a certain earnings threshold) while they take time off work to bond with a newborn child, regardless of how long they have been employed. For more information on "PFL," see here: http://www.edd.ca.gov/pdf_pub_ctr/de2511.pdf

However, as noted, PFL does not make it illegal for your employer to fire you for taking a leave of absence. Employment in the state of California is "at will" absent a specific agreement to the contrary, meaning it can be terminated for any reason not expressly contrary to the law. The only law that actually would prohibit your employer from termianting you while you are absent to bond with your child is CFRA baby bonding leave, but again, as noted, CFRA leave is not available unless you have worked for your employer for at least 12 months.

In summary, if you have only been employed for 9 months, no law would protect your position if you elected to take leave to bond with your child. However, you are likely eligible for Paid Family Leave, which provides partial wage replacement, though no actual job protection.

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes to you and thank you so much for coming to Just Answer.
Customer: replied 11 months ago.

Clarification. They said I could not take family leave at all. Whether protected job or not protected. That is inaccurate correct? And to reiterate what you said. I can take family leave but job is unprotected.? To be protected I need to be there 12 months when I take the leave.? I made it very clear to them and have evidence that they are lying to me, is there any recourse or liablility to them?

Expert:  Patrick, Esq. replied 11 months ago.
Greg,

Thank you very much for your reply. Can you please clarify for me what they are lying to you about? I don't think I am quite following you there.
Customer: replied 11 months ago.

They said I cannot take any type of family leave for bonding as I have not been there for a year.

Customer: replied 11 months ago.

We just had a baby January 7th, 2013, I wanted the family leave for bonding with a new child as a dad. 6 weeks is what i did before.


 


I can do that but job not protected correct?

Expert:  Patrick, Esq. replied 11 months ago.
Thanks for clarifying.

They are correct about that. By "unprotected" leave, that simply means if you choose to take the time off without your employer's consent, they'd be free to fire you for missing work. You have no "protected right" to take time off, and since your employer is otherwise free to control your schedule, they can require you to work and if you fail to comply with that requirement, they can let you go.

Though it may not be much of a consolation to hear, I think this is rather unfair and believe that the baby bonding leave protections afforded under the CFRA should be expanded to all employees, regardless of the amount of time they have been working for their current employer. That is not, however, the current state of the law, and I have an obligation to provide you with accurate information. I trust you will appreciate my limitations in this respect.

If I can provide any further clarification for you whatsoever, please do not hesitate to ask. Agian, please accept my personal apologies that the law is not more favorable to an individual in your circumstance.

Very best wishes to you and your family moving forward.
Customer: replied 11 months ago.

You are saying they are correct. My question was they said " cannot take Family Bonding time under 12 months> You are saying they are right. But then you say I can but my job is not protected. If i don't care about protection of job, then I can go on Family Leave(assuming I qualify with the State).?

Expert:  Patrick, Esq. replied 11 months ago.
Thank you again for your reply.

I think your confusion is stemming from what it means to take "unprotected leave." All that means is your employer has no obligation to let you take time off, and should you disregard their refusal and simply miss work on your own accord, your position will not be protected and you can be let go. With true "protected leave" your employer MUST grant the time off and they are prohibited from taking any adverse employment action against you as a consequence of your absence.

Unfortunately, there is no form of protected leave available to an individual in your circumstance, so your employer is free to terminate your employment if you, against their will, refuse to report to work and instead take time off to spend with your child.

Paid Family Leave is unprotected, so your employer can terminate you while you are out from work collecting PFL partial wage replacement checks. However, their termination of your employment will NOT affect your eligibility for PFL. You can continue receiving it for as long as PFL lasts, which is 6 weeks.

I hope that clarifies the distinction between protected and unprotected leave with regards XXXXX XXXXX baby bonding and PFL. It can be confusing to grasp if you are not already familiar with a lot of the concepts and terminology, but essentially your employer can fire you for missing work to bond with your child. However, nobody can stop you from taking Paid Family Leave and drawing PFL checks--even if you are let go while you are out on PFL leave, you will continue receiving checks for 6 weeks.

Again, if I can be of any further assistance to you, it would be my pleasure.
Patrick, Esq., Lawyer
Satisfied Customers: 6689
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and 3 other California Employment Law Specialists are ready to help you
Customer: replied 11 months ago.

Thanks for the time and expertise, nicely done! Appreciate the clarity and patience.

Expert:  Patrick, Esq. replied 11 months ago.

You are very welcome. It was truly my pleasure to be able to assist you.

If you have any further questions or concerns regarding the above, please do not hesitate to contact me in the future. I am available for followup at no additional charge.

Also, in the next day or so, you may receive a survey from Just Answer asking about your experience with me. I would be tremendously grateful if you'd take a moment to provide high marks, as your opinions are extremely valuable to the site and of course to me as well.

Very best wishes to you.

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