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Fall 2012


How Granting an Employee’s Request for Time Off Can get Employers Sued.

Believe it or not, by granting an employee request for time off from work, employers may risk inviting a major lawsuit. This is because California law mandates that employers who provide employees with a leave of absence from work are required to comply with all regulations applicable to the particular leave involved. These can be technical and demanding, and apply even to time off that the employer has no legal duty to provide. The failure to fully comply with these requirements subjects employers to potentially significant penalties and other liability exposure.

Because the expression, “Nice guys finish last,” has obvious application, employers should give serious consideration to granting time off that is not legally required.  The subject of leaves of absence and employee time off from work has experienced an explosion of recent state and federal regulation, particularly in California. Even ten years ago, employers who were generous enough to provide employees with time off were comparatively unrestricted in their ability to do so. After all, it seemed reasonable that if an employer was under no obligation to grant time off, any time off resulting solely from the employer’s generosity couldbe conditioned on any reasonable restriction the employer wanted to impose.

This has changed dramatically, and employers are well-advised to pay careful attention to this rapidly-developing area of law, as it has experienced a corresponding recent explosion in litigation. An excellent illustration of the dilemma involves California law relating to vacation benefits. Historically, California employers have not typically been required to provide employees with any vacation benefits at all. However, in 1982, the California Supreme Court, in a case entitled Suastez v. PlasticDress-Up Company, issued an ominous ruling. It held that if an employer voluntarily provides paid vacation benefits, these benefits accrue on a day-to-day, prorated basis. As a result, employers may not establish policies providing that employees forfeit vacation benefits to the degree they are not used.

Accordingly, employers who fail to reimburse terminated or resigning employees with the dollar value of their earned but unused vacation benefits at the time of separation are subject to wage claims for the value of the earned benefits. Significantly, they are also subject to claims for waiting-time penalties for the delay in payment, as well as the attorney’s fees required to enforce the employee’s rights thereto.

Using this simple example, it is easy to see how a claim for a week or two of unpaid vacation benefits can quickly transform into a potentially-crippling lawsuit involving a potential award exponentially larger than the original claim. This is true before the employer’s defense costs are even taken into consideration.

Since the Supreme Court’s ruling, the regulation of leaves of absence and employee time off from work has vastly expanded, and the number of lawsuits and corresponding awards to employees has kept pace. At present, there are well over 20 different leaves of absence that California employers are required to provide employees. Each is subject to its own set of often technical and complicated mandatory requirements. Any failure to comply with these exposes the employer to serious liability. These leaves include:

  1. Workers’ Compensation Act (all employers);
  2. Parent Teacher Conference (all employers);
  3. Volunteer Firefighters (all employers);
  4. Voting (all employers);
  5. Paid Family Leave (all employers);
  6. Sexual Assault Victims (all employers);
  7. Domestic Violence Victims (all employers);
  8. Crime Victims (all employers);
  9. Military Service (all employers);
  10. Witness Duty (all employers);
  11. Jury Duty (all employers);
  12. Kin-Care (all employers);
  13. Employer-provided (voluntary) leaves;
  14. Family and Medical Leave;
  15. California Family Rights;
  16. Fair Employment and Housing;
  17. Americans With Disabilities;
  18. Pregnancy Disabilities Leave;
  19. Alcohol and Drug Rehabilitation;
  20. Literacy Education;
  21. Child’s School Activity;
  22. Military Spouses and
  23. Organ/Bone Marrow Transplant Donors.

Each of the above examples imposes numerous legal obligations on employers which, if violated, expose the employer to a lawsuit. For example, it is not uncommon for employers to deny a request for time off simply because the employer is unaware of the requesting employee’s legal right to time off. For instance, if the employer, (or any supervisor) is aware that an employee is the victim of a crime, such as a domestic or other assault, the employee may be legally entitled to take time off for medical treatment, counseling or to attend meetings with law enforcement authorities.

The trouble often begins when a supervisor, unaware of the employee’s legal right to leave, rejects a request for time off. If the employee takes the time off anyway, the supervisor will often respond by firing the employee. If the employer fires, or otherwise penalizes the employee for taking “unapproved” time off from work, which the employee was legally entitled to, it is subject to not only the penalties for violating the leave statute, but also a lawsuit for wrongful termination and unlawful retaliation. These claims often provide for punitive damages and attorney’s fees for the employee if he/she wins. Because such cases are typically decided by a jury of employees sympathetic to the fired employee, such lawsuits can readily subject an unwitting employer to liability exceeding a million dollars.

To avoid being victimized by this chamber of horrors, employers should carefully consider the following precautions. Employee handbooks must be written to maximize employer flexibility regarding employee leave rights, consistent with applicable law, and must include mandatory arbitration policies to avoid jury trials.

Second, whenever an employee requests time off for any reason, before granting or denying the request, employers should carefully verify exactly why the employee is requesting leave. It is preferable to require the request to be in writing unless an emergency is involved. The employer should then determine whether the request qualifies the employee for time off under any of the leave laws and, if so, exactly what rights are provided the employee so that strict compliance can be monitored.

Employers should be aware that employees are not required to mention the law allowing for leave when requesting time off, or even be aware of the right to leave. If any supervisor is aware of facts that entitle the employee to leave, the employer is typically required to grant time off.

Third, it is common that more than one leave law will apply to a single request, and the employermust comply with each. For example, an employee who is injured on the job will have leave rights under California’s Worker’s Compensation Act. The same injury could very well qualify as a “serious health condition” under California’s Family Rights Act, which would obligate the employer to comply with a myriad of additional leave provisions under that statute. In addition, this hypothetical injury may also constitute a “physical disability” under the Americans with Disabilities Act and/or California’s parallel (and more demanding) statute, presenting the employer with still a third body of legal requirements to contend with.

Employers are often unaware that compliance with one leave law will not garner any sympathy if other legal requirements are violated. Employers are required to comply with each and every legal requirement or face the consequences.

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