On September 15, 2021, a divided panel of the Ninth Circuit Court of Appeals decided…
LEAVES OF ABSENCE: TIME BOMB FOR EMPLOYERS
Lawsuit Prevention for Employers
In this and subsequent issues of Heads Up! the author will attempt to summarize the most important leave of absence laws affecting California employers, as well as straightforward strategies for avoiding the latent dangers that they present.
As a starting point, some background is necessary. In the last decade, California has enacted several laws which have completely transformed the landscape of legal requirements imposed on employers when addressing employee requests for time off from work. Each of these laws independently imposes specific obligations on employers, and several different laws may apply to the same request for time off.
As a result, whenever employers (through any supervisor) receive a request for leave (paid or unpaid), a careful assessment of every law that may apply, and its requirements, must be undertaken before the employer can safely respond by granting, or denying, the request.
For practical purposes, it is imperative that all employers understand that the wrongful denial of an employee’s request for time off can subject the employer to potentially catastrophic liability exposure. This is because legally-entitled employees can initiate a lawsuit based on the wrongful denial. This can occur when employees, who encounter the denial of a request for leave to which they are legally-entitled, simply take the time off anyway, in defiance of their supervisor’s rejection of the request.
This often results in the supervisor, typically ignorant of the employee’s legal right to take time off, taking measures to discipline or fire the requesting employee. This common reaction gives new meaning to the adage, “Ignorance of the law is no excuse.” This is because the supervisor’s attempt to administer discipline, if challenged, likely provides the employee not only with a sound legal claim based on the original wrongful denial of leave, but for unlawful retaliation for asserting the legal right to take leave. If the employee is discharged, additional available claims would include wrongful termination of employment in violation of public policy.
The employer making such a mistake, typically through the act of a supervisory employee, would likely be subject to an award of punitive damages and emotional distress damages, categories of legal redress which can involve millions of dollars. In addition, such lawsuits typically provide the “prevailing party” with an award of attorney’s fees. If the dispute is resolved after a jury trial, attorney’s fees for each side can readily approach, and often exceed, $1 million. Moreover, because juries are typically comprised overwhelmingly of employees, as opposed to business owners or managers, they are infamously sympathetic to the plaintiff-employee in these cases. To offset these disadvantages and for other compelling reasons, the author urges all California employers to seriously consider mandatory, legally-enforceable, arbitration agreements.
In practice, these factors mean that no request for time off should be denied, unless a responsible party with a comprehensive understanding of the legal requirements imposed by the new leave of absence laws is immediately notified of every leave request, such that the employer’s legal obligations can be carefully reviewed before any action is taken in response to the leave request.
To illustrate the gravity of risk, I offer the following example. Imagine that an employee, John, states to a manager, Len, as he’s rushing out the door, “Len, my [domestic] partner’s son was in a motorcycle accident in Denver. I’m late for my flight, and will call when I get a chance!” Depending on the workload, Len could be forgiven if he failed to grasp why the employer should be burdened by this event, no matter how tragic. As a result, Len may be tempted to commence disciplinary action against John, or at least consider replacing him depending on how great a burden John’s absence proves to be.
Such thoughts, while certainly understandable, can readily start the employer in a dangerous direction, because of a fairly-recent statute in California, commonly referred to as the “Kin-Care Law.” This requires employers who provide paid sick leave (which is now legally-required of all employers) to allow employees to use such leave, and perhaps other available leave benefits, to provide care for a child, spouse, parent, grand parent, grand child, sibling, domestic partner or child of a domestic partner.
This represents one example of fewer than 16 such laws now in effect in California. Each provides leave rights and detailed requirements concerning the availability of leave in the following general categories:
- Witness/Victim Testimony leaves;
- Leaves of Absence of Victims of Domestic Violence;
- Leave for Crime Victims;
- Family and Medical Leave;
- Kin Care Leave;
- Leaves for Employees to Visit Their Child’s School;
- Mandatory Paid Sick Leave;
- Paid Vacation Leave;
- Leaves for Volunteer Firefighters, Reserve Police and Emergency Rescue Personnel;
- Military Leaves;
- Civil Air Patrol;
- Jury/Witness Duty;
- Organ/Bone Marrow Donation Leave;
- Literary Education Leave;
- Alcohol/Drug Rehabilitation Leave; and
- Time Off to Vote.
Jay G. Putnam is a Petaluma labor lawyer who has specialized in representing California employers for over three decades. His practice is devoted to preventing lawsuits against his clients, without sacrificing workplace authority or management prerogatives.
While no one can guarantee a future free of lawsuits, Putnam has compiled a remarkable record of success: Not one employer-client has been sued in 36 years with his system of precautions in place.
For those clients who have arrived with pending lawsuits, Putnam has established an excellent track record of success as well.
You are invited to visit Mr. Putnam’s website, where you will find in-depth discussion of the most common mistakes made by California employers, and how to avoid them. www.jaygputnam.com/articles-by-jay-g-putnam/