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Just when you
thought you heard of every reason for an employee to be away
from work, someone approaches you with a Time Off Request
and asks how she should indicate that she is taking
advantage of the 30 days paid time off to donate a kidney to
her sister. Leave requirements often sneak up on employers,
especially when they aren’t the common ones like Worker’s
Compensation Disability Leave or Pregnancy Disability Leave.
It is important that you know about the legal entitlements
for a company of your size so that you can comply with the
provisions of each leave and effectively advise your
employees. Below are the lesser known leave requirements,
indicated by company size:
Leave: All non-temporary employees inducted into the
U.S. Armed Forces will be eligible for re-employment
after completing military service.
Reserves or National Guard Leave: Employees who
serve in U. S. military organizations or state militia
groups are eligible for re-employment after completing
Any employee who is the parent or guardian of a child
and is actually living with the child, or grandparent
who has custody of a grandchild is eligible for a
school-discipline leave. School-discipline leave is to
allow parents/guardians time off to meet with school officials
regarding the suspension of a child.
for Victims of Violent Crimes: Employers will not
discharge or discriminate against employees who are
victims of crime if they take time off to appear in
court to comply with a subpoena or other court order as
a witness in any judicial proceeding.
Violence and Sexual Assault Leave: If an employee is
the victim of domestic violence or sexual assault, time
off may be necessary to seek judicial relief to help
ensure the health, safety or welfare of the employee or
Duty Leave: Employers must provide unpaid leaves
to volunteer firefighters, reserve peace officers, and
emergency rescue personnel when they are required to
perform emergency duty.
Employers with 15 or more employees:
Bone Marrow Donation Leave: Employers must provide
paid leave for employees who donate organs (30 days) and
bone marrow (5 days). Employers may require use of
vacation/sick time up to 5 days for bone marrow and 2
weeks for organ donation. These leaves are separate and
distinct from FMLA or CFRA entitlements.
CA Wing of the Civil Air Patrol Leave: The Company
must allow an employee who has worked at least 90 days
to take up to 10 days of unpaid leave for volunteering
in the CA Wing of the Civil Air Patrol (the civilian
auxiliary of the US Air Force) to respond to emergency
with 25 or more employees:
Spouse Leave: Employees who are regularly scheduled
to work at least 20 hours per week and whose spouse is a
member of the Armed Forces, National Guard or Reserves
who is deployed to an area designated as a combat
theater or combat zone during a period of military
conflict, may take up to ten (10) days to spend time
with a spouse during his/her leave from deployment.
Parent’s/Guardians’ School Leave: Any employee who
is a parent or a guardian of a child, or grandparent who
has custody of a grandchild in kindergarten through
twelfth grade, or whose child or grandchild is attending
a licensed day care facility, may take up to forty (40)
hours each calendar year, not exceeding eight (8) hours
in any calendar month of the calendar year, to
participate in activities of the school or licensed day
care facility of any child or grandchild if the
with 50 or more employees:
Firefighter Training Leave: Employers must allow for
an employee who is a volunteer firefighter to take
temporary leaves of absence, up to a total of 14 days
per calendar year, to engage in fire or law enforcement
Please note that
the leaves indicated above are summaries and additional
provisions (such as pay while on such leaves) may apply.
Some organizations choose not to list any of the above
leaves in their Employee Handbook, while others define all
available leaves. A middle of the road approach is to have a
general “Additional Leave” section where leaves are listed
in bullet format and employees are directed to speak with
the HR Representative for further assistance. The choice is
up to your organization and is based on a number of
considerations, including culture, communication and
Need to revise your Employee
Handbook? Call your TPO Consultant or
Article written by:
Robyn Schiller, SPHR-CA
The new legislative session is
in full-swing with many of the 60+ bills rejected by past
republican Governor Schwarzenegger being resubmitted for
consideration by the current Democrat Governor Brown.
Following are the major employment-related bills.
CA Pending Legislation
Sick Leave (AB 400) — Would require
employers with fewer than 10 employees to give 7
paid sick days a year and larger
companies 9 days a year. Eligibility would be after 90
days on the job and employees could use the leave for
their own or family members’ sicknesses and doctor’s
appointments. Paid leave would also be required for
issues related to domestic violence or sexual assault.
Bill Status: Pending in the Assembly.
“Good Faith” Defense (SB 883) — Would provide
employers who rely in good faith upon and in conformity
with the opinions, interpretations, guidance, advice, or
orders of the Division of Labor Standards Enforcement (DLSE)
with an affirmative defense against claims challenging
the validity of the employer's wage and hour practices
on such issues. Bill Status: Pending in the
Unionization (SB 104) —
Would eliminate the secret
ballot election and replace it with the submission of
representation cards signed by over 50% of the
employees. Bill Status: Passed the Senate.
Medical Marijuana (SB 129) — Would prevent
employers from firing, or refusing to hire workers who
use medical marijuana, as long as they are not impaired
on the job. Exceptions for employees who have a
prescription for medical marijuana will need to be made.
Termination of any employee who uses marijuana at the
workplace, during working hours, or who is impaired
during working hours would be allowed. Bill
Status: Pending in the Senate.
Expansion of CFRA (AB 59) — Would expand
several definitions of terms in the California Family
Rights Act (CFRA) for employers of 50, including:
eliminating the age and dependency elements from the
definition of “child,” expanding the definition of
“parent” to include an employee’s parent-in-law; and
permitting an employee to also take leave to care for a
seriously ill grandparent, sibling or grandchild.
Bill Status: Pending in the Assembly.
Minimum Wage (AB 10) — Would raise the state
minimum wage to $8.50 per hour with an automatic annual
indexing of minimum wage for every year thereafter
according to the percentage of inflation. Bill
Status: Pending in the Assembly.
Credit Checks (AB 22) — Would limit
employers’ ability to use consumer credit reports only
where the information contained in the report is
“substantially job-related,” which is narrowly defined
by the bill to only managerial positions, employees of
the city, county, or state Department of Justice, law
enforcement, or a position for which a report is
required by law. Bill Status: Pending in the
Unemployment Extension (H.R. 589) – Would add
14 weeks of unemployment to the first tier of extended
benefits. Laid-off workers currently on unemployment and
the so-called 99ers, who have exhausted their 99 weeks
of benefits, would be eligible for the additional aid.
Discrimination – Sexual Orientation (H.R. 1397) –
Would prohibit employment discrimination on the
basis of sexual orientation or gender identity.
Discrimination (H.R. 1113) – Would amend the
Civil Rights Act of 1964 to prohibit discrimination on
the basis of unemployment status.
Federal Employees Paid Parental Leave (H.R. 616) –
Would require that 4 of the 12 weeks of parental
leave made available to a Federal employee be paid
NLRB Required Notice — Would require ALL
employers (whether unionized or not) to post a
notification of employee rights under the National Labor
Relations Act (NLRA). The NLRA applies to most
private-sector workplaces, but is not applicable to
airline, rail or agricultural workers.
Article written by:
Melissa Irwin, SPHR-CA
“Allowable Meal Period
…yes, there are times when meal periods can be
As previously reported, there are many issues around meal
periods that have sat pending at the CA Supreme Court for
the past few years waiting for review. Experts seem to agree
that there might not be a definitive answer for a while. So
what is an employer to do in the meantime?
While we are all waiting, TPO recommends employers take the
conservative approach and continue to “ensure” employees
take their 30-minute meal periods before the 5th hour of
work is commenced. This approach reduces the likelihood of
having to pay out an extra hour of pay for missed meal
If employees wish to waive their meal periods, empathize
with them and then explain that, at this time, it is only
allowable under the following situations and only with a
signed meal waiver:
If the work shift is
completed within six hours, the meal period may be
If a long shift is worked
(more than 10 hours), one meal period may be waived
Such language is common in
Employee Handbooks TPO has developed a meal period
waiver which is part of the
HR Administration Kit under the “Upon Hire” tab. The
waiver needs only be signed once and remains in effect
unless the employee revokes the agreement, which can be done
at any time.
Frustrated by the meal
and break requirements in CA? Give us a call; we can help
sort it out for you!
Article written by:
Melissa Irwin, SPHR-CA
LET THE EXPERTS HANDLE IT FOR YOU!
TPO’S LEAVE OF ABSENCE SUPPORT SERVICES!
TPO will manage your leave
administration, including Workers’ Compensation claims, from
beginning to end.
DOES LEAVE OF ABSENCE SUPPORT MEAN? For a low monthly
fee, a designated TPO expert will manage every aspect of an
employee’s leave. What we like to call “Leaves from A to
Z”. As soon as you are made aware of an upcoming leave,
simply notify TPO and we will take it from there! We’ll even
take over for leaves in progress.
"The TPO family has been a
real blessing for me in my job as HR at Nepenthe/Phoenix
Corp. Now they have made my job even easier with their
“Leave Management” support services. Leaves have always been
difficult for me and I used TPO for help with them every
time we had one, now I only need to call “Angela” and she takes over. It really is a wonderful
service!" Willie Nelson
here for more information!
Research Foundation -
forward to the opportunity to provide each of you with
unlimited phone/email access, reduced consulting and
training rates, eCompliance notices, attendance to our
Annual Employment Law & Leadership Conference at no
additional cost, and priority status when you require TPO
support from any of our highly qualified team of HR experts!
Thank you for joining!
"LA Hearne has been a TPO member for over 12 years. How
do you feel TPO contributes to your operation's success?”
Francis Giudici, President, L.A. Hearne Company:
of the human resource challenges and changing laws today we
can always count on TPO to provide quick and knowledgeable
guidance to our questions that arise. In addition to their
advice, we have taken advantage of many of the training
seminars offered. Our mission is to provide the highest
level of Customer Service while offering quality products
and services to ensure customer satisfaction, employee
development, and long term Company growth and profits. Over
the last 12 years TPO’s partnership has been an asset in
helping us jump the human resource hurdles that line our
path. This expertise has been invaluable.”
L.A. Hearne Company is a
family owned and operated agricultural service business in
Southern Monterey County. The business was founded in 1938
by Larry Hearne and is now managed by one second generation
and eight third generation family members. They employ
approximately 100 employees and operate several enterprises
including dry beans, seed, fertilizer, feed manufacturing,
and trucking. They also have 2 retail farm stores; one in
King City and the other in Prunedale. For more information,
have an employee who has been working four, ten-hour days
instead of five, eight-hour days for about a year now because
he needs to have Fridays off. Is it true that we have to ask
our employees to vote for this before we can do it?
Alternate work week arrangements in California must be set
up by way of an election format. Many employers who use such
arrangements in other states are unaware of this
requirement. The Fair Labor Standards Act (FLSA) which sets
most wage and hour guidelines nationally requires overtime
pay for any work performed over 40 hours in a work week,
generally. This means that an employee can work either four,
ten-hour days or five, eight-hour days or any other
combination and not be entitled to overtime pay.
In California, employers must pay overtime pay for employees
who work over eight hours in a work day for most
If you want to have employees work an Alternate Work Week,
you should follow the steps below:
Identify the group that
will be eligible. This can be any nondiscriminatory
grouping. For example, it could be all workers in a
particular office, all of the employees in a certain
type of job.
Develop the types of
alternative(s) you want to allow employees to have.
Although four ten-hour days is the most common, there
are others that are allowed. It would be for any
arrangement that would usually incur overtime pay, but
you and the employee are willing to make adjustments
with no overtime due as a result as long as the plan is
Communicate with the
affected employees exactly how this arrangement would
work including examples of when over time pay would be
due, etc. Be prepared to answer any questions employees
have at this meeting. Your TPO consultant can help you
with this communication and answer any questions about
what should or should not be offered.
Administer a secret ballot
no sooner than 14 days after you have had the meeting
where you communicate the options. At least 2/3 of the
employees must vote for the arrangement for it to pass.
Accommodate in a
reasonable way any current employees who are unable to
work the new schedule(s).
File the appropriate
paperwork with the
State of California.
Maintain all of the
paperwork related to the election as proof of
Although this sounds pretty
straightforward, there are many opportunities to misstep if
each possibility isn’t thought out very carefully. Employees
may not choose to change this arrangement for a year and
then may only do so with a secret ballot to eliminate. The
employer can choose to cease such arrangements at any time.
Another issue that may arise in your specific situation
(paying an employee for a 4/10 alternative work week without
following the required steps above) is that the employee
could ask about pay for the time already worked that should
have been considered and paid as overtime. You should
contact your TPO consultant regarding this question to
assist you in managing this with the employee.
Article written by:
LaTonya Olivier, SPHR-CA
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