|
February 2003
Welfare Fraud
We are again experiencing a tug of war with administration regarding
training for the investigators. I wrote a letter to Colleen Krygier
regarding the issue over a week ago and have never received an answer.
I imagine she still loathes putting things in writing. I hope before
this is printed and sent out that we are able to resolve our disagreement.
Funny that they fight every issue, every dime, every move …
and these guys are funded almost entirely by the federal government.
They should pay more attention and work more closely with the people
who cost the county a couple of million of dollars in fines rather
than picking on these guys because they want more training and want
to devise more training.
Sheriff Transfers
Remember that if you have a transfer request in and are on the list
to get out on patrol or move to another station, should you accept
an assignment of a different shift within the same station, like
going from a 8-hour shift to a 12-hour shift, you are purged from
the transfer list. You have to request to be put back on the transfer
list. It’s automatic, so be sure if you haven’t gotten
the desired transfer but have changed hours or assignments that
you must resubmit your request.
FMLA and CFRA
It has been some time since I have written about unpaid leave granted
by either the feds or California, and I have had several calls of
late. Therefore, the following is a brief description of unpaid
leave. Also there are two paid leaves for California employees noted
at the end.
California Family Rights and Federal Family
and Medical Leave Act - For Everyone
Under federal law the Family and Medical Leave Act (FMLA), eligible
employees can take up to 12 weeks of unpaid family or medical leave.
Under the California Family Rights Act (CFRA), which applies to
private employers with 50 or more workers, and all public employers
regardless of the number of workers, the leave allowance is the
same.
The CFRA (Cal. Gov. Code section 12945.2), is nearly identical to
the federal FMLA, the eligible employee must be employed for at
least 12 months and have worked at least 1,250 hours in the prior
12-month period. (The County generally codes the leave under BOTH
of the eligible codes even though it is the employees’ duty
to advise which one they are taking). This would entitle the worker
up to 12 weeks of “family and medical care leave” for
the following:
1) Birth or adoption of a child, or a foster care child placed with
the employee.
2) The serious health condition of a spouse, child or parent; and
3) The employee’s own serious health condition.
Neither the CFRA nor the FMLA includes a grandparent or grandchild,
but there is some language elsewhere that indicates if a parental
relationship exists, then they can qualify as a family member.
If the employee elects to take leave under CFRA, the employer must
maintain and pay for medical coverage (this is why the County selects
coverage under both - to be sure the employee is still has medical).
If the employee takes leave for family health problems an employee
may elect, or the employer may require, that accrued vacation leave
substitute for leave under CFRA. If the leave is for the employee’s
own health problems, the employee may elect, or be required by the
employer, to substitute accrued sick leave. The time can be taken
on an intermittent basis, with certain conditions being met.
An employer who violates the CFRA or the FMLA can be a grieved under
the MOU (remember the grievance guidelines) and it can be a violation
under either act, or the MOU. The MOU uses “may” language,
but both the FMLA and the CFRA are written in the “shall”
and “must” language, so a person cannot be denied the
leave. Under the FMLA it states that any union bargain cannot be
LESS than what is guaranteed by the FMLA so the law trumps our “may”.
Under the FMLA, according to Gilliam v. United Parcel Service Inc.,
(7th U.S. Circuit Court of Appeals, No. 99-3942/2000) the FMLA was
found not to contemplate entitlement to FMLA leave on short notice
when the leave was reasonably foreseeable at least 30 days in advance.
In this case Gilliam asked for leave after his baby was born, but
knew of the coming event for several months. When he did not return
to work in three days, as contemplated in his MOU, he was fired.
He sued alleging that his rights under the FMLA were violated, as
there is no three-day limitation.
The lower court, however, agreed with UPS, as did the appellate
court. It reasoned that his entitlement to FMLA leave was conditioned
upon the nature of the leave, which was for the birth of his child.
Therefore, his leave was reasonably foreseeable and actually foreseen
more than 30 days in advance. The court held the firing did not
violate the FMLA as it was provided under the MOU, as he did not
provide the required 30-day notice, and his employer waived the
10-day notice under their MOU so he could take the leave. His firing
was affirmed.
This case makes if very clear that you have to be clear. Be specific
when you are requesting time off, fill out your requests properly,
and cite under which authority you are making the request
Pregnancy: Before the baby is born
The California Fair Employment and Housing Act protects pregnant
women by giving them, a) the right to take a doctor-certified disability
leave before or after the baby is born; b) the right to return to
a job after taking disability for four months or less; c) the ability
to transfer to a less strenuous or hazardous position during the
pregnancy; d) the right to reasonable accommodation based on the
advise of the woman’s physician, and; e) the right to pregnancy-related
medical coverage if medical benefits are provided by the employer.
There is an exception about the leave for the pregnant employee.
Under California’s Fair Employment and Housing Act (FEHA) the
employer with five or more employees must provide female employees
up to four months (16 weeks) of leave on account of pregnancy, childbirth
or related medical conditions. The female employee may use any vacation,
sick, or other accrued leave during this period. The FEHA leave
can be piggy backed to the CFRA requirement of 12 weeks, giving
the female employee 28 weeks of leave during a 12-month period.
Although both the mother and father have 12 weeks available, if
they have the same employer they must share their 12 weeks of unpaid
time. So if the wife works as a deputy and the husband works for
another division of the county, they share a 12-week period to be
with the baby. If the husband worked for Redlands City, then they
each have 12 weeks coming to them.
All other leave taken pursuant to the federal FMLA or California’s
CFRA will run concurrently, and cannot be stacked under the two
laws.
Kin Care
Effective January 1, 2000 California Labor Code section 233 allows
any public or private employee to use their accrued sick leave when
they take time off to care for a sick parent, spouse, child, or
domestic partner of the employee and it does NOT limit the definition
of illness, as does the CFRA and the FMLA. However, if the leave
qualifies for FMLA or CFRA protection (i.e., it’s a serious
illness), the paid sick leave would run concurrently with the leave
“entitlements” offered by the federal and state laws –
even though you are not taking leave under those statutes.
The annual amount of sick leave for “kin care” must be
at least half of the sick leave that can be accrued in one year.
The employer cannot refuse to allow an employee to use his or her
accrued sick leave. The remaining sick leave must be used for the
employee’s personal illnesses. A father can take one half of
his accruable sick leave to care for his wife or child. The employer
cannot refuse to allow the leave, or they will be subject to penalties.
However, just as any employer would require a note for the employee
who is gone more than three days, the employer may require a doctor’s
note (or off work order) indicating that the wife, domestic partner,
child, etc., is sick. If the employee only takes two or three days
then no note is required.
Also, there is no need for the illness to be “serious”
as under the FMLA or CFRA, just that the other person is sick. If
the spouse were employed, it would be appropriate to use their doctor’s
off work order showing the wife is sick or needs to stay home as
the employee seeking to use Labor Code 233 leave is not the sick
person and there is no requirement that the illness be so serious
to require constant care as in FMLA or CFRA.
Under the code, “child” means a biological, foster, or
adopted child, a stepchild, a legal ward, or a child of a person
standing in loco parentis.
School Visitation
California also has a leave law that allows employees to take time
off to visit their children’s schools or day care facilities
which is dubbed the Parental Leave Law, Labor Code 230.8. The employer
MUST, with adequate notice, allow the employee up to 40 hours of
leave each year, not to exceed eight hours a month, to visit the
sites. The employee must use existing vacation leave, personal leave,
unpaid leave, or CTO. You must give the employer reasonable prior
notice. The employer can request documentation from the school as
proof of the participation.
Employers who have 25 or more workers at the same location must
allow the employee to take advantage of this law. Covered employees
are parents, guardians or grandparents having custody of minor children,
and are all protected from discharge, demotion or other discrimination
related to using this leave.
|
