1. C ALIFORNIA F AMILY R IGHTS A CT (CFRA) N ELSON C HAN, E SQ. C HIEF OF E NFORCEMENT S TATE OF C ALIFORNIA D EPARTMENT OF F AIR E MPLOYMENT AND H OUSING (DFEH) WWW. DFEH. CA. GOV

2. O VERVIEW Recent trends on CFRA leave complaints and litigation. Covered employer. Eligible employee. CFRA benefits. Reasons for taking CFRA leave. Serious health condition. Medical certification requirement. Remedies. 2012 CFRA case law. Practice pointer. 2

3. CFRA C OMPLAINTS IN 2011 3

4. CFRA A CCUSATIONS IN 2011 4

5. DFEH v. Verizon $6 Million CFRA Class Action Settlement On January 19, 2012, Los Angeles Superior Court Judge Anthony J. Mohr gave final approval of the $6,011,190 California Family Rights Act (CFRA) class action settlement in Dept. Fair Empl. & Hous. v. Verizon (Seales) (Super. Ct. L.A. County, No. BC444066). The final settlement resulted in payment of $4,490,041 from the maximum settlement amount to 687 qualified claimants as follows:  Tier 1: Claimants who experienced improper denial of their application for leave under the California Family Rights Act will receive a check for $3,000;  Tier 2: Claimants who were subject to discipline for poor attendance due to absences under the California Family Rights Act will receive a check for $6,000.  Tier 3: Claimants who were terminated or constructively terminated in violation of the California Family Rights Act will receive a check for $25,000 or more. 5

6. C OVERED E MPLOYER Employer has 50 or more employees w ithin any State of the United States, the District of Columbia or any Territory or possession of the United States to perform services for a wage or salary. There is no requirement that the 50 employees work at the same location or work full time. The State of California, counties, and any other political or civil subdivision of the state and cities, regardless of the number of employees. 6

7. E LIGIBLE E MPLOYEE Employee has worked for the employer for at least 12 months. Employee has worked at least 1,250 hours of service during the previous year. This does not include vacation or sick time. Employee must work for an employer who maintains on the payroll, as of the date the employee gives notice of the need for leave, at least 50 part or full time employees within 75 miles, measured in surface miles, using surface transportation, of the worksite where the employee requesting the leave is employed. 7

8. B ASIC CFRA B ENEFITS 12 weeks of unpaid leave in any 12-month period. Continued health benefits. Upon return to work in the same or comparable job, the employee must be given the same seniority as before his or her leave. 8

9. A LLOWED R EASONS F OR T AKING CFRA Medical Leave : Employee’s own serious health condition that makes the employee unable to perform the essential functions of the position of that employee. Family Care : Care for employee’s child, parent, spouse or domestic partner that has a serious health condition. Child : Birth or adoption of a child, or foster care placement of child. 9

10. D EFINITION OF A S ERIOUS H EALTH C ONDITION  California regulations define a serious health condition as an illness involving either (1) inpatient care or (2) continuing treatment or continuing supervision by a health care provider as detailed in FMLA and its implementing regulations. 10

11. I NPATIENT C ARE Definition : Must involve an overnight stay in a hospital, hospice, or residential health care facility. 11

12. C ONTINUING T REATMENT Definition : Period of incapacity lasting more than three consecutive calendar days and subsequent treatment. Also, any period of incapacity or treatment for incapacity due to a chronic serious health condition. 12

13. E XAMPLES OF A LLOWED S ERIOUS H EALTH C ONDITION Chronic serious health conditions, such as asthma, diabetes and epilepsy. Permanent conditions, such as Alzheimer’s or stroke. Conditions that require multiple treatments, such as chemotherapy, radiation, and dialysis. Ongoing treatment by a health care provider, such as physical therapy or severe arthritis. 13

14. E XAMPLES OF W HAT IS N OT A S ERIOUS H EALTH C ONDITION Common Cold. Common Flu. Earache. Upset stomach. Headaches (other than migraines). Routine dental treatment. Cosmetic Treatments. Minor ulcers. 14

15. M EDICAL C ERTIFICATION R EQUIREMENT Under CFRA, an employer may require the employee to submit a certification by the employee’s health care provider. The certification is sufficient if it includes: (1) The date on which the serious health condition commenced, (2) The probable duration of the condition, and (3) A statement that, due to the serious health condition, the employee is unable to perform one or more of the essential functions of his or her position. 15

16. F ORBIDDEN Q UESTION ! Employer cannot ask the nature of the serious health condition. 16

17. T HE S KEPTICAL E MPLOYER – “Y OU H AVE G OT TO BE K IDDING ” If the employer has reason to doubt the validity of the employee’s medical certification, the employer may ask for a second opinion by a health care provider of its choice. The employer must pay for this second opinion. 17

18. R EMEDIES FOR V IOLATING CFRA Hiring or reinstatement of employee. Actual Damages. No caps on DFEH civil actions after SB 1038 took effect on January 1, 2013. Affirmative relief to prevent recurrence of the unlawful act. Attorneys’ fees and costs. 18

19. R ICHEY V. A UTO N ATION, I NC. (2012) 210 C AL.A PP.4 TH 1516 – N O H ONEST B ELIEF D EFENSE An employer may not simply rely on an imprecisely worded and inconsistently applied company policy to terminate an employee on CFRA leave without adequately investigating and developing sufficient facts to establish the employee has actually engaged in misconduct warranting dismissal. 19

20. O LOFSSON V. M ISSION L INEN S UPPLY (2012) 211 C AL.A PP.4 TH 1236 – G RANT OF CFRA LEAVE CANNOT BE INFERRED No wrongful termination occurred where substantial evidence shows the employer (1) did not misrepresent by deed that the employee’s leave had been approved; and (2) was not silent when it had a duty to speak under the applicable regulations. 20

21. P RACTICE P OINTER : A VOIDING C OMMON E MPLOYER M ISTAKES R EGARDING CFRA Applying FMLA instead of CFRA. Failing to timely respond to CFRA requests. Disciplining employees for taking CFRA protected time off. Terminating employees for absenteeism and counting CFRA protected leave as part of the absenteeism. Requesting impermissible information. Failing to consider a reasonable accommodation request to extend CFRA leave. 21

22. THANK YOU 22 www.dfeh.ca.gov contact.center@dfeh.ca.gov www.dfeh.ca.gov contact.center@dfeh.ca.gov (800) 884-1684 Videophone (916) 226-5285