Santa Ana, CA asked in Employment Law for California

Q: what are my right after paternity leave?

I been with this company for a little over a year , they were accommodating when I told them I needed to take a paternity leave. It’s been over a month now since I told them in person and on phone that I was ready, but they keep putting it off, and keep saying they put me in the schedule next week.

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1 Lawyer Answer

Donald Arthur Hilland

  • San Fernando, CA
  • Licensed in California

A: So it sounds like they are not going to hire you back, but since you posted this I do not know if they have called you as I see it has been several weeks. If yes, then great for you and maybe others with similar questions can benefit. If no, then I can tell you I had a recent case of a father taking time off to be with mom and baby and upon returning they said he did not qualify for several reasons and it was a court battle to get him paid. For the laws to apply, you need 50 or more workers, 1 year on the job, and have earned 1,250 hours. So when you say a little over a year, does that mean the time before you took leave had been a year? Or it's a year now. Your answer to that question is important because you must meet the minimum requirements. We had a recent case where father had not been there a year unless you added in the time he was first hired by the agency before he became a permanent employee so the company insurance defense attorneys fought that very hard. Fortunately, in the last few years, the legislature made agencies and employers equally liable on many issues and with that parallel we could draw a line that the time should count but it took a judge to decide in the lawsuit. So those minimums, like most things in the law, are important so do the math. Do you qualify? No matter what they told you when you took the leave, obviously there's a problem now and so you need to figure it out, your start of employment date, your start of leave date, and if you earned enough hours of work time to qualify. Do the math. If so, we move forward, but there are other considerations. As I stated in a previous post, employers use a pretext often in terms of terminations to avoid being successfully sued. They will claim the layoff or termination is for economic reasons, which the courts have said is a legitimate reason, and it basically wipes the slate clean and puts the burden back on the worker to show it is not true, it is only a pretext for some other discriminatory motive. Many employers are still old fashioned and do not follow the law nor do they expect their workers to take time off and the results are disputes and frequent lawsuits. Be careful about showing up tat work in person or causing a confrontation in these volatile times. I would email or r send a certified letter. That way you can prove you contacted them and they will have to respond. Otherwise, conversations have a way of being denied or forgotten. Put it in writing like the lawyers say. That will protect you. And keep a phone log if you have not already for the times you have called. You can take screen shots of the call and the duration, etc. You cannot record people in California. Interesting case, in New Mexico, you can so we had a case where the caller in New Mexico recorded the other participant in California and that was ruled legal by the judge and the recorded calls basically made the case. But you cannot do that if you're in California. It's illegal "wiretapping" Penal Code 632 and besides being a crime you could get in legal trouble. That's why I say if it has gotten to that point, send a certified letter so that you are not just sitting around doing nothing when you could be working. Good luck.

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