Cal-Peculiarities: How California Employment Law is Different 2022 Edition

©2022 Seyfarth Shaw LLP  www.seyfarth.com 2022 Cal-Peculiarities | 37 The Court of Appeal has rejected an argument that ERISA preempts the application of kin-care requirements for an employer that uses trusts to provide paid sick leave . 91 2.12 Military Leave The California Military and Veterans Code contains sections comparable to the language in the federal USERRA, and also provides additional employee rights, especially for public sector employees, and protects service members for state call-ups. California employers must not discharge a returning employee who was on active military duty with the National Guard, except for cause, within one year after being restored to the position. Violation of the California statute is a misdemeanor . 92 The DOL, in interpreting the federal USERRA, defines “employer” broadly to include any person who pays salary or wages for the work performed, or who has control over employment opportunities—including someone who has been delegated the performance of employment-related responsibilities (other than functions that are purely ministerial in nature). The DOL thus opines that individuals can be subject to personal liability for USERRA violations . 93 H ere, remarkably, the California version of the law is less plaintiff-friendly, for the Court of Appeal has ruled that individuals cannot be personally liable for violating California’s military leave statut e. 94 2.13 Military Spousal and Partner Leave California employers with 25 or more employees must grant up to ten days of unpaid leave to employees married to (or registered domestic partners of) certain members of the active military service who themselves are on leave from a combat zone or during a military conflic t. 95 Employees who work an average of at least 20 hours per week are eligible for military spousal leave if they are spouses or registered domestic partner s 96 of a “qualified member” of the military. A “qualified member” is a member of the U.S. Armed Forces deployed to a combat zone, or a member of the National Guard or Reserves who has been deployed anywhere during a military conflict. Employees requesting leave must notify the employer of their intention to take time off within two business days of receiving official notice that the employee’s spouse or registered domestic partner will be on leave from military deployment. There is no provision allowing an employer to deny or delay the leave. Because the law establishes no cap on the aggregate amount of time off, it appears that the employee can take the full ten days off on each qualifying occasion. The statute states that spousal leave shall not prevent an employee from taking a leave that the employee “is otherwise entitled to take, ” 97 suggesting that an employer cannot require an employee on military spousal leave to concurrently use other leave that the employee is entitled to take. Employers must not retaliate or otherwise discriminate against employees requesting military spousal leave. 2.14 Paid Sick Leave In America generally, employers need not pay workers while they are on sick leave. In California it’s different. California has followed the lead of San Francisco, which, in 2007, became the first American city to mandate paid sick leave for private employees. Since then, California and many of its cities and counties have followed suit, with each local jurisdiction piling on to make its own peculiar mark. While the rest of the country struggles to catch up, California leads the way, thus far, in creating a confusing patchwork of paid sick leave laws. The state-wide sick leave law introduces a number of peculiarities while having no preemptive effect on local efforts to similar effect. Employers meanwhile must comply with whichever provision—state or local—that is most onerous. And during 2020 these local laws spread like a coronavirus among cities and counties seeing a need for special employer mandates to provide supplemental sick pay for Covid-related reasons . 98