©2025 Seyfarth Shaw LLP www.seyfarth.com 2025 Cal-Peculiarities | 39 The California Supreme Court has ruled that the kin care statute does not apply to sick leave policies that provide for an uncapped number of compensated sick days for an employee’s own illness, but rather applies only to sick leave policies that provide for measurable amounts of accrued sick leave.113 California employers must grant kin care leave to—and must not discriminate against—an employee who attempts to use kin care leave, and must not count that leave as an absence that may lead to discipline of the employee.114 Aggrieved employees are entitled to reinstatement and actual damages, or one day’s pay, whichever is greater. Employees who prevail in a court action are entitled to attorney fees.115 California employers must not deny an employee the right to use sick leave for kin care purposes and must not take discriminatory action against an employee for using—or attempting to exercise the right to use—sick leave for those purposes.116 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.117 2.12 Military Leave The California Military and Veterans Code includes provisions that align with the federal USERRA, while also providing 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.118 The U.S. 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 to whom the performance of employment-related responsibilities has been delegated (other than functions that are purely ministerial in nature). Accordingly, the DOL opines that individuals can be subject to personal liability for USERRA violations.119 Here, remarkably, the California version of the law is less plaintiff-friendly because the Court of Appeal has ruled that individuals cannot be personally liable for violating California’s military leave statute.120 San Francisco pay differential for military leave. San Francisco is the first jurisdiction in the nation to require private employers to provide “differential pay” to employees who are called to active military duty.121 San Francisco’s Military Leave Pay Protection Act (MLPPA) became effective February 19, 2023, and requires employers with 100 or more employees nationwide to provide 30 days per calendar year of differential pay to bridge the gap between employees’ military pay and what they would have otherwise earned from their civilian employer.122 The MLPPA covers employees who work within the geographic boundaries of the City and County of San Francisco, including part-time and temporary employees with limited exception for employees of private businesses located in “federal enclaves” such as the Presidio, Fort Mason, and the Golden Gate National Recreation Area.123 Employees covered by a collective bargaining agreement also may be exempt provided that the CBA includes an express, clear, and unambiguous waiver of the MLPPA.124 The supplemental compensation provided for under the MLPPA must be calculated as the difference between the employee’s gross military pay and the amount of gross pay the employee would have received from the employer had the employee worked his or her regular work schedule, including overtime if the employee was regularly scheduled for overtime hours.125 The differential must be used in daily increments of one or more days at a time, and is available to employees engaged in any active military service, including training, drills, and natural disaster relief.126 Recognizing that some private employers already provide additional income protection for employees called to active service (including training and drills), the MLPPA permits employers to offset any obligation under the MLPPA by any
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