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California Enacts New Military Spousal
Leave Law
October 22, 2007
Summary
Enacting one of the first new employment laws
this final legislative term, Governor Schwarzenegger recently
signed into law Assembly Bill 392, which requires employers with
25 or more employees to give up to 10 days of unpaid time off to
employees with spouses on leave from certain types of active
military service.
Details
Which employers are covered under the new
law?
AB 392, which is now codified at Military & Veterans Code §
395.10 , applies to both public and private employers who employ
25 or more employees. Because the statute does not exclude
temporary, part time or inactive employees (i.e., employees on
leave), or employees outside of California, employers should
count all such employees as of the date of the leave request to
determine whether they are covered by this new law. Independent
contractors need not be counted.
When is an employee eligible for leave?
An employee is eligible for leave under this statute if
he or she is the spouse of a “qualified member” of the military
(defined below), and works an average of 20 or more hours per
week. One of several vague aspects of this new law is that it
does not define how the “average of 20 hours” should be
determined. Until clarification is provided, we believe a
prudent employer will find the threshold has been met if either:
(1) at the time of the requested leave, the employee is working
20 or more hours per week; or (2) the employee’s average weekly
hours worked during the six months preceding the requested leave
is 20 or more.
The employee’s spouse must be a “qualified
member” of the military, which means either:
(1)
a member of the Armed Forces of the United States who has
been deployed during a period of military conflict to an
area designated as a combat theater or combat zone
by the President of the United States; or
(2)
a member of the National Guard or Reserves who has been
deployed anywhere during a military conflict.
A “period of military conflict” means either a
period of war declared by the U.S. Congress, or a period of
deployment for which a member of a reserve component of the
military is ordered to active duty.
In addition, although this statute only
expressly applies to spouses, because the California Family Code
now provides that registered domestic partners are entitled to
the same rights and privileges under state law as spouses, this
law applies equally to registered domestic partners.
When may an eligible employee take leave?
Employees may only take leave under this new
law when their spouse is on leave from military deployment.
More specifically, employees are entitled to take leave when
either an enlisted military spouse is on leave from a
combat zone such as Afghanistan or Iraq, or a Reserve or
National Guard spouse is on leave from an assignment
anywhere after being activated during a military conflict.
Significantly, the law does not provide a cap
as to how much leave may be taken in any given year. Thus if an
employee’s military spouse is granted more than one leave from
active duty during a year, it appears the employee is entitled
to 10 days of leave on each occasion. Also, the law does not
provide the employer with the right to determine when -- during
a spouse’s military leave that lasts longer than 10 days -- the
employee may take their 10 days of military spousal leave. An
employer who faces difficulties scheduling leave may ask the
employee to agree to dates that are least disruptive to the
employer’s operations, but it would be risky to deny leave if
they refuse.
How much notice must the employee give?
The employee must notify his or her employer of their
intention to take leave under this statute within two
business days of receiving official notice that the
employee’s spouse will be on leave from military deployment.
The statute does require written notice to the employer, thus
oral notice would suffice. The statute also requires the
employee to provide written documentation certifying the
spouse’s temporary leave from active duty during the time the
leave is requested.
What is the impact on paid vacation and
other statutory leaves? The statue provides that
military spousal leave cannot affect, or prevent an employee
from taking, leave that the employee is otherwise entitled to
take. Thus an employer cannot force a an employee to use
accrued vacation time or paid time off while on military spousal
leave. In addition, employees should not be forced to take
military spousal leave concurrently with any other available
statutory leave.
What This Means
Unlike most laws passed at the end of the
legislative term, this statute became effective immediately upon
the Governor’s signature on October 9, 2007. Employers should
familiarize themselves with this new law and update their leave
of absence policies to include military spousal leave. Because
this new law also contains anti-retaliation provisions,
employers should proceed cautiously when imposing any adverse
employment action against an employee who has recently requested
or taken military spousal leave.
This E-Update was authored by
Jennifer Baumann and
Denise
Brucker of Paul, Plevin's Transactional Practice Group. For
more information, please contact Ms. Baumann, Ms. Brucker, or any Paul,
Plevin attorney at 619.237.5200.
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