‘Family Leave’ Laws Grant Time Off to Fathers Too

Question: I have a question concerning the family leave bill passed last year. My wife is pregnant and will have the baby in November. I’m wondering what my rights as a husband are under the bill if I take time off to be with my wife.

--P.P., Costa Mesa

Answer: Both federal and state law now require an employer to give an employee up to 12 weeks of unpaid leave in connection with the birth or adoption of a child, so long as the employee has worked for the employer for at least 12 months. These “family leave” laws apply to both parents, allowing prospective fathers the same rights as prospective mothers. Prospective mothers may be entitled to additional benefits under other laws that deal specifically with pregnancy.

You can obtain brochures with detailed information about your rights under these laws from the federal and state agencies that enforce them. The Wages and Hours Division of the U.S. Department of Labor publishes “Compliance Guide to the Family and Medical Leave Act of 1993.” Send a stamped, self-addressed envelope to Department of Labor, 200 Constitution Ave. N.W., Room S3325, Washington, D.C. 20210, or call the agency’s public information office at (202) 219-8743.

The California Fair Employment and Housing Department publishes a pamphlet called “Family Leave Rights.” Call the department’s general information number, (916) 227-0551.

--Calvin House, attorney, Fulbright & Jaworski L.L.P., adjunct professor, Western State University College of Law

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Question: After a very encouraging job interview--I was certain I had the position--I was given paperwork to arrange to take a drug test. I took the test, and the company said it would call me in a few days. After not hearing anything for a week, I called and was told the company had already hired someone with better qualifications. Was I treated unfairly?

Answer: An offer of employment is generally extended to the most qualified job applicant. It is the responsibility of an employer to evaluate each perspective job candidate on the basis of individual skills, knowledge and abilities--provided laws and regulations are satisfied.

Pre-employment drug tests are often conducted by employers before an employer will make a conditional job offer. The intent is to identify illegal drug use. Thus, an employer may reasonably determine that the results of a drug test are directly related to job fitness. Remember, employers have a legitimate interest in denying employment to individuals who are unable to perform satisfactorily on the job as a result of drug use.

You did not say whether you have tested “positive” for illegal drugs. However, you did state that someone was selected on the basis of “better qualifications.” If you question the fairness of the decision, contact the employer and ask for further clarification.

--Elizabeth Winfree-Lydon, Senior staff consultant, The Employers Group

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Question: Is there any place an individual can go to learn what rights he or she has when working for a company of fewer than 50 employees? My workplace has many unusual employee policies, such an only allowing three sick days a year, which includes doctor visits. And if you go to the doctor for two hours, you’re docked for part of those three days. I’m not sure whether that’s legal, and I’m not sure where to go to find out. --R.C., Tustin

Answer: Your question concerns conditions placed on paid sick leave, which an employer is not required by law to provide. When paid sick leave is provided, then specific conditions may be established. There are, however, certain federal and state rules that apply to companies with more than 50 employees involving the rights of a worker to unpaid family leave to care for yourself or family members. You can learn more about your rights from the following agencies:

* The state Department of Fair Employment and Housing, (714) 558-4266, provides information on discrimination.

* California labor commissioner’s office, (714) 558-4111 or 558-4114, provides information on wage and retaliation claims.

* Orange County Bar Assn., (714) 835-5294, offers free taped reviews of various legal subjects by telephone.

And most bookstores sell inexpensive, easy-to-understand books on employee rights, such as “Your Rights in the Workplace” by Nolo Press.

--Don D. Sessions, employee rights attorney, Mission Viejo

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Question: I have been employed for several years as a commissioned carpet salesperson for a large department store chain. When I receive my commission checks, my employer deducts for things that occur after the transaction.

For instance, the carpeting may be flawed and the customer will demand an adjustment, or the customer may cancel the sale for reasons over which I have no control. Can my employer deduct from my commission checks when problems occur that are not my fault?

My feeling is that when I have successfully made the sale I have fulfilled the duty for which I was employed, therefore I’m entitled to the commission.

--J.K., Laguna Beach

Answer: In general, commissions are a matter of what the contract between the employer and the employee provides. So long as the employer carefully drafts its commission policy to provide that commissions are not earned on sales until the employer is paid for the goods sold, the employer can probably charge back returns to the employee who made the sale or, in the absence of an express identification of that employee, to the employees at the store where the sale was made.

However, in each instance discussed above, it is possible that the employer has not properly drafted its commission policy, so the policy may be regarded as causing an improper forfeiture of earned commissions. If that were the case, the employer might have to repay the money that has been deducted. The best place to challenge a commission policy is through the state labor commissioner’s office. The phone number in Santa Ana is (714) 558-4111.

The law provides that employees may not be terminated for bringing a complaint or concern to the labor commissioner.

--Michael A. Hood, employment law attorney, Paul, Hastings, Janofsky & Walker