Employer Services Advisory Bulletin
New California Law Gives Unpaid Leave to Qualified
Military Spouses
By Michelle
D. Fife
[November 2007]
On Oct. 9, 2007, Governor Schwarzenegger signed California
Assembly Bill 392 into law and declared that it should take effect
immediately as an urgency statute. The bill, which has been added
as Section 395.10 to the California Military and Veterans Code,
requires employers with 25 or more employees (“qualified employers”)
to provide any employee whose spouse is a member of the Armed Forces
of the United States, National Guard or Reserves, who has been deployed
during a time of military conflict, up to 10 days of unpaid leave
when his or her military spouse is on leave from deployment.
The employee must give reasonable advance notice of his or her
intent to take the leave and provide the employer with written documentation
certifying that his or her spouse will be on leave from deployment
during the requested time leave is to be taken. This new right to
leave under Section 395.10 does not diminish or otherwise affect
an employee’s entitlement to any other form of leave that
the employee is entitled to take.
The law is intended to serve the families of those troops currently
serving in military conflicts in Iraq and Afghanistan, and to assure
that those families are able to spend time together during qualified
members’ leaves from deployment without fearing that they
will lose their jobs or otherwise be penalized or suffer hardship
at work for taking such leave.
Qualified member
A “qualified member” is a person who is any of the
following: 1) a member of the Armed Forces of the United States
(i.e., Army, Navy, Air Force, Marines and Coast Guard) 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; 2) a member of the National Guard who has been deployed
during a period of military conflict; or 3) a member of the Reserves
who has been deployed during a period of military conflict.
Qualified employees
A “qualified employee” is a person who satisfies all
of the following requirements: 1) is the spouse of a qualified member;
2) performs service for hire for a qualified employer for an average
of 20 or more hours per week; 3) provides his or her qualified employer
with notice, within two business days of receiving official notice
that the qualified member will be on leave from deployment, of his
or her intention to take the leave provided for in Section 365.10;
and 4) submits written documentation to his or her qualified employer
certifying that the qualified member will be on leave from deployment
during the time the leave provided for in Section 365.10 is requested.
Independent contractors are not eligible to be qualified employees.
Period of military conflict and combat zones
A period of military conflict is either of the following: 1) period
of war declared by the United States Congress; or 2) period of deployment
for which a member of a reserve component is ordered to active duty
pursuant to either Sections 12301 and 12302 of Title 10 of the United
States Code (authorizing Reserves to be called to active duty),
or Title 32 of the United States Code (governing the National Guard).
In order for a member of the Armed Forces to be a qualified member,
he or she must have been deployed during a military conflict to
a combat theater or combat zone. The President designates combat
zones by Executive Order. Currently, there are three active Executive
Orders designating the following areas as combat zones: 1) the Arabian
Peninsula Areas, including: the Persian Gulf, Red Sea, Gulf of Oman,
the part of the Arabian Sea north of 10° North latitude and
west of 68° East longitude, the Gulf of Aden, and the countries
of Bahrain, Iraq, Kuwait, Oman, Qatar, Saudi Arabia and the United
Arab Emirates; 2) the Kosovo area, including the Federal Republic
of Yugoslavia (Serbia and Montenegro), Albania, the Adriatic Sea
and the Ionian Sea north of the 39th Parallel; and 3) Afghanistan.
A member of the Reserves or the National Guard who has been deployed
during a period of conflict is considered a qualified member, regardless
of whether the service is in a combat zone.
No retaliation
Section 395.10 makes it unlawful for an employer to retaliate against
a qualified employee for requesting to take leave that it permits.
Unanswered questions
This new law leaves several questions unanswered. First, Section
395.10 does not address whether the leave must be taken at a time
of the employee’s choosing, or whether an employer can ask
that the leave be taken at some other time during the spouse's period
of leave from deployment based on the operational needs of the employer.
Second, the law does not describe what constitutes sufficient “written
documentation” that the service member is on leave during
the employee’s requested leave period. Nor does the law identify
any deadline for a qualified employee to request specific leave
dates or provide such “written documentation” to the
employer. The law also does not identify any deadline for a qualified
employee to request specific leave dates or provide such “written
documentation” to the employer. Finally, the law fails to
address whether Section 395.10 applies to registered domestic partners
of military personnel who are entitled to many of the same rights,
protections and benefits afforded to spouses, pursuant to California
Family Code section 297.5. Without further guidance as to these
unresolved questions, an employer is wise to err on the side of
leniency toward an employee's request to use this benefit.
Employers’ to-do list:
What steps should California employers take right now?
- Update leave policies to be certain that they comply with Section
395.10
- Inform employees of their potential entitlement to leave under
the California Military and Veterans Code
- Update employee handbooks to reflect the availability of this
new right to leave
- Consider preparing a standard written form for qualified employees
to use to request permission to use Section 395.10 leave
For further information regarding
California Military and Veterans Code section 395.10, please contact:
Davis Wright Tremaine has employment
and labor lawyers in Alaska, Oregon, Washington state, California
and Washington, D.C. We represent many clients nationally. For a
specific referral for a DWT employment and labor attorney in your
state, please contact an above attorney. Thank you.
This
advisory
is a publication of the Employer Services Department of Davis Wright
Tremaine LLP. Our purpose in publishing this advisory
is to inform our clients and friends of recent developments in employment
law. It is not intended, nor should it be used, as a substitute
for specific legal advice as legal counsel may be given only in
response to inquiries regarding particular situations. Attorney
advertising. Prior results do not guarantee a similar outcome.
Copyright © 2007, Davis Wright Tremaine LLP.
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