| 
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.
Copyright
© 2007, Davis Wright Tremaine LLP.
return to Advisory
Bulletins main page |
