Small Business CFRA Leave Mediation

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Posted by Legal Team On March 31, 2023

The Department of Fair Employment and Housing (DFEH) provided information about its new pilot mediation program for specific claims under the California Family Rights Act (CFRA). This initiative may offer a substantial benefit to “small employers” that are subject to CFRA.

California Family Rights Act (CFRA)

According to the CFRA, some employees may be eligible to take up to 12 weeks of unpaid leave from work while their jobs remain protected. These 12 weeks of leave may be taken during a 12-month period for the following reasons:

  1. They may take time off to care for a “serious health condition.”
  2. They may be eligible to take time off to care for a family member suffering from a “serious health condition.”
  3. Another reason they may be eligible for this leave is to bond with a child within the first 12 months of their birth, their adoption, or placement in foster care.

A “serious health condition” is considered a physical or mental condition, illness, or injury that requires inpatient care or that a healthcare provider is required for continuous treatment. An employee who used CFRA leave is entitled to return to the same position or one that is comparable to it.

These employees are allowed other job protections as well. For instance, continuous health coverage with the employer’s group health plan.

CFRA Eligibility

To qualify for CFRA leave, you must meet eligibility requirements. They are as follows:

  • The employee has to have been employed for a total of 12 months. The 12 months do not have to be consecutive, though.
  • The employee has to have spent a minimum of 1,250 hours during the twelve months prior to CFRA leave physically working.

Before 2021, CFRA only applied to businesses that employed a minimum of 50 workers. This changed on January 1, 2021, when the legislature expanded coverage for CFRA leave to businesses with five or more employees.

Small Business Concerns

Small businesses, those with five to 19 workers, had concerns about this new legislation. To address small business concerns, the legislature required the DFEH to execute a “Small Employer Family Leave Mediation Pilot Program.” This program was implemented so that CFRA disputes can be brought to a resolution without the expense associated with expensive civil litigation.

Frequent CFRA Dispute Issues

CFRA disputes often occur for a few basic reasons. These are listed below:

  • CFRA leave is refused by the employer
  • The employer fails to reinstate the employer after an authorized CFRA leave
  • Employer retaliation against an employee who took CFRA leave, such as terminating them during their leave or when they return to work

If an employer violates CFRA, they may face penalties if the employee chooses to litigate, such as:

  • Being required to reinstate the worker to their former position
  • To provide the employee with back pay
  • They may be responsible for attorney’s fees
  • Damages for the emotional anguish of the employee
  • Possible administrative fines

CFRA cases are based on the facts of the case. They are often expensive litigation matters when they appear before a jury. Often juries award the employee with substantial damages.

DFEH and CFRA Claims

Employees who feel their rights to CFRA leave have been violated must bring their case before the DFEH for administrative remedies. The employee must exhaust the following two options:

  1. File a complaint against their employer with the DFEH for review. They may be given a “right to sue” if the process turns up evidence that the employer may have been in the wrong.
  2. Or the employee may submit a request for an “immediate right to sue.” This option means the DFEH will not be responsible for investigating the employee’s claims.

If the employee is given the right to sue, they must participate in a mediation program with the DFEH.

Small Employer Family Leave Mediation Program

The Small Employer Family Leave Mediation Program was created by the legislature and took effect on January 1, 2021. The program was significantly delayed for a number of reasons. So, in April of 2022, the DFEH answered some questions about the program. These FAQs explained the process an employee must follow after receiving their “right to sue” notice.

Initiating Mediation

The employee is required to begin the mediation process. The first step is emailing the DFEH’s Dispute Resolution Division. In this email, the employee needs to request mediation of their CFRA claim.

There may or may not be mediation. Either way, they will send the employer and employee a notification that there was a complaint and information stating that the employer has the right to mediation. The employer has 30 days to notify the DFEH if they choose to participate in mediation.

If either party promptly requests mediation, then the mediation is mandatory. The DFEH will schedule a session within 60 days. If either party refuses to mediate, the applicant or employee can begin civil proceedings immediately.

Employees Can Refuse to Participate in Mediation

If the complainant, the employee, refuses to participate in mediation, the employer can see that civil litigation is held off until the conclusion of the mediation process. This means that once the DFEH begins the mediation process, the employee is restricted from filing a civil claim unless the dispute is not resolved 30 days following mediation. That is, unless everyone involved with the mediation determines that it would be unproductive.

While the mediation may not resolve the dispute, if the mediation is successful, it saves time and money for all parties. Even when it fails, it can throw light on the strengths and weaknesses of both sides of the case.

Reach Out Today

If you are an employer with a small business or an employee who needs to use CFRA leave, and you have questions or issues, it is crucial to have proper legal representation. The Armstrong Law Firm has experience and knowledge about employment law and can help you come to the most beneficial resolution.