Are men entitled to the same leave for a new baby?

Q:        I have been working 4 years for a large company in Los Angeles. My wife just gave birth to our first child. When I asked my boss about parental leave, I was told that I could take off for 2 weeks and no more. I thought I was entitled to 12 weeks. My boss said, “You’re not a woman, you did not give birth.” When I insisted that I needed 12 weeks, I was told that company policy is for men to be approved 2 weeks leave only. Is this legal?  

A:        No, it is not. Under the California Family Rights Act (CFRA), California employees have the right to take a leave of absence for health or family-related reasons. One of the specific provisions of CFRA is to allow employees – both male and female – to take up to 12 weeks of leave to bond with a newborn child, a newly adopted child or a child newly placed in foster care. There is no requirement that either the employee or child have a serious health condition for CFRA leave to be granted.

The leave to bond with a new child must be completed within the first year of the birth or placement of the child. Under California law, parents (married or unmarried) and registered domestic partners who work for the same employer are limited to a combined total of 12 weeks of CFRA for child bonding leave. (Note: Child-bonding leave is different from pregnancy-related disability leave, which pregnant employees are additionally entitled to.)

To be eligible for CFRA leave, an employee must be a full-time or part-time employee working in California with more than 12 months (52 weeks) of service with the employer, and have worked at least 1,250 hours in the 12-month period before the date the leave begins. The employee must also work at a location in which the employer has at least 50 employees within a 75-mile radius of the employee’s work site. After granting a CFRA leave, generally, the employer must reinstate the employee to the same or comparable position and provide such a guarantee if requested by the employee.

The employer must continue health care coverage for employees during their CFRA leave.  This obligation begins on the first day of leave and continues for the duration of the leave(s), up to a maximum of 12 work weeks in a 12-month period.

What if the employee is not eligible for CFRA leave because the company has less than 50 employees?  Beginning January 1, 2018, California’s New Parent Leave Act (Parental Leave) requires employers with 20 or more employees to allow eligible employees to take up to 12 weeks of unpaid, job-protected leave to bond with a newborn or an adopted or fostered child.

To illustrate the seriousness of the laws involving parental/family leave to bond with a new child, the Equal Employment Opportunity Commission (EEOC) recently sued Estee Lauder, one of the largest cosmetics companies in the world. The lawsuit was on behalf of approximately 210 men who worked at an Estee Lauder store in Pennsylvania. The suit claims that Estée Lauder violated federal law when it provided its male employees who became fathers less paid leave to bond with a newborn, or with a newly adopted or fostered child, than it provided new mothers. The parental leave at issue was separate from medical leave received by mothers for childbirth and related issues. The EEOC also accused the company of unlawfully denying new fathers return-to-work benefits provided to new mothers, such as temporary modified work schedules, to ease the transition to work after the arrival of a new child and exhaustion of paid parental leave.

Rather than continue with the litigation, Estee Lauder agreed to pay $1,100,000 to the men and revised its parental leave policy to provide all eligible employees, regardless of gender or caregiver status, the number of weeks of paid leave for child bonding and the same six-week flexibility period upon returning to work.

Though it does not get as much publicity, men also face barriers in the workplace as they try to balance work and family demands. For example, men requesting family leave are perceived as uncommitted to work and less masculine. They face harassment, lower performance evaluations, reduced pay, and increased risks of being demoted or downsized. If this is the case, they should consult with an experienced employment attorney to protect themselves.

The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is the recipient of PABA’s Community Champion Award for 2016.]