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Can my fiance's boss require him to pay him back for missed hours? And can he fire him for taking Paid Family Leave?

Joshua Tree, CA |

Our daughter was born last month and has been in the NICU ever since at a hospital almost 2 hours away. My fiance works for a government contractor and is on salary pay. He is paid once a month. He was short on hours last month due to our daughter's birth but he still got a full paycheck. Now his boss is demanding that my fiance pay him back for the hours he missed. We've already given him $300 but he wants $700 more. Is my fiance legally obligated to pay him back? I thought that since he was salaried that he wouldn't have to worry about his hours. Also, his boss has threatened to fire him if he takes Paid Family Leave. Is he actually allowed to do that? We're located in California and his boss only has one other employee.
Thanks for any help!

Attorney Answers 3


  1. The Paid Family Leave Act applies to employers of all sizes. It would be illegal for your husband's employer to fire him for taking PFL time off.

    If your husband was overpaid, he does owe that money back. He can't keep money that he didn't earn.

    On the other hand, assuming that your husband is an employee and not an independent contractor -- and although he likely is, I can't tell for sure from what you've posted -- his employer is required to pay him twice a month, not once a month. Paying an employee once a month violates the Labor Code, and could subject the employer to large penalties that could be substantially more than $700, depending on how long your husband has worked there.

    With an employer like this, though, your husband is likely to get himself fired if he asserts his rights in these matters. The most practical solution is (1) work out a payment plan with the employer for the remaining $700, (2) find another place to work if he can, and (3) consider filing a complaint for the failure to pay twice per month after your husband has found another job, assuming he is an employee of this company.

    I hope this information is helpful to you.

    Sincerely,
    Craig T. Byrnes
    www.ctblawfirm.com

    Disclaimer: Please be aware that I am not offering legal advice, nor forming an attorney-client relationship with you. I am not representing you, nor doing anything to protect your legal rights. If you believe that you have suffered a legal wrong, take action before any statute or limitations expires, or your right to do so may be lost forever. Good luck in your legal matter.


  2. Mr. Byrnes has given sound advice. Often there is a legal response, and the sound practical response. Taking a strictly legal position might threaten your husband's job at a time when it appears such stress would be deleterious to your family.

    That said, it is certainly unlawful for his boss to threaten to fire him for taking Paid Family Leave. If taking that leave will become necessary, it would be a good idea for your husband to deal directly with HR about the issue, and have him inform HR about the threats. Hopefully HR will make sure the threats are not carried out. Of course, if they are you husband will have to locate and consult with an experienced employment law attorney as soon as possible to explore his facts and determine his options. I would suggest he look either on this site in the Find a Lawyer section, or go to www.cela.org, the home page for the California Employment Lawyers Association, an organization whose members are dedicated to the representation of employees against their employers.

    Good luck to you and to him.

    This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.


  3. Congratulations on your growing family, and I hope your baby is strong enough to leave the NICU very soon.

    I agree with Mr. Byrnes both about the law and the practical steps to take. The sad reality is that in this economy, some employers take advantage of the shortage of jobs and flat-out ignore the law, knowing that alternative work is hard to find.

    One thing your fiance can do is keep a log of any comments, adverse actions or other funny business, starting with the day the issue of family leave first arose. He should write down the date, time, what was said or done, who said or did it, and any witnesses. He should be sure to include any complaints he made. And he should keep the log at home, not at work, because you never know what will "disappear."

    @MikaSpencer * * * twitter.com/MikaSpencer * * * PLEASE READ: All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. * * * Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. * * * No attorney-client relationship is created based on this information exchange. * * * Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis.

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