California state law allows up to 40 hours a year to attend school functions with your child. At my job we are on a point system where we are given a point for time missed from work other than vacation, loa, or FMLA. I asked my employer about taking a day off without pay to attend a school function with my son, and was told I would have to use vacation as overtime would have to be paid. I again said I wanted a day off without pay. I was told that if I took a day off without pay then it would go down as an unavailable and I would get a point. Is this allowed? I feel this would penalize any employee wanting to use this time off that is allowed by law.
Under California Labor Code Section 230.8, employees who are parents, guardians or grandparents with custody of children in kindergarten or grades 1-12, or attending a licensed day-care facility, may take off up to 40 hours each year (not to exceed eight hours in any one month) to participate in their children’s school activities.
Employees must provide their employers with reasonable notice of a planned absence. In addition, they must use existing vacation, personal leave or compensatory time off for any school-related absences. In the alternative, an employee may use time off without pay. If the employer asks, an employee who takes time off for school purposes must provide proof of participation from the school or day-care facility.
Employers with at least 25 workers at the same location cannot take adverse action against an employee who takes time off for school activities.
Employment / Labor Attorney
As you appear to know, Cal. Labor Code, section 230.8, says that employers of 25 or more employees in the same location, shall not discharge or in any way discriminate against an employee, who is a parent...of one or more children in kindergarten or grades 1 through 12, for taking a day off up to 40 hours each year and not exceeding 8 hours in any calendar month, to participate in activities of the school of the child, as long as reasonable notice of the planned absence is given to the employer.
While this law does authorize the use of vacation time, it also permits an employee to use time off without pay, "to the extent made available by the employer."
While it is not clear what your employer's policy is in this regard, if the application of the policy is to, in effect, discriminate against an eligible employee for taking time off to attend a school function, in my opinion, it violates the intent of Section 230.8.
They say you get what you pay for, and this response is free, so take it for what it is worth. This is my opinion based on very limited information. My opinion should not be taken as legal advice. For true advice, we would require a confidential consultation where I would ask you questions and get your complete story. This is a public forum, so remember, nothing here is confidential. Nor am I your attorney. I do not know who you are and you have not hired me to provide any legal service. To do so would require us to meet and sign written retainer agreement. My responses are intended for general information only.
Employment / Labor Attorney
Based on your facts, if you work for an employer of more than 25 employees at your location, assigning you a point appears to be an inappropriate employer action under the Code. Your challenge is to now figure out what you are going to do with that knowledge. Be sure to keep the big picture in mind. While it is unlawful for an employee to stand up for their rights in many circumstances, employers have an insidious way of retaliating without it looking as such.
Good luck to you.
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.