They shouldn't have given leave to begin. Are there any tricks to getting the employee number a little higher without going to court and demanding it in discovery .(I.e. dual employer or using management from other locations?)
Employers do not fall within FMLA or CFRA unless they have 50 or more employees within a 75 mile radious. Part time employees are counted. And if the company has workers whom they misclassify as "independent contractors" who are actually employees (depends on duties and control over their work), those workers would be counted. There are no "tricks" to get the number to increase. It is usually a very easy fact question. You may have another legal angle to your issue and should contact an employment law attorney if you feel that your rights have been violated.
Your employer may be stuck with its previous representation that you are entitled to family leave. An employer's statement to an employee that she or he is eligible for leave at the time of granting the request might equitably estop the from claiming it was not covered by the FMLA. Minard v. ITC Deltacom Communications, Inc., 447 F.3d 352, 358–359 (2006). "Equitable estoppel" in this instance means that fairness prevents the employer from pursuing this particular defense because you already relied on the representation and had good reason to do so.
Note the count to 50 includes full-time and part-time employees, employees on leave whom the employer reasonably expects to return to work, and may vary from week to week. Your employer might be selecting which week it uses in order to deny you coverage but the law requires the date for determining whether there are at least 50 employees within 75 miles is when the employee gives notice of the need for leave. [29 CFR § 825.110(e); Cal. Gov.C. § 12945.2(c)(2)]
If you file a claim with the California Department of Fair Employment and Housing for failure to provide CFRA leave or for interference with CFRA rights, the agency can find out the exact number of employees. You may need to monitor the DFEH Counselor to make sure he or she makes the employer prove it rather than just accepting what the employer says. Know, however, that the DFEH is terribly underfunded and backed up, and it may take a while to get the response.
You may do better (that is, may get a faster response) with an attorney, especially if you have to make an estoppel argument. For this type of assistance, you can expect to pay hourly. Plaintiffs employment attorneys in California charge anywhere from $250 to $750 an hour depending on many factors including experience, area of law, geographic location, work load, interest in the case, difficulty of the case and more.
vTo find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. Click on "Find a CELA Member" and you can search by location and practice area.
I hope you can resolve your situation and wish you the best.
*** 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. ***
The determination of whether or not the employer has the requisite number of employees requires reference to the Code. "Employer" means "any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year." That means the employer cannot simply pick a particular day or months when the employment rolls were the lowest for purposes of determining the 50 within 75 number.
Also, keep in mind that FMLA and CFRA are not the only leave laws that apply. If you do not qualify for FMLA or CFRA, you would qualify for FEHA leave as that only requires 5 employees. While FEHA's leave rights are more limited in some respects (i.e., the types of things that would be allowed for leave) they are often greater with respect to the amount of time granted, and, of course, in the number of employers who qualify (5 or more employees).
If your employer denies you leave or in any way retaliates against you for having taken the FMLA leave, you should immediately contact an employment attorney.
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.
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