2014 New CA Laws 2015 New CA Laws Child Labor Contingent Workers Disabilities Discrimination Exempt vs. Non-Exempt Independent Contractors Industrial Homeworkers Interns Leaves of Absence Non-Compete Agreements Personnel Records
Privacy & Monitoring Sexual Harassment Social Media Telecommuting Unions Volunteers Wage & Hour HR Central Home
Privacy & Monitoring Sexual Harassment Social Media Telecommuting Unions Volunteers Wage & Hour HR Central Home
CFRA and Registered Domestic Partners. The FMLA does not provide registered domestic partners with FMLA leave. But, CFRA provides employees with leave for this reason. Because registered domestic partners, as defined in the California Family Code, possess the same legal rights as a spouse, an eligible employee would be entitled to up to 12 weeks of leave that is CFRA-only to care for his/her registered domestic partner. This does not affect the employee’s FMLA entitlement.
Registered domestic partners can be granted or entitled to more leave than single or married employees under one circumstance: If a registered domestic partner takes CFRA leave first to care for his/her domestic partner, he/she would still have 12 weeks of leave available under FMLA during that 12-month period. The FMLA time could then be used by the employee for another reason, such as for his/her own serious illness or injury or to care for a parent or child.
In contrast, the married employee who first takes leave to care for a spouse is entitled to 12 weeks of CFRA leave, but the CFRA leave runs concurrently with FMLA because a spouse is included under the federal law. If that married employee later needs time off for another reason during the same 12-month period, perhaps to care for a parent or child or for their own serious illness or injury, the employee is not entitled to more leave. This creates the potential for a claim of discrimination on the basis of marital status: Because the individual is married, he/she is denied a benefit that is available to a registered domestic partner.
The issue of marital status discrimination is complex and unsettled — consult legal counsel before granting or denying an additional leave of absence to married employees or employees in a registered domestic partnership. You could voluntarily remedy this by providing additional leave to the married employee whose first absence is to care for a spouse but who then needs additional time off because of the employee’s own serious condition or to care for a child or parent with a serious condition.
Employers contracting with San Francisco local government should consult legal counsel about providing leave to registered domestic partners under the city’s domestic partner ordinance.
Registered Domestic Partners versus Same-Sex Spouses. Registered domestic partners are opposite-sex couples with one partner over the age of 62 or same-sex couples who have registered their relationship with the California Secretary of State. You cannot ask for proof of registered domestic partnership unless you also require proof of marriage.
A registered domestic partner is not the same as a legally married same-sex spouse. There is a legal distinction between the two. Although California generally provides registered domestic partners with the same rights and responsibilities as spouses, they are not spouses for federal purposes.
Same-sex marriage is legal in California after the U.S. Supreme Court’s ruling in Hollingsworth v. Perry. The U.S. Supreme Court also ruled in United States v. Windsor that it is unlawful to exclude same-sex spouses from the definition of “spouse” under federal law.
Under the FMLA, an employee who resides in California can now take time off to care for a same-sex spouse with a serious health condition. The federal Department of Labor revised the definition of “spouse” under the FMLA to include same-sex spouses who reside in a state that recognizes same-sex marriages.
Since CFRA also provides leave to care for same-sex spouses, CFRA and FMLA leave used to care for a same-sex spouse can run concurrently. But this is not the case for registered domestic partners who are covered by CFRA but not by FMLA. As the law stands, these leaves will not run concurrently. More guidance from federal and/or state agencies is needed.
Registered domestic partners can be granted or entitled to more leave than single or married employees under one circumstance: If a registered domestic partner takes CFRA leave first to care for his/her domestic partner, he/she would still have 12 weeks of leave available under FMLA during that 12-month period. The FMLA time could then be used by the employee for another reason, such as for his/her own serious illness or injury or to care for a parent or child.
In contrast, the married employee who first takes leave to care for a spouse is entitled to 12 weeks of CFRA leave, but the CFRA leave runs concurrently with FMLA because a spouse is included under the federal law. If that married employee later needs time off for another reason during the same 12-month period, perhaps to care for a parent or child or for their own serious illness or injury, the employee is not entitled to more leave. This creates the potential for a claim of discrimination on the basis of marital status: Because the individual is married, he/she is denied a benefit that is available to a registered domestic partner.
The issue of marital status discrimination is complex and unsettled — consult legal counsel before granting or denying an additional leave of absence to married employees or employees in a registered domestic partnership. You could voluntarily remedy this by providing additional leave to the married employee whose first absence is to care for a spouse but who then needs additional time off because of the employee’s own serious condition or to care for a child or parent with a serious condition.
Employers contracting with San Francisco local government should consult legal counsel about providing leave to registered domestic partners under the city’s domestic partner ordinance.
Registered Domestic Partners versus Same-Sex Spouses. Registered domestic partners are opposite-sex couples with one partner over the age of 62 or same-sex couples who have registered their relationship with the California Secretary of State. You cannot ask for proof of registered domestic partnership unless you also require proof of marriage.
A registered domestic partner is not the same as a legally married same-sex spouse. There is a legal distinction between the two. Although California generally provides registered domestic partners with the same rights and responsibilities as spouses, they are not spouses for federal purposes.
Same-sex marriage is legal in California after the U.S. Supreme Court’s ruling in Hollingsworth v. Perry. The U.S. Supreme Court also ruled in United States v. Windsor that it is unlawful to exclude same-sex spouses from the definition of “spouse” under federal law.
Under the FMLA, an employee who resides in California can now take time off to care for a same-sex spouse with a serious health condition. The federal Department of Labor revised the definition of “spouse” under the FMLA to include same-sex spouses who reside in a state that recognizes same-sex marriages.
Since CFRA also provides leave to care for same-sex spouses, CFRA and FMLA leave used to care for a same-sex spouse can run concurrently. But this is not the case for registered domestic partners who are covered by CFRA but not by FMLA. As the law stands, these leaves will not run concurrently. More guidance from federal and/or state agencies is needed.