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What Rights Do New Fathers Have Under Current Employment Laws?

March 24, 2023 Paternity Leave

Paternity leave allows new fathers to take time off from work in order to care for a new child. Previously considered to be a perk, paternity leave has now become protected by law. Unfortunately, many employers will attempt to discourage workers from taking paternity leave or try to intrude upon their rights. If you and your partner are expecting a baby, you need to understand your rights when it comes to paternity leave. And if you suspect that your employer has violated your rights, contact an employment law attorney to discuss whether your employer should be held accountable. 

Who Qualifies for Paternity Leave in California?

Paternity leave is available to the following people under California law: 

  • A biological father
  • A male partner of a pregnant woman
  • An adoptive father
  • A surrogate father

To qualify, you must meet the following three criteria: 

  1. Your employer has at least 5 employees;
  2. You have worked for your employer for at least 1 year prior to the date that you take leave; and
  3. You have worked at least 1,250 hours in the 12-month period prior to taking leave. 

Note that only employers with at least 5 years are required to provide paternity leave. Smaller employers may choose to provide paternity leave pursuant to their own leave policy but are not required to do so. The qualifications are otherwise straightforward, but you should contact an employment lawyer if you have questions as to whether you qualify. 

How Much Paternity Leave Are You Entitled to Take? 

Paternity leave is not disability leave as with maternity leave. Instead, it is considered family leave under the California Family Rights Act (CFRA). If you qualify, you are entitled to take up to 12 weeks of paternity leave. 

New fathers are not required to take all 12 weeks of paternity leave at one time, but all 12 leaves must be taken within one year of the child’s birth date or arrival. In other words, you do have some flexibility as to when and how you take your 12 weeks of leave. That said, employers can require that you take your time off in blocks of two weeks at a time. 

Are You Entitled to Be Paid While on Paternity Leave? 

Generally speaking, paternity leave is unpaid leave – the CFRA does not require employers to pay their employees who are on paternity leave. However, you may be able to use any PTO you have acquired while you are on paternity leave if you so choose. In some cases, employers actually require employees to use their PTO while on paternity leave. 

Employees who wish to take paternity leave may qualify to participate in California’s Paid Family Leave Program (PFL). This is an income replacement benefit that will pay 60 to 70% of your weekly wages for up to 8 weeks. People who qualify for paternity leave under the CFRA typically qualify for PFL benefits, provided that they have welcomed a new child within the past 12 months and have not taken the maximum PFL benefits within the same time period. 

The overlap between paternity leave, PFL, PTO, and other benefits can be quite complicated. Employees should discuss their options with their employers before taking paternity leave and seek the advice of an attorney if they feel that they are not being given a truthful answer.  

What Are Your Rights upon Returning from Paternity Leave?

Under the law, paternity leave includes job protection. This means that employees have the right to get their job back when they return to work, either the same job that they had prior to leave or a job that is very similar. To be considered similar, the job must be similar in the following ways: 

  • Compensation and benefits
  • Schedule
  • Location
  • Job responsibilities and duties
  • Working conditions

Another way to look at it is that employers are prohibited from taking any adverse action against an employee for taking paternity leave. For example, you cannot be moved to a satellite facility that is much further from your home, placed on the night shift, or be given additional job responsibilities without a corresponding increase in pay. Any such adverse action is a violation of your rights and may entitle you to pursue legal action. If you feel that your rights have been violated upon returning from paternity leave, you should seek the advice of an experienced employment law attorney. 

Can You Take Paternity Leave under Both CFRA and FMLA?

The Family and Medical Leave Act is a federal law that provides many of the same protections as the CFRA. The CFRA is arguably broader – for example, FMLA covers only employers with 50 or more employees – but both provide job protection for up to 12 weeks of unpaid leave. 

Most employees who qualify for paternity leave under CFRA also qualify for paternity leave under FMLA. However, this does not mean that employees can take up to 24 weeks of paternity leave. Employees who qualify for paternity leave under both CFRA and FMLA must take their leave concurrently.

What Do You Do if Your Employer Has Violated Your Paternity Leave Rights? 

Violations of an employee’s family leave rights are against the law. Employees who have suffered harassment, discrimination, or other adverse action as a result of exercising their rights to paternity leave can pursue legal action against their employer. 

Employees must first file a complaint with the California Civil Rights Department (CRD) before they can file a lawsuit. The CRD will review the complaint and do one of two things: 

  • Initiate legal action against your employer; or
  • Issue a “right-to-sue” letter that authorizes the employee to file a civil lawsuit against their employer 

Depending on the nature of your complaint, you may be entitled to one or more of the following remedies:

  • Back pay
  • Reinstatement
  • Attorney’s fees and court costs
  • Damages for emotional distress
  • Administrative fines

Contact Attorneys for Employees if Your Paternity Leave Rights Have Been Violated

At Attorneys for Employees, we have dedicated our practice to protecting the rights of workers and holding their employers accountable. If you believe that you have questions about your paternity leave rights, we have answers – contact us today at 310-601-1330 to schedule a consultation.