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EMPLOYMENT

The answers to each of the following questions are based on the assumption that the affected employees are not covered by a collective bargaining agreement and do not have an employment contract with their employer. In the event there is a collective bargaining agreement or an employment contract, the employee should consult the terms of those agreements and contracts. Similarly, if the employer has established employment policies, the employee should review those policies to see if they provide additional benefits or rights.

Getting Paid

If my employer’s payroll records were destroyed, when should I expect to receive my paycheck?

The State of California requires timely payment of wages pursuant to applicable wage-and-hour laws. If records of working hours are not available, the employee should work with his or her employer to make a reasonable effort to determine the hours he or she worked during the applicable pay period.

Does my employer have to pay me for the days the business was closed as a result of the Southern California Wildfires?

The answer to this question depends in part on whether you are considered an “exempt” employee or a “non-exempt” employee for purposes of federal and state wage-and-hour laws, and whether or not you performed work for your employer during the pay period in question. In general, an employer is not required to pay its non-exempt employees for any days or hours the non-exempt employees did not work because the business was closed due to the Southern California Wildfires. On the other hand, an exempt employee should receive his or her full salary for any week in which he or she performed any work without regard to the number of days or hours worked. So, for example, if you are an exempt employee and you worked on the morning of Sunday, October 21, 2007, but worked no other days during the week of October 21, 2007, then your employer should pay you your full salary for the week of October 21, 2007.

Time Off and the Right to Return

May my employer require me to use my accrued vacation or sick leave to cover my absence from work due to the Southern California Wildfires?

If you are unable to report to work due to something related to the Southern California Wildfires, your employer may require you to use your accrued vacation or sick leave to cover your absences as long as this is consistent with the employer’s leave policies. You should consult your employer if you believe your absence may qualify as leave under the federal Family Medical Leave Act (FMLA) or its California counterpart, the California Family Rights Act (CFRA), or pregnancy disability leave under the California Fair Employment and Housing Act (FEHA). These types of leave are discussed in further detail below.

Does my employer have to provide me with either paid or unpaid leave if I am unable to work as a result of an injury suffered during the Southern California Wildfires?

An employer may be required to provide you with unpaid leave: (1) under the FMLA/CFRA if you or a member of your immediate family is suffering from a serious health condition; (2) under the California FEHA for pregnancy, childbirth, or related medical conditions; or (3) under the Americans with Disabilities Act (ADA)/California FEHA if you are disabled and if the granting of leave would serve as a reasonable accommodation to your disability.

Leave Under the FMLA/CFRA. The FMLA/CFRA provides that a covered employee may take up to a total of 12 weeks of unpaid leave during any 12-month period for certain qualifying reasons. During the leave period, the employer must maintain the employee’s health benefits and must guarantee that the employee will be reinstated to the same or an equivalent position. FMLA/CFRA leave is unpaid, unless your employer has elected to pay employees during such leave. As described below, you may also be eligible to receive disability benefits under the California SDI program during a qualifying FMLA/CFRA leave.

The FMLA/CFRA applies to only those employers that employ 50 or more employees for each working day in each of 20 or more calendar work weeks in the current or preceding calendar year. An employee is entitled to FMLA/CFRA leave if the employee: (1) has been with the employer for at least 12 months; (2) logged at least 1,250 hours of service during the 12-month period immediately preceding the start of the leave; and (3) is employed at a worksite where 50 or more employees are employed by the employer or within 75 miles of that worksite. FMLA/CFRA leave may be taken to care for the employee’s spouse, child, or parent with a serious health condition, or because of a serious health condition that makes the employee unable to perform the functions of the employee’s position.

For more information regarding compliance with the FMLA, check out the following website: www.dol.gov/esa/regs/compliance.

For more information regarding compliance with the CFRA, check out the following website: www.dfeh.ca.gov/publications/publications.aspx?showPub=18.

Pregnancy-Related Leave Under California’s Fair Employment and Housing Act. Under the FEHA, employers with five or more employees must allow female employees to take up to four months of leave for periods of disability due to pregnancy, childbirth, or related medical conditions. The employee may elect to use accrued vacation leave, and may be required to substitute sick leave or any other accrued leave which is made available by the employer to temporarily disabled employees. The employer must continue to provide the same benefits or privileges of employment granted by that employer to other employees.

Pregnancy-related leave under the FEHA is unpaid, unless your employer has elected to pay employees during such leave. As described below, you may also be eligible to receive disability benefits under the California SDI program during a qualifying pregnancy-related leave.

For more information regarding FEHA, check out the following website: www.dfeh.ca.gov/publications/publications.aspx?showPub=4.

Leave Under the ADA/California FEHA. Under certain circumstances, an employer may be required to provide an employee with leave under the ADA/California FEHA. The ADA/California FEHA requires employers, in certain circumstances, to provide reasonable accommodations to employees who have a disability. Such a reasonable accommodation may include providing an employee with an unpaid or paid leave of absence.

The California FEHA generally provides broader protections than its federal counterpart, the ADA. Though the ADA applies to only those employers that employ 15 or more employees for each working day in each of 20 or more calendar work weeks in the current or preceding calendar year, the California FEHA applies to employers with five or more employees. In addition, under the ADA, an employee is “disabled” if the employee has a physical or mental impairment that substantially limits a “major life activity” of an individual, including activities such as walking, seeing, hearing, speaking, breathing, learning, working, sitting, standing, lifting, or reaching, whereas under the California FEHA, an employee is “disabled” if he or she has a physical or mental impairment that limits a “major life activity.” Generally, temporary impairments are not considered protected disabilities.

Am I entitled to either paid or unpaid leave so that I can care for children or family members injured in the Southern California Wildfires?

As described above, you may be entitled to FMLA/CFRA leave, which you can use to care for children or family members injured in the Southern California Wildfires. If you are entitled to FMLA/CFRA leave as described above, then your employer must allow you to take FMLA/CFRA leave. This leave does not have to be paid leave, but you are entitled to use your accrued vacation or sick leave for the absence, as well as unpaid leave. You may also be eligible to receive benefits under the California Paid Family Leave (“CPFL”) program during a qualifying FMLA/CFRA leave if your leave is taken to care for a seriously ill family member. Also, if your employer has a specific policy providing for leave under such circumstances, the employer will be required to comply with its policy.

For more information regarding the CPFL program, check out the following website: www.edd.ca.gov/direp/pflfaqgen.asp.

Am I entitled to either paid or unpaid leave if I am too afraid or emotionally traumatized to return to work?

If you are suffering from post-traumatic stress or some other mental condition, your employer may be required to provide you with unpaid leave under the FMLA/CFRA or as an accommodation under the ADA/California FEHA. However, you will have to meet the applicable requirements of these laws, as discussed above. The leave will be unpaid, although you should be able to use any accrued vacation or sick leave for the absence. As described below, you may also be eligible to receive disability benefits under the California SDI program.

If I become ill or injured because of the Southern California Wildfires and cannot return to work, what benefits can I apply for?

You may be eligible for disability benefits under the California State Disability Insurance (SDI) program, a partial wage-replacement insurance plan funded through employee payroll deductions. Most California workers are covered under SDI, but some are exempt, including railroad employees, some employees of nonprofit agencies, employees who claim religious exemptions, and most government employees. Covered workers who are unable to work can receive approximately 55% of their lost wages, for up to one year.

Alternatively, you may be eligible for unemployment insurance benefits or Disaster Unemployment Assistance, though you may not be eligible for SDI benefits if you are claiming or receiving unemployment insurance benefits or Disaster Unemployment Assistance (see “Unemployment” section in this handbook for more information).

Am I eligible for SDI benefits?

SDI benefits can be paid only after you meet all of the following requirements:

• you are unable to do your regular or customary work for at least eight (8) consecutive days;
• you were employed or actively looking for work at the time you became disabled;
• you earned at least $300 during a previous period, from which SDI deductions were withheld;
• you are under the care and treatment of a licensed doctor or accredited religious practitioner during the first eight (8) days of your disability (and must remain under care and treatment to continue receiving benefits); and
• your doctor completes the medical certification of your disability.

How do I file a claim for SDI benefits?

You must complete and mail a claim form within 49 days of the date you became disabled or you may lose benefits. A claim form may be obtained from the California Employment Development Department (EDD) at the website www.edd.ca.gov/direp/diadvis2501.htm (click on the link for “DE 2501” near the bottom of the page) or by calling (800) 480-3287 (English) or (866) 658-8846 (Spanish). A completed claim form, including a doctor’s certification of your disability, should be mailed to any of the following addresses:

HEALTH BENEFITS

I was injured as a result of the Southern California Wildfires and cannot return to work. Can I continue my health insurance?

Most California employers are required to offer employees the ability to continue their medical coverage at their own cost for up to 36 months. This coverage is generally referred to as COBRA (Consolidated Omnibus Budget Reconciliation Act) coverage. Normally, you must make an election to continue the coverage within 60 days after the date your coverage terminates as a result of your termination of employment.

What rights do I have to COBRA health coverage?

Employers who have 25 or more employees and maintain health plans are required by the federal law to offer COBRA continuing medical coverage to qualified beneficiaries (participating employees and/or their dependents) who lose health coverage due to a “qualifying event” such as the death of the covered employee, termination of his or her employment, or reduction of his or her hours sufficient to cause the loss of medical coverage. However, employees must pay for this medical coverage themselves.

Smaller employers (with 2 to 19 employees) who maintain health plans are required by the California COBRA (Continuation Benefits Replacement Act) to provide COBRA-like coverage to their eligible employees. Like COBRA, California COBRA requires employees to pay for this medical coverage themselves.

Can my family members keep their health insurance coverage?

Your dependents, who were covered by the plan, can also elect COBRA coverage, if available, at their own cost. Their maximum coverage period will be 36 months.

What can my employer do to help me recover psychologically from the trauma of the Southern California Wildfires? Are there any counseling services available to people affected by the Southern California Wildfires?

Your employer’s health plan may offer counseling to you and your dependents. In addition, some employers may provide assistance under employee assistance programs (EAP). You should ask your employer about the availability of such counseling if you need it, both for yourself and your family. If your employer does not provide an EAP, and you are a veteran, you should seek assistance from the Veterans Administration. Otherwise, you should seek help from a mental health agency in the county in which you live, either permanently or temporarily.

In addition, United Health Group has established a free counseling hotline to help those coping with the emotional consequences of the Southern California Wildfires. The phone line will be open 24 hours a day, seven days a week, for as long as needed, at (866) 342-6892.

OTHER BENEFITS

Am I entitled to other benefits if I was working at the time I was injured?

You may be able to make a claim under Workers’ Compensation for your injuries and lost wages if you were working at the time you were injured. You will need to file a workers’ compensation claim with your employer. You should contact your employer immediately if you believe you have sustained a workplace injury.

I’m not eligible for Workers’ Compensation. Are there other benefits available?

If you were not on the job at the time you were injured, you may be entitled to short-term or long-term disability insurance payments. Check with your employer and personal insurance agent to find out what coverage you have. Your employer may also provide benefits for specific injuries such as loss of a limb under an accidental death or dismemberment policy. If you have been injured, you should inquire about this coverage as well.

Emergency loans against the cash value of some life insurance policies may also be available. Contact your agent, employer, or insurance company to learn more.

lOSING Your Job

I have lost my job due to the Southern California Wildfires. Is unemployment or disaster insurance available?

You may be entitled to unemployment or disaster unemployment assistance.

Does my employer have to provide its employees with any prior notice of termination if the employer determines that it is necessary to lay off employees?

Probably not, because laws requiring notice do not apply in the case of natural disasters such as the Southern California Wildfires.

Does my employer have to provide me with severance pay if I am laid off?

There is no law that requires severance pay. If your employer has an established severance pay practice or plan, you may be eligible for severance pay, but otherwise severance pay is not required.

Can I be reimbursed by my employer for the destruction or loss of any of my personal items, such as personal computers or cars that I may have used for business purposes?

You should consult with your employer and your own insurance company to determine whether loss of your personal property is covered by any applicable insurance policy. Generally speaking, your employer is not responsible for your loss of personal property.

UNEMPLOYMENT benefits

I lost my job or cannot work because of the Southern California Wildfires. Am I eligible for unemployment benefits?

You may be eligible for either: (i) unemployment insurance benefits; or (ii) disaster unemployment assistance.

What are unemployment insurance benefits?

Unemployment insurance provides temporary income for workers who are unable to work through no fault of their own. Unemployment insurance benefits are paid weekly, and the amount of the weekly payments generally is based on a worker’s earnings in the prior calendar year. In order to be eligible, you must be able to work, be seeking work, and be willing to accept a suitable job, in addition to meeting other criteria.

How do I file a claim for unemployment insurance?

Unemployment insurance claims are filed with the California Employment Development Department (EDD). Claims may be filed telephonically by calling (800) 300-5616 (English), (800) 326-8937 (Spanish), (800) 547-3506 (Cantonese), (866) 303-0706 (Mandarin), (800) 547-2058 (Vietnamese), or (800) 815-9387 (TTY), Monday through Friday from 8 a.m. to 5 p.m. Claims also may be filed online at www.edd.ca.gov.

You will need the following information to file a claim:

• your Social Security number, mailing and residence addresses (if different), and telephone number;
• the last date you worked for any employer and the reason you are no longer working;
• the name, mailing address, physical location, and telephone number of your last employer;
• information on all employers you worked for during the 18 months prior to filing your claim, including each employer’s name, your period of employment, wages earned, and how you were paid;
• your driver’s license or ID card number, if you have either;
• whether you are receiving, or expect to receive, any payments from a former employer;
• whether you are able to work and are available to accept work; and
• your citizenship status (which may include your alien registration number).

What Is Disaster Unemployment Assistance?

Disaster Unemployment Assistance is a federal program that provides financial assistance to workers, including the self-employed, who become unemployed as a direct result of a major natural disaster such as the wildfires. Eligible persons will receive weekly payments, which are calculated in the same manner as for unemployment insurance benefits (described above).

Am I eligible to receive Disaster Unemployment Assistance?

You generally will be eligible to receive Disaster Unemployment Assistance if you are an unemployed worker or self-employed individual who lived, worked, or was scheduled to work in the wildfires area and, as a direct result of the Southern California Wildfires, you:

• are not eligible for unemployment insurance benefits (described above); AND either:
• no longer have a job or a place to work;
• cannot reach your place of work;
• cannot work due to damage to your place of work;
• cannot work because of an injury caused by the wildfires (including mental stress, if documented by a doctor); or
• have become the breadwinner or major support for a household after the head of the household died as a result of the disaster.

For how long may I receive Disaster Unemployment Assistance?

Disaster Unemployment Assistance benefits are payable for up to 26 weeks. The period during which benefits are payable begins on the first day of the week following the date of the disaster and ends 26 weeks after the date the disaster was declared. In other words, you may be eligible for assistance during the period beginning on October 29, 2007 and ending on April 22, 2008. You generally may receive assistance for as long as you remained unemployed during this period. You must accept any suitable jobs offered and must conduct a job search while receiving assistance.

How do I file a claim for Disaster Unemployment Assistance?

Claims for Disaster Unemployment Assistance may only be filed telephonically. You should contact the EDD at (800) 300-5616 (English), (800) 326-8937 (Spanish), (800) 547-3506 (Cantonese), (866) 303-0706 (Mandarin), (800) 547-2058 (Vietnamese), or (800) 815-9387 (TTY), Monday through Friday from 8:00 a.m. to 5:00 p.m. You must file your claim for Disaster Unemployment Assistance within 30 days of the announcement of the disaster declaration (which took place on October 23, 2007). As a result, you must file your claim for Disaster Unemployment Assistance by November 22, 2007. Late applications are accepted only in certain limited circumstances.

Finding Work

Because my employer’s offices were destroyed, I will be working from home. Is there any information I should know?

You should assume that the same laws and requirements, and rights, apply at your temporary work location as would apply if you were in your usual work location. If you are non-exempt, you should keep track of the hours you work. You should also keep track of any expenses you incur, as you may be eligible for reimbursement from your employer.

I lost my job because of the wildfires and need assistance finding a job. Whom should I contact?

For information on job search assistance, online job listings, workshops, and other employment and training services, contact your local EDD Job Service location. Following is a list of some EDD Job Service locations in Los Angeles, Orange, Riverside, San Bernardino, and Ventura counties:

As of October 23, 2007, the following EDD Career Centers in Imperial and San Diego counties have been temporarily closed due to the wildfires.

A complete list of EDD Job Service locations can be found on EDD’s website at www.edd.ca.gov/jsrep/jsloc.htm.