Employee Rights No Fees Unless We Win
Leaves of Absence for Volunteer Firefighters, Reserve Police Officers and Emergency Rescue Personnel
Many organizations in California rely upon the willing participation of qualified persons in the case of a disaster. Prior to 2015, qualified persons had reason to be reluctant to sign up to be part of an organized disaster response team, because they feared they would lose their jobs or otherwise be retaliated against should they need to take time off from work for training or to be deployed in the event of a disaster.California Labor Code Section 230.3
“An employer shall not discharge or in any manner discriminate against an employee for taking time off to perform emergency duty as a volunteer firefighter, a reserve peace officer, or emergency rescue personnel.” California Labor Code section 230.3(a). Thus, employers now must grant time off to employees to perform emergency duty as volunteer firefighters, reserve police officers, or emergency rescue personnel.
A “volunteer firefighter” is a member of a regularly organized fire department of a city, county, city and county, or district having official recognition of the government of the city, county, city and county, or district in which the department is located, or a regularly organized fire department of an unincorporated town. California Government Code section 50952.
An “emergency rescue personnel” is a “person who is an officer, employee, or member of a fire department or fire protection or firefighting agency of the federal government, the State of California, a city, county, city and county, district, or other public or municipal corporation or political subdivision of this state, or of a sheriff’s department, police department, or a private fire department, or of a disaster medical response entity sponsored or requested by this state . . . actually engaged in providing emergency services” including, but not limited to “first aid and medical services, rescue procedures and transportation, or other related activities necessary to insure the health or safety of a person in imminent peril.” California Labor Code section 230.3(d)(2) and California Health and Safety Code section 1799.107.Requirements Particular to Employees Who are Health Care Providers
“An employee who is a health care provider shall notify his or her employer at the time the employee becomes designated as emergency rescue personnel and when the employee is notified that he or she will be deployed as a result of that designation.” California Labor Code section 230.3(c)(2). This notice provision provides as much advance notice as possible for employers of health care providers to plan for adequate emergency department staffing when emergency physicians and other health care providers deploy to help in disasters. The aim of this requirement is to balance the public need for disaster aid with the public need for those who seek care in emergency departments.
Under certain circumstances, specific types of employers are exempt from the requirements of section 230.3. “[T]his section shall not apply to any public safety agency or provider of emergency medical services if, as determined by the employer, the employee’s absence would hinder the availability of public safety or emergency medical services.” California Labor Code section 230.3(c)(1).
For example, in Zolensky v. American Medflight, Inc. (E.D. Cal. Mar. 24, 2017) No. 2:16-cv-00788-KJM-KJN, Plaintiff Robert Zolensky II worked as a paramedic on Medflight's aircraft, providing air ambulance services to individuals located in areas isolated from hospitals and other medical facilities. Prior to starting his employment, Zolensky informed Medflight that he was a volunteer firefighter and paramedic, and that he might need to take leave on short notice to respond to emergencies. Medflight informed Zolensky that this would not be a problem.
On August 7, 2014, the fire department that Zolensky volunteered for informed him that he was being deployed to fight a fire. Zolensky contacted his manager at Medflight, who informed Zolensky that he could not take leave for his deployment unless he found coverage for his upcoming shifts. Zolensky was unable to find coverage for his shifts at Medflight, but he left work and reported for duty as a volunteer anyway. Medflight then terminated Zolensky's employment for job abandonment. Prior to his termination, Zolensky had received only positive feedback on his work performance.
Zolensky then filed a lawsuit alleging Medflight wrongfully terminated him in violation of California Labor Code section 230.3. Medflight argued that pursuant to section 230.3(c)(1), because Medflight was a provider of emergency services and had determined that Zolensky's absence would hinder the availability of emergency medical services, Medflight’s decision to discharge Zolensky did not violate California Labor Code section 230.3(a). The United States District Court for the Eastern District of California ruled that Zolenksy bore the burden of pleading sufficient facts to allow the court to draw a reasonable inference that Medflight was not exempt from liability pursuant to section 230.3(c)(1), and that based on the facts presented Zolenksy had failed to meet that burden.California Labor Code Section 230.4
In addition, employers with 50 or more employees are required to grant employees temporary leaves of up to 14 days per year for fire, law enforcement training, or emergency rescue training. California Labor Code section 230.4. Thus, such employees are entitled to attend fire, law enforcement, or emergency rescue training and employers are not allowed to discriminate or retaliate against the attendance. For example, if you are a volunteer firefighter and your employer discriminates against you by demoting you or threatening to discharge you because you have taken time off to attend a fire training, then your employer may be violating California Labor Code section 230.4.Enforcement and Remedies
If the employee’s lawsuit is successful under California Labor Code section 230.3 or 230.4, then the employee may have several remedies. Remedies for such discrimination include “reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer.” California Labor Code section 230.4(b). First, under reinstatement, the employee would be entitled to have his or her job back. Second, under reimbursement, the employee would be entitled to lost wages for the time during which he or she was not allowed to work for the employer. In the case that an employee was demoted rather than fired, the reimbursement would be for the difference between what he or she would have earned at his or her previous position and what he or she actually earned during that time. Finally, the employee can also sue for work benefits that were lost due to the employer's discrimination, such as health insurance that was denied while the employee was discharged.
An employee seeking reinstatement and reimbursement pursuant to California Labor Code section 230.4 may also file a complaint with the Division of Labor Standards Enforcement within one year after the occurrence of the violation. See California Labor Code section 98.7.
It is a misdemeanor to willfully refuse to rehire, promote, or otherwise restore an employee (or former employee) who has been determined to be eligible by a grievance procedure, arbitration or hearing authorized by law. California Labor Code section 230.3(b).Contact Us
If you have not been granted a leave in order to attend fire, law enforcement, or emergency rescue training, or to perform emergency duty as a volunteer firefighter, a reserve peace officer, or emergency rescue personnel, or if you have experienced negative treatment or termination from having taken a leave at your workplace to perform such emergency duty or to attend fire, law enforcement, or emergency rescue training, contact the experienced lawyers at Kokozian Law Firm, APC.