What job-protected leave means for school activities – San Diego Union-Tribune

Classes have resumed across San Diego County. Under California law, parents of children in kindergarten through 12th grade are entitled to time off from work at major employers to support their children's school activities or to handle school emergencies.

Under California's Family-School Partnership Act and Labor Code Section 230.8, parents who work for an employer with 25 or more employees are entitled to job-protected leave to place their child in school or at an approved child care center or to “attend activities at the child's school or at an approved child care center,” provided the employee provides the employer with reasonable notice of “the planned absence.”

The same law gives parents the right to leave for “child care or school emergencies” if the employer is notified. An emergency includes: (1) a school order to pick up the child; (2) behavior or discipline problems; (3) the school closing or unexpected unavailability; or (4) a natural disaster such as an earthquake.

An employer must provide a parent with up to 40 hours of leave per year for school internships/activities or school-related emergencies. Leave related to internships or school activities may be limited to eight hours per month. An employer may not impose a monthly hour limit on leave for school-related emergencies.

For each approved planned absence, the employee may take paid leave or unpaid leave granted by the employer.

An employer may require the employee to provide a certificate from the school stating exactly when and where his or her participation in the school activity took place.

What is a “school activity” for which vacation can be taken?

According to a brochure from the California Department of Education, “Any activity that is sponsored, supervised, or approved by the school, school board, or daycare center is permitted by law. Examples include volunteering in your child's class, attending parent-teacher conferences, back-to-school nights, open houses, field trips, or extracurricular sporting events sponsored by the school, school board, or daycare center, and assisting in community service learning activities.”

However, at least two California courts have concluded that school approval of an activity is not enough to make it a school activity under the law. In a 2019 unpublished and therefore non-landmark ruling in Torres v. City of Vernon, a three-judge panel of the California Court of Appeals concluded that a parent was not entitled to time off to attend his son's athletics practices. The court found that the parent “failed to provide an explanation as to how a school-approved activity outside of school could qualify as an 'activity.'”[y] the school.'”

In 2023, an Orange County Superior Court judge summarily dismissed a mother's lawsuit that her employer violated Section 230.8 by firing her for being late to help her son attend an assigned off-campus interview with a teacher from another school.

The judge in Duchsherer v. Resort Vacations pointed to the employer's right to require the school to verify parental participation in the activity, ruling that the law “requires participation in a school-supervised activity. The school cannot document an activity unless it knows when and where the activity is taking place and someone is on site who can verify parental participation.”

Qualified school activities, the judge said, “cannot reasonably include things that parents and students do alone – without the presence of a school representative – at a time and place of their choosing.”

However, the same judge declined to summarily dismiss the plaintiff mother's claim that she was wrongfully fired in revenge for complaining to superiors about her manager's attempt to have her fired for the leave of absence because she had reasonable grounds to suspect that her firing would violate Section 230.8. According to a court filing, the case was settled this June after three years of litigation.

Consequences of violations of the law

An employer who has fired or otherwise discriminated against an employee because the employee exercised his or her vacation rights must reinstate the employee and compensate the employee for any resulting loss of wages and labor. An employer who has willfully refused to reinstate or promote an employee entitled to such compensation must pay a civil penalty equal to three times the employee's loss of wages and labor.

Classes have started, so drive carefully.

Eaton is a partner at the San Diego law firm of Seltzer Caplan McMahon Vitek, where he focuses on employer defense and counseling. He is also a lecturer at San Diego State University's Fowler College of Business, where he teaches courses in business ethics and employment law. He can be reached at [email protected].