38 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com The DOL, in interpreting the federal USERRA, defines “employer” broadly to include any person who pays salary or wages for the work performed, or who has control over employment opportunities—including someone who has been delegated the performance of employment-related responsibilities (other than functions that are purely ministerial in nature). The DOL thus opines that individuals can be subject to personal liability for USERRA violations.99 Here, remarkably, the California version of the law is less plaintiff-friendly, for the Court of Appeal has ruled that individuals cannot be personally liable for violating California’s military leave statute.100 San Francisco Pay Differential For Military Leave. San Francisco is the first jurisdiction in the nation to require private employers to provide differential pay to employees who are called to active military duty.101 San Francisco’s Military Leave Pay Protection Act (MLPPA) became effective February 19, 2023, and requires employers with 100 or more employees nationwide to provide 30 days per calendar year of differential pay to bridge the gap between employees’ military pay and what they would have otherwise earned from their civilian employer.102 The MLPPA covers employees who work within the geographic boundaries of the City and County of San Francisco, including part-time and temporary employees with limited exception for employees of private businesses located in “federal enclaves” such as the Presidio, Fort Mason, and the Golden Gate National Recreation Area.103 Employees covered by a collective bargaining agreement may also be exempt provided that the CBA includes an express, clear, and unambiguous waiver of the MLPPA.104 The supplemental compensation provided for under the MLPPA must be calculated as the difference between the employee’s gross military pay and the amount of gross pay the employee would have received from the employer had the employee worked his or her regular work schedule, including overtime if the employee was regularly scheduled for overtime hours.105 The differential must be used in daily increments of one or more days at a time, and is available to employees engaged in any active military service, including training, drills, and natural disaster relief.106 Recognizing that some private employers already provide additional income protection for employees called to active service (including training and drills), the MLPPA permits employers to offset any obligation under the MLPPA by any other military leave benefits paid pursuant to any other law or employer policy.107 Failure to comply with this category of leave may result in fines and penalties of (i) the greater of three times the amount of differential pay withheld or $250, and (ii) up to $50 per day to employees for each day the compensation was withheld.108 These penalties are in addition to other available remedies, including temporary revocation of employers’ certificates, permits, or licenses, and a private right of action.109 2.13 Military Spousal and Partner Leave California employers with 25 or more employees must grant up to ten days of unpaid leave to employees married to (or registered domestic partners of) certain members of the active military service who themselves are on leave from a combat zone or during a military conflict.110 Employees who work an average of at least 20 hours per week are eligible for military spousal leave if they are spouses or registered domestic partners111 of a “qualified member” of the military. A “qualified member” is a member of the U.S. Armed Forces deployed to a combat zone, or a member of the National Guard or Reserves who has been deployed anywhere during a military conflict. Employees requesting leave must notify the employer of their intention to take time off within two business days of receiving official notice that the employee’s spouse or registered domestic partner will be on leave from military deployment. There is no provision allowing an employer to deny or delay the leave. Because the law establishes no cap on the aggregate amount of time off, it appears that the employee can take the full ten days off on each qualifying occasion. The statute states that spousal leave shall not prevent an employee from taking a leave that the employee “is otherwise entitled to take,”112 suggesting that an employer cannot require an employee on military spousal leave to concurrently use other leave that the employee is entitled to take. Employers must not retaliate or otherwise discriminate against employees requesting military spousal leave.
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