Failure to Post or Give Notice to Employees of CFRA Rights Precludes Employers from Taking Adverse Action against Employee

In Faust v. California Portland Cement Co. , 150 Cal.App.4th 864 (2007), Michael Faust sued his former employer, California Portland Cement Company (CPCC), claiming that his termination violated his right to medical leave under the California Family Rights Act (CFRA)—part of California’s Fair Employment and Housing Act.
In the trial court, CPCC argued that it did not violate Mr. Faust’s CFRA rights because (1) Mr. Faust’s chiropractor was not a certified health care provider, (2) Mr. Faust did not give CPCC proper notice of a CFRA qualifying leave prior to his termination, and (3) Mr. Faust was properly terminated for refusing to cooperate with CPCC’s legitimate good faith requests for additional medical information necessary to evaluate his fitness to work. Based on these arguments, the trial court granted summary judgment in favor of CPCC.
The Court of Appeal reversed the judgment holding that the trial court erred in considering CPCC’s arguments without first addressing the “threshold issue” of whether CPCC satisfied its own obligations under the CFRA to post and provide notice to Mr. Faust of his rights.
The Court explained that “certain legal consequences” flowed from the fact that CPCC did not notify Mr. Faust of his CFRA rights. The Faust Court cited the following from the California Code of Regulations:
“Employer Obligation to Inform Employees of Notice Requirement. [¶] An employer shall give its employees reasonable advance notice of any notice requirements which it adopts. The employer may incorporate its notice requirements in the general notice requirements in section 7297.9 and such incorporation shall constitute ‘reasonable advance notice.’ Failure of the employer to give or post such notice shall preclude the employer from taking any adverse action against the employee, including denying CFRA leave, for failing to furnish the employer with advance notice of a need to take CFRA leave.” (emphasis in original)
The specific legal consequences for CPCC in the Faust case included the fact that it was precluded from: (1) arguing that Faust did not comply with his obligations under the CFRA, (2) challenging the adequacy of Mr. Faust’s medical certification, and (3) obtaining summary judgment.
California employers that want to avoid these and other potential, legal consequences should, at a minimum, (1) post the required notice to employees of their CFRA rights, and (2) advise employees entitled to medical leave of their rights under the CFRA.

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