Can I be denied leave without pay if I'm resigning?
December 12, 2011 12:03 PM   Subscribe

I'm giving notice to my job today, starting a new one at beginning of January. Questions regarding holidays and family medical leave, because I think they might fight me...

I will likely be giving notice today to my job of 6 years to take a new one, starting January 3rd. In California new parents can get paid family medical leave to bond with a new born during their first 12 months of life. There is a total of 6 weeks that you can take however you want.

I told my supervisor last week that I am going to work this week, then take the week of the 19th off and use parental bonding (which is technically time off without pay at my current job). Then we get the 26th and 27th as holidays, I'll take the 28th, 29th, and 30th as vacation days, and then the 2nd is a holiday.

I'm planning on giving notice and telling them that the 2nd will be my last day employed here. I have this nagging feeling that they are going to fight me over using 1) the time off without pay week and 2) the holidays.

I will essentially be gone after this week, but based on my role it's not really "one week notice" - there is not a huge impact if I leave.

I guess my question boils down to can they legally deny me the right to take the week off without pay and burn the holidays?

Also not concerned with burning bridges so that's not an issue.
posted by anonymous to Work & Money (13 answers total)
You need to refer to your employee's handbook and any existing employment contract. I am not an employment lawyer (and you might want to speak to an employment law clinic), but in general California is an at-will state, meaning that they can terminate you without notice unless it is discriminatory, retaliatory, or not allowed in their guidelines or in your contract. If they can terminate you without notice, they may owe you salary for any accrued vacation days, but not medical leave or paid holidays.
posted by muddgirl at 12:09 PM on December 12, 2011 [1 favorite]

If you are not concerned with burning bridges, why not just leave today??
posted by Busmick at 12:12 PM on December 12, 2011

It sounds like you want to get paid for those holidays, because if you leave now, you'll still get paid out for your vacation days but you will miss the pay of those paid holidays. Since you don't really care about leaving your employer in the lurch, and you are afraid you will be summarily dismissed if you give notice today and lose those holidays, do not resign today.

It's a dick move, but if you truly do not care about this job or burning the bridge, send your resignation in writing, via messenger with confirmation, to arrive on 1/3 and stating that effective immediately, you resign, and your last day of employment was January 2nd.
posted by juniperesque at 12:18 PM on December 12, 2011 [4 favorites]

If you're not worried about burning bridges, and your leaving won't have a huge impact, and assuming you're not contractually obligated to give notice, why give notice? Why not wait until you've taken your unpaid leave, paid holiday and vacation time, and then tell your employer that you're not coming back?

I'm not saying this will endear you to your soon-to-be former employer, but unless there's some missing detail here, like a requirement in your contract, or a law you'd be violating, I don't see why you need to give notice. They certainly wouldn't give you notice if they were going to fire you or lay you off, would they?
posted by Meg_Murry at 12:28 PM on December 12, 2011 [1 favorite]

IANAL, but assuming your proposed vacation days are accrued and owed, it looks to me like you're (a) effectively quitting this Friday, while (b) asking to be paid for the 26th/27th/2nd.

No business in their right mind would agree to that, unless you were an extra special employee. It's like quitting and asking for severance. I'd expect them to pay you through Friday, plus any accrued/unused vacation, and leave it at that.
posted by mkultra at 12:43 PM on December 12, 2011 [4 favorites]

Rereading my comment, it may not have been clear enough - it's entirely possible that your employer's response to your notice, knowing that you are planning to take a couple weeks of paid time off, will be to terminate you on the spot. It's also possible that they can't legally do this, but will try anyway, knowing that the legal process to be compensated is rather expensive for you.
posted by muddgirl at 12:44 PM on December 12, 2011

Every workplace I've been in explicitly states in the employee handbook that employees must come to work on their planned last day; in other words, they can't take take a vacation/sick day for the last day or leave on a company holiday. Have you checked to make sure your company does not have such a policy as well?
posted by joan_holloway at 12:58 PM on December 12, 2011 [2 favorites]

You are not going to get the holidays if you give notice. The vacation days and unpaid leave are due you, but I would agree with the idea of coming in on the 2nd and quitting if you don't care about pissing them off. You don't owe them anything.
posted by Rock Steady at 1:13 PM on December 12, 2011

Anon: "I guess my question boils down to can they legally deny me the right to take the week off without pay and burn the holidays?"

BTW, toward this specific question. Again, IANAL, but the crux of parental leave law is that your employer can't deny you a job to return to if you take it. Inasmuch as there's legal ambiguity around whether returning to "company holidays and vacation days" is the same as returning to "your job", you're best off posing that question directly to a labor lawyer. Your employer, meanwhile, is likely willing to bet that fighting them on this is not worth your time and money.
posted by mkultra at 1:33 PM on December 12, 2011

I'm a little confused here. If you are talking about California's Paid Family Leave program (which is not time off without pay, as the government is paying you), this is not job-protected leave. That's a common misconception. Your employer does not have to grant your leave request and can legally terminate your employment effective the date of your resignation. You may be eligible for unemployment insurance if this occurs.

FMLA/CFRA aren't applicable in the situation you describe - the employer isn't obliged to hold a job if it's already known the employee isn't returning from leave. Once you announce your intention not to return, your forfeit your right to job reinstatement.

Even if you weren't resigning, to take intermittent baby-bonding leave under the FMLA (which would be unpaid leave), the employer must agree. You don't have the right to take baby-bonding leave intermittently without their agreement; I believe this is the only instance in FMLA leave where employer agreement is a requirement.

So, either way you slice it, you don't have a legal right to this leave, especially after you've submitted your resignation. My recommendation as a formerly Evil HR person: resign without notice on Jan 3 (just call in). Make sure your employer doesn't have a requirement that you work the day before/after the holiday to get paid, though (I'm assuming you're doing this to get the holiday pay).

Here is the relevant section from the PFL regs:
Is a Paid Family Leave claimant’s job protected?
The Paid Family Leave program does not protect anyone’s job. It simply provides partial wage replacement when an employee cannot work due to the need to care for a child, parent, spouse, or registered domestic partner, or to bond with a new child. An employee may have his or her job protected under other laws, such as the FMLA or the CFRA.
Link here

Here is the relevant section from the FMLA regs:
(b) Intermittent and reduced schedule leave. An eligible employee may use intermittent or reduced schedule leave after the birth to be with a healthy newborn child only if the employer agrees.
Link here
posted by pecanpies at 2:17 PM on December 12, 2011 [1 favorite]

Also...on re-reading, it sounds like your supervisor/HR person may not be aware how FMLA/CFRA/PFL works in this instance and may not realize they don't have to grant your leave request. In that case - take advantage of their ignorance! Calling in on Jan. 3 may still be the best option if your goal is to get the3 days' holiday pay, though.
posted by pecanpies at 2:20 PM on December 12, 2011

What pecanpies said. Also, your right to FMLA protection ends when you give "unequivocal notice" of your intent not to return to work.
posted by SMPA at 3:38 PM on December 12, 2011

You need to check your employee handbook, but at every job I've worked, you didn't get paid for a holiday the day after you quit, you had to go in to work after the holiday to get paid for the holiday; I once worked the Sunday night after Veterans' Day because I wanted to get the holiday pay, even though I was starting a new job Monday morning.
posted by mskyle at 6:10 AM on December 13, 2011

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