Section 11094 - Retaliation and Protection from Interference with CFRA Rights(a) Any violation of CFRA or these implementing regulations constitutes interfering with, restraining, or denying the exercise of rights provided by CFRA. "Interfering with" the exercise of an employee's rights includes, for example, refusing to authorize CFRA leave and discouraging an employee from using such leave. It would also include an action by a covered employer to avoid responsibilities under CFRA, for example: (1) Changing the essential functions of the job in order to preclude the taking of leave;(2) Reducing an employee's hours available to work in order to avoid employee eligibility; and(3) Terminating an employee when it anticipates an otherwise eligible employee will be asking for a CFRA-qualifying leave in the future.(b) CFRA's prohibition against "interference" prohibits an employer from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise CFRA rights or giving information or testimony regarding the employee's CFRA leave, or another person's CFRA leave, in any inquiry or proceeding related to any right guaranteed under this article. For example, if an employee on leave without pay would otherwise be entitled to full benefits (other than health benefits), the same benefits would be required to be provided to an employee on unpaid CFRA leave. By the same token, employers cannot use the taking of CFRA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can CFRA leave be counted against an employee under an employer's attendance policies.(c) Employees cannot waive, nor may employers induce employees to waive, their prospective rights under CFRA. For example, employees (or their collective bargaining representatives) cannot "trade off" the right to take CFRA leave against some other benefit offered by the employer. This does not prevent the settlement or release of CFRA claims by employees based on past employer conduct without the approval of a court. Nor does it prevent an employee's voluntary and uncoerced acceptance (not as a condition of employment) of a light duty assignment while recovering from a serious health condition. An employee's acceptance of such light duty assignment does not constitute a waiver of the employee's prospective rights, including the right to be reinstated to the same position the employee held at the time the employee's CFRA leave commenced or to a comparable position.(d) All individuals, and not merely employees who are CFRA-qualified, are protected from retaliation for opposing (e.g., filing a complaint about) any practice that is unlawful under CFRA. They are similarly protected if they oppose any practice that they reasonably believe to be a violation of CFRA or these implementing regulations.(e) In addition to retaliation prohibited by CFRA, retaliation is also prohibited by Government Code 12940 and section 11021 of the regulations.Cal. Code Regs. Tit. 2, § 11094
1. Change without regulatory effect renumbering former section 7297.7 to new section 11094 and amending section and NOTE filed 10-3-2013 pursuant to section 100, title 1, California Code of Regulations (Register 2013, No. 40).
2. Amendment of section heading, repealer and new section and amendment of NOTE filed 3-4-2015; operative 7-1-2015 (Register 2015, No. 10).
3. Amendment of section heading, section and NOTE filed 7-6-2020; operative 10-1-2020 (Register 2020, No. 28).
4. Change without regulatory effect amending section heading, section and NOTE filed 12-30-2020 pursuant to section 100, title 1, California Code of Regulations; effective 1-1-2021 (Register 2021, No. 1). (OAL review extended 60 calendar days pursuant to Executive Order N-40-20.)
5. Editorial correction of HISTORY 4 (Register 2021, No. 3).
6. Change without regulatory effect amending subsections (b) and (d) filed 1-11-2022 pursuant to section 100, title 1, California Code of Regulations (Register 2022, No. 2). Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12940 and 12945.2, Government Code; Family and Medical Leave Act of 1993, 29 U.S.C. § 2601, 2611 and 2615; and 29 C.F.R. § 825.
1. Change without regulatory effect renumbering former section 7297.7 to new section 11094 and amending section and Note filed 10-3-2013 pursuant to section 100, title 1, California Code of Regulations (Register 2013, No. 40).
2. Amendment of section heading, repealer and new section and amendment of Note filed 3-4-2015; operative 7/1/2015 (Register 2015, No. 10).
3. Amendment of section heading, section and Note filed 7-6-2020; operative 10/1/2020 (Register 2020, No. 28).
4. Change without regulatory effect amending section heading, section and Note filed 12-30-2020 pursuant to section 100, title 1, California Code of Regulations (Register 2021, No. 1). (OAL review extended 60 calendar days pursuant to Executive Order N-40-20.)
5. Editorial correction of HISTORY 4 (Register 2021, No. 3).
6. Change without regulatory effect amending subsections (b) and (d) filed 1-11-2022 pursuant to section 100, title 1, California Code of Regulations (Register 2022, No. 2).