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OSHA on Workplace Violence

Workplace violence is the violence or threat of violence against workers. It can range from threats and verbal abuse to physical assaults and homicide. The Occupational Safety and Health Act of 1970 was designed to prevent workers from being killed, or seriously harmed at work. Because workplace violence is one of the leading causes of fatal workplace injuries, it should not be taken lightly. Although there are currently no specific standards for workplace violence, under the General Duty Clause of the Act, employers are required to provide their employees with a place of employment that “is free from recognizable hazards that are causing or likely to cause death or serious harm to employees.” The courts have interpreted OSHA’s general duty clause to mean that an employer has a legal obligation to provide a workplace free of conditions or activities that either the employer or industry recognizes as hazardous and that cause, or are likely to cause, death or serious physical harm to employees when there is possible way to reduce or eliminate the hazard.

The OSHA Act protects workers who complain to their employer, OSHA or other government agencies about unsafe or unhealthful working conditions in the workplace or environmental problems. You cannot be transferred, denied a raise, have your hours reduced, be fired, or punished in any other way because you used any right given to you under the OSHA Act. This constitutes retaliation and-and is prohibited by the State of California. Those who get retaliated against for complaining to OSHA or other governmental agency also have protections under the “whistleblower” statute. OSHA’s Whistleblower Protection Program enforces the whistleblower provisions of more than twenty whistle-blower statutes protecting employees who report violations of various workplace safety. Due to important time limitations and to ensure required procedures are being followed properly, it is recommended that anyone who has been retaliated against for complaining about workplace safety and/or violence consult with an employment attorney first to discuss the various rights and remedies that are available. If the perceived threat or danger is imminent, do not hesitate to call the police.

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Can My Employer Require Me To Use My Paid Time Off During My FMLA or CFRA Leave?
Under both the Family and Medical Leave Act and the California Family Rights Act, a qualifying employee is entitled to 12 weeks of unpaid protected leave. Although the employer is not required to pay an employee while he or she is on approved FMLA or CFRA leave, an employer may require an employee to use any accrued vacation, paid time off, or sick days. It is not illegal for the employer to enforce a policy requiring an employee on approved FMLA or CFRA leave to do so. This means that any accrued vacation, paid time off, or sick days would run concurrently with the approved FMLA or CFRA leave. For example, if an employee was on approved FMLA or CFRA leave for 12 weeks and had 3 weeks of accrued vacation, paid time off or sick days, it is perfectly legal for the employer to require the employee to use the accrued time during the first 3 weeks of the FMLA or CFRA leave. In other words, those 3 weeks would run simultaneously with the 12 weeks and does not mean that the employee is entitled to 3 extra weeks of leave. Although the application of accrued vacation, paid time off, or sick days to FMLA or CFRA leave is different for every employer, it is important to note that an employer may enforce a requirement to use such accrued time even if the employee did not elect to use his or her accrued vacation, paid time off, or sick days. However, depending on the size of the employer and whether it is possible for the employer to hire a temporary employee, additional days off may be considered reasonable accommodation. Therefore, you may want to consult with an experienced employment lawyer about whether you are entitled to additional days off even after your accrued vacation, paid time off or sick days is applied during your approved FMLA or CFRA leave.

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Contemporary Sexual Harassment Issues

It is common knowledge that sexual harassment in the workplace is an unlawful matter. What is not common knowledge, however, are the types of acts that in this day and age may be considered sexual harassment or that can amount to sexual harassment. Traditionally, sexual harassment involved a situation where a female employee is harassed by another male employee or co-worker in the workplace either through unwelcome physical conduct, forcing the female to unwelcome sexual behavior by threatening her termination or promotion opportunity, or the outright making of unwelcome sexual gestures and comments towards the female. Through the years, however, the courts have expanded the scope of conduct that is considered “sexual harassment,” and prohibited under the law.

sexual-harassmentIn California, sexual harassment laws are part of the Fair Employment and Housing Act (“FEHA”) which is enforced by the California Department of Fair Employment and Housing (“DFEH”). Sexual harassment as defined by FEHA includes not only verbal harassment (e.g., epithets, derogatory comments or slurs) and physical harassment (e.g., assault or physical interference with movement or work), but also includes visual harassment (e.g., derogatory cartoons, drawings or posters). Sexual harassment is no longer limited to just between individuals of opposite sexes but also applies to same-sex harassment because FEHA considers unwelcome sexual advances of an employer toward an employee of the same sex and harassment as unlawful sexual harassment. Additionally, under FEHA, unlawful harassment on the basis of gender identity or gender expression is also prohibited. “Sex” as defined by FEHA does not exclusively refer to just male or female but also includes pregnancy, childbirth, breast-feeding and related medical conditions.

Extensive sexual favoritism has been held by the California Supreme Court as constituting unlawful sexual harassment. In the case of Miller v. California Department of Corrections, two female employees at a prison claimed that the warden engaged in sexual affairs with several female employees and that those female employees received promotions, favorable assignments and other rewards. The two females sued for sexual harassment and retaliation under FEHA. Their claims were rejected by the trial court because the same disadvantages were experienced by all employees, male or female, who were not sexually involved with the warden. Moreover, the warden did not engage in improper sexual conduct toward either of the complaining employees. On appeal, the Supreme Court disagreed with the trial court. It held that “extensive sexual favoritism in a workplace can create a hostile work environment in which female employees can reasonably conclude that management views them as “sexual playthings” or that women must engage in sexual conduct with their supervisors to receive favorable treatment.” Based on this opinion, employees suffering from disadvantages in the workplace because of other romantic relationships and favoritism occurring between supervisors and other employees may have a claim for sexual harassment themselves. Additionally, if they complain about the favoritism and get terminated, demoted, threatened with reprisal, or not chosen for promotion as a result of the complaint(s), they may also have a claim of retaliation.

A California Court of Appeal in Birchstein v. New United Motor Manufacturing, Inc., held that staring, even when it is not done in a sexually suggestive manner, may constitute sexual harassment. A female employee had alleged that a male employee stared at her two to ten times each day, each stare lasting from several seconds to 10 minutes, though never in a sexually suggestive manner. She had earlier reported the same man to her employer for overt sexual harassment, at which time he stopped speaking to her and began a staring campaign. The court could not take the overt acts of harassment into account because they were more than one year old and barred by the statute of limitations. However, the court held that a violation of gender-based harassment laws could be found based on the pattern of overt sexual harassment, followed by a complaint, followed by a retaliatory act.

As indicated above, sexually oriented posters in the workplace could also constitute (e.g., putting up posters and/or calendars depicting nude or scantily dressed women) and/or obscenities in the workplace can also create a hostile work environment sufficient to constitute sexual harassment.

It is important to note that conduct constituting sexual harassment can come from a variety of sources including supervisors, co-workers, customers, and vendors. In most cases, the employer will be held responsible for harassment that occurs on the premises in connection with the employment relationship. Employers are strictly liable for sexual harassment of a subordinate by a supervisor (and the supervisor who engaged in the sexual harassment is also personally liable). However, the employer is liable for harassment between co-workers only if the employer knew (or should have known) about the conduct and failed to take immediate and appropriate corrective action (but the employee is still personally liable nontheless). Surprisingly, employers may also even be responsible for acts of non-employees who harass their employees, applicants or independent contractors if the employer, its agents or supervisors knew or should have known of the harassment and failed to take immediate and appropriate corrective action. Employers also have a duty to protect their employees from harassment by third parties, such as customers, even when harassment may be inherently part of the job.

Based on the expansion of protection against sexual harassment afforded to employees in the workplace as discussed above, employees should carefully evaluate their work environment and not hastily rule out any inappropriate conduct because what the employee thinks is permissible may actually constitute sexual harassment. Neither should employees be afraid to report acts or suspicions of sexual harassment based on the laws protecting against retaliation afforded by FEHA. However, because there is not always a fine line between what conduct amounts to unlawful sexual harassment, the advice of an employment attorney who specializes in this area is recommended. Employees should be cautious to not wait too long before investigating the matter due to the statute of limitations which prevents any possibility of recovery after a certain time has passed since the unlawful act.

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Everyone knows that sexual harassment is illegal, but what about other types of harassment? California is a state where racial and ethnic diversity is rich and inherent and where everyone’s cultures may be shared and celebrated. Unfortunately, though, racism and prejudice continue to exist and sometimes the prejudice seeps into the workplace. Ideally, work should be a safe place; however, this is not always the case and racial harassment occurs on the job. If you or someone you know is experiencing racial or ethnic harassment at work, here is some information that could help you.

Existing laws do not protect employees from all harassment encountered in the workplace, but California’s Fair Employment and Housing Act (FEHA) protects employees from harassment that stems from illegal discriminatory motives, which includes harassment based on sex, gender, gender identity, gender expression, sexual orientation, race, religious creed, color, national origin, ancestry, physical or mental disability, medical condition, genetic information, marital status, age, or military and veteran status.


To be considered a serious legal matter, racial harassment that occurs at work usually needs to be harsh and occur frequently enough to create a hostile work environment. A hostile environment forms when the harassment by a co-worker is unwelcome, is unreasonably abusive or offensive, and affects the employee’s ability to perform his work. Acts that are uncommon, infrequent, or trivial are usually not considered to be severe offenses. In some instances, though, a single act made by one’s superior, such as a manager or supervisor, may be seen as disparaging and demeaning enough to create a hostile environment because of the superior’s authority over employees in the workplace.


Harassment does not only affect the victim. Co-workers who witness acts of harassment toward others may also experience the negative effects and oppression from the hostile atmosphere that the harassment creates. Employees may make a claim for racial harassment, even when they are not the direct target of harassment. A harasser’s poor treatment of co-workers, clients, or customers of a particular race may contribute to an overall hostile environment in the workplace.


If frequent racial remarks are made about someone behind his back, it can be considered illegal harassment, even though the harassment is indirect. A work environment can become hostile even when the target of harassment is not present in the workplace. The workplace may become intolerable for employees who are subjected to witnessing a harasser’s constant racial slurs of a fellow co-worker behind his back. When the victim becomes aware of the racial slurs that were committed in his absence, he may feel just as hurt as if the words were said directly to him. The victim of harassment may claim that the harassment affected him as well as his co-workers who were bystanders of the harassment.

Your work should be a place that is free from racial prejudice, hostility, and harassment. You should never have to tolerate acts of hate and aggression made by people that you have to associate with every day. If you have been a victim or witness of racial harassment and feel that work has become unbearable because of the negativity it has created for you at work, you should contact an experienced employment law firm such as Stevens & McMillan.

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Orange County Employee Benefits Attorney – Get the Highest Possible Settlement
Unfortunately, sickness or injury can strike anyone at any time. Fortunately, there are a number of laws which protect an Orange County Employee benefits attorney and allow him or her to take of time for health related issues. Some of these laws include:
Family and Medical Leave Act (FMLA) – An Orange County Employee benefits attorney may take twelve workweeks of leave in a 12-month period for a serious health condition that makes the employee unable to perform the essential functions of his or her job.
California Family Rights Act (CFRA) – An Orange County Employee benefits attorney may take twelve workweeks of leave in a 12-month period for a serious health condition including illness, injury (including on-the-job injuries), impairment, or physical or mental condition.
Pregnancy Disability Leave Law – An Orange County Employee benefits attorney disabled by pregnancy is entitled to up to four months disability leave. If the employer provides more than four months of leave for other types of temporary disabilities, the same leave must be made available to women who are disabled due to pregnancy, childbirth, or a related medical condition.
Pregnancy Discrimination Act (PDA) – Employers must treat pregnancy disability the same as any other disability and offer the same leave and/or accommodations that are offered to persons with other disabilities.
Americans with Disabilities Act – Subject to certain restrictions, a leave of absence may be required as a reasonable accommodation for a person with a disability.
Fair Employment and Housing Act (FEHA) – Like the ADA, FEHA may require an employer to give a leave of absence as a reasonable accommodation for a person with a disability.
Workers’ Compensation Act – An Orange County Employee benefits attorney who suffers a work-related injury and needs time off to recover may be entitled to a leave of absence.
If you have taken a leave of absence under one of these laws and feel like you have been discriminated or retaliated against for doing so, then please contact Stevens & McMillan at (800) 738-3353 for a free consultation. This article has only touched on the general scope of the law and is for information purposes only. This article is not intended to give legal advice.
Wyatt J. Holtsclaw | Attorney
Stevens & McMillan, Orange County Employee benefits attorney

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What are the Top Court Cases of All Time?

The law is an ever-evolving entity in a symbiotic relationship with its citizens; it shapes us, and we shape it. Here is the list of the most prominent court cases in the United States that have, inevitably so, shaped our lives for years to come. The Law Offices of Stevens & McMillan are forever indebted to such cases, and work to honor them everyday! For all your Employee Rights needs, give us a call at (800) 738-3353.
Brown v. Board of Education
On May 17, 1954, the Supreme Court unanimously declared state laws that established separate public schools for black and white students unconstitutional, saying they had a detrimental effect on minority children. Though the decision helped spur the civil rights movement and paved the way for integration, it was not welcomed overnight. In 1957, Arkansas Governor Orval Faubus used the National Guard to block nine black students from entering Little Rock High School. In 1963, Alabama Governor George Wallace personally blocked a door at the University of Alabama to prevent two black students from enrolling. In both cases, the incidents resulted in interventions from the highest level — in Little Rock, President Dwight D. Eisenhower deployed the 101st Airborne Division to integrate the school, while in Alabama, President John F. Kennedy sent in the National Guard to remove George “segregation now, segregation tomorrow, segregation forever” Wallace from the university doorway.

Roe v. Wade
Roe v. Wade divided the country into those who believed in an unborn child’s right to life and those who believed in a woman’s right to choose. It raised issues of morality and privacy and is still hotly debated today. In the early 1970s, Norma McCorvey (alias Jane Roe) was a single Texas mother. Pregnant for a third time, McCorvey decided she did not want to bear a third child, but Texas state law prevented her from having an abortion. On Jan. 22, 1973, the U.S. Supreme Court ruled that the constitutional right to privacy extends to a woman’s decision to have an abortion. The decision came too late for Roe, who was impregnated in 1969 (she had the child and gave it up for adoption), but it guaranteed the right of women nationwide to terminate unwanted pregnancies through abortion by obliging all 50 states to legalize the divisive medical practice.

Miranda v. Arizona
That most television-friendly of Supreme Court cases,Miranda v. Arizona, was decided in 1966. Under Chief Justice Earl Warren, the court determined 5 to 4 that the police had to follow certain procedures to ensure the protection of a criminal suspect’s Fifth Amendment privilege against self-incrimination. The ruling included the stipulations that suspects be told they have the right to remain silent, that anything they say could be used against them and that they have the right to an attorney. Without these Miranda warnings, the court deemed, prosecutors could not use statements made by defendants under interrogation. The decision reversed the conviction of Ernesto Miranda, who had been found guilty of kidnapping and rape in Arizona after he had confessed during police questioning without being informed of his rights.

Marbury v. Madison
Before vacating the Oval Office in March 1801, John Adams appointed a number of Federalists to judicial openings in an attempt to handicap President-elect Thomas Jefferson’s incoming Democratic-Republican Administration. But because Adams’ Secretary of State, John Marshall, failed to deliver all of the appointees’ commissions, and because Jefferson subsequently directed his new Secretary of State, James Madison, not to deliver the remaining notices — a number of employees were unable to assume their new positions.

One frustrated appointee, Federalist William Marbury, petitioned the Supreme Court to force Madison to deliver his commission. On Feb. 23, 1803, the court handed down a unanimous decision that Madison was not required to deliver the agreement because the law requiring such action — the Judiciary Act of 1789 — conflicted with a piece of the Constitution. Marshall, by that time Chief Justice, argued that the Judiciary Act was unconstitutional and therefore void, thus establishing the basis for judicial review and solidifying the role of checks and balances in American government.

District of Columbia v. Heller
It had been 70 years since the Supreme Court had last tackled the central conundrum of the Second Amendment: Does the right to bear arms apply only to militias? This 2008 case specifically challenged Washington, D.C., gun-control legislation that generally prohibited carrying a pistol without a license and also required that all firearms be kept unloaded. In a split decision, the often conservative-leaning Roberts court concluded that the Second Amendment does protect an individual’s right to possess a firearm unconnected with service in a militia. It was possibly the most important government statement regarding guns in the U.S. since the Second Amendment was ratified in 1791.

Citizens United v. Federal Election Commission
In January 2010, the Supreme Court upheld the right of corporations to spend money influencing political campaigns, ruling that these entities ought to have the same First Amendment rights as individuals to engage in “political speech.” The historic — and, in some quarters, infamous —Citizens United v. Federal Election Commission decision fell to a tight 5-to-4 vote. Its implications are huge: superseding earlier understandings, the court deemed corporate money, funneled by lobbyists and special-interest groups into politics, equivalent to any individual donation — even though, by many people’s reckonings, a corporation with its resources and focused agenda is hardly the same thing as an individual person. President Obama, for one, was scathing about the verdict, saying “this ruling strikes at our democracy itself.” But such prominent First Amendment advocates as Floyd Abrams — often associated with defending journalists’ rights — argued vociferously that the court did the right thing by preserving the guarantees of the amendment.

Bush v. Gore
In Bush v. Gore, the Supreme Court decided one of the closest presidential elections ever. With both former Texas governor George W. Bush and Vice President Albert Gore needing to win Florida to claim the presidency, polls closed with just 537 votes separating them. The closeness of the race merited a machine recount of ballots under Florida law. Due to highly-publicized controversy over whether the design of the ballots confused voters or whether machines would miscount incorrectly completed ballots, the Florida Supreme Court ordered manual recounts in several counties. But the U.S. Supreme Court immediately ordered these recounts halted the following day, declaring that counting certain ballots by different methods than others violated the Equal Protection Clause of the Fourth Amendment. The Court found that the recount ordered by the Florida Supreme Court was invalid, and that no alternative recount could be performed within the state’s legal time limit. On 12 December 2000, the Supreme Court ruled that the original Florida results would stand, effectively naming Bush the next President of the United States.

Lawrence v. Texas
In a landmark decision for the gay rights movement, 2003’sLawrence v. Texas declared unconstitutional a Texas law prohibiting sodomy. The case arose when police, after receiving a tip of a domestic disturbance, arrested two men found engaged in homosexual activity. When the case eventually made its way up to the Supreme Court, the 6-3 decision also struck down similar sodomy laws in 13 other states, thus legalizing consensual same-sex sexual activity in all U.S. states and territories. On behalf of the majority, Justice Anthony Kennedy maintained that the right to privacy protected such sexual acts, overruling the Court’s previous view that had resulted in the opposite verdict over a similar 1986 case, Bowers v. Hardwick. Justice Antonin Scalia wrote a dissenting opinion, arguing that states should be able to legally enforce moral opposition to homosexual conduct. But only two fellow justices backed him, and the case soon became an iconic victory for gay rights activists across the nation.

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What is Sexual Harassment?
It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.
Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general.
Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.
Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
Facts About Sexual Harassment
Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government.
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment.
Sexual harassment can occur in a variety of circumstances, including but not limited to the following:
The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
The harasser's conduct must be unwelcome.
It is helpful for the victim to inform the harasser directly that the conduct is unwelcome and must stop. The victim should use any employer complaint mechanism or grievance system available.
When investigating allegations of sexual harassment, EEOC looks at the whole record: the circumstances, such as the nature of the sexual advances, and the context in which the alleged incidents occurred. A determination on the allegations is made from the facts on a case-by-case basis.
Prevention is the best tool to eliminate sexual harassment in the workplace. Employers are encouraged to take steps necessary to prevent sexual harassment from occurring. They should clearly communicate to employees that sexual harassment will not be tolerated. They can do so by providing sexual harassment training to their employees and by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains.
It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on sex or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII.
Call or Request a Consultation Online Today with your #1 Sexual Harassment Lawyers in California Stevens & McMillan!
Call NOW toll free at (800) 738-3353 for a FREE CONSULTATION with NO RECOVERY – NO FEE (No Up-front Costs, Fees or Charges) if you feel like your rights may have been violated.

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How Much Time Off Do I Get For Pregnancy Leave?
Under California law, employers with at least five employees must allow employees to take up to four months of unpaid leave per pregnancy. In addition, larger California employers (those with at least 50 employees) have to provide up to 12 additional weeks of parenting leave to employees who are covered by the California Family Rights Act (CFRA). Because these two types of leave are separate entitlements, employees may be eligible for a total of seven months of time off for pregnancy, childbirth, and parenting.
Pregnancy Disability Leave
Pregnancy disability leave is available only while the employee is temporarily unable to work due to pregnancy, childbirth, or related conditions. This leave can be taken all at once, or intermittently as needed. For example, the employee may take time off for morning sickness and prenatal doctor visits.
An employee need not be completely incapacitated or bedridden to qualify for leave. If the employee is unable to perform at least one of the essential functions of her job without undue risk of harm to herself, coworkers, or the successful completion of her pregnancy, she qualifies for leave.
After the leave, the employer must reinstate the employee to the same position unless the position has been eliminated or the employer has other legitimate business reasons for not returning the employee to her former position. In this situation, the employer must reinstate the employee to a comparable position.
Additional Bonding Time
Under the California Family Rights Act, certain larger employers must allow eligible employees to take up to 12 weeks of unpaid leave in a 12-month period to bond with a new child. This leave right is separate from -- and in addition to -- the right to pregnancy disability leave.
Employers often make the mistake of counting time off for pregnancy leave towards an employee's right to parenting leave under the CFRA. This would be correct under federal law: The federal Family and Medical Leave Act allows employees to take time off for a number of reasons, including parenting and the employee's own health condition (which includes pregnancy disability leave). However, employees may not use CFRA leave for pregnancy disability. So, when their pregnancy disability leave ends, they will still have 12 weeks of CFRA leave to use for bonding with their child.
Leave Can Be Up to Seven Months In All
If an employee is temporarily disabled by pregnancy and childbirth for four full months, she may be entitled to a total of seven months of unpaid leave from her employer. In some cases, the employer may have to offer even more time off if it is necessary as a reasonable accommodation for a disability under the circumstances. An employee might also be entitled to more leave if the employer agrees to it, the employer's policies provide for it, or the employer provides more leave for different types of disabilities.
There are a lot of statutes, rules, and regulations that apply to pregnancy leaves, medical leaves and disability accommodation leaves in California. If you are pregnant or planning a pregnancy, you might want to consult with an experienced employment lawyer to make sure you understand your rights.
For more in-depth information, see our section on Family and Medical Leave Laws.
From the Author: By Dan Stevens - A Southern California Employment Attorney

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