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Fair Pay and Time Off FAQ


Do I have the right to take time off when I have a baby -- and is that time paid?

You may have the right to take leave under your employer's policies, state law, or the federal Family and Medical Leave Act (FMLA). For example, if your employer provides time off for parenting or pregnancy, you may use that leave if you are eligible. Even if your employer doesn't provide pregnancy leave, you may be entitled to take time off if your employer provides leave for other temporary disabilities.

The FMLA requires larger employers to allow covered employees to take up to 12 weeks of leave per year to care for a new child. You can also use FMLA leave for prenatal care and complications from pregnancy, if they constitute a serious health conditions (such as severe morning sickness or medically required bed rest). FMLA leave is unpaid, but you may use your accrued paid leave during FMLA leave.

A number of states have laws similar to the FMLA, which allow employees to take unpaid time off for pregnancy or bonding with a new child. Some states require employers to provide unpaid leave to employees who are physically disabled by pregnancy and childbirth. And, a handful of states (including California) provide partial pay to employees who are unable to work because of pregnancy. These programs, generally part of the state's temporary disability insurance fund, are funded by withholdings from employee paychecks, not from employer contributions.

Does my employer have to pay me for time spent on required training?

Yes. If you are required to attend a training program for work, you must be paid for that time. For example, if your employer requires all new employees to attend an orientation training or requires current employees to attend sexual harassment training, that time must be paid. If you have to travel to take a training program offsite, your travel time must be paid as well.

I'm in the National Guard, and I've been called to active duty. Am I entitled to get my job back when I return? Can my wife take time off now to make arrangements for my departure?

You and your wife may both have rights in this situation: You have the right to be reinstated, and she may have the right to take leave to prepare for your deployment.

Your right to reinstatement comes from the federal Uniformed Services Employment and Reemployment Rights Act (USERRA). Among other things, USERRA gives you the right to return to the job you would have held if you hadn't taken time off for military service. This means you are entitled to any raises, promotions, or other benefits you would have received if you were continually on the job.

Your wife will soon have the right to take leave for any "qualifying exigency" arising from your active duty or call to active duty. It isn't clear right now exactly what types of situations are covered as a "qualifying exigency," which is one reason why the law isn't yet in effect. The Department of Labor is expected to issue final regulations soon, which will clarify the situations covered by the law and make this right effective. In the meantime, your wife should ask her employer about taking time off for your deployment; some employers are already offering this type of leave, even though it isn't yet legally required. For more information, see Military Family Leave for Employees.

Can my employer require me to clock out when I take a break?

Your right to be paid for break time depends on state law, the length of your break, and what you do with your break time.

A small number of states require employers to provide paid breaks -- typically, ten minutes of paid break time for every four hours worked. If your state doesn't require paid breaks, then your employer doesn't have to pay you for this time unless:

  • your break lasts for 20 minutes or less, or
  • you have to work through your break.

Because of my long commute, the polls aren't open when I leave for work -- and are closed by the time I get home. Can I take time off to vote?

Most likely, yes. Almost every state requires employers to give employees time off to cast their ballots. In some states, employees may take time off to vote only if they would otherwise be unable to do so, but it sounds like you meet this requirement. You might also have to give your employer notice that you'll need time off, or perhaps provide some evidence that you actually used your time off to vote.

Whether you are entitled to be paid for this time also depends on state law. For more information, see Taking Time Off for Voting and Jury Duty

Copyright 2009 Nolo


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