Apr 13

Back to School: How to Get Time Off for Child-Related Activities

In California, many employees have the right to go "back to school" for "child-related activities."

In California, many employees have the right to go “back to school” for “child-related activities.”

Getting time off from work to help out at your child’s school or child care provider is as easy as learning your ABCs. That’s because California’s Family-School Partnership Act (FSPA) allows many employees to take up to 40 hours of time off per year for a wide variety of planned and emergency “child-related activities.” If an employer fires or otherwise discriminates against an employee for taking time off for child-related activities, the employee will be able to financially paddle her employer in a court of law. So here’s a cheat sheet for how to properly take time off from work – and keep your job.

I. When Can an Employee Take Time off for Child-Related Activities?

Under the FSPA, any employee, regardless of how long she has worked for her employer, can take up to 40 hours of time off per year if she meets all of the following requirements: (1) she’s a “parent” – i.e., a biological parent, stepparent, foster parent, grandparent, or person who stands in loco parentis to a child who’s either in kindergarten through 12th grade or in a licensed child care provider; (2) the employee intends to engage in “child-related activities” during her leave of absence; (3) she gives her employer adequate notice of such absence; and (4) her employer has at least 25 employees working at the same location.1

For a planned child-related activity, an employee can take time off for either of the following: (1) find, enroll, or re-enroll her child in a school or with a licensed child care provider; or (2) “participate” in “activities of” the school or child care provider.2 The FSPA doesn’t define “participate” or “activities.” But the word “participate” implies that the parent must do more than sit in the bleachers at a baseball game. Moreover, the “activity” must be “of” the school or child care provider – e.g., parent-teacher conference, field trip, bake sale, etc. Thus, picking a kid up from school, though an activity, isn’t an activity “of” the school. 

The FSPA limits the right of an employee to take time off for planned absences for “child-related activities” leave in three situations. First, she can take no more than eight hours off in any calendar month.3 Second, only one parent may take time off if both parents work for the same employer at the same worksite.4 The parent who gives notice first will get the time off.5 Third, the employee must use any vacation, PTO, or comp time, unless her employer allows unpaid time off. The employee, however, may not use vacation if all permanent, full-time employees must use vacation during the same “period of time.”6

Similarly, an employee can take up to 40 hours of time off per year to “address” an “emergency” at her child’s school or licensed child care provider.7 In other words, she can take time off if: (a) the school or child care provider has requested that someone pick up the child, or it has an attendance policy (excluding holidays) that prohibits the child from attending or requires someone to pick him up; (b) the child has behavioral or disciplinary problems; (c) the school closes or the child care provider becomes unexpectedly unavailable (excluding holidays); or (d) an earthquake, flood, or other natural disaster occurs.8

II. How Does an Employee Prove that She Took Time off for Child-Related Activities?

The employer doesn’t have to take the employee at her word that she left work just to help out at her child’s school. Under the FSPA, an employee must, at the employer’s request, show written proof from the school or child care provider that she “engaged in child-related activities” on a specific date and time.9 But the employer must accept whatever writing the school or child care provider deems “appropriate and reasonable” proof of “parental participation.”10 Conceivably, the proof can be a handwritten note from the receptionist at the front office or even a napkin from the cafeteria.

Moreover, the use of the term “planned participation” implies that the employee has to show written proof of her “participation” in an planed “activity of” the school or child care provider. That’s because the the only activity that an employee “plans” and “participates” is one “of” the school or child care provider. In contrast, the employee “finds, enrolls, or re-enrolls” a child and “addresses” an “emergency.” Thus, she doesn’t have to prove to her employer that she left work to pick her child up from school only after a mass shooting or earthquake. Presumably, the Legislature felt that an employer could easily verify an emergency on his own.

III. What Can an Employee Get If Her Employer Retaliates Against Her for Taking Time off for Child-Related Activities?

The violation of the FSPA is a serious matter. If an employer fires, threatens to fire, demotes, suspends, or in any other way discriminates against an employee because she “has taken time off” to “engage in child-related activities,” the FSPA will entitle her to reinstatement and reimbursement for lost wages or benefits.11 If, however, an employer willfully refuses to re-hire or promote an employee or former employee after a grievance procedure, arbitration, or “hearing authorized by law” has determined that she’s eligible for re-hire or promotion, the employer will owe a civil penalty three times the lost wages and benefits.12 

The employee can collect that civil penalty by filing an action under the Labor Code Private Attorneys General Act (PAGA). Under PAGA, any employee can collect civil penalties for the State of California if her employer violates any Labor Code provision – including the FSPA.13 She can then keep 25% of the civil penalty as a bounty for bringing the PAGA action.14 In addition, a prevailing employee, but not a prevailing employer, can get a mandatory award of attorney’s fees.15 Unfortunately, the Legislature didn’t say what would happen if an employer were to fire an employee before she could take time off.

  1. Lab. Code §230.8. 

  2. Lab. Code §230.8(a)(1)(A). 

  3. Lab. Code §230.8. 

  4. Lab. Code §230.8(a)(2). 

  5. Id

  6. Lab. Code §230.8(b)(1). 

  7. Lab. Code §230.8(a)(1)(B). 

  8. Lab. Code §230.8(e)(2). 

  9. Lab. Code §230.8(c). 

  10. Id

  11. Lab. Code §230.8(d). 

  12. Id

  13. Lab. Code §2699.5. 

  14. Lab. Code §2699(i). 

  15. Lab. Code §2699(g)(1). 

Ben Rothman, Esq.

Ben Rothman is a Los Angeles-based attorney practicing in the areas of personal injury, employment, and workers' compensation on a "no recovery, no fee" basis. Call him at (424) 465-2948 for a free, no-obligation consultation.