Feb 10

Civil Air Patrol Leave of Absence: Up in the Air?

Members of the Civil Air Patrol have the right to a leave of absence and reinstatement under California law.

Members of the Civil Air Patrol have rights under California law.

California is home to 4,000 members of the Civil Air Patrol (CAP). These civilian auxiliaries of the U.S. Air Force often have to scramble planes on a moment’s notice to perform search and rescue, disaster relief, and humanitarian missions both within and outside of California. The sudden need to take time off can irritate an employer. Fortunately, an employer who discriminates against a CAP member might end up owe him sky-high compensation. That’s because California’s Civil Air Patrol Employment Protection Act (CAPEPA) guarantees many CAP members the right to a leave of absence and, when they return from leave, the right to reinstatement.

I. The Right of CAP Members to Take a Leave of Absence for an “Emergency Operational Mission”

CAPEPA requires an employer to provide at least 10 days per calendar year of unpaid CAP leave anywhere within or outside of California if: (1) the employee is a member of the California Wing of CAP; (2) the U.S. Air Force, the State of California, or political subdivision of the State of California directs the employee to participate in an emergency operational mission (EOM); (3) the employee has worked for at least 90 days; (4) the employer has “more than 15 employees”; and (5) the employee gives the employer “as much notice as possible” of the EOM.1 The employer doesn’t have to let the employee take more than three days of CAP leave for a single EOM.2

CAPEPA doesn’t define an “EOM.” The legislative history of CAPEPA suggests that the Legislature believed that CAP’s “emergency services” included search and rescue, disaster relief, and humanitarian services in conjunction with the Red Cross. But CAPEPA allows an employer to deny leave if an entity other than the Air Force, the State of California, or a political subdivision of the State of California (e.g., a city, county, or district) authorizes an EOM. Thus, a forest fire in Oregon can drive hundreds of people out of their homes, but if only FEMA authorizes an EOM, a member of California’s CAP Wing probably won’t qualify for CAP leave.

If an employee needs to go on CAP leave, he must give his employer “as much notice as possible” of the “intended dates” on which the CAP leave will begin and end.3 In many cases, an employee might give only a few hours or minutes of notice, as emergencies are usually unpredictable. His employer may not require him to exhaust accrued vacation leave, PTO, comp time, sick leave, or any other leave to take CAP leave.4 The employer may, however, require that the employee provide certification from the proper CAP authority to verify his eligibility for the leave.5 The employer can deny the leave “as CAP leave” if the employee fails to provide the certification.6

The right to CAP leave wouldn’t mean much if an employer could just fire an employee after he returned from leave. CAPEPA thus requires an employer to “restore” a returning employee to either: (1) the position that he held when the leave began; or (2) a position with equivalent seniority status, employee benefits, pay, and other terms and conditions of employment.7 The employer may decline to restore him only because of “conditions unrelated” to the employee’s “exercise of rights” under CAPEPA.8 For example, an employer probably wouldn’t have to restore him if economic conditions required the employer to eliminate the employee’s position during an EOM.  

II. The Prohibition of Discrimination, Interference, and Retaliation Against CAP Members

Even if a CAP member isn’t eligible for CAP leave, he still has rights. CAPEPA prohibits an employer from discriminating against or firing a CAP member because of his membership in CAP.9 The anti-discrimination provision only refers to “CAP,” not the “California Wing of CAP,” so the provision presumably protects a member of some other state’s wing CAP. Furthermore, CAPEPA prohibits an employer from “hindering or preventing” a CAP member from performing service, but only as part of the California Wing of CAP and during a three-day EOM.10 Thus, an employer doesn’t necessarily violate CAPEPA if he sabotages a Nevada CAP member’s plane.

Similarly, CAPEPA prohibits retaliation against an employee for exercising his rights under CAPEPA. The employer may not interfere with, restrain, or deny the exercise or the attempt to exercise a right under CAPEPA.11 The operative word, however, is “right.” No employee has the “right” to go on a CAP leave for more than three consecutive days unless his employer approves. Likewise, CAPEPA prohibits an employer from firing, fining, suspending, expelling, disciplining, or in any other manner discriminating against an employee for exercises a right under CAPEPA or opposing a practice that CAPEPA prohibits.12

III. What Can a CAP Member Get If His Employer Violates His Rights?

CAPEPA authorizes an employee to bring a civil action in the Superior Court to enforce his rights.13 However, his remedies under CAPEPA appear to be quite limited. CAPEPA authorizes a court to “enjoin any act or practice” that violates CAPEPA and order “any equitable relief” necessary and appropriate to redress the violation or to enforce CAPEPA.14 In other words, CAPEPA appears to only authorize a court to issue an injunction, restore an employee to his former or equivalent position, or make an award of front and/or back pay. Unfortunately, an award of punitive damages isn’t available because it isn’t a form of “equitable relief.”15

But an employee can enhance his recovery under the Labor Code Private Attorney Generals Act (PAGA). For the violation of CAPEPA, PAGA allows an employee to recover a civil penalty of $100 for each aggrieved employee per pay period for an initial violation and $200 for each aggrieved employee per pay period for each subsequent violation.16a Typically, that means an employee can get an extra $100 if his employer won’t let him go on CAP leave. That might not sound like much, but PAGA entitles a prevailing employee to a mandatory award of attorney’s fees, which often dwarf any other relief he might recover.17

III. What Other Laws Might Protect CAP Members?

California’s Fair Employment & Housing Act (FEHA) might also protect a CAP member. Under FEHA, an employer with at least five regular employees may not discriminate against an employee or applicant for employment because he’s a “member or veteran” of the Armed Forces, Armed Forces Reserve, U.S. National Guard, or California National Guard.18 The “Armed Forces,” of course, include the Air Force, but FEHA doesn’t define “Air Force.” Consequently, the law is unclear about whether the Legislature considers the Air Force to include CAP. The answer to the question is important because FEHA will support a claim for punitive damages and attorney’s fees.

Even if an employee’s past or current membership in CAP doesn’t make him a “member or veteran” of the Air Force, he might be able to sue under FEHA. In fact, someone who has never so much as been on a plane can sue under FEHA. This unusual outcome is the result of FEHA’s broad concept of a “protected characteristic” as including the employer’s “perception” that the employee has that characteristic.19 Thus, an employer can be liable for discrimination against a CAP member if the employer, mistakenly believing that CAP is part of the Air Force Reserves or Air National Guard, refuses to hire the employee out of fear that he’ll have to go on leave two weeks a year.

  1. Lab. Code §1503(a)(1). 

  2. Id

  3. Lab. Code §1503(b)(1). 

  4. Lab. Code §1503(c). 

  5. Lab. Code §1503(b)(2). 

  6. Id

  7. Lab. Code §1504(a). 

  8. Id

  9. Lab. Code §1502. 

  10. Id

  11.  Lab. Code §1506(a). 

  12. Lab. Code §1506(b). 

  13. Lab. Code §1507(a). 

  14. Lab. Code §1507(b). 

  15. Commodore Home Systems, Inc. v. Superior Court, 32 Cal.3d 211, 225 (1982). 

  16. Lab. Code §2699(f)(2). 

  17. Lab. Code §2699(g)(1). 

  18. Gov. Code §12926(k). 

  19. Gov. Code §12926(o). 

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.