Membership Advantages

It is imperative that you know your employee rights in order to ensure equal treatment and fairness in the workplace. As a public employee and dues paying member, you have rights that are granted through your union contract, state and federal law, and work place policies. UPE's staff and member-leaders have fought tirelessly throughout the years to expand and protect these rights.

Some of these rights include proper representation during an investigatory meeting pertaining to a disciplinary matter. Your rights to Family Medical Leave Act, American Disabilities Act, and sick/vacation leave request/usage. A change of policy that impacts your current working conditions prescribed under the MOU and or government code. All of this matters and we will educate you through this process.

To that end, we are developing a series of short, easy to-read summaries of many of your employment rights. More summaries will be added to this website over the coming months. As a union member, always feel free to ask your Steward and or your Business Representative about your employment rights and how they apply to your specific circumstances. In most cases, your employer is not required to inform you of your rights.

Family Medical Leave Act (FMLA) Frequently Asked Questions

What is a Serious Health Condition Under FMLA?

A “serious health condition” is defined as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. The “continuing treatment” test for a serious health condition under the regulations may be met through (1) a period of incapacity of more than three consecutive, full calendar days plus treatment by a health care provider twice, or once with a continuing regimen of treatment, (2) any period of incapacity related to pregnancy or for prenatal care, (3) any period of incapacity or treatment for a chronic serious health condition, (4) a period of incapacity for permanent or long-term conditions for which treatment may not be effective, or (5) any period of incapacity to receive multiple treatments (including recovery from those treatments) for restorative surgery, or for a condition which would likely result in an incapacity of more than three consecutive, full calendar days absent medical treatment.

I was gone for 3 days with a cold and when I got back my supervisor gave me FMLA paperwork?

Serious Health Conditions lasting more than three days may qualify for FMLA and some employers require supervisors to provide FMLA paperwork for any absence of three days or more. It is up to the worker to determine if they should apply for FMLA.

How long do I have to work before I am eligible for FMLA?

12 Months

How many hours do I get?

12 weeks of leave per 12 month period.

I just used all my FMLA hours, how long do I have to wait to apply again?

12 months from the date you started your last FMLA period. You must also work 1250 hours during that period. Contact HR for precise dates.

I have more than one serious health condition; can I have more than one FMLA?

Yes but you only get 12 weeks of leave regardless of many certifications you submit?

My spouse and I both work for County/Court can we each get FMLA for our disabled child?

Yes, but you have to share the 12 weeks of protected leave.

Can I get paid during FMLA?

FMLA is unpaid time off but you can use your leave balances while on FMLA time. If the leave is for the care of a newborn or newly adopted child you may be eligible for EDD payments under Paid Family Leave up to 40% of your salary.

Writing a Rebuttal

Many members are not aware that you have a right to file a rebuttal to anything that is being put in your file. If you believe that a claim by your supervisor or manager is untrue, you can and should file a written counter-argument to that claim. Such written rebuttals can be to any of the following personnel materials:

Counseling memos
Corrective Performance memos
All materials or memos related to performance
Annual written performance appraisals
Letter of Reprimands

When writing a rebuttal, you are countering the specific statements in the supervisor’s memo that you believe are not true. It is always important to leave your opinions out of the rebuttal and stick to just the facts. It is always important to supply a rebuttal to allow your side of the story to be read. If you transfer or get a new supervisor and your file is looked at by that new supervisor, the only thing they see is what the previous supervisor wrote. Unless you write a rebuttal, your side is not available.

In addition to supplying a rebuttal to the document of disagreement, you should always sign the memo. Sign it under duress. Write “See attached rebuttal”. If you like, you can ask a Job Steward or your Business Agent to review the rebuttal prior to its submission. Your rebuttal must stay attached to the document that you are rebutting for as long as that document stays in your file. After turning the rebuttal in, it is important to do a file review after a few weeks or month to ensure that the rebuttal is in the file. In addressing each subject in the document for your rebuttal, you should focus your points of the rebuttal in chronological order as it relates to the document you are rebutting. Include your points of disagreement and conclude in a summary why you believe that the memo should not be in your file. Remember that if you do not write a rebuttal, it may be viewed as an admission of guilt.

Labor Code 230

The California Labor Code Section 230 protects workers who are victims of domestic violence, sexual assault, or stalking from discharge and discrimination. In particular, the law protects the time a worker takes to “obtain or attempt to obtain any relief, including, but not limited to, a temporary restraining order, restraining order, or other injunctive relief to help ensure the health, safety, or welfare of the victim or his or her child”. It also protects time off related to court appearances and court orders. Workers are required by the law to notice their employer of their status as a victim of domestic violence, sexual assault, or stalking. To the extent possible, workers need to provide advance notice of the need for time off relating to domestic violence, sexual assault, or stalking. The employer may ask for a certification that the time off qualifies under the law. When advance notice is not possible, the worker must notify the employer as soon as possible if time off was taken under Section 230.

The law also requires that the employer engage in a reasonable accommodation process, similar to that required by the ADA. The law references the following accommodations:

Transfer, reassign, or modifying the employee’s schedule.
Change the employee’s work telephone and/or workstation.
Install a lock.
Assist the employee with documenting the domestic violence, sexual assault, or stalking that occurs at the workplace.
Implement new safety procedures.
Make adjustments to the job structure, workplace facility, or work requirement in response to the domestic violence, sexual assault, or stalking.
Refer the employee to a victim assistance organization.

The worker must notify the employer of their need for accommodation. It is recommended that workers contact their Business Agent to assist with the reasonable accommodation process. This law is designed to provide victims with protection at work so that they can take the steps necessary to get help. If you are a victim of domestic violence, sexual assault, or stalking and are facing harassment, discrimination, or discipline at work please contact your Business Agent to see if Labor Code 230 can help protect you.

Right to Representation During a Disciplinary Interview

This is a general overview of one of your rights. There are often many laws, legal rulings, and Past Practices that define how a right applies to a particular situation. While it is important to exercise your rights, it is also important to know when they may not apply. If questions arise about how these rights apply to your situation, contact your Steward or Union rep.

Right: Know the purpose of any meeting and have your representative present in investigatory meetings.

Authority: NLRB v. Weingarten, 420 U.S. 251, 95 S.Ct. 959 (1975).

Discussion: You have the RIGHT to ask what the meeting is about, and what will be discussed. If the meeting is disciplinary, accusatory, or investigatory in nature, you have the RIGHT to have a Union representative present, if you have a reasonable belief that the interview could lead to discipline against you.

If your Union representative is not available, you have the RIGHT to ask that the meeting be rescheduled to another time when your representative is available. If your supervisor orders you to attend the meeting, follow these steps:

Attend the meeting to avoid being accused of insubordination;
As the meeting begins, inform the person conducting the meeting that
1. you are there under protest;
2. you intend to file a grievance because you were denied your right to have your representative present; and you will stay in the meeting but will not participate in any discussion until you can talk with your UPE representative. Be sure to take notes of what is said to you. Do not respond to questions or accusations!

If you receive a direct order to respond and you refuse the employer may bring insubordination charges against you. This charge will most likely not be upheld if you have correctly asserted your rights. EXCEPTION: If there is NOT reasonable cause for you to believe that discipline could be the result of your response(s) then you could be insubordinate if you do not cooperate and could be disciplined on that basis.

Counseling Memos, Performance Improvement Programs (PIP) and Performance Evaluations: Generally these personnel actions are not considered discipline because the employer has a right to communicate their performance expectations and to inform the employee of performance deficiencies.

How to exercise your rights:Your employer is NOT required to tell you what your rights are. You MUST request to have your representative present. Contact the Union office and let the person answering the phone know you have an urgent issue.

What to do if you believe your rights have been violated:Contact the Union office or your Steward immediately.

WEINGARTEN DECISION

In a landmark decision known as the "Weingarten Decision", the United States Supreme Court ruled that employees represented by a labor union who are called into an investigatory meeting may have a steward or union officer present during the investigatory meeting.

Topic: Supervisory Desk/Working Files

Do you know what is in your desk file?

When is the last time you looked?

By Rick Reeve

As a Union Steward, I may be called upon to handle a variety of different situations. One topic that I have become acutely aware of lately is the use of desk files and how they are being used to document “anything that could turn into a problem later”. Typically, the information in a desk file is kept for one year in order to complete a member’s yearly evaluation. If that information is not relevant after one year and not incorporated into the evaluation, it should be removed and destroyed.

Desk files are intended for evaluation purposes and matters that the Supervisor wants to remember. However, they can be used in a damaging manner by an unscrupulous manager. It is imperative that you are aware of what is being placed in your file. You MAY be surprised at what your Supervisor has on you!

You have the right to:

Request to see the contents of your desk file at any time. The Supervisor may not do it immediately upon request, but they must comply with in a reasonable time.
Request and receive a copy of your entire desk file at any time. The Supervisor may not do it immediately upon request, but they must comply in a reasonable time.
Attach your response to any item in your desk file within 30 days of its placement.
Request that any item in your desk file be purged after one year of its placement.

A couple things to remember:

Your immediate Supervisor and Department Manager may have their own separate files on you, so make sure to request all desk file information, no matter the location.
If you find aggressive documenting on you, you may want to request to have copies made at 30 day intervals to preserve your right of response. Put the requests in writing.
Be sure to request all electronic “Chronos” your supervisor or manager may have.

If you find that the items in your desk file are inaccurate, you should discuss the issue with your Steward or Business Agent. You may be able to request the item be altered or removed. At the very least, you will have monitored your file and will have a response ready to attach to the disputed item. They must include your response with that item until it is removed and destroyed. This can be important if an issue comes up at a later time such as a grievance, complaint, or unfair labor practice filing.

If you have questions about desk files, please ask your Union Steward or Business Agent

Rick Reeve

UPE Governing Board Member & UPE Union Steward

Americans with Disabilities Act Frequently Asked Questions

What is a Reasonable Accommodation?
- Reasonable accommodation is a modification or an adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. Reasonable accommodation also includes adjustments to assure that a qualified individual with a disability has rights and privileges in employment equal to those of nondisabled employees.
What are some examples of Reasonable Accommodations?
- Making existing facilities accessible;
- Job restructuring;
- Part-time or modified work schedules;
- Acquiring or modifying equipment;
- Changing tests, training materials, or policies;
- Reassignment to a vacant position
What paperwork do I need to fill-out?
- You can request the County’s ADA paperwork from your supervisor, manager, or HR. If you request a reasonable accommodation they are required to provide the paperwork.
Can my employer refuse to meet my accommodation?
- It depends on the request. Legally, an employer is not required to eliminate an essential function of a job as a part of the ADA process. However, they can choose to do so and they can make accommodations to allow you to perform essential functions. If you are concerned whether your accommodation will be granted please contact your Business Agent.
How are ADA accommodations determined?
- Through the ‘interactive process’ an informal meeting between the worker, the employer, and representatives from the disability compliance office. Workers can request their Business Agent attend the meeting with them.
How long do I have to work before I am eligible for an ADA accommodation?
- There is no work requirement. You may submit ADA paperwork requesting an accommodation at any point.
My supervisor gave me ADA paperwork, but I do not feel I need it. Do I have to fill it out?
- No, it is your choice to fill out the paperwork. Policy requires supervisors and managers to provide ADA paperwork in certain circumstance, but it is your choice to fill it out. If you have questions please contact your Business Agent.
I think my disability will no longer allow me to do my job. Will I be out of work if I file ADA paperwork?
- Not necessarily, under the ADA it is possible to transfer to another position that does not require the same essential functions. Each ADA situation is different and you should contact your Business Agent prior to submitting ADA paperwork to hear your options.