Under FMLA, supervisors may be personally liable.

An employer who willfully violates the FMLA posting requirements may be fined $166 for each separate offense. The only penalty for failing to post the CFRA notice is an order to post the notice.

FMLA Waivers

Under FMLA regulations, employees cannot waive prospective rights under FMLA. However, this does not prevent employees from settling or releasing claims under the FMLA based on past employer conduct.

Small Employer Mediation Program to Resolve CFRA Disputes

The California Civil Rights Department (CRD) has a small employer mediation program applicable to employers with between five and 19 employees involved in a dispute involving a violation of CFRA or California’s bereavement leave law.

• Additionally, effective January 1, 2025, the program will also apply to disputes related to California’s reproductive loss leave.

Under the program, an employee intending to pursue legal action against an employer with between five and 19 employees for a violation of the CFRA must contact the department’s dispute resolution division prior to filing a civil action and must indicate whether they are requesting mediation.

After contacting the CRD, the agency will notify all named respondents of the alleged violation and the requirement for mediation, if mediation is requested by the employee or employer, in writing. Under the program, the department will terminate its activity if neither the employee nor the employer requests mediation within 30 days of receipt by all named respondents of the notification.

If the department receives a request for mediation from the employee or employer within 30 days of the employer receiving notification of the alleged violation, the department must initiate the mediation within 60 days of the receipt of the request or the receipt of the notification by the employer, whichever is later.

Once the mediation has been initiated, no later than seven days before the mediation date, the mediator must notify the employee of their right to request their wage statements and personnel records under Sections 226 and 1198.5 of the Labor Code. The mediator must also help facilitate any other reasonable requests for information that may be necessary for either party to present their claim in mediation.

The employee can’t pursue any civil action unless the mediation is not initiated by the department within the time period specified or until the mediation is complete or the mediation is deemed unsuccessful.

The statute of limitations applicable to the employee’s claim will be tolled from the date the employee contacts the department’s dispute resolution division regarding the intent to pursue a legal action until the mediation is complete or the mediation is deemed unsuccessful.

For purposes of this program, a mediation is deemed complete when any of the following occur:

• Neither the employee nor the employer requests the mediation within 30 days of receipt by all named respondents of the notification or both parties agree not to participate in the mediation.
• The employer fails to respond to the notification or mediation request within 30 days of receipt.
• The department fails to initiate the mediation within 60 days of the department’s receipt of the request for mediation or the receipt by all named respondents of the notification, whichever is later.
• The department notifies the parties that it has determined that further mediation would be fruitless, both parties agree that further mediation would be fruitless, one of the parties failed to submit information requested by the other party and deemed by the mediator to be reasonably necessary or fair for the other party to obtain, or the mediator determines that the core facts of the employee’s complaint are unrelated to the CFRA.
• A mediation is unsuccessful if the claim is not resolved within 30 days of the department’s initiation of mediation, unless the department notifies the parties that it has determined more time is needed to make the mediation successful.

An employer in a civil action that did not receive a notification of the alleged violation as a result of the employee’s failure to contact the department’s alternative dispute resolution division prior to filing a civil action, and who had between five and 19 employees at the time that the alleged violation occurred, will, upon a timely request, be entitled to a stay of any pending civil action or arbitration until mediation is complete or is deemed unsuccessful.

1. Govt. Code secs. 12960, 12965