BILL ANALYSIS                                                                                                                                                                                                    






                 Senate Committee on Labor and Industrial Relations
                                 Ted W. Lieu, Chair

          Date of Hearing: June 22, 2011               2011-2012 Regular 
          Session                              
          Consultant: Gideon L. Baum                   Fiscal:Yes
                                                       Urgency: No
          
                                   Bill No: AB 592
                                    Author: Lara
                         Version: As Amended April 25, 2011
          

                                       SUBJECT
          
                          Employment: leave: interference.


                                      KEY ISSUE

          Should the Legislature clarify that it is illegal for an 
          employer to interfere with the ability of a female employee to 
          take leave due to disability related to pregnancy?
          

                                       PURPOSE
          
          To clarify existing leave laws regarding disability during 
          pregnancy.


                                      ANALYSIS
          
           Existing federal law  provides for the Family Medical Leave Act 
          (FMLA), which unpaid, job-protected leave for specified family 
          and medical reasons for 12 weeks in a 12 month period.  This 
          includes which includes the birth of a child or parental 
          bonding.  

           Existing federal law  explicitly prohibits the interfering, 
          restraining, or denying an eligible employee from utilizing 
          leave under FMLA.
           
          Existing law  prohibits an employer from discriminating against 
          someone in an employment setting on the basis of race, religious 
          creed, color, national origin, ancestry, physical disability, 









          mental disability, medical condition, marital status, sex, age, 
          or sexual orientation of any person.  This includes, among other 
          things, refusing to hire or employ the person or to discriminate 
          against the person in compensation or in terms, conditions, or 
          privileges of employment.  (Government Code 12940)

           Existing law  prohibits an employer from refusing to allow a 
          female employee disabled by pregnancy, childbirth, or related 
          medical conditions to take a leave for a reasonable period of 
          time not to exceed four months and thereafter return to work. 
          The employee shall be entitled to utilize any accrued vacation 
          leave during this period of time, but an employer may require an 
          employee who plans to take a leave to give the employer 
          reasonable notice of the date the leave shall commence and the 
          estimated duration of the leave.  (Government Code  12945)

           Existing law  establishes the California Family Rights Act (CFRA) 
          which requires employers to grant employees up to 12 weeks of 
          unpaid protected leave, in any 12 month period, to care for a 
          seriously ill spouse, child or parent, or for their own serious 
          medical condition, which includes the birth of a child or 
          parental bonding.  (Government Code  12945.2)
           
          This bill  would clarify that it is unlawful to interfere with 
          the ability with, or restrain the exercise or attempted exercise 
          of, leave under CFRA or due to disability by pregnancy, 
          childbirth, or related medical conditions.

           This bill  also declares that this clarification is declarative 
          of existing law.


                                      COMMENTS

          
          1.  Need for this bill?

            As written, California's Pregnancy Disability Leave (PDL) and 
            California Family Rights Act (CFRA) do not explicitly 
            reference "interference" with an employee's right to leave as 
            a basis for liability.   While such activities are illegal 
            through federal law and Faust v. California Portland Cement 
          Hearing Date:  June 22, 2011                             AB 592  
          Consultant: Gideon L. Baum                               Page 2

          Senate Committee on Labor and Industrial Relations 
          








            Company (2007), the author notes a recent unpublished court 
            case,  Harris v. CashCall, Inc.  , where the court appeared to 
            leave open the idea that interference is legal.
                
            The author notes that this bill will bring California's 
            pregnancy and family medical leave laws in line with the 
            federal standard by clarifying that "interference" is a basis 
            for liability under California law as well.  According to the 
            author, this bill will minimize confusion among employers and 
            employees, and afford a woman who is eligible to take leave in 
            California, the greatest protection under the law.

          2.  Proponent Arguments  :
            
            Supporters of this bill, which includes the California Labor 
            Federation, argue this bill makes it clear that interfering 
            with an employee's CFRA rights is forbidden and that by 
            stating this in the CFRA statute itself will better aid 
            employers in conforming their conduct to the law helping to 
            avoid potential litigation.

          3.  Prior Legislation  :

            AB 1865 (Kuehl) of 2000, Chapter 1047, Statues of 2000, 
            expressly provided that employees of  any entity covered by 
            the FEHA are personally liable for their acts of harassment, 
            regardless of whether their employer knows or should have 
            known of the conduct and fails to take immediate and 
            appropriate corrective action. 




                                       SUPPORT
          
          American Federation of State, County and Municipal Employees, 
          AFL-CIO
          Bell Gardens Women's Club
          CA Conference Board of the Amalgamated Transit Union
          CA Conference of Machinists
          CA Official Court Reporters Association
          California Labor Federation
          Hearing Date:  June 22, 2011                             AB 592  
          Consultant: Gideon L. Baum                               Page 3

          Senate Committee on Labor and Industrial Relations 
          








          California Nurses Association
          California Teamsters Public Affairs Council
          Engineers and Scientists of California
          International Longshore and Warehouse Union
          Labor Project for Working Families
          Professional and Technical Engineers, Local 21
          The Schlehr Law Firm
          UNITE HERE!
          United Food and Commercial Workers-Western States Conference
          Utility Workers Union of America, Local 132
          

                                     OPPOSITION
          
          None on file.


























          Hearing Date:  June 22, 2011                             AB 592  
          Consultant: Gideon L. Baum                               Page 4

          Senate Committee on Labor and Industrial Relations