BILL ANALYSIS Ó
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THIRD READING
Bill No: AB 592
Author: Lara (D)
Amended: 7/1/11 in Senate
Vote: 21
SENATE LABOR & INDUSTRIAL RELATIONS COMM. : 6-0, 06/22/11
AYES: Lieu, Wyland, DeSaulnier, Leno, Padilla, Yee
NO VOTE RECORDED: Runner
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 61-17, 05/23/11 - See last page for vote
SUBJECT : Employment: leave: interference, restraint,
and denial
SOURCE : Author
DIGEST : This bill clarifies that it is an unlawful
employment practice to interfere with, restrain, or deny
the exercise of, or the attempt to exercise, any right
provided under the California Family Rights Act (CFRA) or
due to disability by pregnancy, childbirth, or related
medical conditions. This bill also declares that this
clarification is declarative of existing law.
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
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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.
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.
Existing law establishes 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.
This bill clarifies that it is unlawful to interfere with,
restrain, or deny the exercise of, or the attempt to
exercise, any right provided 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
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As written, California's Pregnancy Disability Leave and
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 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.
Prior Legislation
AB 1865 (Kuehl), 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 7/12/11)
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
California Nurses Association
California Teamsters Public Affairs Council
Engineers and Scientists of California
International Longshore and Warehouse Union
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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
ARGUMENTS IN SUPPORT : 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.
ASSEMBLY FLOOR : 61-17, 05/23/11
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall,
Bill Berryhill, Block, Blumenfield, Bonilla, Bradford,
Brownley, Buchanan, Butler, Charles Calderon, Campos,
Carter, Cedillo, Chesbro, Davis, Dickinson, Donnelly,
Eng, Feuer, Fletcher, Fong, Fuentes, Furutani, Galgiani,
Gatto, Gordon, Hagman, Hall, Hayashi, Roger Hernández,
Hill, Huber, Hueso, Huffman, Jeffries, Lara, Bonnie
Lowenthal, Ma, Mendoza, Miller, Mitchell, Monning,
Nestande, Pan, Perea, V. Manuel Pérez, Portantino,
Skinner, Solorio, Swanson, Torres, Wagner, Wieckowski,
Williams, Yamada, John A. Pérez
NOES: Conway, Beth Gaines, Garrick, Grove, Halderman,
Harkey, Jones, Knight, Logue, Mansoor, Morrell, Nielsen,
Norby, Olsen, Silva, Smyth, Valadao
NO VOTE RECORDED: Cook, Gorell
PQ:nl 7/13/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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