BILL ANALYSIS �
Senate Committee on Labor and Industrial Relations
Ted W. Lieu, Chair
Date of Hearing: April 10, 2013 2013-2014 Regular
Session
Consultant: Deanna D. Ping Fiscal:No
Urgency: No
Bill No: SB 761
Author: DeSaulnier
As Introduced/Amended: February 22, 2013
SUBJECT
Family temporary disability insurance
KEY ISSUE
Should the legislature include retaliation protections for
employees that have applied for, used, or indicated intent to
apply for or use, family temporary disability insurance
benefits?
ANALYSIS
Existing law established a family temporary disability insurance
program, Paid Family Leave (PFL), that provides up to six weeks
of wage replacement benefits to workers who take time off work
to care for a seriously ill child, spouse, parent, or domestic
partner, or to bond with a minor child in connection with foster
care or adoption. (Unemployment Insurance Code �3301)
Existing law states that an individual is eligible to receive
temporary disability insurance benefits equal to one-seventh of
his or her weekly benefit amount for each full day during which
he or she is unable to work due to caring for a seriously ill or
injured family member or bonding with a minor child within one
year of the birth or placement of the child in connection with
foster care or adoption. (Unemployment Insurance Code �3301)
Existing law states that no more than six weeks of family
temporary disability insurance benefits shall be paid within a
12-month period and requires employees to use up to two weeks of
accrued vacation leave before they begin receiving benefits.
(Unemployment Insurance Code �3301)
Existing law, under the California Family Rights Act (CFRA),
entitles eligible employees of covered employers to take unpaid,
job-protected leave for specified family and medical reasons.
Eligible employees are entitled to:
Twelve workweeks of leave in a 12-month period for:
o Bonding with a newborn or adopted child
o Caring for a family member with a serious
health condition (includes parent, spouse, child,
registered domestic partner and same sex spouse)
o The employee's own serious health condition
(excluding pregnancy).
Eligible employees must meet the following conditions:
o worked more than 12 months of service with the
employer, and who has at least 1,250 hours of service
with the employer during the previous 12 month period
o worked at a location in which the employer has
at least 50 employees within 75 miles of the
employee's worksite.
(Gov Code �12945.2)
Existing federal law, under the Family and Medical Leave Act
(FMLA ), also entitles eligible employees to take unpaid,
job-protected leave for up to 12 weeks . This leave, granted
under both the state CFRA and the federal FMLA must be taken
concurrently. (�105 of the FMLA and �825.220 of FMLA
regulations)
Existing law states that upon granting an employee family leave
under CFRA or FMLA, the employer must guarantee reinstatement to
the same or comparable position and provide the guarantee in
writing upon the request of the employee. (Gov Code �12945.2)
Existing law states than an employer shall not refuse to hire,
and shall not discharge, suspend, expel, or discriminate
against, any individual's exercise of the right to family care
leave as underlined in CFRA. (Gov Code �19702.3)
Hearing Date: April 10, 2013 SB 761
Consultant: Deanna D. Ping Page 2
Senate Committee on Labor and Industrial Relations
Existing federal law under the FMLA prohibits an employer from
discriminating or retaliating against an employee or prospective
employee for having exercised or attempted to exercise any FMLA
right. (�105 of the FMLA and �825.220 of FMLA regulations)
This Bill would provide that it is unlawful for an employer or
agent of an employer to discharge or in any other manner
discriminate against an individual because he or she has applied
for, used, or indicated an intent to apply for or use, family
temporary disability insurance benefits.
Specifically, this bill :
1) makes an employer liable for actual damages and
appropriate equitable relief, including employment or
reinstatement, if an employer or agent of an employer
discharges or discriminates against an individual because
he or she has applied for, used, or indicated an intent to
apply for or use, family temporary disability insurance
benefits.
2) would allow an employee or applicant to bring a civil
action seeking these remedies and if successful, the court
may award the employee or applicant reasonable attorney's
fees and costs.
COMMENTS
1. Background on Paid Family Leave Benefits Program
The California Paid Family Leave Act (PFLA), the first such
paid family leave program in the nation, was established in
2004. According to the Labor Project for Working Families and
UC Berkeley's report, A Guide to Implementing Paid Family
Leave: Lessons From California, the program was modeled after
the California State Disability Insurance Program (SDI). PFL
provides up to six weeks of partial pay for employees who take
leave from work to care for a child, parent, spouse, or
Hearing Date: April 10, 2013 SB 761
Consultant: Deanna D. Ping Page 3
Senate Committee on Labor and Industrial Relations
registered domestic partner with a serious health condition or
to bond with a newborn baby or new adopted or foster child.
Much like SDI, it is funded through a payroll tax paid
entirely by employees and is administered by the same state
agency - the Employment Development Department (EDD). Like
disability benefits, an employee that takes family leave can
receive a wage replacement of up to 55 percent of the
individual's average weekly salary. All employees who pay into
the State Disability Insurance Fund are covered by Paid Family
Leave. There are no minimum work hours or time of service
requirements, but individuals must have earned at least $300
in wages during the previous 12 months.
2. The Interaction Between FMLA/CFRA and Paid Family Leave
There are various federal and state laws pertaining to family
leave - making it important to understand the differences
between the statutes as well as how they interact with one
another. The Family and Medical Leave Act (FMLA) is a federal
law that is administered by the U.S. Department of Labor while
the California Family Rights Act (CFRA) is a state law
administered by the Department of Fair Employment and Housing.
The state law changed in 1993 to generally conform to the
provisions of the FMLA. Both the FMLA and CFRA allow an
eligible employee to take up to a total of twelve
job-protected workweeks of leave with employer-paid health,
dental, and vision benefits during a "rolling" twelve month
period. The twelve weeks of leave must run concurrently for
all purposes aside from:
Leave to care for a domestic partner (CFRA only)
Disabilities due to pregnancy or pregnancy-related
condition (FMLA only)
Leave for a qualifying exigency related to a family
member's military service (FMLA only)
Leave to care for an ill or injured service member
(FMLA only)
If an eligible FMLA/CFRA employee also elects to receive wage
replacement benefits from the Paid Family Leave program then
the PFL must be taken concurrently as well.
Hearing Date: April 10, 2013 SB 761
Consultant: Deanna D. Ping Page 4
Senate Committee on Labor and Industrial Relations
In addition to sharing similar leave provisions and
eligibility requirements, both the FMLA and CFRA have
anti-retaliation and discrimination provisions.
3. Need for the bill?
PFL is a state-sponsored insurance program that covers
employers of any size. PFL provides partial wage replacement
for up to six weeks in any 12-month period, allowing an
employee to care for a seriously ill or injured family member
or bonding with a minor child within one year of the child's
birth or placement in connection with foster care or adoption.
While many employees are eligible for PFL leave, the program
does not create the right to a leave of absence - meaning that
employers are not required to reinstate an employee after they
take their paid family leave. This bill would bar an employer
from retaliating against an employee for exercising their
right to participate in the PFL program.
4. Proponent Arguments :
According to proponents, although nearly the entire private
workforce in California contributes a portion of every
paycheck to participate in the Paid Family Leave program, many
workers who would otherwise qualify for PFL benefits are
unable to access the program because of a fear that their
employer will retaliate against them. Proponents contend that
some guarantee of not being fired for taking family leave
benefits is necessary for the program to reach all the
families that need financial support in caring for a new child
or seriously ill family member. Proponents point to a recent
study that showed nearly 37 percent of workers who were aware
of PFL and needed leave did not apply for PFL due to a fear of
being fired, angering their employers, or facing limitations
on their future opportunities for advancement. Proponents also
argue that the lack of protection for PFL users
disproportionately impacts low-wage workers who pay into the
system but are less likely to qualify for job protection under
other state and federal laws due to the lack of job security.
Hearing Date: April 10, 2013 SB 761
Consultant: Deanna D. Ping Page 5
Senate Committee on Labor and Industrial Relations
Further, proponents contend that PFL is good for business.
Proponents argue that by allowing employees to access these
benefits without fear of employer reprisal would benefit
workers and their families as well as their employer.
Proponents point back to the above survey, citing that the
vast majority of employers reported that the availability of
PFL benefits had either a positive or no noticeable effect on
business productivity (90%), profitability (91%), and employee
morale (99%). They also cited that 93% of the surveyed
employers reported a positive or no noticeable impact on
employee turnover, with 9% reported seeing cost savings due to
the decreased turnover and the reduction of benefit costs when
employees used PFL instead of (or in combination with)
employer-provided paid vacation, sick leave, or disability
benefits.
5. Opponent Arguments :
Opponents argue that SB 761 would dramatically alter PFL and
transform it into an additional protective leave. Opponents
maintain that by allowing an employee to sue for alleged
discrimination on the basis that an employee applies for,
used, or expressed an intent to use PFL, the bill forces an
employer to provide an employee with six weeks of leave while
receiving PFL or face costly litigation. Opponents bring
attention to the requirements for CFRA leave, (50 or more
employees, 1250 working hours within 12 months), and argue
that under SB 761 the employee of an employer with fewer than
50 employees would now be able to request 6 weeks of leave
regardless of hours worked. Opponents argue that given the
multiple protected leaves of absence already in California,
any expansion of such leaves further impedes California
employers' growth and their ability to manage their
businesses.
Lastly, opponents argue that SB 761 allows an employee to
pursue civil litigation for discrimination, without first
exhausting an administrative remedy such as filing a complaint
with the Department of Fair Employment and Housing - the
process under CFRA. Opponents maintain SB 761 sidesteps the
administrative requirement and eases the process for
potentially frivolous litigation.
Hearing Date: April 10, 2013 SB 761
Consultant: Deanna D. Ping Page 6
Senate Committee on Labor and Industrial Relations
6. Double Referral:
SB 761 has been doubled referred to Senate Judiciary
Committee.
7. Prior Legislation :
SB 193 (Marks), Chapter 580, Statutes of 1993 - created the
California Family Rights Act (CFRA), also known as the
Moore-Brown-Roberti Family Rights Act.
SB 1661 (Kuehl), Chapter 901, Statutes of 2002 - created
within the state disability insurance program, a family
temporary disability insurance program to provide up to six
weeks of wage replacement benefits to workers who take time
off work to care for a seriously ill child, spouse, parent,
domestic partner, or bond with a new child.
SB 727 (Kuehl), Chapter 797, Statutes of 2003 - made
conforming and clarifying changes to Paid Family Leave program
that clarified the role of the Employment Development
Department in maintaining the program, as well as ensuring the
accumulation of enough funds to pay for the program.
SUPPORT
Legal Aid Society - Employment Law Center (Sponsor)
A Better Balance
American Association of University Women California
Association of California caregiver Resource Centers
Breastfeed LA
California Communities United Institute
California Labor Federation, AFL-CIO
California Rural Legal Assistance Foundation
Cancer Legal Resource Center
Communication Workers of America District 9
Congress of California Seniors
Equal Rights Advocates
Excellence Learning Corporation
Hearing Date: April 10, 2013 SB 761
Consultant: Deanna D. Ping Page 7
Senate Committee on Labor and Industrial Relations
Labor Project for Working Families
Legal Aid Society of San Mateo
Los Angeles Alliance for a New Economy
UC Hastings College of Law
US Women's Chamber of Commerce
Women's Employment Rights Clinic of Golden Gate University
School of Law
Women's Rights Clinic of Golden Gate University School of Law
9to5 California, National Association of Working Women
OPPOSITION
Air Conditioning Trade Association
Associated Builders and Contractors of California
California Bankers Association
California Chamber of Commerce
California Farm Bureau Federation
California Framing Contractors Association
California Grocers Association
California Independent Grocers Association
California Manufacturers and Technology Association
California Retailers Association
Civil Justice Association of California
National Federation of Independent Business
Plumbing-Heating-Cooling Contractors Association of California
Western Electrical Contractors Association
Hearing Date: April 10, 2013 SB 761
Consultant: Deanna D. Ping Page 8
Senate Committee on Labor and Industrial Relations