BILL ANALYSIS �
-----------------------------------------------------------------
|SENATE RULES COMMITTEE | SB 761|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
-----------------------------------------------------------------
THIRD READING
Bill No: SB 761
Author: DeSaulnier (D)
Amended: 5/24/13
Vote: 21
SENATE LABOR & INDUSTRIAL RELATIONS COMMITTEE : 4-1, 4/10/13
AYES: Lieu, Leno, Padilla, Yee
NOES: Wyland
SENATE JUDICIARY COMMITTEE : 5-1, 4/23/13
AYES: Evans, Corbett, Jackson, Leno, Monning
NOES: Anderson
NO VOTE RECORDED: Walters
SUBJECT : Family temporary disability insurance
SOURCE : Legal Aid Society-Employment Law Center
DIGEST : This bill provides that an employer who regularly
employs 10 or more individuals, or an agent of that employer,
that discharges or in any other manner discriminates against an
employee who has been employed by him or her for 90 working days
or more because the employee has applied for, used, or indicated
an intent to apply for or use, family temporary disability
insurance benefits is liable to the affected employee for actual
damages and appropriate equitable relief, including
reinstatement.
Senate Floor Amendments of 5/24/13 exempt employers with fewer
than 10 employees from this bill as well as specifies that the
CONTINUED
SB 761
Page
2
protections apply to employees that have been employed by the
employer for 90 working days or more.
ANALYSIS : Existing law established a family temporary
disability insurance program, 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.
Existing law states that an individual is eligible to receive
temporary disability insurance benefits equal to one-seventh of
his/her weekly benefit amount for each full day during which
he/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.
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.
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:
1. Twelve workweeks of leave in a 12-month period for:
A. Bonding with a newborn or adopted child.
B. Caring for a family member with a serious health
condition (includes parent, spouse, child, registered
domestic partner and same sex spouse).
C. The employee's own serious health condition (excluding
pregnancy).
2. Eligible employees must meet the following conditions:
CONTINUED
SB 761
Page
3
A. 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.
B. Worked at a location in which the employer has at
least 50 employees within 75 miles of the employee's
worksite.
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.
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.
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.
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.
This bill:
1.Provides an employer who regularly employs 10 or more
individuals, or an agent of that employer, that discharges or
in any other manner discriminates against an employee who has
been employed by him or her for 90 working days or more
because the employee has applied for, used, or indicated an
intent to apply for or use, family temporary disability
insurance benefits shall be liable to an employee affected by
the unlawful violation for actual damages and appropriate
equitable relief, including reinstatement.
2.Provides an employee may bring a civil action seeking these
CONTINUED
SB 761
Page
4
remedies in a court of competent jurisdiction. If the employee
prevails in the action, the court may award the employee
reasonable attorney's fees and costs.
Comments
Background on PFL Benefits Program . The California PFL Act, 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 PFL:
Lessons From California, the program was modeled after the
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 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% of the individual's average weekly salary. All
employees who pay into the State Disability Insurance Fund are
covered by PFL. 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.
The Interaction Between FMLA/CFRA and PFL . 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 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:
CONTINUED
SB 761
Page
5
1.Leave to care for a domestic partner (CFRA only)
2.Disabilities due to pregnancy or pregnancy-related condition
(FMLA only)
3.Leave for a qualifying exigency related to a family member's
military service (FMLA only)
4.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 PFL program then the PFL must be
taken concurrently as well.
In addition to sharing similar leave provisions and eligibility
requirements, both the FMLA and CFRA have anti-retaliation and
discrimination provisions.
Prior legislation
SB 193 (Marks, Chapter 580, Statutes of 1993) created the CFRA,
also known as the Moore-Brown-Roberti Family Rights Act.
SB 1661 (Kuehl, Chapter 901, Statutes of 2002) created within
the SDI 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 PFL program that clarified the role of
the EDD in maintaining the program, as well as ensuring the
accumulation of enough funds to pay for the program.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 5/23/13) (Unable to reverify at time of
CONTINUED
SB 761
Page
6
writing)
Legal Aid Society-Employment Law Center (source)
9to5 California, National Association of Working Women
A Better Balance
American Association of University Women
Association of California Caregiver Resource Centers
BreastfeedLA
California Communities United Institute
California Labor Federation
California Senior Legislature
California WIC Association
California Women's Law Center
Cancer Legal Resource Center
Communication Workers of America, AFL-CIO, District 9
Congress of California Seniors
Disability Rights Advocates
Disability Rights Education & Defense Fund
Equal Rights Advocates
Excelligence Learning Corporation
Family Caregiver Alliance
Glendale City Employees Association
Golden Gate University School of Law, Women's Employment Rights
Clinic
Labor Project for Working Families
Legal Aid Society of San Mateo County
Los Angeles Alliance for a New Economy
Mujeres Unidas y Activas
Organization of SMUD Employees
Parent Voices
Restaurant Opportunities Center of Los Angeles
San Bernardino Public Employees Association
San Francisco Breastfeeding Coalition
San Luis Obispo County Employees Association
Santa Rosa City Employees Association
SEIU California
UAW Local 2865
UC Hastings College of Law
US Women's Chamber of Commerce
USC Davis, School of Gerontology
WIC Breastfeeding Coordinator, Grace Yee
Zazie Restaurant
OPPOSITION : (Verified 5/23/13) (Unable to reverify at time
CONTINUED
SB 761
Page
7
of writing)
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 Pool & Spa Industry Education Council
California Retailers Association
Civil Justice Association of California
Greater Fresno Area Chamber of Commerce
National Federation of Independent Business
Plumbing-Heating-Cooling Contractors Association of California
Southwest California Legislative Council
Western Electrical Contractors Association
ARGUMENTS IN SUPPORT : According to proponents, although
nearly the entire private workforce in California contributes a
portion of every paycheck to participate in the PFL 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% 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.
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
CONTINUED
SB 761
Page
8
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.
ARGUMENTS IN OPPOSITION : Opponents argue that this bill
dramatically alters PFL and transforms 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,
this 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
argues that under this bill the employee of an employer with
fewer than 50 employees will now be able to request six weeks of
leave regardless of hours worked. Opponents argues 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 argues that this bill 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 this bill sidesteps the
administrative requirement and eases the process for potentially
frivolous litigation.
PQ:d 5/28/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****
CONTINUED
SB 761
Page
9
CONTINUED