BILL ANALYSIS                                                                                                                                                                                                    





          SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS
                             Senator Tony Mendoza, Chair
                                2015 - 2016  Regular 

          Bill No:               SB 406       Hearing Date:    April 22,  
          2015
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          |Author:    |Jackson                                              |
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          |Version:   |February 25, 2015                                    |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|Deanna Ping                                          |
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                            Subject:  Employment:  leave


          KEY ISSUE
          
          Should the Legislature extend the permissive family and medical  
          leave under the California Family Rights Act to include a  
          seriously ill child, grandparent, grandchild, sibling or  
          parent-in-law? 

          Should the Legislature reduce the small business exemption from  
          50 employees in a 75 miles radius to 5 employees? 

          Should the Legislature require employers to grant 12 weeks of  
          leave individually to parents, which are employed by the same  
          employer, for leave in connection with the birth, adoption, or  
          foster care of a child?

          ANALYSIS
          
           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 work weeks of leave in a 12-month period for: 








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             -    Bonding with a newborn or adopted child
             -    Caring for a family member with a serious health  
               condition (includes parent, spouse, and child)
             -    The employee's own serious health condition (excluding  
               pregnancy).

          Eligible employees must meet the following conditions:
             -    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
             -    worked at a location in which the employer has  at least  
               50 employees within 75 miles of the employee's worksite.   
             -    Guaranteed reinstatement to the same or comparable  
               position after taking family leave under CFRA and FMLA 

          (Gov Code 12945.2)

           Existing law  provides the following definitions: 
             -    Child: a biological, adopted, foster, or stepchild, a  
               legal ward, or a child of a person standing in loco  
               parentis, who is either under the age of 18 or is an adult  
               dependent child
             -    Parent: the employee's biological, foster, or adoptive  
               parent, stepparent, legal guardian, or other person who  
               stood in loco parentis to the employee when the employee  
               was a child
             -    Serious health condition: an illness, injury,  
               impairment, or physical or mental condition that involves  
               either inpatient care or continuing treatment or  
               supervision by a healthcare provider.  
          (Gov Code 12945.2)

           Existing law  requires that an employee provide the employer with  
          reasonable advance notice of the need for the leave, if  
          foreseeable, and authorizes the employer to require  
          certification by a health care provider for leave requests due  
          to serious health conditions. (Gov Code 12945.2)

           Existing law  states that when both parents are entitled to  
          family and medical leave in connection with the birth, adoption,  
          or foster care of a child and are employed by the same employer,  
          the employer is not required to grant both parents leave  
          totaling more than 12 weeks.  
          (Gov Code 12945.2)








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           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 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, siblings, grandparents, grandchildren, and  
               parents-in-laws 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)

           
          This Bill  expands the family members covered in the California  
          Family Rights Act including: 

             1)   "Child" to include the son or daughter of a domestic  
               partner and removes the provision regarding age and  
               dependent status of the child 

             2)   Expands permissible family and medical leave to include  
               leave to care for a sibling, grandparent, grandchild, or  
               parent-in-law with a serious health condition 

             3)   Includes parent-in-law in the definition of parent 

             4)   Specifies permissible leave for a domestic partner with  
               a serious health condition 

             5)   Reduces the small business exemption to an employer that  
               employs 5 or fewer employees within 75 miles of the  
               worksite where the employee is employed. 







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             6)   Removes an exception when both parents are entitled to  
               leave in connection with the birth, adoption, or foster  
               care of a child and are employed by the same employer,  
               thereby requiring the employer to grant each employee up to  
               12 weeks of leave individually rather than between both  
               parents as in currently in statute. 


          COMMENTS
          

          1.   The Interaction Between FMLA/CFRA 

             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. 

            In addition to sharing similar leave provisions and  
            eligibility requirements, both the FMLA and CFRA have  
            anti-retaliation and discrimination provisions. 








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          2.  Need for this bill?

            According to the author's office, SB 406 ensures that eligible  
            workers can keep their jobs when they need time off to care  
            for their families. Over 40% of the workforce is not eligible  
            for California Family Rights Act due to the law's eligibility  
            requirements, which means they are cannot take job-protected,  
            paid leave through the Paid Family Leave program. 

            The current definition of family under CFRA includes minor or  
            adult dependent children, parents, spouses, and registered  
            domestic partners. Recently, the definition of family members  
            for Paid Family Leave, a program that allows workers to  
            receive partial wage replacement benefits while taking care of  
            seriously ill family members, was expanded to include  
            siblings, grandparents, grandchildren, and parents-in-law. SB  
            406 seeks to include these family members under CFRA, allowing  
            employees to take job-protected leave when utilizing their PFL  
            benefits. Currently, employees may receive this monetary  
            benefit when caring for these additional family members but  
            risk losing their jobs to provide such care. This bill would  
            also allow for parents that are entitled to leave and employed  
            by the same employer to receive 12 weeks of family and medical  
            leave individually in connection with the birth, adoption, or  
            foster care of a child. 

          3.  Proponent Arguments  :
            
            According to proponents, the restrictions on family caregiving  
            under CFRA fail to account for the diversity of California  
            households and the importance of caregiving by extended family  
            members. Proponents bring attention to a various study  
            findings including: a study of Alzheimer's patients which  
            found that 40 percent of caregivers were not covered under the  
            narrow definition of family in CFRA, one study that found that  
            nearly 20% of primary caregivers for chronically disabled  
            individuals are neither the spouse nor the child of the person  
            receiving care, and another finding that one in twelve  
            caregivers provides care to a parent-in-law, grandparent, or  
            grandparent-in-law. Further, proponents maintain that  
            California has the second highest percentage of  
            multi-generational households and almost half of Californians  
            are single with their closest relative likely to be a sibling.  









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            Proponents also note that California's Paid Family Leave (PFL)  
            insurance program provides an important partial wage  
            replacement when an employee takes time off work to care for a  
            seriously ill family member. However, according to proponents  
            because Paid Family Leave does not provide any job protection  
            some workers who pay into this fund never access its benefits  
            because they would risk losing their job if they took any  
            leave. Proponents point to a 2011 study which found that among  
            those who were aware of PFL and needed leave but did not apply  
            for benefits, 38% said they did not apply because they feared  
            they would be fired or face other negative consequences at  
            work. Proponents argue that to make sure the state's PFL  
            program ensures family members are cared for employees need to  
            be able to take leave without risking their jobs. Proponents  
            contend that SB 406 will provide the critical job-protection  
            for workers who want to take paid family leave by amending  
            CFRA to expand the definition of family to match PFL and to  
            lower the employer threshold so that more workers are covered.  


          4.  Opponent Arguments  :

            Opponents argue that SB 406 will overwhelm small businesses by  
            mandating businesses with 5 or more employees to provide a  
            12-week protected leave of absence. Opponents contend that  
            this will put a greater burden on both small and large  
            businesses while creating an even further disconnect from the  
            federal Family and Medical Leave Act. Opponents argue that  
            this creates a burden for the employer especially if he or she  
            has multiple employees already out of work on protected leaves  
            and because the employer must hire and train a temporary  
            employee to cover the employees' duties, pay an existing  
            employee a higher wage or overtime to take on the duties, or  
            suffer decreased productivity until the existing employee out  
            on leave is ready to return to work.  

            Additionally, opponents argue that expanding the family  
            members for whom an employee may take a 12-week protected  
            leave of absence to care for to include a grandparent, a  
            grandchild, and siblings will negatively impact California  
            employers. Opponents argue that as these family members in SB  
            406 are not covered under the federal Family and Medical Leave  
            Act, the bill will potentially provide a California employer  
            with an obligation to provide up to 24 weeks of protected  
            leave. Specifically, opponents argue that under SB 406 an  







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            employee could utilize his/her 12 weeks of CFRA to care for  
            the serious medical condition of a grandparent as well as  
            still be entitled to another 12-week protected leave of  
            absence under FMLA for his or her own medical condition or the  
            medical condition of his/her spouse, child or parent.  

            Lastly, opponents argue that since an employee can take CFRA  
            and FMLA in as small of increments as one hour at a time it  
            provides an extensive amount of protected time off for  
            California-only employees requiring California-only employers  
            to administer and track property to protect against potential  
            liability.


          5.  Prior Legislation  :

          SB 770 (Jackson) Chapter 350, Statutes of 2013 - broadened the  
          definition of family within the Paid Family Leave (PFL) program  
          to allow workers to receive the partial wage replacement  
          benefits while taking care of seriously ill siblings,  
          grandparents, grandchildren, and parents-in-law.

          SB 761 (DeSaulnier) of 2013 - this bill would have made it  
          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. This  
          bill was amended out of Labor Code and into Revenue and Tax  
          Code. 

          AB 2039 (Swanson) of 2012 - was identical to AB 59 of 2011, AB  
          849 of 2009 and AB 537 of 2007, was held in Senate  
          Appropriations.

          AB 59 (Swanson) of 2011 - was identical to AB 849 of 2009 and AB  
          537 of 2007, was held in Assembly Appropriations.

          AB 849 (Swanson) of 2009 - was identical to AB 537 of 2007 and  
          was held in Assembly Appropriations. 

          AB 537 (Swanson) of 2007 - would have increased the  
          circumstances under which an employee is entitled to protected  
          leave pursuant to the CFRA.  Including, amending the definition  
          of "child" to eliminate references to the age and dependency of  
          the child, expanding the scope of permissible family and medical  







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          leave to include leave to care for a grandparent, sibling,  
          grandchild, or parent-in-law with a serious health condition,  
          and specifying that permissible leave includes leave to care for  
          a domestic partner with a serious health condition. Vetoed by  
          Governor Schwarzenegger. 

          SB 727 (Kuehl) of 2007 - would have allowed employees covered by  
          Paid Family Leave to take paid leave to care for grandparents,  
          grandchildren, siblings, and in-laws, as well as clarify  
          existing law to ensure that Paid Family Leave must be taken  
          concurrently with the California Family Medical Leave Act (CFRA)  
          and the federal Family Medical Leave Act (FMLA). Vetoed by  
          Governor Schwarzenegger. 

          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.



          SUPPORT
          
          California Employment Lawyers Association (Co-Sponsor)
          Equal Rights Advocates (Co-Sponsor)
          The Legal Aid Society-Employment Law Center (Co-Sponsor)
          Alzheimer's Association
          American Association of University Women
          Association of California Caregiver Resource Centers
          Association of Women's Health, Obstetrics, and Neonatal Nurses
          Breastfeed LA
          California Alliance for Retired Americans
          California Black Health Network
          California Labor Federation, AFL-CIO
          California Nurses Association
          California Rural Legal Assistance Foundation
          California School Employees Association
          California Teachers Association
          California Women's Law Center
          Child Care Law Center
          Communications Workers of America AFL-CIO, CLC Local 9003
          Communications Workers of America, District 9 AFL-CIO
          Congress of California Seniors
          Family Caregiver Alliance
          Forward Together
          Independent Living Resource Center







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          Jodi House
          LAANE
          National Association of Social Workers, California Chapter
          National Council of Jewish Women-CA
          Service Employees International Union, AFL-CIO
          The ARC California
          The Center for Law and Social Policy
          The Center for WorkLife Law
          United Cerebral Palsy California Collaboration
          Western Center on Law and Poverty
          Western Regional Advocacy Project
          9to5
          
          OPPOSITION
          Air Conditioning Trade Association
          Associated Builders and Contractors of California 
          Associated General Contractors
          California Association for Health Services at Home
          California Chamber of Commerce
          California Cotton Growers Association
          California Dairies, Inc. 
          California Fresh Fruit Association 
          California Manufacturers and Technology Association
          California Pool & Spa Association
          California Professional Associations of Specialty Contractors
          California Restaurant Association
          California State Association of Counties
          California State Council of Society for Human Resource  
            Management
          Family Business Association
          Far West Equipment Dealers Association
          Nisei Farmers League 
          Plumbing-Heating-Cooling Contractors Association of California
          Society for Human Resource Management
          The Alliance
          The National Federation of Independent Business
          Western Agricultural Processors Association
          Western Electrical Contractors Association
          Western Growers Association


                                      -- END --
          









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