BILL ANALYSIS                                                                                                                                                                                                    






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          |SENATE RULES COMMITTEE            |                        SB 406|
          |Office of Senate Floor Analyses   |                              |
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                                   THIRD READING 


          Bill No:  SB 406
          Author:   Jackson (D), et al.
          Amended:  6/1/15  
          Vote:     21  

           SENATE LABOR & IND. REL. COMMITTEE:  4-1, 4/22/15
           AYES:  Mendoza, Jackson, Leno, Mitchell
           NOES:  Stone

           SENATE APPROPRIATIONS COMMITTEE:  5-2, 5/28/15
           AYES:  Lara, Beall, Hill, Leyva, Mendoza
           NOES:  Bates, Nielsen

           SUBJECT:   Employment:  leave


          SOURCE:    California Employment Lawyers Association  
                     Equal Rights Advocates 
                     Legal Aid Society - Employment Law Center


          DIGEST:  This bill expands permissive family and medical leave  
          under the California Family Rights Act to include care for a  
          seriously ill child regardless of age or dependent status,  
          grandparent, grandchild, sibling, or parent-in-law. This bill  
          also reduces the small business exemption from 50 employees in a  
          75 miles radius to 25 employees. This bill also requires  
          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.











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          Senate Floor Amendments of 6/1/15 provide consistency with the  
          small business exemption including businesses that employ 25 or  
          fewer employees in the California Family Rights Act.


          ANALYSIS:   Existing federal law, under the Family and Medical  
          Leave Act (FMLA) entitles eligible employees to take unpaid,  
          job-protected leave for up to 12 weeks in a 12-month period for:  



          1)The birth of a child and to care for the newborn child within  
            one year of birth or placement of a child for adoption or  
            foster care.

             a)   To care for the employee's spouse, child, or parent who  
               has a serious health condition. 

             b)   A serious health condition that makes the employee  
               unable to perform the essential functions or his or her  
               job. 

             c)   Any qualifying exigency arising out of the fact that the  
               employee's spouse, son, daughter, or parent is a covered  
               military member on "covered active duty" or 26 workweeks in  
               a single 12-month period to care for a covered service  
               member with a serious injury or illness if the eligible  
               employee is the service member's spouse, son, daughter,  
               parent, or next of kin. 

            This leave, granted under both the state California Family  
            Rights Act (CFRA) and the federal FMLA must be taken  
            concurrently. (105 of the FMLA and 825.220 of FMLA  
            regulations)

          Existing state law, under CFRA:

          1)Entitles eligible employees of covered employers to take  
            unpaid, job-protected leave for specified family and medical  
            reasons. 

          2)Allows eligible employees to take 12 workweeks of leave in a  
            12-month period for: 







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             a)   Bonding with a newborn or adopted child.

             b)   Caring for a family member with a serious health  
               condition (includes parent, spouse, and child).

             c)   The employee's own serious health condition (excluding  
               pregnancy).

          3)States that eligible employees must meet the following  
            conditions:

             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.  

             c)   Guaranteed reinstatement to the same or comparable  
               position after taking family leave under CFRA and FMLA. 

          4)Provides the following definitions family members and serious  
            health condition: 

             a)   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.

             b)   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.

             c)   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.  

          5)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  







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            conditions. 

          6)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.  

          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 CFRA 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 25 or fewer employees within 75 miles of the worksite  
            where the employee is employed. 








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          This bill also 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)Author's statement.  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.

          2)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 (DFEH). The state  







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            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. 

          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   No

          According to the Senate Appropriations Committee, DFEH wwill  
          incur increased General Fund costs of about $686,000 annually to  
          implement the provisions of this bill. DFEH will require an  
          augmentation of six positions and $686,000 to handle an assumed  
          increased in CFRA complaints of about 24% created by the  
          expansion of CFRA rights. DFEH will not receive any additional  
          federal funds; its work share agreement with the Equal  
          Employment Opportunity Commission excludes CFRA complaints.


          SUPPORT:   (Verified6/2/15)



          California Employment Lawyers Association (co-source)

          Equal Rights Advocates (co-source)








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          Legal Aid Society - Employment Law Center (co-source)

          9to5

          Alzheimer's Association

          American Association of Retired Persons 

          Association of American University Women

          Association of Caregiver Resource Centers

          Association of Women's Health, Obstetrics, and Neonatal Nurses 

          Breastfeeding Coalition for Ventura County

          BreastfeedLA

          California Alliance for Retired Americans

          California Black Health Network

          California Immigrant Policy Center

          California Labor Federation

          California Nurses Association/National Nurses United

          California Rural Legal Assistance Foundation

          California School Employees Association

          California Teachers Association

          California Women's Law Center

          California Work & Family Coalition

          Center for Law and Social Policy

          Child Care Law Center

          Coalition of California Welfare Rights Organizations, Inc.








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          Communications Workers of America 9003

          Communications Workers of America District 9

          Congress of California Seniors

          Disability Rights California

          Family Caregiving Alliance

          Forward Together

          Independent Living Resource Center 

          Jodi House of Santa Barbara

          Los Angeles Alliance for a New Economy 

          Los Angeles Alliance for a New Economy

          National Association of Social Workers

          National Council of Jewish Women

          National Partnership for Women & Families

          Organization of SMUD Employees 

          Planned Parenthood Action Fund of Santa Barbara, Ventura & San  
          Luis Obispo

          Restaurant Opportunities Center of Los Angeles

          San Bernardino Public Employees Association 

          San Diego County Court Employees Association

          San Francisco Breastfeeding Promotion Coalition

          San Luis Obispo County Employees Association 

          SEIU California

          Teamsters Local Union No. 986







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          The Alliance of California for Community Empowerment

          The Arc and United Cerebral Palsy California Collaboration

          The Women's Foundation of California

          UC Hastings Center for WorkLife Law

          Western Center on Law and Poverty

          Western Regional Advocacy Project


          OPPOSITION:   (Verified6/2/15)

          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 Ginners Association
          California Cotton Growers Association
          California Dairies, Inc. 
          California Farm Bureau Federation
          California Fresh Fruit Association 
          California Grocers Association
          California Landscape Contractors Association
          California League of Food Processors
          California Manufacturers and Technology Association
          California Pool & Spa Association
          California Professional Associations of Specialty Contractors
          California Restaurant Association
          California State Association of Counties
          California Trucking Association
          Claremont Chamber of Commerce
          Family Business Association
          Far West Equipment Dealers Association
          Greater Bakersfield Chamber of Commerce
          National Federation of Independent Business
          Nisei Farmers League 
          Plumbing-Heating-Cooling Contractors Association of California
          Society for Human Resource Management 
          Southwest California Legislative Council 







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          The Alliance 
          Western Agricultural Processors Association
          Western Electrical Contractors Association
          Western Growers Association
          Western Plant Health Association

          ARGUMENTS IN SUPPORT:   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 various study findings including: a study of  
          Alzheimer's patients which found that 40% 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. 

          Proponents also note that California's 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 PFL 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. 

          ARGUMENTS IN OPPOSITION: Opponents argue that SB 406 will  
          overwhelm small businesses by mandating businesses with 25 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 FMLA. Opponents argue that this creates a  







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          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 FMLA, this 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 employee could utilize his or 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 or her spouse, child or parent.  



          Prepared by:Deanna Ping / L. & I.R. / (916) 651-1556
          6/2/15 14:57:22


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