BILL ANALYSIS                                                                                                                                                                                                    Ó




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          |SENATE RULES COMMITTEE            |                        SB 654|
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                                UNFINISHED BUSINESS 


          Bill No:  SB 654
          Author:   Jackson (D), et al.
          Amended:  8/18/16  
          Vote:     21 

           PRIOR VOTES NOT RELEVANT

           ASSEMBLY FLOOR:  54-17, 8/30/16 - See last page for vote

           SUBJECT:   Unlawful employment practice:  parental leave


          SOURCE:    California Employment Lawyers Association 
                     Equal Rights Advocates 
                     Legal Aid Society - Employment Law Center 
          
          DIGEST:   This bill makes it an unlawful employment practice for  
          an employer, of 20 or more employees, to refuse to allow an  
          eligible employee to take up to six weeks of job protected  
          parental leave to bond with a new child within one year of the  
          child's birth, adoption or foster care placement. This bill also  
          prohibits an employer from refusing to maintain and pay for the  
          employee's continued group health coverage during the duration  
          of the leave. 


          Assembly Amendments gut and amend the contents of this bill  
          related to hazardous waste to instead include the contents of SB  
          1166 (Jackson) on parental leave which died in Assembly Labor  
          and Employment Committee earlier this year. The following are  
          the differences between SB 1166 and this bill: 1) reduce the  
          parental leave time from 12 weeks to six weeks; 2) increase the  
          employer threshold from those employing 10 or more employees to  
          20 or more; 3) specify that the provisions do not apply to a  
          school district, county office of education, or a community  








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          college district; 4) specify that the provisions do not apply to  
          an employee subject to both California Family Rights Act and the  
          federal Family and Medical Leave Act (both applicable to  
          employers of 50 or more employees); 5) specify that in cases  
          where two employees are entitled to leave for the same child,  
          the employer is not required to grant simultaneous leaves to  
          both; and 6) specify that the provisions shall become operative  
          on January 1, 2018.


          ANALYSIS: 


          Existing law:


           1) Entitles, under the California Family Rights Act (CFRA) and  
             the federal Family and Medical Leave Act (FMLA), required to  
             be taken concurrently, eligible workers of employers with 50  
             or more employees to:


              a)    Take up to 12 workweeks of unpaid, job-protected leave  
                during a 12-month period for specified family and medical  
                reasons, including time to bond with a new child through  
                birth, adoption or foster care placement, among others.
              b)    Guaranteed reinstatement to the same or comparable  
                position.
              c)    Continued group health coverage during the duration of  
                the leave under the same terms and conditions. 


           2) Establishes the Paid Family Leave (PFL) program, within the  
             State Disability Insurance program, as a partial  
             wage-replacement plan funded through employee payroll  
             deductions. Among other things: 


              a)    PFL provides eligible employees with up to six weeks  
                of wage replacement benefits (approximately 60 percent of  
                lost wages) to care for a seriously ill child, spouse or  
                registered domestic partner, parent, siblings,  








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                grandparents, grandchildren, and parents-in-laws or to  
                bond with a minor child within one year of the birth or  
                placement of the child in connection with foster care or  
                adoption.
              b)    Employers may require that employees take up to two  
                weeks of earned but unused vacation time when using PFL.  
                The law does not allow employers to require employees to  
                use sick leave. 
              c)    PFL does not provide job protection or return to work  
                rights.
              d)    PFL does not require continued group health coverage  
                during leave. 


           3) Requires, pursuant to Pregnancy Disability Leave (PDL),  
             under the Fair Employment and Housing Act, private employers  
             with five or more employees and public employers to provide  
             up to four months of unpaid, job-protected leave for  
             disability due to pregnancy, childbirth or related  
             conditions. 


              a)    Employees may use accrued vacation and paid sick leave  
                during PDL.
              b)    Employees are entitled to reasonable accommodations  
                and reinstatement to the job held before PDL began. 
              c)    Employers are required to continue health coverage  
                during PDL.


          This bill establishes a new parental leave right to bond with a  
          new child either through birth, adoption or foster care  
          placement.  Specifically, this bill: 


           1) Enacts the "New Parent Leave Act" making it an unlawful  
             employment practice for an employer to refuse to allow an  
             employee, with more than 12 months and at least 1,250 hours  
             of service with the employer, to take up to six weeks of  
             parental leave to bond with a new child within one year of  
             the child's birth, adoption or foster care placement.









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           2) Defines "employer" to mean either of the following:


              a)    A person who directly employs, within 75 miles of the  
                worksite, 20 or more persons to perform services for a  
                wage or salary.
              b)    The state, and any political subdivision of the state,  
                and cities, except for a school district, county office of  
                education, or a community college district. 


           3) Requires employers to provide a guarantee of employment in  
             the same or comparable position upon return, as specified.


           4) Provides that the employee can utilize accrued vacation pay,  
             paid sick time, other accrued paid time off, or other paid or  
             unpaid time off negotiated with the employer, during the  
             period of parental leave. 


           5) Makes it an unlawful employment practice for an employer to  
             refuse to maintain and pay for continued group health  
             coverage at the same level and under the same conditions that  
             would have been provided had the employee continued to work  
             during the duration of the leave.


           6) Specifies that an employee is entitled to take PDL, in  
             addition to the leave provided in this bill, if the employee  
             is otherwise qualified for that leave.


           7) Provides that the provisions of this bill do not apply to an  
             employee subject to both CFRA and FMLA. 


           8) Provides that in cases in which two employees entitled to  
             leave for the same birth, adoption or foster care placement  
             are employed by the same employer, the employer is not  
             required, but may elect, to grant simultaneous leaves to  








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             both.


           9) Provides that the basic minimum duration of the leave shall  
             be two weeks.  However, an employer may grant requests for  
             additional occasions of leave lasting less than two weeks.


           10)Provides that leave under this bill shall run concurrently  
             with parental leave taken pursuant to a specified provision  
             of existing law applicable to certain certificated school  
             employees.


           11)Provides that this bill shall become operative on January 1,  
             2018.


          Background 


          Below is a brief summary of some of California's leaves and  
          their requirements.
            ------------------------------------------------------------------------- 
           |                                                                   | | | |
           |                                                                   | | | |
           |                            CFRA/FMLA                              | | | |
           |                          (Job Protected)                          | | | |
           |                                PFL                                | | | |
           |                        (No Job Protection)                        | | | |
           |                                                                   | | | |
           |                                PDL                                | | | |
           |                          (Job Protected)                          | | | |
           |                                                                   | | | |
           |                              SB 654                               | | | |
           |                          (Job Protected)                          | | | |
           |                                                                   | | | |
           |                                                                   | | | |
           |Employers Covered                                                  | | | |
           |                                                                   | | | |
           |        50 or more employees in 75 mile radius of worksite         | | | |
           |                                                                   | | | |








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           |            One or more (employee pays, employee gets)             | | | |
           |                                                                   | | | |
           |                      Five or more employees                       | | | |
           |                                                                   | | | |
           |                       20 or more employees                        | | | |
           |                                                                   | | | |
           |                                                                   | | | |
           |Employee Eligibility                                               | | | |
           |                                                                   | | | |
           |   12+ months of service & worked 1,250 hours in prior 12 months   | | | |
           |                                                                   | | | |
           |   Once employee earns $300 in base period for fund contribution   | | | |
           |                                                                   | | | |
           |                      Immediate as necessary                       | | | |
           |                                                                   | | | |
           |   12+ months of service & worked 1,250 hours in prior 12 months   | | | |
           |                                                                   | | | |
           |                                                                   | | | |
           |Reason for Leave                                                   | | | |
           |                                                                   | | | |
           |  Employee serious health condition; seriously ill family member   | | | |
           |  care; bond with newborn or newly placed adopted or foster child  | | | |
           |                                                                   | | | |
           |  Care for seriously ill family member; bond with a child within   | | | |
           |        1year of birth, foster care or adoption placement          | | | |
           |                                                                   | | | |
           |    Disability due to pregnancy, childbirth or related medical     | | | |
           |                            condition                              | | | |
           |                                                                   | | | |
           |  Bond with a child w/in 1 year of birth, adoption or foster care  | | | |
           |                             placement                             | | | |
           |                                                                   | | | |
           |                                                                   | | | |
           |Length of Leave                                                    | | | |
           |                                                                   | | | |
           |                    12 weeks in 12-month period                    | | | |
           |                                                                   | | | |
           |                    6 weeks in 12-month period                     | | | |
           |                                                                   | | | |
           |                          Up to 4 months                           | | | |
           |                                                                   | | | |
           |                           Up to 6 weeks                           | | | |








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           |                                                                   | | | |
           |                                                                   | | | |
           |Paid or Unpaid                                                     | | | |
           |                                                                   | | | |
           |         Unpaid, may run concurrent with other paid leave          | | | |
           |                                                                   | | | |
           |                     Partial wage replacement                      | | | |
           |                                                                   | | | |
           | Unpaid, may run concurrent with SDI for partial wage replacement  | | | |
           |                                                                   | | | |
           |        Unpaid, employee can use vacation, paid sick time          | | | |
           |                                                                   | | | |
           |                                                                   | | | |
           |Continued      Health Coverage                                     | | | |
           |                                                                   | | | |
           |                                Yes                                | | | |
           |                                                                   | | | |
           |                                No                                 | | | |
           |                                                                   | | | |
           |                                Yes                                | | | |
           |                                                                   | | | |
           |                                Yes                                | | | |
           |                                                                   | | | |
           |                                                                   | | | |
           |                                                                   | | | |
            ------------------------------------------------------------------------- 

          Please see the policy committee analysis for more information on  
          leaves in otherstates as well as information on the San  
          Francisco Paid Parental Leave for Bonding with New Child  
          Ordinance. 


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


          According to the Assembly Appropriations Committee, this bill is  
          estimated to incur General Fund administrative costs to the  
          Department of Fair Employment and Housing (DFEH) of  
          approximately $190,000 in the first year and $170,000 on going,  
          to process complaints annually. Using CFRA complaints as a point  








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          of reference, DFEH estimates they could receive 300-400  
          complaints and would need two consultants to process these  
          complaints.


          SUPPORT:   (Verified8/30/16)


          California Employment Lawyers Association (co-source)
          Equal Rights Advocates (co-source)
          Legal Aid Society-Employment Law Center (co-source)
          9 to 5
          Alliance of Californians for Community Empowerment
          American Association of University Women
          American Civil Liberties Union
          California Asset Building Coalition
          California Child Care Resource & Referral Network
          California Domestic Workers Coalition
          California Hunger Action Coalition
          California Immigrant Policy Center
          California Latinas for Reproductive Justice
          California Partnership
          California Women's Law Center
          California Work and Family Coalition
          Career Ladders Project
          Center for Popular Democracy
          Child Care Law Center
          Courage Campaign
          First 5 Alameda County 
          First 5 Association of California 
          First 5 Humboldt 
          First 5 Kings County 
          First 5 Marin 
          First 5 Monterey County
          First 5 Santa Cruz County 
          Mexican American Legal Defense and Education Fund
          Mujeres Unidas y Activas
          National Council of Jewish Women
          Newton Center for Affect Regulation 
          Parent Voices
          Raising California Together
          Santa Clara County Wage Theft Coalition








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          Service Employees International Union
          The Opportunity Institute
          Tradeswomen, Inc.
          UFCW Western States Council
          Voices for Progress
          Western Center on Law and Poverty
          Women's Foundation of California
          YWCA San Francisco & Marin 


          OPPOSITION:   (Verified8/30/16)


          Acclamation Insurance Management Services
          Agricultural Council of California
          Allied Managed Care
          American Petroleum and Convenience Store Association
          Associated Builders and Contractors - San Diego Chapter
          Associated Builders and Contractors of California
          Auto Care Association
          CalAsian Chamber of Commerce
          California Ambulance Association
          California Association for Health Services at Home
          California Association of Competitive Telecommunication  
          Companies
          California Association of Joint Powers Authorities
          California Association of Nursery and Garden Centers
          California Association of Winegrape Growers
          California Bankers Association
          California Business Properties Association
          California Chamber of Commerce
          California Farm Bureau Federation
          California Hotel and Lodging Association
          California Landscape Contractors Association
          California League of Food Processors
          California Manufacturers and Technology Association
          California Professional Association of Specialty Contractors
          California Restaurant Association
          California Retailers Association
          California State Association of Counties
          California Travel Association
          CAWA - Representing the Automotive Parts Industry








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          Chambers of Commerce Alliance of Ventura and Santa Barbara  
          County
          Civil Justice Association of California
          Coalition of Small and Disabled Veteran Businesses
          Culver City Chamber of Commerce
          El Centro Chamber of Commerce
          Family Winemakers of California
          Flasher Barricade Association
          Greater Bakersfield Chamber of Commerce
          Greater Fresno Area Chamber of Commerce
          Greater Merced Chamber of Commerce
          International Franchise Association
          Lake County Chamber of Commerce
          League of California Cities
          National Federation of Independent Business
          North Orange County Chamber of Commerce 
          Oxnard Chamber of Commerce
          Palm Desert Area Chamber of Commerce
          Plumbing-Heating-Cooling Contractors Association of California
          Rancho Cordova Chamber of Commerce
          Redondo Beach Chamber of Commerce
          San Francisco Chamber of Commerce
          Santa Maria Chamber of Commerce Visitor & Convention Bureau
          Small Business California
          South Bay Alliance of Chambers of Commerce
          The Greater Conejo Valley Chamber of Commerce
          Western Carwash Association 
          Western Electrical Contractors Association
          Western Growers Association
          Yuba-Sutter Chamber of Commerce


          ARGUMENTS IN SUPPORT: Proponents argue that while California is  
          one of only four states to offer paid family leave for new  
          parents, it remains impossibly out of reach for most low-wage  
          earners and those who work for small employers.  They believe  
          that this bill will drastically improve access to parental leave  
          by addressing one of its biggest barriers - job protection.   
          According to the author, a field poll found that almost two out  
          of five employees who were eligible to use PFL, but did not  
          apply, chose not to because they feared losing their job or  
          other negative consequences at work.








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          Proponents further argue that the existing CFRA and FMLA only  
          cover employees who work for larger companies with 50 or more  
          employees, leaving over 40% of California's workforce ineligible  
          for job protected leave because their employer is too small.  
          This bill ensures that workers who have been paying into the PFL  
          program are able to use this benefit without fear of losing  
          their job.  


          ARGUMENTS IN OPPOSITION:     According to opponents, this bill  
          has been identified as a job killer arguing that it will  
          overwhelm small businesses with as few as 20 employees by  
          requiring them to provide six-weeks of protected parental leave  
          with the threat of costly litigation for violations. Among other  
          things opponents state the following of this bill: 


          1)Creates an unreasonable to accommodate over five-month  
            protected leave of absence for an employee who suffers a  
            medical disability because of pregnancy (up to four months  
            under pregnancy disability leave plus six weeks). 


          2)Imposes a mandatory leave, with no employer discretion,  
            arguing that the leave must be given regardless of whether the  
            employer has other employees out on other required leaves  
            creating challenges for employer's operations.  


          3)Imposes additional costs on small businesses that are  
            struggling with the increased minimum wage. Even though this  
            leave is not paid, employers will have to maintain medical  
            benefits, pay a temporary employee or overtime.  


          4)Exposes small employers to costly litigation under the Fair  
            Employment and Housing Act for failure to provide the leave.  
            They argue that it costs a small to mid-size employer  
            approximately $125,000 to defend and settle a single claim - a  
            cost they believe reflects the financial risk small employer's  
            face. 








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           ASSEMBLY FLOOR:  54-17, 8/30/16
           AYES: Achadjian, Alejo, Arambula, Atkins, Baker, Bloom,  
            Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chau, Chávez,  
            Chiu, Chu, Cooley, Dababneh, Dodd, Eggman, Frazier, Cristina  
                                              Garcia, Eduardo Garcia, Gatto, Gomez, Gonzalez, Gordon,  
            Hadley, Roger Hernández, Holden, Jones-Sawyer, Levine, Linder,  
            Lopez, Low, Maienschein, McCarty, Medina, Melendez, Mullin,  
            Nazarian, Olsen, Quirk, Ridley-Thomas, Rodriguez, Santiago,  
            Mark Stone, Thurmond, Ting, Waldron, Weber, Williams, Wood,  
            Rendon
           NOES: Bigelow, Brough, Dahle, Beth Gaines, Gallagher, Grove,  
            Harper, Jones, Lackey, Mathis, Mayes, Obernolte, Patterson,  
            Salas, Steinorth, Wagner, Wilk
           NO VOTE RECORDED: Travis Allen, Chang, Cooper, Daly, Gipson,  
            Gray, Irwin, Kim, O'Donnell

           


          Prepared by:Alma Perez-Schwab / L. & I.R. / (916) 651-1556
          8/30/16 20:11:46


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