BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 654|
|Office of Senate Floor Analyses | |
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VETO
Bill No: SB 654
Author: Jackson (D), et al.
Amended: 8/18/16
Vote: 21
PRIOR VOTES NOT RELEVANT
SENATE FLOOR: 24-12, 8/31/16
AYES: Allen, Beall, Block, De León, Galgiani, Hall, Hancock,
Hernandez, Hertzberg, Hill, Hueso, Jackson, Lara, Leno, Leyva,
Liu, McGuire, Mendoza, Mitchell, Monning, Pan, Pavley,
Wieckowski, Wolk
NOES: Anderson, Berryhill, Cannella, Fuller, Gaines, Glazer,
Huff, Moorlach, Morrell, Nielsen, Stone, Vidak
NO VOTE RECORDED: Bates, Nguyen, Roth
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.
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Page 2
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,
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.
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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.
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.
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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
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
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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.
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| | | | |
| | | | |
| 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 | | | |
| | | | |
| 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 | | | |
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| | | | |
| 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 | | | |
| | | | |
| | | | |
|Paid or Unpaid | | | |
| | | | |
| Unpaid, may run concurrent with other paid leave | | | |
| | | | |
| Partial wage replacement | | | |
| | | | |
| Unpaid, may run concurrent with SDI for partial wage replacement | | | |
| | | | |
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| Unpaid, employee can use vacation, paid sick time | | | |
| | | | |
| | | | |
|Continued Health Coverage | | | |
| | | | |
| Yes | | | |
| | | | |
| No | | | |
| | | | |
| Yes | | | |
| | | | |
| Yes | | | |
| | | | |
| | | | |
| | | | |
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Please see the policy committee analysis for more information on
leaves in other states 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
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)
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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
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
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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
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
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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.
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.
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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.
GOVERNOR'S VETO MESSAGE:
I am returning Senate Bill 654 without my signature.
This bill establishes an unpaid, job protected parental leave
requirement that applies to businesses with 20 or more
employees and allows workers to take up to 6 weeks of
SB 654
Page 12
parental leave to bond with a new child.
It goes without saying that allowing new parents to bond with
a child is very important and the state has a number of paid
and unpaid benefit programs to provide for that leave. I am
concerned, however, about the impact of this leave
particularly on small businesses and the potential liability
that could result. As I understand, an amendment was offered
that would allow an employee and employer to pursue mediation
prior to a lawsuit being brought. I believe this is a viable
option that should be explored by the author.
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
10/21/16 15:45:43
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