BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
SB 1166 (Jackson)
Version: February 18, 2016
Hearing Date: April 19, 2016
Fiscal: Yes
Urgency: No
TMW
SUBJECT
Unlawful employment practice: parental leave
DESCRIPTION
This bill would establish the New Parent Leave Act and make it
an unlawful employment practice for an employer, who employs 10
or more employees, to refuse to allow an employee, with 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, to take up to 12 weeks of parental
leave to bond with a new child within one year of the child's
birth, adoption, or foster care placement. This bill would also
prohibit an employer from refusing to maintain and pay for
coverage under a group health plan for an employee who takes
this leave.
(This analysis reflects author's amendments to be offered in
Committee.)
BACKGROUND
In 1980, California enacted the California Fair Employment and
Housing Act (FEHA), which prohibited various employment
discrimination practices, and included protections for employees
taking pregnancy disability leave (PDL). (AB 3165, Fenton, Ch.
992, Stats. 1980.) PDL allows an employee to take a leave for a
reasonable period of time, not to exceed four months, and
thereafter return to work, as specified. The employee is
entitled to utilize any accrued vacation leave during this
period of time, which means that period during which the female
employee is disabled on account of pregnancy, childbirth, or a
related medical condition. (Gov. Code Sec. 12945.) PDL
provides an employee the right to take "intermittent" leave for
a pregnancy-related disability, as needed, which can be taken in
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small increments (hours, days, weeks, or months). For example,
a pregnant employee, with the advice of her doctor, has the
right to take a few hours of leave each day or on certain days
because of severe morning sickness or for a doctor's
appointment, or for other prenatal care. An employee who is
taking PDL is entitled to the continuation of her health
benefits for the entire duration of her leave, up to four
months.
Another protection under FEHA is the Moore-Brown-Roberti Family
Rights Act (also known as the California Family Rights Act
(CFRA)), which makes it an unlawful employment practice for an
employer of 50 or more employees to refuse to grant a request by
an employee to take an unpaid family care leave of up to four
months unless a refusal is necessary to prevent undue hardship
to the employer's operation. (AB 77 (Moore, Ch. 462, Stats.
1991); SB 193 (Marks, Ch. 580, Stats. 1993).) Family care leave
may be taken in one or more periods, as long as it does not
exceed a total of four months within a 24 month period from the
date the leave commenced. However, when family care leave is
taken in conjunction with the maximum pregnancy disability
leave, family care leave shall be for no more than one month.
To be eligible for family care leave, an employee must have more
than one year of continuous service with the employer and must
be eligible for other employee benefits. The Department of Fair
Employment and Housing enforces CFRA.
In 1993, the federal Family and Medical Leave Act (FMLA),
enforced by the United States Department of Labor, was
established and requires employers of 50 of more employees to
provide unpaid leave of up to 12 weeks annually to employees for
similar reasons. Additionally, the FMLA covers the medical
condition of the employee, and permits leave for the placement
of a child for foster care. Employers covered by the law are
required to maintain any pre-existing health coverage during the
leave period and, once the leave period is concluded, to
reinstate the employee to the same or equivalent job. The
federal law also specifies that the FMLA shall not supersede any
provision of State or local law that provides greater family or
medical leave rights. AB 1460 (Moore, Chapter 827, Statutes of
1993) conformed California's employment discrimination laws
under FEHA to the new requirements under the FMLA.
This bill would establish the New Parent Leave Act under FEHA
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and make it an unlawful employment practice for an employer, as
defined, to refuse to allow an employee to take up to 12 weeks
of parental leave to bond with a new child within one year of
the child's birth, adoption, or foster care placement. This
bill would also prohibit an employer from refusing to maintain
and pay for coverage under a group health plan for an employee
who takes this leave.
This bill was heard by the Senate Labor and Industrial Relations
Committee on April 13, 2016, and passed out on a vote of 4-1.
CHANGES TO EXISTING LAW
Existing law , the federal Pregnancy Discrimination Act (PDA),
generally prohibits discrimination in employment on the basis of
pregnancy, childbirth, or related medical conditions. (42
U.S.C. 2000e-2; 42 U.S.C. 2000e(k).)
Existing law , the federal Family and Medical Leave Act (FMLA),
prohibits employers with at least 50 employees from failing to
maintain and pay for group health plan coverage, as specified,
for leave taken by the employee for the birth of a child for a
period of up to 12 workweeks. An employer may recover the group
health plan premium from the employee in the event the employee
fails to return from leave, as specified, and the failure to
return from leave is not a result of a pregnancy or child birth
related condition or other circumstances beyond the control of
the employee. (29 U.S.C. Sec. 2614(c).)
Existing law , the Fair Employment and Housing Act (FEHA),
generally prohibits discrimination in employment on the basis of
pregnancy, childbirth, or related medical conditions. (Gov.
Code Sec. 12940.) Unless otherwise specified, FEHA applies to
employers with five or more employees. (Gov. Code Sec.
12926(d).)
Existing law , the pregnancy disability leave law (PDL),
generally prohibits employers with at least five employees from
refusing to allow female employees to take a leave of absence
due to a pregnancy, childbirth, or related medical condition not
to exceed four months. (Gov. Code Sec. 12945.)
Existing law , the Moore-Brown-Roberti Family Rights Act (the
California Family Rights Act (CFRA)) prohibits employers with at
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least 50 employees from failing to maintain and pay for group
health plan coverage, as specified, for leave taken by the
employee for the birth of a child for a period of up to 12
workweeks. An employer may recover the group health plan
premium from the employee in the event the employee fails to
return from leave, as specified, and the failure to return from
leave is not a result of a pregnancy or child birth related
condition or other circumstances beyond the control of the
employee. (Gov. Code Sec. 12945.2(f).)
This bill would establish the New Parent Leave Act and make it
an unlawful employment practice under FEHA for an employer, as
defined, to do either of the following:
refuse to allow an employee, with 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,
upon request, to take up to 12 weeks of parental leave to bond
with a new child within one year of the child's birth,
adoption, or foster care placement, and provide:
o if, on or before the commencement of this parental
leave, the employer does not provide a guarantee of
employment in the same or a comparable position upon the
termination of the leave, the employer would be deemed to
have refused to allow the leave; and
o the employee would be entitled to 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; and
refuse to maintain and pay for coverage for an eligible
employee who takes parental leave pursuant to this section
under a group health plan, as defined, for the duration of the
leave, not to exceed 12 weeks over the course of a 12-month
period, commencing on the date that the parental leave
commences, at the level and under the conditions that coverage
would have been provided if the employee had continued to work
in his or her position for the duration of the leave.
This bill would define "employer" to mean either: (1) any
person who directly employs 10 or more persons to perform
services for a wage or salary; or (2) the state, and any
political or civil subdivision of the state and cities.
This bill would require that parental leave to run concurrently
with leave taken pursuant to CFRA and the FMLA, except for leave
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taken for a disability on account of pregnancy, childbirth, or
related medical condition.
This bill would specify that the aggregate amount of leave taken
pursuant to this bill, CFRA, or the FMLA, or any combination of
these laws, except for leave taken for a disability on account
of pregnancy, childbirth, or related medical conditions, shall
not exceed 12 workweeks in a 12 month period.
This bill would entitle an employee to take, in addition to
leave provided pursuant to this bill, CFRA, and the FMLA, leave
provided pursuant to PDL if the employee is otherwise qualified
for that leave.
COMMENT
1. Stated need for the bill
The author writes:
California falls behind Maine, Minnesota, Oregon, Washington
State and the District of Columbia in providing job protected
parental leave for small business employees. Under current
law[,] only those who work for an employer of 50 or more are
eligible for job protected parental leave under California
law. That leaves many new parents with an impossible choice
between the wellbeing of his or her new child and his or her
family's financial security.
While California's worker funded Paid Family Leave program
provides employees with partial wage replacement while caring
for a new child, many employees are unable to use this benefit
for fear of losing their jobs. In fact, a 2011 field poll
found that almost 2 out of 5 employees who were eligible to
use PFL, but did not apply for the benefit, chose not to
because they feared losing their job or other negative
consequences at work.
SB 1166 (Jackson) ensures that the California workers who have
been paying into the Paid Family Leave insurance program are
able to use this benefit for parental leave without risk of
losing their job. No one should have to choose between the
wellbeing of their new child and their family's financial
security.
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2. Providing new job protected parental leave
This bill would establish new FEHA protections under the New
Parent Leave Act (NPLA) and make it an unlawful employment
practice for an employer of 10 more employees to refuse to allow
an employee to take up to 12 weeks of parental leave to bond
with a new child within one year of the child's birth, adoption,
or foster care placement. Additionally, this bill would provide
that:
if, on or before the commencement of this parental leave, the
employer does not provide a guarantee of employment in the
same or a comparable position upon the termination of the
leave, the employer would be deemed to have refused to allow
the leave; and
the employee would be entitled to 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.
Notably, for an employee to qualify for this leave of absence,
he or she must have worked for the employer for more than 12
months and have at least 1,250 hours of service with the
employer during the previous 12-month period, which is the same
requirement as a leave of absence taken under CFRA.
Co-sponsors argue that although new birth mothers who work for a
small employer (5-49 employees) are able to take 6-8 weeks of
job protected leave to recover from the birth of their child
under PDL, new birth fathers and new adoptive parents working
for an employer of the same small size have no right to job
protected leave when a new baby comes into their lives.
Further, co-sponsors contend that because of the eligibility
requirements under these laws, nearly half of the workforce is
not covered and employers can punish workers for taking time to
care for a new child.
Supporters argue that this bill would drastically improve access
to parental leave by providing job protection to more California
workers. Supporters assert that this bill would ensure that
millions of California workers who have been paying into the PDL
insurance program are able to use this benefit for parental
leave without risk of losing their job. The need for expanded
and equitable access to parental leave in the state cannot be
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understated. Co-sponsors note that the benefits of parental
leave on the health and welfare of the economy and our state's
working families have been well-documented. Research shows that
paid family leave, particularly when there is job protection,
increases new mothers' wage growth and future employment rates.
(Council of Economic Advisors, The Economics of Paid and Unpaid
Leave (June 2014)
[as of Apr. 10, 2016].) Fathers who take parental
leave are more engaged with their newborns, promoting greater
gender equity at home and at work. (Michelle J. Budig, The
Fatherhood Bonus and the Motherhood Penalty: Parenthood and the
Gender Gap in Pay
[as of Apr. 10,
2016].) In addition, evidence strongly suggests that children
enjoy many short- and long-term benefits from parental leave,
including better health and higher high school graduation rates.
(Sakiko Tanaka, The Economic Journal Volume 115, Parental leave
and child health across OECD countries (June 2005)
[as of Apr. 10, 2016]; Pedro Carneiro, Katrine V. Løken
and Kjell G. Salvanes, Journal of Political Economy, Vol. 123,
No. 2 A Flying Start? Maternity Leave Benefits and Long-Run
Outcomes of Children (Apr. 2015).
[as of Apr. 10, 2016].)
3. Requiring employer-paid health insurance coverage for parental
bonding
Existing federal and state law, the FMLA and CFRA, respectively,
require group health insurance to be maintained by an employer
for an employee on a leave of absence to care for or bond with a
newly born, foster, or adopted child. The FMLA applies to all
public agencies, including local, state, and federal employers,
local education agencies (schools), and private sector employers
who employ 50 or more employees for at least 20 workweeks in the
current or preceding calendar year. The general definition of
employer under FEHA means an employer with five or more
employees. (Gov. Code Sec. 12926(d).) However, CFRA, which is
included under FEHA, specifically applies to private employers
with 50 or more part-time or full-time employees, including
non-profit religious organizations. Covered employers also
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include the State of California and any of its political and
civil subdivisions, and cities and counties, regardless of the
number of employees.
This bill would also prohibit an employer from refusing to
maintain and pay for coverage under a group health plan for an
employee who takes leave under the NPLA. This bill would apply
to a private employer who is employing 10 or more employees, as
well as the state and local agency employers covered under CFRA.
This bill would limit the duration of the required coverage to
12 weeks over the course of a 12-month period, commencing on the
date that the parental leave commences, at the level and under
the conditions that coverage would have been provided if the
employee had continued to work in his or her position for the
duration of the leave.
Arguably, a lack of medical coverage during parental bonding
leave discourages and prevents new parents from taking leave to
bond with their new children. Accordingly, both the FMLA and
CFRA require group health plan coverage to continue during that
family bonding leave. However, for employees of employers with
less than 50 employees, they are left to make the difficult
decision of whether they can afford to go without health
coverage during the parental leave or whether they will have to
sacrifice parental bonding to maintain their health coverage.
This bill would provide the same group health insurance coverage
required under CFRA and FMLA, but extend the required coverage
to employees of small employers while the employee is on new
parent bonding leave.
4. Oppositions' concerns
Opponents of the bill contend that it will overwhelm small
businesses with as few as five employees by allowing an employee
who has only worked for the employer one day to receive 12 weeks
of protected parental leave, with the threat of costly
litigation for violating this leave. Opponents note that small
employers with only five employees were specifically excluded
from FMLA and CFRA; these protected leaves of absence only apply
to employers with 50 or more employees because only large
employers are the only ones likely capable of accommodating such
an extensive amount of time off (up to 28 weeks/7 months).
Notably, the author's amendments agreed to in the Senate Labor
and Industrial Relations Committee make the bill applicable to
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an employer of 10 or more employees.
Opponents also contend that because this bill does not impose
the requirements under CFRA and FMLA that an employee work for
one year and at least 1,250 hours before taking a 12-week
protected leave of absence. Rather, this bill would make an
employer with only five employees, or an employer with 500
employees, automatically have to provide an employee with a
12-week leave of absence, no matter the limited hours or the
time worked for the employer, which is simply too significant
for California employers to manage.
Opponents also argue that the lack of conformity to the CFRA and
FMLA one year and 1,250 hours worked requirements could create
an opportunity for an employee to obtain over 24 weeks of
protected leave in one year. Opponents provide the example that
an employee who has only worked 800 hours could take the 12
weeks of leave under this bill, return to work for another 450
hours, and then take another 12 weeks of leave under CFRA and
FMLA. However, the author's amendments would mirror the CFRA
work requirements, which should resolve this concern.
Opponents note that last year, Governor Brown vetoed SB 406
(Jackson, 2015) based, in part, on the fact that the bill would
"in certain circumstances, require employers to provide
employees up to 24 weeks of family leave in a 12 month period.
I am open to legislation to allow workers to take leave for
additional family members that does not create this anomaly."
Opponents contend that this bill also creates that anomaly of
24-weeks of protected leave in a 12 month period.
Opponents note that while the bill attempts to address this
issue by stating that the total amount of leave an employee can
receive under this bill, CFRA, and FMLA is 12 weeks in a
12-month period, opponents argue that this does not fix the
situation. Opponents assert that California cannot preempt or
limit the application of federal law under FMLA, and this bill
appears to nullify any limitation on total leave taken as set
forth in another section of the bill as it explicitly states an
employee is entitled to take CFRA or FMLA leave, assuming the
employee is qualified for that leave.
Opponents also argue that this bill is an unprecedented mandate;
they were unable to identify any other state that imposes such
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an extensive leave of absence on employers with only five
employees who have worked only one day for the employer.
Opponents point to a 2013 study for the National Conference of
State Legislatures, which reported that over 40 states impose
only a 12-week leave of absence on employers with 50 or more
employees with the same hours worked requirement as FMLA and
CFRA. Opponents note that of the remaining states that differ,
all have an employee size threshold or hours worked requirement,
or both, that is significantly higher than proposed under this
bill.
Opponents also assert that this bill exposes employers to costly
litigation and cited to a study by an insurance provider that
estimated the cost for a small to mid-size employer to defend
and settle a single plaintiff discrimination claim was
approximately $125,000. Opponents contend that this amount,
especially for a small employer, reflects the financial risk
associated with defending a lawsuit under FEHA, such as the
litigation that would be created by this bill, and the ability
to leverage an employer into resolving or settling the case
regardless of merit.
5. Author's amendments
This bill was approved by the Senate Labor and Industrial
Relations Committee on April 13, 2016. Due to procedural timing
constraints, the author agreed in that Committee to take the
following amendments in this Committee.
Author's amendments :
1. On page 2, in line 2, after "employer" insert ", as
defined in subdivision (d), "
2. On page 2, in line 3, after "employee," insert "with
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,"
3. On page 2, below line 37, insert:
(d) "Employer" means either of the following:
(1) Any person who directly employs 10 or more persons
to perform services for a wage or salary.
(2) The state, and any political or civil subdivision of the
state and cities.
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Support : 9 to 5; Alliance for Community Empowerment; American
Association of University Women; American Civil Liberties Union
of California; BreastfeedLA; California Asset Building
Coalition; California Black Health Network; California Domestic
Workers Coalition; California Hunger Action Coalition;
California Labor Federation, AFL-CIO; California Latinas for
Reproductive Justice; California Immigrant Policy Center;
California Women's Law Center; California Work and Family
Coalition; Career Ladders Project; Center for Popular Democracy;
Center for WorkLife Law, UC Hastings; Child Care Law Center;
Children's Hospital Los Angeles; First 5 Santa Clara County;
Healthy Communities, Inc.; Mujeres Unidas y Activas; National
Association of Social Workers - California Chapter; National
Council of Jewish Women (CA Edge Coalition); Parent Voices;
Raising California Together; Stronger California Advocates
Network; The Opportunity Institute; Tradeswomen, Inc.; Voices
for Progress; Western Center on Law and Poverty; Women's
Foundation of California; 2 Individuals
Opposition : Agricultural Council of California; Associated
Builders and Contractors of California; California Ambulance
Association; California Association of Joint Powers Authorities;
California Chamber of Commerce; California Farm Bureau
Federation; California Hotel and Lodging Association; California
League of Food Processors; California Manufacturers & Technology
Association; California Professional Association of Specialty
Contractors; California Restaurant Association; California
Retailers Association; California State Association of Counties;
Civil Justice Association of California; National Federation of
Independent Business; Western Carwash Association; Western
Growers Association
HISTORY
Source : California Employment Lawyers Association; Equal Rights
Advocates; Legal Aid Society - Employment Law Center
Related Pending Legislation : None Known
Prior Legislation :
SB 406 (Jackson, 2015) would have expanded various provisions of
law related to unpaid family and medical leave under the
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California Family Rights Act (CFRA). SB 406 was vetoed by
Governor Brown because he believed the expansion provided in the
bill created a disparity between California's law and the FMLA,
and, in certain circumstances, could require employers to
provide employees up to 24 weeks of family leave in a 12 month
period.
SB 299 (Evans, Chapter 510, Statutes of 2011) prohibited
employers from refusing to maintain and pay for insurance
coverage, as specified, for the duration of maternity leave up
to four months, as specified, and authorized employers to
recover insurance premiums from the employee if the employee
fails to return from maternity leave, provided that the
employee's failure to return from maternity leave is not due to
leave taken under CFRA, for a health condition that entitles the
employee leave, or for another circumstance beyond the control
of the employee.
AB 592 (Lara, 2011) prohibited employers from interfering with
or restraining an employee's exercise of pregnancy disability
leave or rights under PDL or CFRA.
AB 1460 (Moore, Chapter 827, Statutes of 1993) See Background.
SB 193 (Marks, Chapter 580, Statutes of 1993) See Background.
AB 77 (Moore, Chapter 462, Statutes of 1991) See Background.
AB 3165 (Fenton, Chapter 992, Statutes of 1980) See Background.
Prior Vote : Senate Committee on Labor and Industrial Relations
(Ayes 4, Noes 1)
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