BILL ANALYSIS                                                                                                                                                                                                    






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          |SENATE RULES COMMITTEE            |                       SB 1166|
          |Office of Senate Floor Analyses   |                              |
          |(916) 651-1520    Fax: (916)      |                              |
          |327-4478                          |                              |
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                                   THIRD READING 


          Bill No:  SB 1166
          Author:   Jackson (D), et al.
          Amended:  4/21/16  
          Vote:     21 

           SENATE LABOR & IND. REL. COMMITTEE:  4-1, 4/13/16
           AYES:  Mendoza, Jackson, Leno, Mitchell
           NOES:  Stone

           SENATE JUDICIARY COMMITTEE:  4-2, 4/19/16
           AYES:  Jackson, Leno, Monning, Wieckowski
           NOES:  Moorlach, Anderson
           NO VOTE RECORDED:  Hertzberg

           SENATE APPROPRIATIONS COMMITTEE:  5-2, 5/27/16
           AYES:  Lara, Beall, Hill, McGuire, Mendoza
           NOES:  Bates, Nielsen

           SUBJECT:   Unlawful employment practice:  parental leave


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


          DIGEST:  This bill prohibits an employer, of 10 or more  
          employees, from refusing to allow an eligible employee to take  
          up to 12 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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          ANALYSIS: 


          Existing law:


          1)Provides that the California Family Rights Act (CFRA) and the  
            federal Family and Medical Leave Act (FMLA), required to be  
            taken concurrently, entitles 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.









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             b)   Employers may require that employees take up to two  
               weeks of earned but unused vacation 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)Establishes that Pregnancy Disability Leave (PDL), under the  
            Fair Employment and Housing Act, requires private employers  
            with five or more employees and public employers to provide up  
            to four months of unpaid, job-protected leave for 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)Prohibits an employer from refusing to allow an employee, with  
            more than 12 months and at least 1,250 hours of service with  
            the employer, 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.  








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          2)Defines "employer" as a person who directly employs 10 or more  
            persons or the state and any political or civil subdivision of  
            the state and cities.  


          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)Requires employers to pay for continued group health coverage  
            for eligible employees who take parental leave at the same  
            level and conditions.


          6)Specifies that this leave shall run concurrent with CFRA and  
            FMLA, as specified, and the aggregate amount of leave - or  
            combination of leaves - cannot exceed 12 work weeks in a  
            12-month period.


          7)Specifies that an employee is entitled to take Pregnancy  
            Disability Leave, in addition to the leave provided in this  
            bill, CFRA and FMLA, if he or she is otherwise qualified.


          Background 
          
          California has several medical leaves under which an employee  
          may be able to take time off of work to care for his or her  
          illness, that of specified family members or for the bonding  
          with a new child through birth, adoption or foster care. Below  
          is a brief summary of some of the leaves and their eligibility  
          requirements.



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          |                                                                     |
          |                                                                     |
          |                             CFRA/FMLA                               |
          |                           (Job Protected)                           |
          |                                 PFL                                 |
          |                         (No Job Protection)                         |
          |                                                                     |
          |                                 PDL                                 |
          |                           (Job Protected)                           |
          |                                                                     |
          |                               SB 1166                               |
          |                           (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                        |
          |                        Ten 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                              |







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          |                                                                     |
          |                                                                     |
          |Length of Leave                                                      |
          |                                                                     |
          |                     12 weeks in 12-month period                     |
          |                                                                     |
          |                     6 weeks in 12-month period                      |
          |                                                                     |
          |                           Up to 4 months                            |
          |                                                                     |
          |                           Up to 12 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   |
          |                                                                     |
          |         Unpaid, employee can use vacation, paid sick time           |
          |                                                                     |
          |                                                                     |
          |Continued      Health Coverage                                       |
          |                                                                     |
          |                                 Yes                                 |
          |                                                                     |
          |                                 No                                  |
          |                                                                     |
          |                                 Yes                                 |
          |                                                                     |
          |                                 Yes                                 |
          |                                                                     |
          |                                                                     |
          |                                                                     |
          |                                                                     |
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          Parental Leave Policies in Other States. The United States is  
            currently the only
          developed country in the world that does not have any government  
            sponsored paid
          maternity or paternity leave law for employees to take time off  







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            to care for their 
          loved ones.  Availability of such a leave is left at the  
            discretion of each state and its 
          policies and employer practices. According to the U.S.  
            Department of Labor, only 
          12 percent of private-sector workers have access to paid family  
            leave through their 
          employers. Access is particularly low among low-wage workers,  
            Hispanics and 
          African Americans. Many businesses have voluntarily adopted  
            leave policies, a 
          trend most recently seen in corporate America with companies  
            like Microsoft 
          offering up to 20 weeks of fully paid parental leave.  [NOTE:  
            Please see the policy 
          committee analysis for more information on leave policies in  
            other states.] 

          San Francisco. The Paid Parental Leave for Bonding with New  
          Child Ordinance was passed by the San Francisco Board of  
          Supervisors and signed by Mayor Lee on April 21, 2016. The  
          ordinance requires employers to help provide fully paid family  
          leave for new parents. In conjunction with the PFL program,  
          granting a 60% wage replacement for up to six weeks, the San  
          Francisco ordinance would require businesses with more than 20  
          employees to plug that gap by paying the remaining 40% of their  
          employees' wages. The law takes effect January 1, 2017, with a  
          gradual phase in for smaller businesses. 

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



          According to the Senate Appropriations Committee, the Department  
          of Fair Employment and Housing indicates that it would incur  
          General Fund costs of $248,000 in 2016-17, and $226,000 annually  
          in the out years to implement the provisions of this bill.




          SUPPORT:   (Verified5/27/16)








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          California Employment Lawyers Association (co-source)
          Equal Rights Advocates (co-source)
          Legal Aid Society - Employment Law Center (co-source) 
          Alliance for Community Empowerment
          American Association of University Women
          American Civil Liberties Union of California
          Breastfeed LA
          California Asset Building Coalition 
          California Black Health Network
          California Child Care Resource & Referral Network
          California Commission on the Status of Women and Girls 
          California Domestic Workers Coalition 
          California Edge Coalition
          California Hunger Action Coalition
          California Immigrant Policy Center
          California Labor Federation, AFL-CIO
          California Latinas for Reproductive Justice
          California Partnership
          California Rural Legal Assistance Foundation 
          California Teachers Association
          California Women's Law Center
          California Work and Family Coalition
          Career Ladders Project
          Center for Popular Democracy
          Center for WorkLife Law
          Child Care Law Center
          Children's Hospital Los Angeles
          Common Sense Kids Action 
          Consumer Attorneys of California
          Courage Campaign
          Employment Lawyers Association
          Equal Rights Advocates
          Healthy Communities, Inc. 
          Los Angeles County Professional Peace Officers Association
          Maternal and Child Health Access 
          Mexican American Legal Defense and Educational Fund
          Mujeres Unidas y Activas
          National Association of Social Workers, California Chapter
          National Association of Working Women
          National Council of Jewish Women California
          Organization of SMUD Employees
          Our Family Coalition
          Parent Voices







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          Raising California Together
          San Diego Court Employees Association 
          San Luis Obispo County Employees Association 
          Service Employees International Union
          Stronger California Advocates Network
          The Opportunity Institute
          Tradeswomen, Inc.
          Voices for Progress
          Western Center on Law and Poverty
          Women's Foundation of California
          9 to 5
          3 individuals


          OPPOSITION:   (Verified5/27/16)


          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 Landscape Contractors 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
          Greater Conejo Valley Chamber of Commerce
          League of California Cities 
          National Federation of Independent Business
          Western Carwash Association
          Western Growers Association


          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  







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          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.  


          ARGUMENTS IN OPPOSITION:     Opponents argue that this bill will  
          overwhelm small businesses with as few as 10 employees by  
          requiring them to provide 12-weeks of protected parental leave,  
          with the threat of costly litigation for violations. They argue  
          that while small employers must provide their employees with  
          PDL, they are not subject to FMLA or CFRA because large  
          employers are the ones likely capable of accommodating such an  
          absence.   

          Further, they argue that this bill creates a new, separate and  
          independent leave than that of CFRA and FMLA. To the extent that  
          it is interpreted through case law or regulation differently,  
          that lack of conformity could create the opportunity for two  
          12-week leave of absences for employers with 50 or more  
          employees. While the bill tries to address this issue, they  
          argue that the problem remains because California cannot preempt  
          or limit the application of federal law under FMLA.  

          Opponents also argue that this bill labels an employer's failure  
          to provide the 12-week leave as an "unfair employment practice,"  
          a label that exposes an employer to costly litigation. An  
          aggrieved employee could pursue a claim against the employer  
          seeking:  compensatory damages, injunctive relief, declaratory  
          relief, punitive damages, and attorney's fees. According to  
          opponents, 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 employers face. 

          Prepared by:Alma Perez-Schwab / L. & I.R. / (916) 651-1556







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          5/28/16 16:46:00


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