BILL ANALYSIS Ó
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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.
SB 1166
Page 2
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
SB 1166
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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
SB 1166
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5/28/16 16:46:00
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