BILL ANALYSIS                                                                                                                                                                                                    ”

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          Date of Hearing:  June 22, 2016


                               Roger HernŠndez, Chair

          1166 (Jackson) - As Amended April 21, 2016

          SENATE VOTE:  22-14

          SUBJECT:  Unlawful employment practice:  parental leave

          SUMMARY:  Enacts the "New Parent Leave Act" to, among other  
          things, require an employer of 10 or more employees to allow  
          eligible employees to take up to 12 weeks of job-protected  
          parental leave to bond with a new child.  Specifically, this  

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

             a)   A person who directly employs 10 or more persons to  
               perform services for a wage or salary.

             b)   The state and any political subdivision of the state and  

          2)Makes it an unlawful employment practice for an employer to  
            refuse to allow an employee, with more than 12 months and at  


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            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.

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

          4)Provides that the employee may 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 is an unlawful employment practice for an employer to  
            refuse to maintain and pay for continued group health coverage  
            for eligible employees who take parental leave ate the same  
            level and under the same conditions that would have been  
            provided of the employee had continued to work during the  
            duration of the leave.

          6)Provides that parental leave taken pursuant to this bill shall  
            run concurrently with leave taken pursuant to the California  
            Family Rights Act (CFRA) and the federal Family and Medical  
            Leave Act (FMLA), and that the aggregate amount of leave (or  
            combination of leaves) shall not exceed 12 workweeks 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 the employee is otherwise qualified  
            for that leave.



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          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  

             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  


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               placement of the child in connection with foster care or  

             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  

             c)   PFL does not provide job protection or return to work  

             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.


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          FISCAL EFFECT:  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.

          COMMENTS:  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 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  


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          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.


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          This bill would establish the New Parent Leave Act under FEHA  
          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.

          Arguments in Support

          According to the author:
            "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 [PFL]  
            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.

            [This bill] 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  


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            of their new child and their family's financial security." 

          The co-sponsors of this bill 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, the 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  
          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.   
          Fathers who take parental leave are more engaged with their  
          newborns, promoting greater gender equity at home and at work.   
          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.

          Arguments in Opposition


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          Opponents argue that the lack of conformity to the CFRA and FMLA  
          could create an opportunity for an employee to obtain over 24  
          weeks of protected leave in one year.  

          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, 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 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.



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          9 to 5

          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 Employment Lawyers Association (co-sponsor)


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          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 at UC Hastings

          Child Care Law Center


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          Children's Hospital Los Angeles

          Common Sense Kids Action 

          Consumer Attorneys of California

          Courage Campaign

          Employment Lawyers Association

          Equal Rights Advocates (co-sponsor)

          First 5 California

          Healthy Communities, Inc. 

          Legal Aid Society - Employment Law Center (co-sponsor) 

          Los Angeles County Professional Peace Officers Association

          Maternal and Child Health Access 

          Mexican American Legal Defense and Educational Fund

          Mujeres Unidas y Activas


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          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

          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.


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          UFCW Western State Council

          Voices for Progress

          Western Center on Law and Poverty

          Women's Foundation of California

          3 individuals


          Agricultural Council of California 

          Associated Builders and Contractors of California 

          California Ambulance Association 

          California Association of Joint Powers Authorities 

          California Chamber of Commerce 

          California Civil Justice Association


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          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 

          Culver City Chamber of Commerce 

          Greater Conejo Valley Chamber of Commerce 

          League of California Cities 


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          National Federation of Independent Business 

          Southwest California Legislative Counsel

          Western Carwash Association 

          Western Growers Association

          Analysis Prepared by:Ben Ebbink / L. & E. / (916)