BILL ANALYSIS                                                                                                                                                                                                    ”



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          Date of Hearing:  June 22, 2016


                     ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT


                               Roger HernŠndez, Chair


          SB  
          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  
          bill:  


          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  
               cities.


          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  
               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  








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               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 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.












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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.

          REGISTERED SUPPORT / OPPOSITION:











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          Support


          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




          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 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)  
          319-2091