BILL ANALYSIS Ó
SB 1166
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Date of Hearing: June 22, 2016
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hernández, 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