BILL NUMBER: AB 1666 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 2, 2010
INTRODUCED BY Assembly Member Swanson
JANUARY 20, 2010
An act to amend Section 12945.2 53087.6
of the Government Code, relating to employment
local government .
LEGISLATIVE COUNSEL'S DIGEST
AB 1666, as amended, Swanson. California Family Rights
Act: sick leave. Local government: whistleblower
hotline.
Existing law authorizes a city, county, or city and county auditor
or controller to maintain a whistleblower hotline to receive calls
from persons who have information regarding possible violations by
local government employees of state, federal, or local statutes,
rules, or regulations, and requires any investigation conducted
pursuant to this authorization to be kept confidential except where
release of findings of a conducted investigation is deemed necessary
to serve the interests of the public, except that the identity of the
individual or individuals involved in the investigation is required
to be kept confidential.
This bill would specify that a city, county, or city and county
auditor or controller may maintain the whistleblower hotline to
receive calls from persons who have information regarding fraud,
waste, or abuse, and would define those terms. The bill would also
authorize the auditor or controller to provide a copy of a
substantiated audit report or investigation to the appropriate
appointing authority for disciplinary purposes, as specified.
Existing law, the California Family Rights Act, permits employees
of specified employers with more than 12 months of service with the
employer and who have at least 1,250 hours of service with the
employer during the previous 12-month period of employment to take up
to a total of 12 workweeks in any 12-month period for family care
and medical leave. Existing law defines "family care and medical
leave" to mean leave for the birth or adoption of a child, the
serious health condition of a child, parent, or spouse, or the
serious health condition of the employee.
This bill would expand the definition of "serious health condition"
to include an illness contracted by the employee that has been
declared a national or state emergency pandemic.
Vote: majority. Appropriation: no. Fiscal committee: yes
no . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 53087.6 of the
Government Code is amended to read:
53087.6. (a) (1) A city, county, or city and county auditor or
controller who is elected to office may maintain a whistleblower
hotline to receive calls from persons who have information regarding
possible violations fraud, waste, or abuse
by local government employees of state, federal, or
local statutes, rules, or regulations . This section
shall not prohibit any other city, county, or agency from withholding
the identity of a complainant or other information
pertaining to the investigation of a complaint pursuant to statutory
authorization to withhold that information.
(2) A city, county, or city and county auditor or controller who
is appointed by, or is an employee of, a legislative body or the
government agency that is governed by the city, county, or city and
county, shall obtain approval of that legislative body or the
government agency, as the case may be, prior to establishing the
whistleblower hotline.
(b) The auditor or controller may refer calls received on the
whistleblower hotline to the appropriate government authority for
review and possible investigation.
(c) During the initial review of a call received pursuant to
subdivision (a), the auditor or controller, or other appropriate
governmental agency, shall hold in confidence information disclosed
through the whistleblower hotline, including the identity of the
caller disclosing the information and the parties identified by the
caller.
(d) A call made to the whistleblower hotline pursuant to
subdivision (a), or its referral to an appropriate agency under
subdivision (b) may not be the sole basis for a time period under a
statute of limitation to commence. This section does not change
existing law relating to statutes of limitation.
(e) (1) Upon receiving specific information that an employee or
local government has engaged in an improper government
activity , as defined by paragraph (2) of subdivision (f)
, a city or county auditor or controller may conduct an
investigative audit of the matter. The identity of the person
providing the information that initiated the investigative audit
shall not be disclosed without the written permission of that person,
unless the disclosure is to a law enforcement agency that is
conducting a criminal investigation. If the specific information is
in regard to improper government activity that occurred under the
jurisdiction of another city, county, or city and county, the
information shall be forwarded to the appropriate auditor or
controller for that city, county, or city and county.
(2) Any investigative audit conducted pursuant to this subdivision
shall be kept confidential, except to issue any report of an
investigation that has been substantiated, or to release any findings
resulting from a conducted completed
investigation that is are deemed
necessary to serve the interests of the public. In any event, the
identity of the individual or individuals involved
reporting the improper government activity, and the subject
employee or employees shall be kept confidential.
(3) Notwithstanding paragraph (2), the auditor or controller may
provide a copy of a substantiated audit report that includes the
identities of the individuals involved and other pertinent
information concerning the investigation to the appropriate
appointing authority for disciplinary purposes. The substantiated
audit report, any subsequent investigatory materials or information,
and the disposition of any resulting disciplinary proceedings are
subject to the confidentiality provisions of applicable local, state,
and federal statutes, rules, and regulations.
(f) (1) For purposes of this section,
"employee" means any individual employed by any county, city, or city
and county, including any charter city or county, and any school
district, community college district, municipal or public
corporation, or political subdivision that falls under the auditor's
or controller's jurisdiction.
(2) For purposes of this section, "fraud, waste, or abuse" means
any activity by a local agency or employee that is undertaken in the
performance of the employee's official duties, including activities
deemed to be outside the scope of his or her employment, that is in
violation of any local, state, or federal law or regulation relating
to corruption, malfeasance, bribery, theft of government property,
fraudulent claims, fraud, coercion, conversion, malicious
prosecution, misuse of government property, or willful omission to
perform duty, is economically wasteful, or involves gross misconduct,
incompetency, or inefficiency.
SECTION 1. Section 12945.2 of the Government
Code is amended to read:
12945.2. (a) Except as provided in subdivision (b), it is an
unlawful employment practice for any employer, as defined in
paragraph (2) of subdivision (c), to refuse to grant a request by any
employee with more than 12 months of service with the employer, and
who has at least 1,250 hours of service with the employer during the
previous 12-month period, to take up to a total of 12 workweeks in
any 12-month period for family care and medical leave. Family care
and medical leave requested pursuant to this subdivision shall not be
deemed to have been granted unless the employer provides the
employee, upon granting the leave request, a guarantee of employment
in the same or a comparable position upon the termination of the
leave. The commission shall adopt a regulation specifying the
elements of a reasonable request.
(b) Notwithstanding subdivision (a), it is not an unlawful
employment practice for an employer to refuse to grant an employee's
request for family care and medical leave if the employer employs
fewer than 50 employees within 75 miles of the worksite where the
employee making the request is employed.
(c) For purposes of this section:
(1) "Child" means a biological, adopted, or foster child, a
stepchild, a legal ward, or a child of a person standing in loco
parentis who is either of the following:
(A) Under 18 years of age.
(B) An adult dependent child.
(2) "Employer" means either of the following:
(A) A person who directly employs 50 or more persons to perform
services for a wage or salary.
(B) The state, and any political or civil subdivision of the state
and cities.
(3) "Employment in the same or a comparable position" means
employment in a position that has the same or similar duties and pay
that can be performed at the same or similar geographic location as
the position held prior to the leave.
(4) "Family care and medical leave" means any of the following:
(A) Leave for reason of the birth of a child of the employee, the
placement of a child with an employee in connection with the adoption
or foster care of the child by the employee, or the serious health
condition of a child of the employee.
(B) Leave to care for a parent or a spouse who has a serious
health condition.
(C) Leave because of an employee's own serious health condition
that makes the employee unable to perform the functions of the
position of that employee, except for leave taken for disability on
account of pregnancy, childbirth, or related medical conditions.
(5) "FMLA" means the federal Family and Medical Leave Act of 1993
(P.L. 103-3).
(6) "Health care provider" means any of the following:
(A) An individual holding either a physician's and surgeon's
certificate issued pursuant to Article 4 (commencing with Section
2080) of Chapter 5 of Division 2 of the Business and Professions
Code, an osteopathic physician's and surgeon's certificate issued
pursuant to Article 4.5 (commencing with Section 2099.5) of Chapter 5
of Division 2 of the Business and Professions Code, or an individual
duly licensed as a physician, surgeon, or osteopathic physician or
surgeon in another state or jurisdiction, who directly treats or
supervises the treatment of the serious health condition.
(B) Any other person determined by the United States Secretary of
Labor to be capable of providing health care services under the FMLA.
(7) "Parent" means a biological, foster, or adoptive parent, a
stepparent, a legal guardian, or other person who stood in loco
parentis to the employee when the employee was a child.
(8) "Serious health condition" means an illness, injury,
impairment, or physical or mental condition that involves any of the
following:
(A) Inpatient care in a hospital, hospice, or residential health
care facility.
(B) Continuing treatment or continuing supervision by a health
care provider.
(C) For an employee taking leave pursuant to subdivision (a), an
illness contracted by the employee that has been declared a national
or state emergency pandemic by the President of the United States or
by the Governor.
(d) An employer is not required to pay an employee for any leave
taken pursuant to subdivision (a), except as required by subdivision
(e).
(e) An employee taking a leave permitted by subdivision (a) may
elect, or an employer may require the employee, to substitute, for
leave allowed under subdivision (a), any of the employee's accrued
vacation leave or other accrued time off during this period or any
other paid or unpaid time off negotiated with the employer. If an
employee takes a leave because of the employee's own serious health
condition, the employee may also elect, or the employer may also
require the employee, to substitute accrued sick leave during the
period of the leave. However, an employee shall not use sick leave
during a period of leave in connection with the birth, adoption, or
foster care of a child, or to care for a child, parent, or spouse
with a serious health condition, unless mutually agreed to by the
employer and the employee.
(f) (1) During any period that an eligible employee takes leave
pursuant to subdivision (a) or takes leave that qualifies as leave
taken under the FMLA, the employer shall maintain and pay for
coverage under a "group health plan," as defined in Section 5000(b)
(1) of the Internal Revenue Code of 1986, for the duration of the
leave, not to exceed 12 workweeks in a 12-month period, commencing on
the date leave taken under the FMLA commences, at the level and
under the conditions coverage would have been provided if the
employee had continued in employment continuously for the duration of
the leave. Nothing in this subdivision precludes an employer from
maintaining and paying for coverage under a "group health plan"
beyond 12 workweeks. An employer may recover the premium that the
employer paid as required by this subdivision for maintaining
coverage for the employee under the group health plan if both of the
following conditions occur:
(A) The employee fails to return from leave after the period of
leave to which the employee is entitled has expired.
(B) The employee's failure to return from leave is for a reason
other than the continuation, recurrence, or onset of a serious health
condition that entitles the employee to leave under subdivision (a)
or other circumstances beyond the control of the employee.
(2) (A) Any employee taking leave pursuant to subdivision (a)
shall continue to be entitled to participate in employee health plans
for any period during which coverage is not provided by the employer
under paragraph (1), employee benefit plans, including life,
short-term, or long-term disability or accident insurance, pension
and retirement plans, and supplemental unemployment benefit plans to
the same extent and under the same conditions as apply to an unpaid
leave taken for any purpose other than those described in subdivision
(a). In the absence of these conditions an employee shall continue
to be entitled to participate in these plans and, in the case of
health and welfare employee benefit plans, including life,
short-term, or long-term disability or accident insurance, or other
similar plans, the employer may, at his or her discretion, require
the employee to pay premiums, at the group rate, during the period of
leave not covered by any accrued vacation leave, or other accrued
time off, or any other paid or unpaid time off negotiated with the
employer, as a condition of continued coverage during the leave
period. However, the nonpayment of premiums by an employee shall not
constitute a break in service, for purposes of longevity, seniority
under any collective bargaining agreement, or any employee benefit
plan.
(B) For purposes of pension and retirement plans, an employer is
not required to make plan payments for an employee during a leave
period, and a leave period is not required to be counted for purposes
of time accrued under the plan. However, an employee covered by a
pension plan may continue to make contributions in accordance with
the terms of the plan during the period of the leave.
(g) During a family care and medical leave period, the employee
shall retain employee status with the employer, and the leave shall
not constitute a break in service, for purposes of longevity,
seniority under any collective bargaining agreement, or any employee
benefit plan. An employee returning from leave shall return with no
less seniority than the employee had when the leave commenced, for
purposes of layoff, recall, promotion, job assignment, and
seniority-related benefits such as vacation.
(h) If the employee's need for a leave pursuant to this section is
foreseeable, the employee shall provide the employer with reasonable
advance notice of the need for the leave.
(i) If the employee's need for leave pursuant to this section is
foreseeable due to a planned medical treatment or supervision, the
employee shall make a reasonable effort to schedule the treatment or
supervision to avoid disruption to the operations of the employer,
subject to the approval of the health care provider of the individual
requiring the treatment or supervision.
(j) (1) An employer may require that an employee's request for
leave to care for a child, a spouse, or a parent who has a serious
health condition be supported by a certification issued by the health
care provider of the individual requiring care. That certification
shall be sufficient if it includes all of the following:
(A) The date on which the serious health condition commenced.
(B) The probable duration of the condition.
(C) An estimate of the amount of time that the health care
provider believes the employee needs to care for the individual
requiring the care.
(D) A statement that the serious health condition warrants the
participation of a family member to provide care during a period of
the treatment or supervision of the individual requiring care.
(2) Upon expiration of the time estimated by the health care
provider in subparagraph (C) of paragraph (1), the employer may
require the employee to obtain recertification, in accordance with
the procedure provided in paragraph (1), if additional leave is
required.
(k) (1) An employer may require that an employee's request for
leave because of the employee's own serious health condition be
supported by a certification issued by his or her health care
provider. That certification shall be sufficient if it includes all
of the following:
(A) The date on which the serious health condition commenced.
(B) The probable duration of the condition.
(C) A statement that, due to the serious health condition, the
employee is unable to perform the function of his or her position.
(2) The employer may require that the employee obtain subsequent
recertification regarding the employee's serious health condition on
a reasonable basis, in accordance with the procedure provided in
paragraph (1), if additional leave is required.
(3) (A) In any case in which the employer has reason to doubt the
validity of the certification provided pursuant to this section, the
employer may require, at the employer's expense, that the employee
obtain the opinion of a second health care provider, designated or
approved by the employer, concerning any information certified under
paragraph (1).
(B) The health care provider designated or approved under
subparagraph (A) shall not be employed on a regular basis by the
employer.
(C) In any case in which the second opinion described in
subparagraph (A) differs from the opinion in the original
certification, the employer may require, at the employer's expense,
that the employee obtain the opinion of a third health care provider,
designated or approved jointly by the employer and the employee,
concerning the information certified under paragraph (1).
(D) The opinion of the third health care provider concerning the
information certified under paragraph (1) shall be considered to be
final and shall be binding on the employer and the employee.
(4) As a condition of an employee's return from leave taken
because of the employee's own serious health condition, the employer
may have a uniformly applied practice or policy that requires the
employee to obtain certification from his or her health care provider
that the employee is able to resume work. Nothing in this paragraph
supersedes a valid collective bargaining agreement that governs the
return to work of that employee.
( l ) It is an unlawful employment practice
for an employer to refuse to hire, or to discharge, fine, suspend,
expel, or discriminate against, any individual because of any of the
following:
(1) An individual's exercise of the right to family care and
medical leave provided by subdivision (a).
(2) An individual's giving information or testimony as to his or
her own family care and medical leave, or another person's family
care and medical leave, in any inquiry or proceeding related to
rights guaranteed under this section.
(m) This section shall not be construed to require any changes in
existing collective bargaining agreements during the life of the
contract, or until January 1, 1993, whichever occurs first.
(n) The amendments made to this section by Chapter 827 of the
Statues of 1993 shall not be construed to require any changes in
existing collective bargaining agreements during the life of the
contract, or until February 5, 1994, whichever occurs first.
(o) This section shall be construed as separate and distinct from
Section 12945.
(p) Leave provided for pursuant to this section may be taken in
one or more periods. The 12-month period during which 12 workweeks of
leave may be taken under this section shall run concurrently with
the 12-month period under the FMLA, and shall commence the date leave
taken under the FMLA commences.
(q) In any case in which both parents entitled to leave under
subdivision (a) are employed by the same employer, the employer is
required to grant leave in connection with the birth, adoption, or
foster care of a child that would allow the parents family care and
medical leave totaling more than the amount specified in subdivision
(a).
(r) (1) Notwithstanding subdivision (a), an employer may refuse to
reinstate an employee returning from leave to the same or a
comparable position if all of the following apply:
(A) The employee is a salaried employee who is among the highest
paid 10 percent of the employer's employees who are employed within
75 miles of the worksite at which that employee is employed.
(B) The refusal is necessary to prevent substantial and grievous
economic injury to the operations of the employer.
(C) The employer notifies the employee of the intent to refuse
reinstatement at the time the employer determines the refusal is
necessary under subparagraph (B).
(2) In any case in which the leave has already commenced, the
employer shall give the employee a reasonable opportunity to return
to work following the notice prescribed by subparagraph (C).
(s) Leave taken by an employee pursuant to this section shall run
concurrently with leave taken pursuant to the FMLA, except for any
leave taken under the FMLA for disability on account of pregnancy,
childbirth, or related medical conditions. The aggregate amount of
leave taken under this section or the FMLA, or both, except for leave
taken for disability on account of pregnancy, childbirth, or related
medical conditions, shall not exceed 12 workweeks in a 12-month
period. An employee is entitled to take, in addition to the leave
provided for under this section and the FMLA, the leave provided for
in Section 12945, if the employee is otherwise qualified for that
leave.