BILL ANALYSIS
Senate Committee on Labor and Industrial Relations
Mark DeSaulnier, Chair
Date of Hearing: June 23, 2010 2009-2010 Regular
Session
Consultant: Alma Perez Fiscal:Yes
Urgency: No
Bill No: AB 2340
Author: Monning
Version: As amended May 6, 2010
SUBJECT
Employee's right to bereavement leave.
KEY ISSUE
Should the Legislature require that employers provide employees
with protected time off from work upon the death of a close
family member without fear of discharge, disciplining, or
discrimination against the employee?
PURPOSE
To provide employees in California with the right to take up to
three days of unpaid leave from work upon the death of a
specified relative.
ANALYSIS
Existing law , collective bargaining agreements, and employer
practice allow employees to take time off work from work without
fear of discharge or discrimination for a number of specified
purposes, such as personal and family sick leave. Employers may
grant employees certain paid or unpaid sick leave, vacation time
off, or other leave for the benefit of their employees. Workers
represented by unions may obtain leave rights through
bargaining.
Among one of the programs currently allowing workers to take
unpaid leave is the California Pregnancy Disability Leave (PDL)
program which gives pregnant women specified unpaid leave
rights. In addition, as of July 1, 2004, California workers
covered by State Disability Insurance (SDI) who need to take
time off to bond with a new child or for family care-giving
needs are eligible for the Paid Family Leave (PFL) program which
allows California workers to take up to six weeks of partial
wage replacement family leave. Furthermore, the federal Family
and Medical Leave Act (FMLA) and the California Family Rights
Act (CFRA) require all public and private sector employers with
50 or more employees to grant employees up to 12 weeks per year
of unpaid leave to bond with a newborn child, to care for a
family member with a serious health condition, or to allow the
employee to recover from his or her own serious health
condition. However, neither federal nor state laws currently
provide protected leave for bereavement.
This Bill would give employees in California the right to take
three days of unpaid time off in the event of the death of
certain relatives. Specifically, this bill:
Prohibits an employer from discharging, disciplining, or
in any manner discriminating against an employee for
inquiring about, requesting, or taking up to three days of
bereavement leave upon the death of a spouse, child,
parent, sibling, grandparent, grandchild, or domestic
partner.
Limits the application of the right to bereavement leave
to employees who have been employed by the employer for at
least 60 days.
Specifies that the bereavement leave is to be unpaid,
but allows the employee to use vacation, personal leave, or
compensatory time off that is otherwise available to the
employee.
Provides that the three days of bereavement leave do not
need to be consecutive.
Permits the employer to require documentation, as
defined, of the death within 30 days of the leave taken.
Hearing Date: June 23, 2010 AB 2340
Consultant: Alma Perez Page 2
Senate Committee on Labor and Industrial Relations
Provides that the bereavement leave must be completed
within 13 months of the date of death of the family member.
Grants employees the right to reinstatement and to
recover actual damages if the employee is discriminated
against for the exercise of rights pursuant to this
section.
Specifies that the employee may either file a complaint
with the Division of Labor Standards Enforcement (DLSE) or
bring a civil action in a court of competent jurisdiction
for violations of this section.
Specifies that the provisions of the bill would not
apply to an employee who is covered by a valid collective
bargaining agreement that provides for bereavement leave
and other specified working conditions.
COMMENTS
1. Need for this bill?
Current law affords some employees options for job-protected
unpaid leave such as the Fair Medical Leave Act and the
California Family Rights Act, to care for an ailing child,
parent, spouse, domestic partner, or child of a domestic
partner. (29 U.S.C. 2601, et seq.; Cal. Govt. Code
12945.2, et seq.) Several other programs, including the
Pregnancy Disability Leave and Paid Family Leave programs,
also offer options for some employees for unpaid and partial
wage replacement leave. However, current law does not require
employers to provide protected leave specifically for
bereavement, although some employers already provide
bereavement leave as part of a collective bargaining
agreement. This bill would establish that an employee may
take up to three days of unpaid time off work following the
death of a spouse, child, parent, sibling, grandparent,
grandchild, or domestic partner, as specified, without fear of
discharge, discipline, or discrimination by the employer.
Hearing Date: June 23, 2010 AB 2340
Consultant: Alma Perez Page 3
Senate Committee on Labor and Industrial Relations
These requirements would not apply to an employee who is
covered by a valid collective bargaining agreement that
already provides for bereavement, as specified.
2. Proponent Arguments :
According to the author of the bill, everyone suffers the
often devastating loss of a relative at some point during
their life and without legislation providing the right to
bereavement leave, an employer may legally discharge an
employee for requesting or taking any leave of absence to
prepare or attend the funeral of a loved one. The author
argues that no California employee should have to choose
between their employment and grieving the loss of a loved one.
Proponents argue that currently, there is no federal or state
law that provides job protection for an employee who must take
a leave of absence following the death of a relative.
Proponents point out that the Fair Medical Leave Act and the
California Family Rights Act provide California employees up
to twelve weeks per year of unpaid job-protected leave in
order to care for an ailing family member. However,
proponents argue, neither law provides job-protected leave
following the death of the employee's relative. In addition,
proponents argue that courts have repeatedly noted that the
FMLA simply does not provide for bereavement leave.
Therefore, the author and proponents contend that in order to
protect employees during this sensitive time of need, this
bill ensures up to three days of unpaid bereavement leave for
California employees and prohibits employers from discharging
or otherwise discriminating against employees for taking this
leave.
According to proponents, this bill provides an important right
to California employees. Furthermore, proponents argue that
this bill also includes protections to ensure that employees
do not abuse the bereavement leave, including allowing an
employer to require that the employee use accrued paid time
off during the bereavement leave and requiring that the
employee provide documentation of the death of the family
Hearing Date: June 23, 2010 AB 2340
Consultant: Alma Perez Page 4
Senate Committee on Labor and Industrial Relations
member. Proponents believe that providing compassionate leave
policies and other similar benefits make good business sense
as it allows businesses to better attract and retain quality
workers.
3. Opponent Arguments :
According to opponents, although they acknowledge the
importance of bereavement leave, they argue that this bill is
a mandate that removes employer flexibility that is needed to
balance bereavement leave requests with pressing leave
requests by other employees for other reasons. Opponents
contend that coordinating overlapping leave requests can be
especially challenging for small businesses with limited staff
and argue that bereavement leave should be left to employers
to provide on a voluntary basis, something that many employers
already do today along with providing other types of leaves.
As an example, opponents argue that a small business might
only be able to accommodate 2 days of bereavement leave
without being unfair to other employees or bringing operations
to a complete halt, and they argue that this bill exposes
businesses to additional lawsuits that are costly to defend.
In addition, opponents argue that the expansion of leave
rights to temporary, part-time and seasonal employees who are
not eligible for many of the leave accruals and benefits
offered to full-time employees is not appropriate. Opponents
argue that employees in these classifications typically
fulfilling short-term duties, and argue that these
classifications are often the stepping stone to full-time,
benefited employment. Opponents argue that expanding benefits
like those proposed in this bill will make public sector
employers question the need for such positions.
Additionally, some are opposed to the guarantee that
bereavement leave can be used for up to 13 months after the
death of the relative involved. According to opponents,
bereavement leave is typically available to address the
immediate need to grieve and deal with the situation
surrounding the death of a relative and any events that are
Hearing Date: June 23, 2010 AB 2340
Consultant: Alma Perez Page 5
Senate Committee on Labor and Industrial Relations
planned for anniversary dates 12 months later should be
handled through an employer's general leave policy including
the scheduling of vacation, personal time, or other leave
provisions as available to the employee. Lastly, opponents
argue that imposing new burdens on employers will impede
California's attempt to remain competitive in attracting and
retaining businesses vital to the creation of jobs and the
state's economy.
4. Prior Legislation :
SB 549 (Corbett) of 2007: Vetoed by the Governor
This bill is similar to SB 549 (Corbett) from 2007 in that
both would provide employees in California with the right to
take unpaid time off from work upon the death of specified
relatives, however, SB 549 provided for up to four days of
unpaid bereavement leave, whereas this bill provides for up to
three days of unpaid leave. According to the Governor's veto
message:
"Unfortunately, many California-only standards in areas
such as family lave, overtime, and meal and rest periods
have been developed haphazardly and have resulted in
needless litigation that has created a perception that
California is not friendly to business. Instead of
expanding the confusing network of laws that presently
exist, employers and employees should be working together
to eliminate confusion and create a system of workplace
laws that protects workers, provides reasonable leave
requirements, and offers both employers and employees
flexibility to meet their respective needs."
SUPPORT
California Employment Lawyers Association (Sponsor)
American Federation of State, County and Municipal Employees,
AFL-CIO
Association of California State Supervisors ACSS
Hearing Date: June 23, 2010 AB 2340
Consultant: Alma Perez Page 6
Senate Committee on Labor and Industrial Relations
California Church IMPACT
California Labor Federation
California Nurses Association/National Nurses Organizing
Committee
California State Employees Association
California State University Employees Union CSUEU
Consumer Attorneys of California
CSEA Retirees, Inc.
Labor Project for Working Families
Los Angeles Caregiver Resource Center/USC
Los Angeles County Office of Education (LACOE) - removed
opposition
State Building and Construction Trades Council, AFL-CIO
United Transportation Union
OPPOSITION
Associated Builders and Contractors of California
Associated General Contractors
Association of California Healthcare Districts
Association of California Water Agencies
Association of California Water Districts
California Association of Joint Powers Authorities
California Bankers Association
California Chamber of Commerce
California Construction & Industrial Materials Association
California Independent Grocers Association
California Manufacturers and Technology Association
California Special Districts Association
California State Association of Counties
CSAC-EIA -California Joint Powers Authority
Department of Industrial Relations
Greater Riverside Chambers of Commerce
League of California Cities
National Federation of Independent Business
National Right to Work Committee in California
Regional Council of Rural Counties
* * *
Hearing Date: June 23, 2010 AB 2340
Consultant: Alma Perez Page 7
Senate Committee on Labor and Industrial Relations
Hearing Date: June 23, 2010 AB 2340
Consultant: Alma Perez Page 8
Senate Committee on Labor and Industrial Relations