BILL ANALYSIS �
AB 592
Page 1
Date of Hearing: May 4, 2011
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Sandre Swanson, Chair
AB 592 (Lara) - As Amended: April 25, 2011
SUBJECT : Employment: leave: interference.
SUMMARY : This bill would prohibit employers from interfering
or restraining an employee's exercise or attempted exercise of
their rights under the state's medical leave law. Specifically,
this bill :
1)Explicitly prohibits an employer from interfering with or
restraining the exercise or attempted exercise of a pregnant
employee's right to take job- protected pregnancy disability
leave.
2)States that this bill is declarative of existing law.
EXISTING FEDERAL LAW :
1)Establishes the Pregnancy Discrimination Act (PDA), as an
amendment to the Civil Rights Act of 1964, to prohibit sex
discrimination based on pregnancy, childbirth and related
medical condition.
2)Establishes the federal Family and Medical Leave Act (FMLA) of
1993 to entitle employees to up to 12 weeks of unpaid leave
for the following:
a) The birth of a child or the placement of a child for
adoption or foster care,
b) In order to care for a seriously ill spouse, child or
parent of the employee
c) The employee has a health condition that prohibits him
or her from performing his or her work functions.
3)Defines FMLA "eligible employees" as those who have worked
with employer from which leave is being requested for at least
12 months and provided at least 1250 hours of service during
the 12 months preceding the request.
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4) Prohibits an employer from interfering with an employee's
exercise of his or her rights or the attempted exercise of any
right provided under FMLA.
5)Entitles an employee to a right of action to recover the
damages or equitable relief against any employer who
interferes or attempts to interfere with an employee who
exercise's his or her rights under FMLA.
EXISTING STATE LAW :
1)Establishes the Fair Employment and Housing Act (FEHA) to
prohibit an employer from refusing to hire or employ a person
based on specified characteristics, including, but not limited
to the person's sex and or the person's medical condition.
a) Includes in the definition of "sex," as it relates to
unlawful employment practices, pregnancy, childbirth and
medical conditions related to pregnancy or childbirth.
2)Entitles an employee disabled by pregnancy, childbirth or
related medical conditions to take pregnancy disability leave
(PDL) for a maximum of four months.
a) PDL prohibits employers with five or more employees from
refusing to allow an employee disabled by pregnancy the
right to take job-protected, unpaid leave.
3)Allows an employer to require that a pregnant employee provide
reasonable notice of the date pregnancy leave will commence
and an estimated duration of the pregnancy leave.
4)Establishes the California Family Rights Act (CFRA) which
requires employers to grant employees up to 12 weeks of unpaid
protected leave, in any 12 month period, to care for a
seriously ill spouse, child or parent, or for their own
serious medical condition
a) Requires employer to grant leave under CFRA for
employees who have more than 12 months of service with
their employer and at least 1250 hours of service during
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the previous 12 month period;
b) Includes, in the definition of "family care and medical
leave," leave for the reason of the birth of a child of the
employee.
FISCAL EFFECT : Unknown
COMMENTS : According to the author, as written, California's
PDL and CFRA do not specifically recognize "interference" with
an employee's right to leave as a basis for liability. The
author notes that, as a result, some courts have found that an
employer in California who interferes with an eligible
employee's right to take protected leave is not in violation of
the law as long as the employer does not actually "refuse" the
employee the right to take leave. (see Harris v. CashCall, Inc.)
The author states that, because PDL and CFRA do not specifically
mention "interference" in their statutes, some courts have not
recognized interference as an independent cause of action,
resulting in inconsistent decisions and confusion for employees
and employers alike.
The author asserts that in Harris v. CashCall, Inc. , a female
employee's employer issued her a disciplinary action report for
taking pregnancy disability leave and left the action report in
her employee file. According to the author, when a supervisor
was interviewing the same female for a different position within
the company, the supervisor used the abovementioned disciplinary
report against her, affecting her ability to retain her
employment.
The author notes that, although the trial court found that the
affected female's employer had interfered with her right to
pregnancy leave, the company was not found liable. The author
states that such inconsistency impairs a mother's ability to
take protected leave.
The author notes that this bill will bring California's
pregnancy and family medical leave laws in line with the federal
standard by clarifying that "interference" is a basis for
liability under California law as well. According to the
author, this bill will minimize confusion among employers and
employees, and afford a woman who is eligible to take leave in
California, the greatest protection under the law.
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According to the United States Equal Employment Opportunity
Commission (EEOC), the PDA is an amendment to Title VII of the
Civil Rights Act of 1964. EEOC notes that discrimination on the
basis of pregnancy, childbirth or related medical conditions
constitutes unlawful sex discrimination under Title VII, which
convers employers with 15 or more employees, including federal,
state and local government, employment agencies and labor
organizations. EEOC notes that in the fiscal year of 2008, the
latest data available, they received 6,285 charges of
pregnancy-based discrimination. EEOC states that they resolved
5,292 pregnancy discrimination charges in 2008 and recovered
$12.2 million in monetary benefits for charging parties and
other aggrieved individuals.
The National Partnership for Women & Families (NPWF) asserts
that 32 years after the 1978 passage of PDA, the measure is
still a critical tool for fighting pregnancy discrimination.
NPWF notes that, while PDA was the first law that gave pregnant
women and key federal enforcement agencies the legal means to
discourage and combat pregnancy discrimination, EEOC has seen a
39 percent increase in the number of pregnancy discrimination
charges filed since 1992. According to NPWF, many women face
discriminatory pregnancy-related practices that pose serious
obstacles to their success and advancement in the workplace.
They note that vigorous enforcement of the law and comprehensive
public education about what the law requires are essential to
ensure that the PDA continues to be a vital tool for creating
workplaces free of discrimination.
Under the current Fair Employment and Housing Department (FEHD)
Regulations (California Code of Regulations, 7291.5), it is
unlawful for an employer to harass an employee because of
pregnancy or retaliate against an employee because of pregnancy
or because a pregnant employee has exercised her right to take a
pregnancy disability leave. In addition current proposed
amendments to FEHD regulations (as amended at the FEHC meeting
on 10/19/10) would add the term "intermittent leave" to PDL
regulations that would specify that a pregnant employee can use
PDL time for medical appointments for purposes related to
pregnancy, childbirth or related medical conditions.
Supporters of this measure feel this bill makes it clear that
interfering with an employee's CFRA rights is forbidden and that
by stating this in the CFRA statute itself will better aid
employers in conforming their conduct to the law helping to
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avoid potential litigation.
PRIOR AND RELATED LEGISLATION :
AB 1865 (Kuehl) of 2000, Chapter 1047, Statues of 2000,
expressly provided that employees of any entity covered by the
FEHA are personally liable for their acts of harassment,
regardless of whether their employer knows or should have known
of the conduct and fails to take immediate and appropriate
corrective action.
AB 1670 (Assembly Judiciary Committee) of 1999, Chapter 591,
Statutes of 1999, strengthened and clarified various civil
rights and protections afforded by FEHA and other civil rights
statutes, including, but not limited to, the right of pregnant
workers to be provided with reasonable accommodations by their
employers, if the employees requests such accommodations with
the advice of their health care providers.
REGISTERED SUPPORT / OPPOSITION :
Support
CA Conference Board of the Amalgamated Transit Union
CA Conference of Machinists
California Employment Lawyers Association
California Labor Federation, AFL-CIO
CA Official Court Reporters Association
California Nurses Association
California Teamsters Public Affairs Council
Engineers and Scientists of California
International Longshore and Warehouse Union
Professional and Technical Engineers, Local 21
UNITE HERE!
United Food and Commercial Workers-Western State Conference
Utility Workers Union of America, Local 132
Opposition
None on file.
AB 592
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Analysis Prepared by : Shannon McKinley / L. & E. / (916)
319-2091