BILL ANALYSIS �
Senate Committee on Labor and Industrial Relations
Ted W. Lieu, Chair
Date of Hearing: June 22, 2011 2011-2012 Regular
Session
Consultant: Gideon L. Baum Fiscal:Yes
Urgency: No
Bill No: AB 592
Author: Lara
Version: As Amended April 25, 2011
SUBJECT
Employment: leave: interference.
KEY ISSUE
Should the Legislature clarify that it is illegal for an
employer to interfere with the ability of a female employee to
take leave due to disability related to pregnancy?
PURPOSE
To clarify existing leave laws regarding disability during
pregnancy.
ANALYSIS
Existing federal law provides for the Family Medical Leave Act
(FMLA), which unpaid, job-protected leave for specified family
and medical reasons for 12 weeks in a 12 month period. This
includes which includes the birth of a child or parental
bonding.
Existing federal law explicitly prohibits the interfering,
restraining, or denying an eligible employee from utilizing
leave under FMLA.
Existing law prohibits an employer from discriminating against
someone in an employment setting on the basis of race, religious
creed, color, national origin, ancestry, physical disability,
mental disability, medical condition, marital status, sex, age,
or sexual orientation of any person. This includes, among other
things, refusing to hire or employ the person or to discriminate
against the person in compensation or in terms, conditions, or
privileges of employment. (Government Code �12940)
Existing law prohibits an employer from refusing to allow a
female employee disabled by pregnancy, childbirth, or related
medical conditions to take a leave for a reasonable period of
time not to exceed four months and thereafter return to work.
The employee shall be entitled to utilize any accrued vacation
leave during this period of time, but an employer may require an
employee who plans to take a leave to give the employer
reasonable notice of the date the leave shall commence and the
estimated duration of the leave. (Government Code � 12945)
Existing law 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, which includes the birth of a child or
parental bonding. (Government Code � 12945.2)
This bill would clarify that it is unlawful to interfere with
the ability with, or restrain the exercise or attempted exercise
of, leave under CFRA or due to disability by pregnancy,
childbirth, or related medical conditions.
This bill also declares that this clarification is declarative
of existing law.
COMMENTS
1. Need for this bill?
As written, California's Pregnancy Disability Leave (PDL) and
California Family Rights Act (CFRA) do not explicitly
reference "interference" with an employee's right to leave as
a basis for liability. While such activities are illegal
through federal law and Faust v. California Portland Cement
Hearing Date: June 22, 2011 AB 592
Consultant: Gideon L. Baum Page 2
Senate Committee on Labor and Industrial Relations
Company (2007), the author notes a recent unpublished court
case, Harris v. CashCall, Inc. , where the court appeared to
leave open the idea that interference is legal.
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.
2. Proponent Arguments :
Supporters of this bill, which includes the California Labor
Federation, argue 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
avoid potential litigation.
3. Prior 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.
SUPPORT
American Federation of State, County and Municipal Employees,
AFL-CIO
Bell Gardens Women's Club
CA Conference Board of the Amalgamated Transit Union
CA Conference of Machinists
CA Official Court Reporters Association
California Labor Federation
Hearing Date: June 22, 2011 AB 592
Consultant: Gideon L. Baum Page 3
Senate Committee on Labor and Industrial Relations
California Nurses Association
California Teamsters Public Affairs Council
Engineers and Scientists of California
International Longshore and Warehouse Union
Labor Project for Working Families
Professional and Technical Engineers, Local 21
The Schlehr Law Firm
UNITE HERE!
United Food and Commercial Workers-Western States Conference
Utility Workers Union of America, Local 132
OPPOSITION
None on file.
Hearing Date: June 22, 2011 AB 592
Consultant: Gideon L. Baum Page 4
Senate Committee on Labor and Industrial Relations