Contested family leave bill on governor’s desk

Since 1997 the California Chamber of Commerce has prevented more than three-quarters of bills that it calls “job killers” from reaching the governor’s desk. This year only three of 19 targeted bills were passed by the Legislature.

Gov. Jerry Brown has signed one of them, Assembly Bill 359, which requires the purchaser of a grocery store to retain the store’s current employees for at least 90 days.

The Chamber continues to campaign against the other two bills, hoping for a Brown veto.

Assembly Bill 465  would make it illegal for businesses to require job applicants, as a condition of employment, to waive their right to have a future employment dispute adjudicated by the state labor commissioner or in civil court.

Senate Bill 406 increases family leave benefits by expanding the definition of a family to include more extended family members.

Expanding Definition of Family

Currently eligible employees are allowed by law to leave work for 12 weeks each year, without pay and with their job guaranteed upon return for reasons of illness, after the birth of a child or to care for a sick child, spouse or parent.

The definition of a child under the California Family Rights Act includes a biological, adopted, foster or stepchild, a legal ward, or a child of a person performing the role of a parent, who is either under the age of 18 or is an adult-dependent child.

SB406 would expand this definition to include the son or daughter of a domestic partner. The bill also would remove the provision regarding age and dependent status of the child.

The definition of a parent includes the employee’s biological, foster or adoptive parent, stepparent, legal guardian or other person who has performed the role of a parent when the employee was a child.

SB406 retains that definition and expands allowed leave to include care for a sick sibling, grandparent, grandchild, domestic partner and parent-in-law.

The other leave expansion provided by SB406 applies to businesses that employ both parents of a newborn child. It allows each parent to take 12 weeks off to bond with that child for a total of 24 weeks between them. Current law limits parents to a total of 12 weeks of leave between them.

To be eligible for the leave benefit, employees must have worked at least 1,250 hours for the employer in the previous year. The law would only apply to businesses with 50 or more employees.

The bill’s supporters say that it’s a matter of fairness, updating the 24-year-old CFRA regulations to better reflect the changing reality of today’s extended families.

Concerns of Chamber

But the Chamber and a coalition of businesses in a Sept. 11 memo to state senators called SB406 a “job killer” because “it will mandate employers to provide up to 24 weeks of protected leave, that can be taken each day in as small of increments of one-hour, with a threat of litigation and punitive damages for any unintentional misstep.”

Twenty-four weeks of leave could be taken by splitting it between 12 weeks through CFRA’s expanded provisions and then another 12 weeks through the federal Family and Medical Leave Act, according to the Chamber.

Businesses are also concerned that the family leave expansion will lead to increased litigation.

“CFRA includes a private right of action with the opportunity to obtain compensatory damages, injunctive relief, declaratory relief, punitive damages, and attorney’s fees,” the Chamber said. “This private right of action creates costly litigation for employers, even when employers take reasonable steps to address abuse under CFRA.”

The Chamber cited several examples. In one case an employee, while on 12-week medical leave for a back injury, was found to be working at a restaurant that he owned. After the employer fired him, the employee sued. “Although the employer ultimately prevailed, the employer had to pay for litigation for over six years,” the Chamber said.

In another case, an employee sued unsuccessfully after he was fired for golfing and doing side work while taking time off to care for his father who had undergone ankle surgery. Other cases include an employee who submitted false medical certification to justify his leave, and another who claimed his leave rights were violated although he had been provided more than 14 months of leave.

During the debate on the bill before the Assembly Labor and Employment Committee on June 24, CalChamber legislative advocate Jennifer Barrera said there’s no need for state legislation dealing with personal situations best left between employers and employees.

“’I can give you one week here and another couple there,’” she said as an example of how a business might protect itself from being shortchanged while still accommodating an employee’s leave request. “It’s a balance how to accommodate both needs.”

A Hobson’s choice

But the bill’s author, Sen. Hannah-Beth Jackson, D-Santa Barbara, doesn’t believe such accommodations are always made and that there need to be safeguards in place to protect employees. Nearly 40 percent of eligible employees do not apply for family leave because they fear losing their job or facing other negative consequences, she said, citing a 2011 Field poll.

“The choice – caring for a loved one, bonding with a new child or keeping my job – it’s a Hobson’s choice, in my opinion,” Jackson said. “And certainly one that does not reflect a society that tries to emphasize the importance of family and community.

 

“This bill … will have a profound effect on California workers who have to face a difficult choice between putting food on the table or caring for a loved one. Many of us have not had to risk losing our job to care for a loved one with a serious illness, but life happens.

 

“And we want to ensure that Californians can keep their jobs and keep contributing to the economy while taking on the added burden and responsibility, and for many the opportunity, to provide that care and nurturing for loved ones who are in need.”

Testifying in favor of the bill was Lisa Bautista, a registered nurse who said her employer did not allow her to take time off to help care for her ailing 91-year-old grandmother.

“I was in disbelief,” she said. “She’s my grandmother and I consider my immediate family. When I was forced to choose my job, it was heartbreaking for me and difficult for my mother and aunts. Had I been able to take care of her, I would have felt more at peace and didn’t feel like I abandoned her. My brother has serious health issues and I would like to take care of him when the time arises.”

SB406 passed the Legislature largely along party lines. There was no debate in the Senate, but both sides weighed in on the Assembly floor on Sept. 11.

Slippery Slope

Assemblyman Donald Wagner, R-Irvine, is concerned that the bill’s expansion of the definition of family is part of a pattern of legislation that starts out as a commonsense measure and metastasizes into runaway benefits that hurt businesses.

“We always just take the next step and the next step and the step after that,” he said. “And that’s where you get businesses fleeing California. That’s where you get rules and regulations that are job killers, like the Chamber has said this bill is.

“It’s time to say stop. It’s time to give our employers breathing room so that they grow themselves and provide the further jobs and the further opportunities that at the end of the day don’t benefit the employers but actually benefit the employees by giving them good productive jobs.”

Assemblywoman Lorena Gonzalez, D-San Diego, countered, “The other side often wants to talk about family values. In my community, family values often mean it’s not a traditional family. I’m a single mom. If my child was sick I have to continue to work to pay the bills. But my parents have always been there.

“This is a natural progression of this law. It is not an expansion that will cost employers more. It makes sense. If you are pro-family, there is no way you can vote against this law.”

As of Sept. 17 Brown had not announced whether he will sign or veto SB406.