CalChamber-Opposed Job Killer Expands Employment Litigation

A California Chamber of Commerce-opposed job killer bill that could increase costs and the risk of litigation for California employers has been reintroduced.

SB 62 (Jackson; D-Santa Barbara) will significantly expand the type of individuals for which employees can take leave under the California Family Rights Act (CFRA), allowing California employees to take up to 24 weeks/6 months of protected leave in a 12-month period. Governor Edmund G. Brown Jr. vetoed a similar proposal in 2015.

Expands Protected Leave

SB 62 expands the family members for whom an employee may take a 12-week protected leave of absence to care for to include a grandparent, a grandchild, and siblings. The initial intent of CFRA was to provide a balance between an individual’s work life and personal life. However, this proposed change would disrupt that balance and have a negative impact on California employers. Given that the individuals SB 62 proposes to add to the protected leave list are not covered under the corresponding and similar leave provided by the federal Family Medical Leave Act (FMLA), the change will potentially provide a California employer with an obligation to provide up to 24 weeks of protected leave.

Specifically, under SB 62, an employee could utilize his/her 12 weeks of CFRA to care for the serious medical condition of a grandparent, who is not a family member covered under FMLA, and therefore would not trigger FMLA leave. Upon returning, the employee still would be entitled to another 12-week protected leave of absence under FMLA.

Governor Brown already vetoed prior legislation (SB 406) in 2015 due to this very issue, writing in his veto message:

“I support the author’s efforts to ensure that eligible workers can take leave to care for a seriously ill family member. The expansion provided in this bill, however, creates a disparity between California’s law and the Federal Medical Leave Act and, in certain circumstances, could require employers to provide employees up to 24 weeks of family leave in a 12-month period.”

Protected Leave May be Taken in One-Hour Increments

Leave under CFRA and FMLA does not have to be taken in one lump sum. An employee can take CFRA and FMLA in increments as small as one hour at a time. For example, an employee can leave an hour early every day for a qualifying reason until CFRA/FMLA leave is exhausted. This already creates a significant burden on employers when managing employee work schedules. Expanding CFRA and providing California employees with up to 24 weeks of leave that can be taken in one-hour increments significantly exacerbates this existing problem.

Expands Employment 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. This private right of action creates costly litigation for employers, even when employers take reasonable steps to address abuse under CFRA. For example, in a case from 2015, an employee took CFRA leave from his employer for 12 weeks due to his own medical condition. While on “medical leave,” however, the employee opened and worked at his own restaurant. The employer fired the employee and the employee sued the employer for retaliation for taking CFRA. Although the employer ultimately prevailed in the lawsuit, the employer incurred the costs of litigation for more than six years.

Other examples include:

  • finding against an employee who sued his employer for violation of CFRA after the employee was terminated because he was found golfing and performing intermittent sprinkler installation and repair while he had requested time off to care for his father);
  • finding against the employee who sued the employer for violation of CFRA when the employee was terminated by the employer for submitting a false medical certification/letter for CFRA leave;
  • finding against the employee who sued the employer for interference with his rights under CFRA, even though the employer provided the employee with more than 14 months of leave.

Expanding the qualifying reasons to take leave under CFRA, as SB 62 proposes, also expands an employer’s exposure to costly litigation.

Employers Already Accommodate Employees’ Requests for Time Off 

Despite allegations otherwise, employers regularly accommodate employees’ personal needs with regard to caring for family members without being forced to do so by law or the threat of litigation.

Employers engage in these accommodations as a benefit to their employees to make sure the employees can balance their personal lives with their work. Employers do not need to be threatened with litigation, which includes the potential for punitive damages, for accommodations the employers are providing already.

California Already Has Extensive List of Protected Leaves of Absence

California already has extensive family-related protected leaves of absence, including the following:

  • Paid Sick Leave (applicable to all employers and includes employee and family members);
  • Kin Care (applicable to all employers and allows employees to use half of paid time off for family members’ illnesses);
  • California Family Rights Act (applicable to employers with 50 or more employees and provides 12-week leave of absence for employee’s medical condition, family members’ medical condition, or to bond with a new child);
  • Pregnancy Disability Leave (applicable to employers with 5 or more employees and provides 4 months of protected leave that is in addition to CFRA’s 12 weeks);
  • School Activities Leave (applicable to employers with 25 or more employees for 40 hours per year to attend school-related activities of a child).

In a recent study titled “The Status of Women in the States: 2015 Work & Family,” California was ranked No. 2 for work and family policies that support workers keeping their jobs and also caring for their family members.

Next Step

SB 62 has been referred to the Senate Labor and Industrial Relations Committee; no hearing date has been set.