(May 26, 2020) Job killing legislation that will threaten small employers with costly litigation, increased financial burdens, and new or extended leaves of absence is advancing in the Assembly.
One bill, AB 2999 (Low; D-Campbell), imposes a significant new burden on employers of every size by mandating that they provide employees up to 10 days of bereavement leave and opens up new avenues for litigation against California employers by establishing a new private right of action (in addition to liability under the Private Attorneys General Act (PAGA) as well as administrative enforcement through the Division of Labor Standards Enforcement).
A second bill, AB 3216 (Kalra; D-San Jose), provides for unlimited job protected leave for all employees of employers of any size for family and medical leave due to COVID-19. This new mandate is in addition to numerous COVID-19 leave requirements recently enacted at the federal, state and local levels. The bill creates additional burdens on California employers at a time they can least afford it.
Bereavement Leave Mandate
AB 2999 creates a new, stand-alone section of the Labor Code that specifically authorizes a new private right of action, including attorney’s fees, by an employee who alleges that their right has been violated in exercising or attempting to exercise their right to bereavement leave. The bill also provides that claims may be brought before and pursued by the Division of Labor Standards Enforcement.
Moreover, the bill also specifies that this new right to litigation is “cumulative, nonexclusive, and in addition to any other rights and remedies” afforded by law. This means an employer could also be liable for other penalties and remedies for the same violation of the law, including a claim for penalties under the Private Attorneys General Act of 2004 (PAGA). This enforcement scheme, including a brand-new private right of action, incentivizes costly litigation.
California employers are certainly sympathetic toward their employees who have suffered the loss of a close family member. The California Chamber of Commerce supports the rights of employers to provide bereavement leave on a voluntary basis, as many employers already provide such leave. The CalChamber opposes AB 2999, not because it promotes the right to bereavement leave, but rather because of the manner in which it does so. The CalChamber does not believe an employer mandate on this issue is the appropriate role of government or the correct policy approach.
California has numerous protected, overlapping leaves, which already burden employers. There are numerous additional proposals this year, including proposed budget trailer bill language, to further expand these leave mandates. By making a 10-day bereavement leave mandatory in every situation, AB 2999 removes the flexibility employers need to balance bereavement leave requests with other pressing leave requests. Coordinating overlapping leave requests can be especially challenging for small businesses with limited staff.
AB 2999 Should Instead be Added to the California Family Rights Act
Many of the concerns expressed above could be reduced if the provisions of this bill were added to the California Family Rights Act (CFRA), rather than creating an entirely new leave entitlement in the Labor Code, the CalChamber argues. The mandate would be made more reasonable as it could be included within the 12 weeks of unpaid leave already mandated by CFRA and would be subject to the CFRA definitions of employer and employee.
The addition also would make compliance more manageable, and less burdensome, the CalChamber points out.
COVID-19 Leave Mandate
AB 3216 proposes a number of changes to various leave laws that worker advocates have been pushing for a number of years. These efforts have been opposed by the business community over concerns regarding the resulting burdens to employers and have been unsuccessful thus far. Now, AB 3216 attempts to include these same policy proposals — many of which have nothing to do with the current crisis — under the guise of this bill.
These proposed unrelated changes include the following:
- The bill amends CFRA (not just the new emergency family and medical leave requirement) to apply to employers of any size. CFRA currently applies to employers with 50 or more employees within 75 miles of the worksite. This proposal to lower the 50-employee threshold in CFRA has been an agenda item for advocates for many years. California recently enacted the New Parent Leave Act (NPLA) which, after significant legislative debate, was enacted to apply to employers with 20 or more employees. This bill completely eliminates that new law and instead applies all of CFRA to employers of any size.
- The bill expands the categories of “family members” under CFRA to include leave to care for a grandparent, grandchild, or sibling. Advocates have attempted to expand CFRA in this manner for well over a decade.
- The bill expands employer coverage under California’s Pregnancy Disability Leave (PDL) law from 5 employees to one or more employees — which has no apparent relationship for leave related to the current crisis.
- The bill eliminates the provision of existing law under the Paid Family Leave (PFL) program that provides an employee is not eligible for leave if another family member is ready, willing and able to provide care.
- The bill eliminates the provision of existing law under the PFL that allows an employer to require the employee to take up to two weeks of earned but unused vacation prior to the receipt of PFL benefits. This has long been a target for elimination by worker advocates.
It is understandable that policymakers are striving to ensure that constituents and employees are provided certainty and protection during this COVID-19 pandemic crisis and similar emergencies that may develop in the future. It is critical to remember, however, that many businesses and their owners are themselves casualties of this economic shutdown, the CalChamber points out. They cannot be expected to shoulder a new employer-financed social safety net, with expensive new mandates, at precisely the moment when small businesses are shuttering, employee hours are cut, and there is so much uncertainty about the future.
Staff Contact: Jennifer Barrera