California businesses would be prohibited from firing or retaliating against employees who take advantage of the state’s paid family leave program under a job-protection bill moving through the Legislature.
The legislation would protect workers who use the California Paid Family Leave insurance program, which allows qualified employees to take up to six weeks off with partial pay. Supporters say nearly 37 percent of workers who needed the leave did not apply for the benefit for fear of being fired, angering their employers or hurting their chances at promotion. They cited a 2011 study by the left-leaning Center for Economic and Policy Research based in Washington, D.C.
“This is a right that employees pay into,” said Sen. Mark DeSaulnier, D-Concord, the author of SB761. “So all the bill says is you can’t retaliate for people taking it.”
The leave is part of the State Disability Insurance program, which is funded through employee paycheck deductions.
Employer groups including the California Chamber of Commerce and the California Restaurant Association oppose the bill. It would transform an employee-paid insurance program meant to replace lost wages into a protected leave of absence, a move that increases costs to all employers, especially small businesses, said Jennifer Barrera, a lobbyist for the chamber.
Barrera noted that the state already has existing job-protection laws.
“When you are out on a separate statutory leave of absence or an employer-provided leave of absence, you can access these wage replacement benefits to compensate you if it’s an unpaid leave,” she said. “By itself, it is not an independent right to a leave of absence from work.”
California established the Paid Family Leave program in 2002 as a way to allow parents time to bond with a newborn or newly adopted child, or to care for a seriously ill family member. An estimated 13 million California workers who are covered by the disability insurance program also have some coverage for paid family leave, according to the state’s Employment Development Department.
Generally, an employee will receive 55 percent of his or her wages, and the six weeks of leave does not need to be taken all at once.
Employee advocates say the existing system needs to be expanded because only half of California’s workforce is covered by other job-protection laws, even though almost all private employees in the state contribute to the Paid Family Leave program through the short term disability payments taken out of their paychecks.
“Everyone who pays into the tax is covered by the Paid Family Leave Act, but that act doesn’t contain an anti-retaliation provision,” said Julia Parish, an attorney with the San Francisco-based Employment Law Center, which is sponsoring the bill.
While Family Paid Leave is intended to replace some lost wages, supporters say the program has a hole because not all employees have the same job protections if they want to take it.
Under the separate California Family Rights Act, which mirrors the federal Family Medical Leave Act, people employed by businesses with 50 or more workers can take an unpaid leave of up to 12 weeks if they have to take time off because of a serious medical condition of a family member or to care for a newborn or adopted child. Their jobs are protected for the 12-week duration.
Employees also must meet certain wage and employment requirements.
But small businesses are exempt from that job-protection law, meaning there is no legal requirement that they hold a job for an employee. There also is no guaranteed job protection for a worker at any company of any size under California’s paid family leave program.
According to the state Employment Development Department, 96 percent of California’s 1.4 million businesses had fewer than 50 employees. Those businesses employ roughly 41 percent of all employees, or 6 million out of 14.7 million workers.
Parish said it’s why a majority of the 1,600 calls the Employment Law Center received last year dealing with work and family issues came from people who could not take their paid family leave. She said workers who contribute to the program should have a right to access the benefit.
“We hear from people on almost a daily basis that want to bond with their new baby, but their employer says they can’t. They have to go right back to work,” Parish said. “They have to risk their job if they’re going to take care of them.”
Sabrina Lowell, 30, lost her accounting assistant job at a small office last year. The Vallejo woman took Paid Family Leave last year to care for her three nephews, whom she has since adopted. Lowell said she felt it was important to spend time with the boys, ages 7, 8 and 10. One has autism and another has attention deficit hyperactivity disorder.
“Time after time, I talked to them about the boys’ transition and how they were behind in school and their behavior needed my attention and support,” she said. “When they told me that they would not approve it, I … felt I didn’t have a choice (but) to take it given their troubles at school and troubles at home. When I did, I lost my job.”
But Barrera, from the state chamber, said DeSaulnier’s bill would create a burden on small businesses. As the bill stands, there is no limit on the amount of compensation an employee can demand in a lawsuit and no minimum length of time the worker will have needed to be employed to qualify for the benefit.
An employer with three employees could have all three workers take a leave at once, she said.
“If I say, my business can’t continue to operate if you’re gone for six weeks, I can file a lawsuit now against you for retaliation or discrimination by denying you that leave,” Barrera said. “It is a huge burden to small businesses.”
If employees of small businesses are concerned about paying into a benefit they cannot access, Barrera said state lawmakers can tweak the law so they are exempt from contributing to the Paid Family Leave insurance program.
DeSaulnier, a former restaurant owner, acknowledged parts of his bill still need work. While he believes there needs to be an enforcement mechanism, DeSaulnier said he recognizes the complication for small-business owners. He suggested the state could impose a fine or establish an appeals process to avoid lawsuits.
The issue is worth exploring because the Paid Family Leave program has been beneficial for working families. Supporters also say businesses benefit by experiencing less turnover.
“I’m not unsympathetic; I don’t want to create a lot of lawsuits, either, that leverages employers,” he said. “But having said all that, this is a balancing act. This is an existing right that employees pay for.”
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