Governor Brown Passes Bill Providing For New Parental Leave Rights For Employees Of Small Employers

October 12, 2017 | Bulletin No. 127416.1

Beginning January 1, 2018, employers employing 20 or more persons will be required to provide their employees with new parental leave rights following the birth, adoption, or foster care placement of a child.

SB 63 (Jackson), known as the New Parent Leave Act, was signed into law by Governor Brown on October 12, 2017. The bill adds new Government Code section 12945.6. The new statute makes it an unlawful employment practice for an employer employing 20 or more employees to refuse to allow an eligible employee to take up to 12 weeks of unpaid leave during the first year following the birth, adoption, or foster care placement of a child.

In order to be eligible, the employee must meet some of the same eligibility requirements found in the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA): the employee must have been employed for 12 months with the employer and must have worked at least 1,250 hours during the 12-month period preceding the leave request. However, the FMLA/CFRA requirement that an employee also work at a worksite at which 50 or more employees are employed or within 75 miles of such a site has been reduced to a worksite at which 20 or more employees are employed or within 75 miles of such a site.

During the period of the leave, the employee “shall be entitled to utilize accrued vacation pay, paid sick time, other accrued paid time off, or other paid or unpaid time off negotiated with the employer.”  The new statute is not clear, however, as to whether employers can compel the use of these paid leave benefits during the parental leave.

In addition to providing up to 12 weeks of leave, the new statute also requires employers to maintain healthcare coverage for an employee during the parental leave.

The new statute further requires an employer to guarantee to an employee taking leave that the employee will be reinstated to the same or a comparable position upon the termination of the leave. If an employer does not provide such a guarantee on or before the commencement of the leave, the employer is deemed to have refused to allow the leave and may be liable for recoverable damages under the statute.

For the first two years the statute is in effect (2018-2020), the Department of Fair Employment and Housing (DFEH) is required to establish a pilot mediation program. If, within 60 days of receipt of a right-to-sue- notice, an employer requests mediation, the employee may not pursue a civil action until the mediation is complete. During the time period in which the dispute is being mediated, the employee’s statute of limitations is tolled. The mediation program sunsets as of January 1, 2020.

The New Parent Leave Act is just one of several new laws affecting California employers passed by the Legislature and signed by the Governor during the last term. The Governor’s constitutional deadline to sign bills is October 15. Stay tuned for Kronick’s New Legislation advisory to employers highlighting the recently enacted laws, which will be published on November 1.

Questions

If you have any questions concerning this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

David Tyra
dtyra@kmtg.com916.321.4594