(1)Existing law authorizes, during each school year, a person employed by a school district in a position requiring certification qualifications, and a person employed in an academic position by a community college district, to use his or her sick leave for purposes of parental leave for a period of up to 12 workweeks.

Existing law requires, when a person employed in a position requiring certification qualifications in school districts that use a certain differential pay system or a person employed in an academic position in community college districts that use a certain differential pay system has exhausted all available sick leave and continues to be absent from his or her duties on account of parental leave, the amount deducted from the salary due to the employee for any of the remaining portion of the 12-workweek period in which the absence occurs to not exceed the sum that is actually paid, or that would have been paid, to a substitute employee or temporary employee employed to fill his or her position during his or her absence. Existing law additionally requires, when a person employed in a position requiring certification qualifications in school districts that use a certain other differential pay system or a person employed in an academic position in community college districts that use a certain other differential pay system has exhausted all available sick leave and continues to be absent from his or her duties on account of parental leave, that the person is compensated at no less than 50% of his or her regular salary for the remaining portion of the 12-workweek period of parental leave.

This bill would instead require, regardless of the type of differential pay system used by the school district or community college district, a person employed in a position requiring certification qualifications and a person employed in an academic position to receive no less than 50% of his or her regular salary for the remaining portion of the 12-workweek period of parental leave.

(2)Existing law authorizes, during each school year, a classified employee of a school district or community college district to use his or her sick leave for purposes of parental leave for a period of up to 12 workweeks.

Existing law requires, when a classified employee of school districts and community college districts that use a certain differential pay system has exhausted all available sick leave and continues to be absent from his or her duties on account of parental leave, the amount deducted from the salary due to the classified employee for any of the remaining portion of the 12-workweek period in which the absence occurs to not exceed the sum that is actually paid to a substitute employee employed to fill his or her position during his or her absence. Existing law additionally requires, when a classified employee of school districts and community college districts that use a certain other differential pay system has exhausted all available sick leave and continues to be absent from his or her duties on account of parental leave, that the employee is compensated at no less than 50% of the employees regular salary for the remaining portion of the 12-workweek period of parental leave.

This bill would instead require, regardless of the type of differential pay system used by the school district or community college district, a classified employee to receive no less than 50% of his or her regular salary for the remaining portion of the 12-workweek period of parental leave.

(1)Existing law authorizes, during each school year, a person employed by a school district in a position requiring certification qualifications, and a person employed in an academic position by a community college district, to use his or her sick leave for purposes of parental leave for a period of up to 12 workweeks.

Existing law requires, when a person employed in a position requiring certification qualifications in school districts that use a certain differential pay system or a person employed in an academic position in community college districts that use a certain differential pay system has exhausted all available sick leave and continues to be absent from his or her duties on account of parental leave, the amount deducted from the salary due to the employee for any of the remaining portion of the 12-workweek period in which the absence occurs to not exceed the sum that is actually paid, or that would have been paid, to a substitute employee or temporary employee employed to fill his or her position during his or her absence. Existing law additionally requires, when a person employed in a position requiring certification qualifications in school districts that use a certain other differential pay system or a person employed in an academic position in community college districts that use a certain other differential pay system has exhausted all available sick leave and continues to be absent from his or her duties on account of parental leave, that the person is compensated at no less than 50% of his or her regular salary for the remaining portion of the 12-workweek period of parental leave.

This bill would instead require, regardless of the type of differential pay system used by the school district or community college district, a person employed in a position requiring certification qualifications and a person employed in an academic position to receive no less than 50% of his or her regular salary for the remaining portion of the 12-workweek period of parental leave.

(2)Existing law authorizes, during each school year, a classified employee of a school district or community college district to use his or her sick leave for purposes of parental leave for a period of up to 12 workweeks.

Existing law requires, when a classified employee of school districts and community college districts that use a certain differential pay system has exhausted all available sick leave and continues to be absent from his or her duties on account of parental leave, the amount deducted from the salary due to the classified employee for any of the remaining portion of the 12-workweek period in which the absence occurs to not exceed the sum that is actually paid to a substitute employee employed to fill his or her position during his or her absence. Existing law additionally requires, when a classified employee of school districts and community college districts that use a certain other differential pay system has exhausted all available sick leave and continues to be absent from his or her duties on account of parental leave, that the employee is compensated at no less than 50% of the employees regular salary for the remaining portion of the 12-workweek period of parental leave.

This bill would instead require, regardless of the type of differential pay system used by the school district or community college district, a classified employee to receive no less than 50% of his or her regular salary for the remaining portion of the 12-workweek period of parental leave.

(1)Existing law authorizes, during each school year, a person employed by a school district in a position requiring certification qualifications, and a person employed in an academic position by a community college district, to use his or her sick leave for purposes of parental leave for a period of up to 12 workweeks.

Existing law requires, when a person employed in a position requiring certification qualifications in school districts that use a certain differential pay system or a person employed in an academic position in community college districts that use a certain differential pay system has exhausted all available sick leave and continues to be absent from his or her duties on account of parental leave, the amount deducted from the salary due to the employee for any of the remaining portion of the 12-workweek period in which the absence occurs to not exceed the sum that is actually paid, or that would have been paid, to a substitute employee or temporary employee employed to fill his or her position during his or her absence. Existing law additionally requires, when a person employed in a position requiring certification qualifications in school districts that use a certain other differential pay system or a person employed in an academic position in community college districts that use a certain other differential pay system has exhausted all available sick leave and continues to be absent from his or her duties on account of parental leave, that the person is compensated at no less than 50% of his or her regular salary for the remaining portion of the 12-workweek period of parental leave.

This bill would instead require, regardless of the type of differential pay system used by the school district or community college district, a person employed in a position requiring certification qualifications and a person employed in an academic position to receive no less than 50% of his or her regular salary for the remaining portion of the 12-workweek period of parental leave.

(2)Existing law authorizes, during each school year, a classified employee of a school district or community college district to use his or her sick leave for purposes of parental leave for a period of up to 12 workweeks.

Existing law requires, when a classified employee of school districts and community college districts that use a certain differential pay system has exhausted all available sick leave and continues to be absent from his or her duties on account of parental leave, the amount deducted from the salary due to the classified employee for any of the remaining portion of the 12-workweek period in which the absence occurs to not exceed the sum that is actually paid to a substitute employee employed to fill his or her position during his or her absence. Existing law additionally requires, when a classified employee of school districts and community college districts that use a certain other differential pay system has exhausted all available sick leave and continues to be absent from his or her duties on account of parental leave, that the employee is compensated at no less than 50% of the employees regular salary for the remaining portion of the 12-workweek period of parental leave.

This bill would instead require, regardless of the type of differential pay system used by the school district or community college district, a classified employee to receive no less than 50% of his or her regular salary for the remaining portion of the 12-workweek period of parental leave.

(1)Existing law authorizes, during each school year, a person employed by a school district in a position requiring certification qualifications, and a person employed in an academic position by a community college district, to use his or her sick leave for purposes of parental leave for a period of up to 12 workweeks.

Existing law requires, when a person employed in a position requiring certification qualifications in school districts that use a certain differential pay system or a person employed in an academic position in community college districts that use a certain differential pay system has exhausted all available sick leave and continues to be absent from his or her duties on account of parental leave, the amount deducted from the salary due to the employee for any of the remaining portion of the 12-workweek period in which the absence occurs to not exceed the sum that is actually paid, or that would have been paid, to a substitute employee or temporary employee employed to fill his or her position during his or her absence. Existing law additionally requires, when a person employed in a position requiring certification qualifications in school districts that use a certain other differential pay system or a person employed in an academic position in community college districts that use a certain other differential pay system has exhausted all available sick leave and continues to be absent from his or her duties on account of parental leave, that the person is compensated at no less than 50% of his or her regular salary for the remaining portion of the 12-workweek period of parental leave.

This bill would instead require, regardless of the type of differential pay system used by the school district or community college district, a person employed in a position requiring certification qualifications and a person employed in an academic position to receive no less than 50% of his or her regular salary for the remaining portion of the 12-workweek period of parental leave.

(2)Existing law authorizes, during each school year, a classified employee of a school district or community college district to use his or her sick leave for purposes of parental leave for a period of up to 12 workweeks.

Existing law requires, when a classified employee of school districts and community college districts that use a certain differential pay system has exhausted all available sick leave and continues to be absent from his or her duties on account of parental leave, the amount deducted from the salary due to the classified employee for any of the remaining portion of the 12-workweek period in which the absence occurs to not exceed the sum that is actually paid to a substitute employee employed to fill his or her position during his or her absence. Existing law additionally requires, when a classified employee of school districts and community college districts that use a certain other differential pay system has exhausted all available sick leave and continues to be absent from his or her duties on account of parental leave, that the employee is compensated at no less than 50% of the employees regular salary for the remaining portion of the 12-workweek period of parental leave.

This bill would instead require, regardless of the type of differential pay system used by the school district or community college district, a classified employee to receive no less than 50% of his or her regular salary for the remaining portion of the 12-workweek period of parental leave.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 2012

Author:(Medina)

As Amended Ver:August 22, 2018

Majority vote

Original Committee Reference: HIGHER ED.

SUMMARY: Requires that a person employed in a position requiring certification qualifications, a person employed in an academic position, or a classified employee will receive no less than 50% of his or her regular salary for the remaining portion of the 12-workweek period of parental leave, regardless of the type of differential pay system used by the school district or community college district.

The Senate amendments were technical in nature, and added a co-author.

FISCAL EFFECT: According to the Senate Committee on Appropriations, by creating a minimum amount that would be paid to employees while on parental leave - irrespective of the differential pay system currently being utilized - school districts may experience potentially significant cost pressures. A precise estimate is unknown and would depend on several factors that are difficult to quantify, such as the amount of an employee’s accrued sick time as well as the cost for the employee’s substitute.

COMMENTS: Need for the bill. The author's office states: "AB 2393 [(Campos), Chapter 883, Statutes of 2016] provided up to 12 weeks of paid parental leave for all school employees. However, the bill overlooked part-time faculty members and part-time classified staff who work in differential pay districts. Those members, if they exhaust their sick leave, would receive no pay due to the substitute cost being the same as their current salary. As such, part-time faculty and part-time classified staff who exhaust their sick leave while on parental leave would not qualify for differential pay. This bill will help close the loophole to ensure that part-time faculty and part-time classified staff working in differential pay districts receive no less than 50% of his or her regular salary for the remaining portion of the 12-workweek period of parental leave."

Background. The Moore-Brown-Roberti Family Rights Act (CFRA) is the state-law equivalent of the federal Family and Medical Leave Act (FMLA). Both acts provide for up to 12 weeks of unpaid family and medical leave for public and private employees. Current law requires school and community college employers to pay differential pay for certificated employees, community college faculty, and classified employees who take the 12 week FMLA maternity or paternity leave.

Differential Pay. Differential pay is calculated by subtracting the cost of a substitute employee from the certificated employee's salary. As an example, if the certificated employee made $50,000 and the substitute cost $35,000, then the certificated employee would be paid the difference of $15,000 during maternity or paternity leave, after exhausting all accrued sick time.

Disability Leave and FMLA. Typically, mothers are on pregnancy disability leave during the first six to eight weeks, or longer, after a baby's birth. They are also entitled, under the FMLA and state law, to take 12 weeks of additional leave for bonding. Under current law, during pregnancy disability leave district employees use any sick leave, and once it is exhausted are entitled to differential pay. During their subsequent FMLA leave they are also entitled to use sick leave and then receive differential pay.

Parental leave in the United States and other countries. A 2010 study by the International Labor Organization of the United Nations found that out of 167 countries studied, 97% provide paid maternity leave for women. Only four out of the 167 countries studied did not: Lesotho, Papua New Guinea, Swaziland, and the United States. Australia was also listed in this study as not providing paid maternity leave, but their policy recently changed and parents there currently receive 18 weeks of paid leave. The United States is the only industrialized nation that doesn't mandate that parents of newborns get paid leave.

Examples of countries with progressive paid maternity/paternity leave laws include Ireland with 6.5 months of paid leave, Italy with five months of paid leave, England with nearly 10 months of paid leave, and Sweden with nearly 16 months of paid leave.

Prior legislation. AB 568 (Gonzalez Fletcher) of 2017, would have required school districts, charter schools, and community colleges provide at least six weeks of full pay for pregnancy-related leaves of absence taken by certificated, academic, and classified employees. This legislation was vetoed by the Governor.

AB 2393 (Campos), Chapter 883, Statutes of 2016. Required classified school employees and community college instructors on parental leave to receive up to 12 weeks of differential pay, as specified, and clarified provisions requiring certificated school employees on parental leave to receive differential pay.

AB 375 (Campos), Chapter 400, Statutes of 2015. Required certificated school employees on maternity or paternity leave to receive differential pay.

Analysis Prepared by: Kevin J. Powers / HIGHER ED. / (916) 319-3960 FN: 0004968

 THIRD READING  

Bill No: AB 2012

Author:

Amended: 8/22/18 in Senate

Vote:

SENATE EDUCATION COMMITTEE: 6-0, 6/13/18

AYES: Allen, Galgiani, Leyva, McGuire, Pan, Vidak

NO VOTE RECORDED: Wilk

SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/16/18

AYES: Portantino, Beall, Bradford, Hill, Wiener

NOES: Bates, Nielsen

ASSEMBLY FLOOR: 51-20, 5/17/18 - See last page for vote

SUBJECT:

SOURCE: California Federation of Teachers

DIGEST:

This bill requires school and community college districts to provide at least 50 percent of a certificated, academic, or classified employee’s regular salary for the remaining portion of the 12-workweek period of parental leave, regardless of the differential pay system used by the employer.

Senate Floor Amendments of 8/22/18 make technical changes to fix grammatical errors.

ANALYSIS:

Existing law:

1. Establishes the California Fair Employment and Housing Act (FEHA), under which it is an unlawful employment practice, unless based upon a bona fide occupational qualification, for an employer to refuse to allow a female employee disabled by pregnancy, childbirth, or a related medical condition to take a leave for a reasonable period of time not to exceed four months and thereafter return to work. The employee is entitled to utilize any accrued vacation leave during this period of time. Also under the FEHA, reasonable accommodation of a disability related to pregnancy can include an extended leave of absence.
2. Establishes the California Family Rights Act (CFRA), providing certain employees up to 12 weeks of unpaid, job-protected leave per year for the purpose of bonding with a child, care for a parent, spouse, or child with a serious health condition, or due to an employee’s own serious health condition, and requires group health benefits to be maintained during the leave as if employees continued to work instead of taking leave.
3. Requires school districts to provide for a leave of absence from duty for a certificated employee of the school district who is required to be absent from duties because of pregnancy, miscarriage, childbirth, and recovery therefrom. Requires that the length of the leave of absence be determined by the employee and the employee’s physician.

1. Requires school districts to provide for a leave of absence from duty for a classified employee of the school district who is required to be absent from duties because of pregnancy, childbirth, and convalescence therefrom. Requires that the length of the leave of absence be determined by the employee and the employee’s physician.
2. Specifies that during each school year, when a person employed in a position requiring certification qualifications has exhausted all available sick leave, including all accumulated sick leave, and continues to be absent from his or her duties on account of illness or accident for an additional period of five school months, the amount deducted from the salary due him or her for any of the additional five months in which the absence occurs shall not exceed the sum that is actually paid a substitute employee employed to fill his or her position during his or her absence or, if no substitute employee was employed, the amount that would have been paid to the substitute had he or she been employed. Specifies the following:
   1. The sick leave, including accumulated sick leave, and the five-month period run consecutively.
   2. Limits the benefit to one five-month period per illness or accident. However, if a school year terminates before the five-month period is exhausted, the employee may take the balance of the five-month period in a subsequent school year.
3. Requires that certificated and classified employees that participate in the differential pay program receive no less than 50 percent of their regular salary during the period of such absence.

This bill requires school and community college districts to provide at least 50 percent of a certificated, academic, or classified employee’s regular salary for the remaining portion of the 12-workweek period of parental leave, regardless of the differential pay system used by the employer.

Comments

1. Need for the bill. According to the author, “AB 2393 (Campos) provided up to 12 weeks of paid parental leave for all school employees. However, the bill overlooked part-time faculty members who work in differential pay districts. Those faculty members, if they exhaust their sick leave, would receive no pay due to the substitute cost being the same as their current salary. As such, part-time faculty who exhaust their sick leave while on parental leave would not qualify for differential pay.”
2. Pregnancy disability leave. Existing law provides that it is unlawful to refuse to allow a female employee disabled by pregnancy, childbirth, or a related medical condition to take leave not to exceed four months. The employee is entitled to use vacation leave during this time. Once the vacation time is exhausted, the employee can receive differential pay for the remaining time, for up to five months.
3. Protected leave. Existing law also prohibits, except under certain circumstances, the refusal to grant a request by any employee with a certain amount of service to take up to a total of 12 workweeks in a 12 month period for family care and medical leave. The employer is required to provide the employee a guarantee of employment in the same or comparable position upon the termination of the leave. The law specifies that this protected leave is separate and distinct from the pregnancy disability leave. Once an employee is cleared to return to work by a physician, the employee may take this protected leave.

The federal Family Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) provide certain employees up to 12 weeks of unpaid, job-protected leave a year for the purpose of bonding with a child, care for a parent, spouse, or child with a serious health condition, or due to an employee’s own serious health condition, and requires group health benefits to be maintained during the leave as if employees continued to work instead of taking leave.

Current law requires school and community college employers to pay differential pay for certificated employees, community college faculty, and classified employees who take the 12 week FMLA maternity or paternity leave.

1. Differential pay. Current law requires that certificated and classified employees of school districts be provided with differential pay during their FMLA leave, or be compensated with at least 50 percent of their salary, irrespective of the cost of a substitute. School districts may choose either system.

Differential pay is calculated by subtracting the cost of a substitute employee from the certificated employee's salary. As an example, if the certificated employee made $50,000 and the substitute cost $35,000, then the certificated employee would be paid the difference of $15,000 during maternity or paternity leave, after exhausting all accrued sick time.

For some employees employed by districts which do provide differential pay, the cost of providing a substitute to assume their duties is equal to their salary. As a result, they receive no differential pay. This bill would create a “floor” for differential pay equal to half of the employee’s salary, irrespective of the cost of a substitute for that employee.

Related/Prior Legislation

AB 568 (Gonzalez, 2017) would have required that school districts, charter schools, and community colleges provide at least six weeks of full pay for pregnancy-related leaves of absence taken by certificated, academic, and classified employees. This bill was vetoed by the Governor, who stated:

I have signed two previous bills, AB 2393 of 2016 and AB 375 of 2015, that allow these employees to receive differential pay for maternity and paternity leave. I believe further decisions regarding leave policies for school employees are best resolved through the collective bargaining process at the local level. I would also encourage districts to consider participating in the State Disability Insurance program that would allow these employees to receive pay in addition to what is already being provided.

AB 2393 (Campos, Chapter 883, Statutes of 2016) allowed school district classified employees and community college academic and classified employees to receive differential pay when on parental leave.

AB 375 (Campos, Chapter 400, Statutes of 2015) required certificated school employees on maternity or paternity leave to receive differential pay after exhausting accrued sick leave.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee, by creating a minimum amount that would be paid to employees while on parental leave irrespective of the differential pay system currently being utilized, school districts may experience potentially significant cost pressures. A precise estimate is unknown and would depend on several factors that are difficult to quantify, such as the amount of an employee’s accrued sick time as well as the cost for the employee’s substitute.

SUPPORT: (Verified 8/16/18)

California Federation of Teachers (source)

American Civil Liberties Union

American Federation of State, County, and Municipal Employees

California Faculty Association

California School Employees Association

California Teachers Association

Communication Worker of America, District 9

Faculty Association of California Community Colleges

OPPOSITION: (Verified 8/16/18)

None received

ASSEMBLY FLOOR: 51-20, 5/17/18

AYES: Aguiar-Curry, Arambula, Berman, Bloom, Bonta, Burke, Caballero, Calderon, Carrillo, Cervantes, Chau, Chiu, Chu, Cooley, Cooper, Daly, Eggman, Frazier, Friedman, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Levine, Limón, Low, Maienschein, McCarty, Medina, Mullin, Nazarian, O'Donnell, Quirk, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Mark Stone, Thurmond, Ting, Weber, Wood, Rendon

NOES: Acosta, Travis Allen, Baker, Bigelow, Brough, Chávez, Chen, Cunningham, Dahle, Flora, Fong, Gallagher, Harper, Kiley, Lackey, Mayes, Obernolte, Patterson, Voepel, Waldron

NO VOTE RECORDED: Choi, Cristina Garcia, Mathis, Melendez, Muratsuchi, Santiago, Steinorth

Prepared by:

8/23/18 16:24:28

**** END ****

 THIRD READING  

Bill No: AB 2012

Author:

:

Vote:

SENATE EDUCATION COMMITTEE: 6-0, 6/13/18

AYES: Allen, Galgiani, Leyva, McGuire, Pan, Vidak

NO VOTE RECORDED: Wilk

SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/16/18

AYES: Portantino, Beall, Bradford, Hill, Wiener

NOES: Bates, Nielsen

ASSEMBLY FLOOR: 51-20, 5/17/18 - See last page for vote

SUBJECT:

SOURCE: California Federation of Teachers

DIGEST:

This bill requires school and community college districts to provide at least 50 percent of a certificated, academic, or classified employee’s regular salary for the remaining portion of the 12-workweek period of parental leave, regardless of the differential pay system used by the employer.

ANALYSIS:

Existing law:

1. Establishes the California Fair Employment and Housing Act (FEHA), under which it is an unlawful employment practice, unless based upon a bona fide occupational qualification, for an employer to refuse to allow a female employee disabled by pregnancy, childbirth, or a related medical condition to take a leave for a reasonable period of time not to exceed four months and thereafter return to work. The employee is entitled to utilize any accrued vacation leave during this period of time. Also under the FEHA, reasonable accommodation of a disability related to pregnancy can include an extended leave of absence.
2. Establishes the California Family Rights Act (CFRA), providing certain employees up to 12 weeks of unpaid, job-protected leave per year for the purpose of bonding with a child, care for a parent, spouse, or child with a serious health condition, or due to an employee’s own serious health condition, and requires group health benefits to be maintained during the leave as if employees continued to work instead of taking leave.
3. Requires school districts to provide for a leave of absence from duty for a certificated employee of the school district who is required to be absent from duties because of pregnancy, miscarriage, childbirth, and recovery therefrom. Requires that the length of the leave of absence be determined by the employee and the employee’s physician.

1. Requires school districts to provide for a leave of absence from duty for a classified employee of the school district who is required to be absent from duties because of pregnancy, childbirth, and convalescence therefrom. Requires that the length of the leave of absence be determined by the employee and the employee’s physician.
2. Specifies that during each school year, when a person employed in a position requiring certification qualifications has exhausted all available sick leave, including all accumulated sick leave, and continues to be absent from his or her duties on account of illness or accident for an additional period of five school months, the amount deducted from the salary due him or her for any of the additional five months in which the absence occurs shall not exceed the sum that is actually paid a substitute employee employed to fill his or her position during his or her absence or, if no substitute employee was employed, the amount that would have been paid to the substitute had he or she been employed. Specifies the following:
   1. The sick leave, including accumulated sick leave, and the five-month period run consecutively.
   2. Limits the benefit to one five-month period per illness or accident. However, if a school year terminates before the five-month period is exhausted, the employee may take the balance of the five-month period in a subsequent school year.
3. Requires that certificated and classified employees that participate in the differential pay program receive no less than 50 percent of their regular salary during the period of such absence.

This bill requires school and community college districts to provide at least 50 percent of a certificated, academic, or classified employee’s regular salary for the remaining portion of the 12-workweek period of parental leave, regardless of the differential pay system used by the employer.

Comments

1. Need for the bill. According to the author, “AB 2393 (Campos) provided up to 12 weeks of paid parental leave for all school employees. However, the bill overlooked part-time faculty members who work in differential pay districts. Those faculty members, if they exhaust their sick leave, would receive no pay due to the substitute cost being the same as their current salary. As such, part-time faculty who exhaust their sick leave while on parental leave would not qualify for differential pay.”
2. Pregnancy disability leave. Existing law provides that it is unlawful to refuse to allow a female employee disabled by pregnancy, childbirth, or a related medical condition to take leave not to exceed four months. The employee is entitled to use vacation leave during this time. Once the vacation time is exhausted, the employee can receive differential pay for the remaining time, for up to five months.
3. Protected leave. Existing law also prohibits, except under certain circumstances, the refusal to grant a request by any employee with a certain amount of service to take up to a total of 12 workweeks in a 12 month period for family care and medical leave. The employer is required to provide the employee a guarantee of employment in the same or comparable position upon the termination of the leave. The law specifies that this protected leave is separate and distinct from the pregnancy disability leave. Once an employee is cleared to return to work by a physician, the employee may take this protected leave.

The federal Family Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) provide certain employees up to 12 weeks of unpaid, job-protected leave a year for the purpose of bonding with a child, care for a parent, spouse, or child with a serious health condition, or due to an employee’s own serious health condition, and requires group health benefits to be maintained during the leave as if employees continued to work instead of taking leave.

Current law requires school and community college employers to pay differential pay for certificated employees, community college faculty, and classified employees who take the 12 week FMLA maternity or paternity leave.

1. Differential pay. Current law requires that certificated and classified employees of school districts be provided with differential pay during their FMLA leave, or be compensated with at least 50 percent of their salary, irrespective of the cost of a substitute. School districts may choose either system.

Differential pay is calculated by subtracting the cost of a substitute employee from the certificated employee's salary. As an example, if the certificated employee made $50,000 and the substitute cost $35,000, then the certificated employee would be paid the difference of $15,000 during maternity or paternity leave, after exhausting all accrued sick time.

For some employees employed by districts which do provide differential pay, the cost of providing a substitute to assume their duties is equal to their salary. As a result, they receive no differential pay. This bill would create a “floor” for differential pay equal to half of the employee’s salary, irrespective of the cost of a substitute for that employee.

Related/Prior Legislation

AB 568 (Gonzalez, 2017) would have required that school districts, charter schools, and community colleges provide at least six weeks of full pay for pregnancy-related leaves of absence taken by certificated, academic, and classified employees. This bill was vetoed by the Governor, who stated:

I have signed two previous bills, AB 2393 of 2016 and AB 375 of 2015, that allow these employees to receive differential pay for maternity and paternity leave. I believe further decisions regarding leave policies for school employees are best resolved through the collective bargaining process at the local level. I would also encourage districts to consider participating in the State Disability Insurance program that would allow these employees to receive pay in addition to what is already being provided.

AB 2393 (Campos, Chapter 883, Statutes of 2016) allowed school district classified employees and community college academic and classified employees to receive differential pay when on parental leave.

AB 375 (Campos, Chapter 400, Statutes of 2015) required certificated school employees on maternity or paternity leave to receive differential pay after exhausting accrued sick leave.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee, by creating a minimum amount that would be paid to employees while on parental leave irrespective of the differential pay system currently being utilized, school districts may experience potentially significant cost pressures. A precise estimate is unknown and would depend on several factors that are difficult to quantify, such as the amount of an employee’s accrued sick time as well as the cost for the employee’s substitute.

SUPPORT: (Verified 8/16/18)

California Federation of Teachers (source)

American Civil Liberties Union

American Federation of State, County, and Municipal Employees

California Faculty Association

California School Employees Association

California Teachers Association

Communication Worker of America, District 9

Faculty Association of California Community Colleges

OPPOSITION: (Verified 8/16/18)

None received

ASSEMBLY FLOOR: 51-20, 5/17/18

AYES: Aguiar-Curry, Arambula, Berman, Bloom, Bonta, Burke, Caballero, Calderon, Carrillo, Cervantes, Chau, Chiu, Chu, Cooley, Cooper, Daly, Eggman, Frazier, Friedman, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Levine, Limón, Low, Maienschein, McCarty, Medina, Mullin, Nazarian, O'Donnell, Quirk, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Mark Stone, Thurmond, Ting, Weber, Wood, Rendon

NOES: Acosta, Travis Allen, Baker, Bigelow, Brough, Chávez, Chen, Cunningham, Dahle, Flora, Fong, Gallagher, Harper, Kiley, Lackey, Mayes, Obernolte, Patterson, Voepel, Waldron

NO VOTE RECORDED: Choi, Cristina Garcia, Mathis, Melendez, Muratsuchi, Santiago, Steinorth

Prepared by:

8/18/18 14:18:55

**** END ****

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2017 - 2018 Regular Session

AB 2012 (Medina) - School and community college employees: parental leave

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

This bill requires school and community college districts to provide at least 50 percent of a certificated, academic, or classified employee’s regular salary for the remaining portion of the 12-workweek period of parental leave, regardless of the differential pay system used by the employer.

Fiscal Impact:

By creating a minimum amount that would be paid to employees while on parental leave irrespective of the differential pay system currently being utilized, school districts may experience potentially significant cost pressures. A precise estimate is unknown and would depend on several factors that are difficult to quantify, such as the amount of an employee’s accrued sick time as well as the cost for the employee’s substitute.

Background:

Existing law provides differential pay to certificated employees for illness or accident. It specifies that when a person employed in a position requiring certification qualifications has exhausted all available sick leave, and continues to be absent from their duties due to illness or accident for an additional period of five school months, the amount deducted from the employee’s salary for any of the additional five months, must not exceed the sum that is actually paid a substitute employed to cover for the absence.

Existing law also requires that certificated and classified employees that participate in the differential pay program receive no less than 50 percent of their regular salary during the period of such absence.

Existing law requires school districts to provide for a leave of absence from duty for certificated and classified employees of the school district who are required to be absent from duties because of pregnancy, childbirth, and convalescence. It also requires that the length of the leave of absence be determined by the employee and the employee’s physician.

Existing law establishes the California Fair Employment and Housing Act (FEHA), under which it is an unlawful employment practice, unless based upon a bona fide occupational qualification, for an employer to refuse to allow a female employee disabled by pregnancy, childbirth, or a related medical condition to take a leave for a reasonable period of time not to exceed four months and thereafter return to work. The employee is entitled to utilize any accrued vacation leave during this period of time. Also under the FEHA, reasonable accommodation of a disability related to pregnancy can include an extended leave of absence.

Existing law establishes the California Family Rights Act, providing certain employees up to 12 weeks of unpaid, job-protected leave per year for the purpose of bonding with a child, care for a parent, spouse, or child with a serious health condition, or due to an employee’s own serious health condition, and requires group health benefits to be maintained during the leave as if employees continued to work instead of taking leave.

Proposed Law:

This bill requires school and community college districts to provide at least 50 percent of a certificated, academic, or classified employee’s regular salary for the remaining portion of the 12-workweek period of parental leave, regardless of the differential pay system used by the employer.

Related Legislation:

AB 568 (Gonzalez, 2017) would have required that school districts, charter schools, and community colleges provide at least six weeks of full pay for pregnancy-related leaves of absence taken by certificated, academic, and classified employees. This bill was vetoed by the Governor, who stated:

I have signed two previous bills, AB 2393 of 2016 and AB 375 of 2015, that allow these employees to receive differential pay for maternity and paternity leave. I believe further decisions regarding leave policies for school employees are best resolved through the collective bargaining process at the local level. I would also encourage districts to consider participating in the State Disability Insurance program that would allow these employees to receive pay in addition to what is already being provided.

AB 375 (Campos) Chapter 400, Statutes of 2015 requires certificated school employees on maternity or paternity leave to receive differential pay after exhausting accrued sick leave.

AB 2393 (Campos), Chapter 883, Statutes of 2016, allowed school district classified employees and community college academic and classified employees to receive differential pay when on parental leave.

Staff Comments:

Current law requires that certificated and classified employees of school districts be provided with differential pay during their Family and Medical Leave Act leave, or be compensated with at least 50 percent of their salary, irrespective of the cost of a substitute. School districts may choose either system. Differential pay is calculated by subtracting the cost of a substitute employee from the certificated employee's salary. As an example, if the certificated employee made $50,000 and the substitute cost $35,000, then the certificated employee would be paid the difference of $15,000 during maternity or paternity leave, after exhausting all accrued sick time.

For some employees employed by districts which provide differential pay, the cost of providing a substitute to assume their duties may be equal to their salary. As a result, these employees would receive no differential pay.

This bill requires school and community college districts to provide at least 50 percent of an employee’s regular salary for the remaining portion of the 12-workweek period of parental leave, regardless of the differential pay system used by the employer. The bill essentially creates a “floor” for differential pay equal to half of the employee’s salary, irrespective of the cost of a substitute for that employee. As a result, school districts may experience significant cost pressures. The exact amount is unknown and will ultimately be dependent upon the amount of sick time that that an employee has accrued as well as the cost for a substitute, which determine the current level of differential pay for that employee. In any case, the employer’s cost based on the bill’s provisions will not exceed what is normally paid to a school employee who would otherwise be working.

The bill provides that the employee’s pay will be no less than 50 percent, irrespective of whether the district uses differential pay or 50 percent pay for all other uses of extended sick leave.  To illustrate, a teacher who makes $50,000 a year, or about $270 per day, would be assured of getting at least $135 (50 percent pay), instead of $120 per day if the substitute makes $150 (which would be the difference between the employee and the substitute’s pay).  At the higher end of the salary schedule the substitute cost relative to the regular pay would be less and the teacher will benefit.  If the substitute is getting higher long-term pay, which may the same as a brand new teacher, the teacher would likely get $135 (50 percent pay) in this scenario.  And if there is no substitute, the teacher will still get the same amount of $135.

-- END --

SENATE COMMITTEE ON EDUCATION

Senator Benjamin Allen, Chair

2017 - 2018 Regular

Bill No: AB 2012 Hearing Date: June 13, 2018

Subject: School and community college employees: parental leave.

NOTE: This bill has been referred to the Committees on Education and Appropriations. A "do pass" motion should include referral to the Committee on Appropriations.

SUMMARY

This bill requires school and community college districts to provide at least 50 percent of a certificated, academic, or classified employee’s regular salary for the remaining portion of the 12-workweek period of parental leave, regardless of the differential pay system used by the employer.

BACKGROUND

Existing law:

1. Establishes the California Fair Employment and Housing Act (FEHA), under which it is an unlawful employment practice, unless based upon a bona fide occupational qualification, for an employer to refuse to allow a female employee disabled by pregnancy, childbirth, or a related medical condition to take a leave for a reasonable period of time not to exceed four months and thereafter return to work. The employee is entitled to utilize any accrued vacation leave during this period of time. Also under the FEHA, reasonable accommodation of a disability related to pregnancy can include an extended leave of absence.
2. Establishes the California Family Rights Act (CFRA), providing certain employees up to 12 weeks of unpaid, job-protected leave per year for the purpose of bonding with a child, care for a parent, spouse, or child with a serious health condition, or due to an employee’s own serious health condition, and requires group health benefits to be maintained during the leave as if employees continued to work instead of taking leave.
3. Requires school districts to provide for a leave of absence from duty for a certificated employee of the school district who is required to be absent from duties because of pregnancy, miscarriage, childbirth, and recovery therefrom. Requires that the length of the leave of absence be determined by the employee and the employee’s physician.

1. Requires school districts to provide for a leave of absence from duty for a classified employee of the school district who is required to be absent from duties because of pregnancy, childbirth, and convalescence therefrom. Requires that the length of the leave of absence be determined by the employee and the employee’s physician.
2. Specifies that during each school year, when a person employed in a position requiring certification qualifications has exhausted all available sick leave, including all accumulated sick leave, and continues to be absent from his or her duties on account of illness or accident for an additional period of five school months, the amount deducted from the salary due him or her for any of the additional five months in which the absence occurs shall not exceed the sum that is actually paid a substitute employee employed to fill his or her position during his or her absence or, if no substitute employee was employed, the amount that would have been paid to the substitute had he or she been employed. Specifies the following:
   1. The sick leave, including accumulated sick leave, and the five-month period run consecutively.
   2. Limits the benefit to one five-month period per illness or accident. However, if a school year terminates before the five-month period is exhausted, the employee may take the balance of the five-month period in a subsequent school year.
3. Requires that certificated and classified employees that participate in the differential pay program receive no less than 50 percent of their regular salary during the period of such absence.

ANALYSIS

This bill requires school and community college districts to provide at least 50 percent of a certificated, academic, or classified employee’s regular salary for the remaining portion of the 12-workweek period of parental leave, regardless of the differential pay system used by the employer.

STAFF COMMENTS

1. Need for the bill. According to the author, “AB 2393 (Campos) provided up to 12 weeks of paid parental leave for all school employees. However, the bill overlooked part-time faculty members who work in differential pay districts. Those faculty members, if they exhaust their sick leave, would receive no pay due to the substitute cost being the same as their current salary. As such, part-time faculty who exhaust their sick leave while on parental leave would not qualify for differential pay.”
2. Pregnancy disability leave. Existing law provides that it is unlawful to refuse to allow a female employee disabled by pregnancy, childbirth, or a related medical condition to take leave not to exceed four months. The employee is entitled to use vacation leave during this time. Once the vacation time is exhausted, the employee can receive differential pay for the remaining time, for up to five months.
3. Protected leave. Existing law also prohibits, except under certain circumstances, the refusal to grant a request by any employee with a certain amount of service to take up to a total of 12 workweeks in a 12 month period for family care and medical leave. The employer is required to provide the employee a guarantee of employment in the same or comparable position upon the termination of the leave. The law specifies that this protected leave is separate and distinct from the pregnancy disability leave. Once an employee is cleared to return to work by a physician, the employee may take this protected leave.

The federal Family Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) provide certain employees up to 12 weeks of unpaid, job-protected leave a year for the purpose of bonding with a child, care for a parent, spouse, or child with a serious health condition, or due to an employee’s own serious health condition, and requires group health benefits to be maintained during the leave as if employees continued to work instead of taking leave.

Current law requires school and community college employers to pay differential pay for certificated employees, community college faculty, and classified employees who take the 12 week FMLA maternity or paternity leave.

1. Differential pay. Current law requires that certificated and classified employees of school districts be provided with differential pay during their FMLA leave, or be compensated with at least 50 percent of their salary, irrespective of the cost of a substitute. School districts may choose either system.

Differential pay is calculated by subtracting the cost of a substitute employee from the certificated employee's salary. As an example, if the certificated employee made $50,000 and the substitute cost $35,000, then the certificated employee would be paid the difference of $15,000 during maternity or paternity leave, after exhausting all accrued sick time.

For some employees employed by districts which do provide differential pay, the cost of providing a substitute to assume their duties is equal to their salary. As a result, they receive no differential pay. This bill would create a “floor” for differential pay equal to half of the employee’s salary, irrespective of the cost of a substitute for that employee.

1. Prior legislation.

AB 568 (Gonzalez) of this Session would have required that school districts, charter schools, and community colleges provide at least six weeks of full pay for pregnancy-related leaves of absence taken by certificated, academic, and classified employees. This bill was vetoed by the Governor, who stated:

I have signed two previous bills, AB 2393 of 2016 and AB 375 of 2015, that allow these employees to receive differential pay for maternity and paternity leave. I believe further decisions regarding leave policies for school employees are best resolved through the collective bargaining process at the local level. I would also encourage districts to consider participating in the State Disability Insurance program that would allow these employees to receive pay in addition to what is already being provided.

AB 375 (Campos) Chapter 400, Statutes of 2015 requires certificated school employees on maternity or paternity leave to receive differential pay after exhausting accrued sick leave.

AB 2393 (Campos), Chapter 883, Statutes of 2016, allowed school district classified employees and community college academic and classified employees to receive differential pay when on parental leave.

SUPPORT

California Federation of Teachers (sponsor)

American Civil Liberties Union

American Federation of State, County, and Municipal Employees

California Faculty Association

California School Employees Association

California Teachers Association

Communication Worker of America, District 9

Faculty Association of California Community Colleges

OPPOSITION

None received

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 2012

Author:(Medina)

As Introduced Ver:February 1, 2018

Majority vote

SUMMARY: Requires that a person employed in a position requiring certification qualifications, a person employed in an academic position, or a classified employee will receive no less than 50% of his or her regular salary for the remaining portion of the 12-workweek period of parental leave, regardless of the type of differential pay system used by the school district or community college district.

FISCAL EFFECT: This bill is keyed non-fiscal by the Legislative Counsel.

COMMENTS: Need for the bill. The author's office states: "AB 2393 [(Campos), Chapter 883, Statutes of 2016] provided up to 12 weeks of paid parental leave for all school employees. However, the bill overlooked part-time faculty members and part-time classified staff who work in differential pay districts. Those members, if they exhaust their sick leave, would receive no pay due to the substitute cost being the same as their current salary. As such, part-time faculty and part-time classified staff who exhaust their sick leave while on parental leave would not qualify for differential pay. AB 2012 will help close the loophole to ensure that part-time faculty and part-time classified staff working in differential pay districts receive no less than 50% of his or her regular salary for the remaining portion of the 12-workweek period of parental leave."

Background. The Moore-Brown-Roberti Family Rights Act (CFRA) is the state-law equivalent of the federal Family and Medical Leave Act (FMLA). Both acts provide for up to 12 weeks of unpaid family and medical leave for public and private employees. Current law requires school and community college employers to pay differential pay for certificated employees, community college faculty, and classified employees who take the 12 week FMLA maternity or paternity leave.

Differential Pay. Differential pay is calculated by subtracting the cost of a substitute employee from the certificated employee's salary. As an example, if the certificated employee made $50,000 and the substitute cost $35,000, then the certificated employee would be paid the difference of $15,000 during maternity or paternity leave, after exhausting all accrued sick time.

Disability Leave and FMLA. Typically, mothers are on pregnancy disability leave during the first six to eight weeks, or longer, after a baby's birth. They are also entitled, under the FMLA and state law, to take 12 weeks of additional leave for bonding. Under current law, during pregnancy disability leave district employees use any sick leave, and once it is exhausted are entitled to differential pay. During their subsequent FMLA leave they are also entitled to use sick leave and then receive differential pay.

Parental leave in the United States and other countries. A 2010 study by the International Labor Organization of the United Nations found that out of 167 countries studied, 97% provide paid maternity leave for women. Only four out of the 167 countries studied did not: Lesotho, Papua New Guinea, Swaziland, and the United States. Australia was also listed in this study as not providing paid maternity leave, but their policy recently changed and parents there currently receive 18 weeks of paid leave. The United States is the only industrialized nation that doesn't mandate that parents of newborns get paid leave.

Examples of countries with progressive paid maternity/paternity leave laws include Ireland with 6.5 months of paid leave, Italy with five months of paid leave, England with nearly 10 months of paid leave, and Sweden with nearly 16 months of paid leave.

Prior legislation. AB 568 (Gonzalez Fletcher) of 2017, would have required school districts, charter schools, and community colleges provide at least six weeks of full pay for pregnancy-related leaves of absence taken by certificated, academic, and classified employees. This legislation was vetoed by the Governor.

AB 2393 (Campos), Chapter 883, Statutes of 2016. Required classified school employees and community college instructors on parental leave to receive up to 12 weeks of differential pay, as specified, and clarified provisions requiring certificated school employees on parental leave to receive differential pay.

AB 375 (Campos), Chapter 400, Statutes of 2015. Required certificated school employees on maternity or paternity leave to receive differential pay.

Analysis Prepared by: Kevin J. Powers / HIGHER ED. / (916) 319-3960 FN: 0002938

Date of Hearing: May 9, 2018

ASSEMBLY COMMITTEE ON EDUCATION

Patrick O'Donnell, Chair

ABPCA Bill Id:AB 2012 (

Author:Medina) – As Introduced Ver:February 1, 2018

[Note: This bill was double-referred to the Assembly Committee on Higher Education and was heard by that Committee as it related to issues under its jurisdiction.]

SUBJECT: School and community college employees: parental leave

SUMMARY: Requires that a person employed in a position requiring certification qualifications, a person employed in an academic position, or a classified employee receive no less than 50% of his or her regular salary during parental leave, after sick leave has been exhausted, regardless of the type of parental leave pay system used by the school district or community college district.

EXISTING LAW:

1. Requires, under the California Family Rights Act (CFRA), that certain employees receive up to 12 weeks of unpaid, job-protected leave a year for the purpose of bonding with a child, care for a parent, spouse, or child with a serious health condition, or due to an employee’s own serious health condition, and requires group health benefits to be maintained during the leave as if employees continued to work instead of taking leave. (GC 12945.2)
2. Permits both certificated and classified employees to use accrued sick leave for purposes of parental leave for a period of up to 12 workweeks.
3. Provides that certificated employees, after having exhausted their accrued sick leave during their 12 weeks of parental leave, be entitled to additional compensation during the remainder of that leave, pursuant to one of the following two systems adopted by school districts:
4. Differential pay: During each school year, for a period of five school months, the amount deducted from the salary due the certificated employee may not exceed the sum that is actually paid a substitute employee employed to fill his or her position during his or her absence or, if no substitute employee was employed, the amount that would have been paid to the substitute had he or she been employed. (EC 44977)
5. 50% of salary: Exempts school districts from the above system if they have adopted a system which provides, for a period of five school months or less, 50 percent or more of a certificated employee’s regular salary. (EC 44983)
6. Provides that, after classified employees have exhausted their accrued sick leave during their 12 weeks of parental leave, they are entitled to additional compensation during the remainder of that leave, pursuant to one of the following two systems adopted by school districts:
7. Differential pay: For a period of five months or less, the amount deducted from the salary due a classified employee for any month in which the absence occurs may not exceed the sum which is actually paid a substitute employee employed to fill his or her position during the absence. (EC 45196)
8. 50% of salary: Exempts from the above requirement school districts which adopt a system in which a classified employee is once a year credited with 100 working days of paid sick leave, including 12 days of sick leave as required by law, those days be compensated at not less than 50 percent of the employee’s regular salary. (EC 45196)
9. Under the Fair Employment and Housing Act (FEHA) and associated regulations, it is an unlawful employment practice, unless based upon a bona fide occupational qualification, for an employer to refuse to allow a female employee disabled by pregnancy, childbirth, or a related medical condition to take a leave for a reasonable period of time not to exceed four months and thereafter return to work. The employee is entitled to utilize any accrued vacation leave during this period of time. (GC 12945) Also under the FEHA, reasonable accommodation of a disability related to pregnancy can include an extended leave of absence.

FISCAL EFFECT: This bill has been keyed non-fiscal by the Office of Legislative Counsel.

COMMENTS:

Need for the bill. The author’s office states: “AB 2393 (Campos 2016) provided up to 12 weeks of paid parental leave for all school employees. However, the bill overlooked part-time faculty members and part-time classified staff who work in differential pay districts. Those members, if they exhaust their sick leave, would receive no pay due to the substitute cost being the same as their current salary. As such, part-time faculty and part-time classified staff who exhaust their sick leave while on parental leave would not qualify for differential pay. AB 2012 will help close the loophole to ensure that part-time faculty and part-time classified staff working in differential pay districts receive no less than 50% of his or her regular salary for the remaining portion of the 12-workweek period of parental leave.”

Differential pay. The CFRA is the state-law equivalent of the federal Family and Medical Leave Act (FMLA). Both acts provide for up to 12 weeks of unpaid family and medical leave for public and private employees.

Current law requires that certificated and classified employees of school districts be provided with differential pay during their FMLA leave, or be compensated with at least 50% of their salary, irrespective of the cost of a substitute. School districts may choose either system.

Differential pay is calculated by subtracting the cost of a substitute employee from the certificated or classified employee's salary. For example, if the certificated employee made $50,000 and the substitute cost $35,000, then the certificated employee would be paid the difference of $15,000 during parental leave, after exhausting all accrued sick time. There is no minimum compensation threshold.

For some employees employed by districts which do provide differential pay, the cost of providing a substitute to assume their duties is equal to their salary. As a result, they receive no differential pay. This bill would create a “floor” for differential pay equal to half of the employee’s salary, irrespective of the cost of a substitute for that employee.

Why not establish a differential pay floor for pregnancy disability leave? When medically necessary, certificated and classified employees are entitled to leave for pregnancy, miscarriage, childbirth, and recovery therefrom.

Under current law, during pregnancy disability leave certificated and classified school district employees use any sick leave, and once it is exhausted are entitled to differential pay or 50% of their salary, depending upon the choice of their school district. During their subsequent parental leave they are also entitled to use sick leave and then receive differential pay or 50% of salary, depending upon the choice of their school district. The chart below provides an overview of current law:

This bill creates a floor of 50% of salary for certificated and classified employees employed in a school district which provides differential pay, during parental leave only. These employees are also entitled to differential pay during pregnancy disability leave, but this bill does not establish a floor of 50% of salary for this type of leave. The Committee may wish to consider whether to extend the requirement for a minimum of 50% of salary to employees using differential pay during pregnancy disability leave.

Parental leave in the United States and other countries. A 2010 study by the International Labor Organization of the United Nations found that out of 167 countries studied, 97 percent provide paid maternity leave for women. Only four out of the 167 countries studied did not: Lesotho, Papua New Guinea, Swaziland, and the United States. Australia was also listed in this study as not providing paid maternity leave, but their policy recently changed and parents there currently receive 18 weeks of paid leave. The U.S. is the only industrialized nation that doesn't mandate that parents of newborns get paid leave.

Examples of countries with progressive paid maternity/paternity leave laws include Ireland with 6.5 months of paid leave, Italy with five months of paid leave, England with nearly 10 months of paid leave, and Sweden with nearly 16 months of paid leave.

Prior legislation. AB 568 (Gonzalez) of this Session would have required that school districts, charter schools, and community colleges provide at least six weeks of full pay for pregnancy-related leaves of absence taken by certificated, academic, and classified employees. This bill was vetoed by the Governor, who stated:

I have signed two previous bills, AB 2393 of 2016 and AB 375 of 2015, that allow these employees to receive differential pay for maternity and paternity leave. I believe further decisions regarding leave policies for school employees are best resolved through the collective bargaining process at the local level. I would also encourage districts to consider participating in the State Disability Insurance program that would allow these employees to receive pay in addition to what is already being provided.

AB 375 (Campos) Chapter 400, Statutes of 2015 requires certificated school employees on maternity or paternity leave to receive differential pay after exhausting accrued sick leave.

AB 2393 (Campos), Chapter 883, Statutes of 2016, allowed school district classified employees and community college academic and classified employees to receive differential pay when on parental leave.

REGISTERED SUPPORT / OPPOSITION:

Support

California Federation of Teachers (sponsor)

American Civil Liberties Union of California

American Federation of State, County and Municipal Employees

California Teachers Association

Communication Workers of America, District 9

Faculty Association of California Community Colleges

Silicon Valley Leadership Group

Opposition

None on file

Analysis Prepared by: Tanya Lieberman / ED. / (916) 319-2087

Date of Hearing: April 3, 2018

ASSEMBLY COMMITTEE ON HIGHER EDUCATION

Jose Medina, Chair

ABPCA Bill Id:AB 2012 (

Author:Medina) – As Introduced Ver:February 1, 2018

[Note: This bill is doubled referred to the Assembly Committee on Education and will be heard by that Committee as it relates to issues under its jurisdiction.]

SUBJECT: School and community college employees: parental leave

SUMMARY: Requires that a person employed in a position requiring certification qualifications, a person employed in an academic position, or a classified employee will receive no less than 50% of his or her regular salary for the remaining portion of the 12-workweek period of parental leave, regardless of the type of differential pay system used by the school district or community college district.

EXISTING LAW:

1. Under FEHA and associated regulations, it is an unlawful employment practice, unless based upon a bona fide occupational qualification, for an employer to refuse to allow a female employee disabled by pregnancy, childbirth, or a related medical condition to take a leave for a reasonable period of time not to exceed four months and thereafter return to work. The employee shall be entitled to utilize any accrued vacation leave during this period of time. (Government Code (GC) Section 12945.) Also under the FEHA, reasonable accommodation of a disability related to pregnancy can include an extended leave of absence.
2. The California Family Rights Act (CFRA) provides certain employees up to 12 weeks of unpaid, job-protected leave a year for the purpose of bonding with a child, care for a parent, spouse, or child with a serious health condition, or due to an employee’s own serious health condition, and requires group health benefits to be maintained during the leave as if employees continued to work instead of taking leave. (GC Sect. 12945.2.)
3. Authorizes, during each school year, a person employed by a school district in a position requiring certification qualifications to use his or her sick leave for purposes of parental leave for a period of up to 12 workweeks, and (Education Code (EC) Section 44977.5):
   1. Requires, when a person employed in a position requiring certification qualifications in school districts that use a certain differential pay system has exhausted all available sick leave and continues to be absent from his or her duties on account of parental leave, the amount deducted from the salary due to the employee for any of the remaining portion of the 12-workweek period in which the absence occurs to not exceed the sum that is actually paid, or that would have been paid, to a substitute employee to fill his or her position during his or her absence; and,
   2. Requires, when a person employed in a position requiring certification qualifications in school districts that use a certain other differential pay system has exhausted all available sick leave and continues to be absent from his or her duties on account of parental leave, that the person is compensated at no less than 50% of his or her regular salary for the remaining portion of the 12-workweek period of parental leave.
4. Authorizes, during each school year, a classified employee of a school district to use his or her sick leave for purposes of parental leave for a period of up to 12 workweeks, and (EC Section 45196.1):
   1. Requires, when a classified employee of school districts that use a certain differential pay system has exhausted all available sick leave and continues to be absent from his or her duties on account of parental leave, the amount deducted from the salary due to the classified employee for any of the remaining portion of the 12-workweek period in which the absence occurs to not exceed the sum that is actually paid to a substitute employee employed to fill his or her position during his or her absence; and,
   2. Requires, when a classified employee of school districts that use a certain other differential pay system has exhausted all available sick leave and continues to be absent from his or her duties on account of parental leave, that the employee is compensated at no less than 50% of the employee’s regular salary for the remaining portion of the 12-workweek period of parental leave.
5. Authorizes, during each school year, an employed in an academic position in community college districts to use his or her sick leave for purposes of parental leave for a period of up to 12 workweeks, and (EC Section 87780.1.):
   1. Requires, when a person employed in an academic position in community college districts that use a certain differential pay system has exhausted all available sick leave and continues to be absent from his or her duties on account of parental leave, the amount deducted from the salary due to the employee for any of the remaining portion of the 12-workweek period in which the absence occurs to not exceed the sum that is actually paid, or that would have been paid, to a temporary employee employed to fill his or her position during his or her absence; and,
   2. Requires, when a person employed in an academic position in community college districts that use a certain differential pay system has exhausted all available sick leave and continues to be absent from his or her duties on account of parental leave, that the person is compensated at no less than 50% of his or her regular salary for the remaining portion of the 12-workweek period of parental leave.
6. Authorizes, during each school year, a classified employee of a community college district to use his or her sick leave for purposes of parental leave for a period of up to 12 workweeks, and (EC Section 88196.1.):
   1. Requires, when a classified employee of community college districts that use a certain differential pay system has exhausted all available sick leave and continues to be absent from his or her duties on account of parental leave, the amount deducted from the salary due to the classified employee for any of the remaining portion of the 12-workweek period in which the absence occurs to not exceed the sum that is actually paid to a substitute employee employed to fill his or her position during his or her absence.
   2. Requires, when a classified employee of community college districts that use a certain other differential pay system has exhausted all available sick leave and continues to be absent from his or her duties on account of parental leave, that the employee is compensated at no less than 50% of the employee’s regular salary for the remaining portion of the 12-workweek period of parental leave.
7. Requires that any employee has the right to use sick leave and to obtain differential pay for absences necessitated by pregnancy, miscarriage, childbirth, and recovery. (EC Section 44978)

FISCAL EFFECT: Unknown.

COMMENTS: Need for the bill. According to the author, “In 2016, Assemblymember Campos authored legislation (AB 2393) that provided up to 12 weeks of paid parental leave for all K-12 and community college employees. However, her legislation overlooked part-time faculty members who work in differential pay districts. My bill will ensure that part-time faculty working in differential pay districts receives no less than 50% of their regular salary for the remaining portion of the 12-workweek period of parental leave.”

Background. The Moore-Brown-Roberti Family Rights Act (CFRA) is the state-law equivalent of the federal Family and Medical Leave Act (FMLA). Both acts provide for up to 12 weeks of unpaid family and medical leave for public and private employees. Current law requires school and community college employers to pay differential pay for certificated employees, community college faculty, and classified employees who take the 12 week FMLA maternity or paternity leave.

Differential Pay. Differential pay is calculated by subtracting the cost of a substitute employee from the certificated employee's salary. As an example, if the certificated employee made $50,000 and the substitute cost $35,000, then the certificated employee would be paid the difference of $15,000 during maternity or paternity leave, after exhausting all accrued sick time.

Disability Leave and FMLA. Typically, mothers are on pregnancy disability leave during the first six to eight weeks, or longer, after a baby's birth. They are also entitled, under the FMLA and state law, to take 12 weeks of additional leave for bonding. Under current law, during pregnancy disability leave district employees use any sick leave, and once it is exhausted are entitled to differential pay. During their subsequent FMLA leave they are also entitled to use sick leave and then receive differential pay.

Arguments in support. The California Federation of Teachers writes that “…faculty members, if they exhaust their sick leave, would receive no pay due to the substitute cost being the same as their current salary. As such, part-time faculty who exhaust their sick leave while on parental leave would not qualify for differential pay…AB 2012 will close this loophole.”

Prior legislation. AB 568 (Gonzalez Fletcher, 2017), would have required school districts, charter schools, and community colleges provide at least six weeks of full pay for pregnancy-related leaves of absence taken by certificated, academic, and classified employees. This legislation was vetoed by the Governor.

AB 2393 (Campos), Chapter 883, Statutes of 2016. Required classified school employees and community college instructors on parental leave to receive up to 12 weeks of differential pay, as specified, and clarified provisions requiring certificated school employees on parental leave to receive differential pay.

AB 375 (Campos), Chapter 400, Statutes of 2015. Required certificated school employees on maternity or paternity leave to receive differential pay.

REGISTERED SUPPORT / OPPOSITION:

Support

California Federation of Teachers (Sponsor)

Opposition

None on file

Analysis Prepared by: Kevin J. Powers / HIGHER ED. / (916) 319-3960