Existing law, the California Fair Employment and Housing Act, establishes the Civil Rights Department within the Business, Consumer Services, and Housing Agency and sets forth its powers and duties relating to enforcement of civil rights laws with respect to housing and employment. Existing law requires the department to create a small employer family leave mediation pilot program for the resolution of alleged violations of prescribed provisions on family care and medical and bereavement leave, applicable to employers with between 5 and 19 employees. Existing law requires the department to generally initiate the mediation within 60 days following a request, prohibits an employee from pursuing a civil action until the mediation is complete or the mediation is deemed unsuccessful, and tolls the statute of limitations applicable to the employees claim, including for all related claims not subject to mediation, from the date of receipt of a request to participate in the program until the mediation is complete or the mediation is deemed unsuccessful. Under existing law, the mediation is deemed complete when one of specified events occurs, including that the mediator determines that the core facts of the employees complaint are unrelated to the specified family care and medical and bereavement leave provisions. Existing law repeals the pilot program on January 1, 2025.

This bill would expand the program to include resolution of alleged violations of prescribed provisions on reproductive loss leave. In relation to the above-described provisions regarding the statute of limitations, the bill would additionally toll the statute of limitations applicable to an employees claim relating to an alleged violation of specified provisions on reproductive loss leave, as provided. The bill would also deem the mediation to be complete if the mediator determines that the employer does not have between 5 and 19 employees, except as specified. The bill would delete the repeal date for the pilot program, thereby extending operation of the program indefinitely, and would make conforming changes.

Existing law, the California Fair Employment and Housing Act, establishes the Civil Rights Department within the Business, Consumer Services, and Housing Agency and sets forth its powers and duties relating to enforcement of civil rights laws with respect to housing and employment. Existing law requires the department to create a small employer family leave mediation pilot program for the resolution of alleged violations of prescribed provisions on family care and medical and bereavement leave, applicable to employers with between 5 and 19 employees. Existing law requires the department to generally initiate the mediation within 60 days following a request, prohibits an employee from pursuing a civil action until the mediation is complete or the mediation is deemed unsuccessful, and tolls the statute of limitations applicable to the employees claim, including for all related claims not subject to mediation, from the date of receipt of a request to participate in the program until the mediation is complete or the mediation is deemed unsuccessful. Under existing law, the mediation is deemed complete when one of specified events occurs, including that the mediator determines that the core facts of the employees complaint are unrelated to the specified family care and medical and bereavement leave provisions. Existing law repeals the pilot program on January 1, 2025.

This bill would expand the program to include resolution of alleged violations of prescribed provisions on reproductive loss leave. In relation to the above-described provisions regarding the statute of limitations, the bill would additionally toll the statute of limitations applicable to an employees claim relating to an alleged violation of specified provisions on reproductive loss leave, as provided. The bill would also deem the mediation to be complete if the mediator determines that the employer does not have between 5 and 19 employees, except as specified. The bill would delete the repeal date for the pilot program, thereby extending operation of the program indefinitely, and would make conforming changes.

Existing law, the California Fair Employment and Housing Act, establishes the Civil Rights Department within the Business, Consumer Services, and Housing Agency and sets forth its powers and duties relating to enforcement of civil rights laws with respect to housing and employment. Existing law requires the department to create a small employer family leave mediation pilot program for the resolution of alleged violations of prescribed provisions on family care and medical and bereavement leave, applicable to employers with between 5 and 19 employees. Existing law requires the department to generally initiate the mediation within 60 days following a request, prohibits an employee from pursuing a civil action until the mediation is complete or the mediation is deemed unsuccessful, and tolls the statute of limitations for the employee, including for all related claims not subject to mediation, from the date of receipt of a request to participate in the program until the mediation is complete or the mediation is deemed unsuccessful. Under existing law, the mediation is deemed complete when one of specified events occurs, including that the mediator determines that the core facts of the employees complaint are unrelated to the specified family care and medical and bereavement leave provisions. Existing law repeals the pilot program on January 1, 2025.

This bill would expand the program to include resolution of alleged violations of prescribed provisions on reproductive leave loss. The bill would revise loss leave. In relation to the above-described provisions relating to the statute of limitations to regarding the statute of limitations, the bill would additionally toll the statute of limitations for all related claims arising out of the claims subject to mediation. applicable to an employees claim relating to an alleged violation of specified provisions on reproductive loss leave, as provided. The bill would also deem the mediation to be complete if the mediator determines that the employer does not have between 5 and 19 employees, except as specified. The bill would delete the repeal date for the pilot program, thereby extending operation of the program indefinitely, and would make conforming changes.

Existing law, the California Fair Employment and Housing Act, establishes the Civil Rights Department within the Business, Consumer Services, and Housing Agency and sets forth its powers and duties relating to enforcement of civil rights laws with respect to housing and employment. Existing law requires the department to create a small employer family leave mediation pilot program for the resolution of alleged violations of prescribed provisions on family care and medical and bereavement leave, applicable to employers with between 5 and 19 employees. Existing law requires the department to generally initiate the mediation within 60 days following a request, prohibits an employee from pursuing a civil action until the mediation is complete or the mediation is deemed unsuccessful, and tolls the statute of limitations for the employee, including for all related claims not subject to mediation, from the date of receipt of a request to participate in the program until the mediation is complete or the mediation is deemed unsuccessful. Under existing law, the mediation is deemed complete when one of specified events occurs, including that the mediator determines that the core facts of the employees complaint are unrelated to the specified family care and medical and bereavement leave provisions. Existing law repeals the pilot program on January 1, 2025.

This bill would expand the program to include resolution of alleged violations of prescribed provisions on reproductive leave loss. The bill would revise the above-described provisions relating to the statute of limitations to toll the statute of limitations for all related claims arising out of the claims subject to mediation. The bill would also deem the mediation to be complete if the mediator determines that the employer does not have between 5 and 19 employees, except as specified. The bill would delete the repeal date for the pilot program, thereby extending operation of the program indefinitely, and would make conforming changes.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 2011

Author:(Bauer-Kahan)

As Amended Ver:May 13, 2024

Majority vote

SUMMARY

Adds claims for violations of reproductive leave loss provisions to coverage under the small employer family leave mediation pilot program and makes the pilot permanent.

Senate Amendments

Clarify which claims have their statute of limitations tolled during mediation.

COMMENTS

Information provided by the author to committee staff demonstrates that the small employer family leave mediation program has been an important tool in resolving family leave claims. Since the program's inception in late 2020, 55 complaints have been referred to it. Of those 55, 31 were mediated and 17 of those were successfully settled.

According to the Author

"The Small Employer Family Leave Mediation protects small businesses while maintaining labor rights. AB 2011 permanently establishes the program and provides an ongoing resource for small businesses and employees. This program has been a proven meaningful resource for successfully mediating discrepancies between small businesses and their employees. This project has paid respective complainants $688,250 in total for successful settlements."

The author further states that the bill "promotes equity solutions due to the job-protected leave conditions in this bill. People are guaranteed their time off with the secureness of knowing that their job will be protected when they come back. This program is operated under the Civil Rights Department which protects employees and employers from discrimination and harassment."

Arguments in Support

A coalition of employer organizations, including the California Chamber of Commerce, are in support and state, "Since its inception, the program has been successful. More than half of the mediated cases have resulted in settlement with hundreds of thousands of dollars going directly to workers. We believe this mediation option has been an important way to protect small businesses while maintaining labor rights. The Legislature should make this program permanent and expand its scope to include reproductive loss leave, which is a new leave requirement that also applies to small businesses."

Arguments in Opposition

None on file.

FISCAL COMMENTS

According to the Senate Appropriations Committee pursuant to SR 28.8 negligible costs.

VOTES:

ASM LABOR AND EMPLOYMENT: 7-0-0

YES: Ortega, Flora, Alanis, Wendy Carrillo, Lee, Ward, Zbur

ASM JUDICIARY: 12-0-0

YES: Kalra, Dixon, Bauer-Kahan, Bryan, Connolly, Haney, Maienschein, McKinnor, Pacheco, Reyes, Sanchez, Waldron

ASM APPROPRIATIONS: 14-0-1

YES: Wicks, Sanchez, Arambula, Bryan, Calderon, Dixon, Mike Fong, Grayson, Haney, Hart, Jim Patterson, Pellerin, Ta, Villapudua

ABS, ABST OR NV: Wendy Carrillo

ASSEMBLY FLOOR: 72-0-8

YES: Addis, Aguiar-Curry, Alanis, Alvarez, Bains, Bauer-Kahan, Bennett, Berman, Calderon, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Davies, Dixon, Flora, Mike Fong, Vince Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Luz Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

ABS, ABST OR NV: Arambula, Boerner, Bonta, Bryan, Cervantes, Megan Dahle, Essayli, Mathis

SENATE FLOOR: 40-0-0

YES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk

UPDATED

VERSION: May 13, 2024

CONSULTANT: Megan Lane / L. & E. / (916) 319-2091 FN: 0003656

 CONSENT  

Bill No: AB 2011

Author: Bauer-Kahan (D), et al.

Amended: 5/13/24 in Senate

Vote: 21

SENATE JUDICIARY COMMITTEE: 11-0, 6/4/24

AYES: Umberg, Wilk, Ashby, Caballero, Durazo, Laird, Niello, Roth, Stern, Wahab, Wiener

SENATE LABOR, PUB. EMP. & RET. COMMITTEE: 5-0, 6/12/24

AYES: Cortese, Wilk, Durazo, Gonzalez, Laird

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 72-0, 4/18/24 (Consent) - See last page for vote

SUBJECT: Unlawful employment practices: small employer family leave mediation program: reproductive loss leave

SOURCE: California Chamber of Commerce

DIGEST:

This bill eliminates the sunset provisions for the small employer family leave mediation pilot program and expands its scope to include reproductive loss leave, among other changes to the program.

ANALYSIS:

Existing law:

1. Establishes the Family Medical Leave Act (FMLA) to provide most employees the right to take up to 12 weeks of job-protected, unpaid time off work for the birth or adoption of a child, due to a serious health condition of the employee, for an exigency arising out of the fact that the employee’s close relative is a military member on active duty, and for the employee to care for a close relative with a serious health condition. (28 U.S.C. § 2601 et seq.) Applies these provisions to private employers that employ 50 or more employees during each of 20 or more calendar workweeks in the current or preceding year. (28 U.S.C. § 2611.)
2. Establishes the Fair Employment and Housing Act (FEHA) to prohibit discrimination or harassment in employment or the provision of housing accommodations on the basis of age, ancestry, color, race or ethnicity, creed, gender or sexual orientation, national origin, religion, or disability. Prohibits denial of specified leave, retaliation for asserting rights to such leave, or refusing to rehire an employee returning from such leave by certain employers and the state or its subdivisions. (Gov. Code § 12900 et seq.)
3. Establishes the Civil Rights Department (CRD) to combat discrimination in housing and employment. Specifies that the CRD has the power to receive, investigate, conciliate, mediate, and prosecute complaints alleging practices made unlawful by FEHA. (Gov. Code § 12900 et seq.)
4. Establishes the California Family Rights Act (CFRA) and makes it an unlawful employment practice for an employer to refuse to grant a request from an eligible employee to take up to a total of 12 weeks off in any 12-month period for specified family care and medical leave. Defines “family care and medical leave” for this provision to mean taking leave to care for a new child; to care for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner who has a serious health condition; to take leave because of the employee’s own serious health condition; or for a qualifying exigency related to the employee’s close family’s active duty as a member of the Armed Forces, as specified. Provides that these provisions only apply to employers with five or more employees, and to employees who have held their job for at least a year and worked at least 1,250 hours in the previous 12-month period. (Gov. Code § 12945.2.)
5. Provides that it is an unlawful employment practice for an employer to refuse to grant a request by an employee to take up to five days of reproductive loss leave following a reproductive loss event, as defined. Provides that it is an unlawful employment practice to retaliate against an employee for exercising their right to reproductive loss leave, as specified, and to interfere with, restrain, or deny the exercise of any right under its provisions. Provides that a covered employee is one who has been employed by the employer for at least 30 days prior to the commencement of the leave, and specifies that a covered employer is one who employs five or more employees, or is the state or any political or civil subdivision. (Gov. Code § 12945.6.)
6. Provides that it is an unlawful employment practice for an employer to refuse to grant an employee’s request for up to five days of bereavement leave following the death of a family member. Applies these provisions to an employee who has worked for their employer for at least 30 days prior to the commencement of the leave, and to employers with five or more employees, and the state or any political or civil subdivision. (Gov. Code § 12945.7.)
7. Requires CRD to create a small employer family leave mediation pilot program for employers with between five and 19 employees. Provides that CRD must notify an employee seeking an immediate right-to-sue letter for an alleged violation of CFRA or bereavement leave of the mediation program, and that CRD must notify all named respondents of the alleged violation and the mediation program. Specifies that, if either the employer or the employee requests mediation within 30 days of receiving notice from CRD of the alleged violations, the employee may not pursue a civil action until mediation is deemed complete or unsuccessful, as specified. Specifies that CRD must initiate mediation within 60 days of receipt of a request to mediate or receipt of the notification to respondents, whichever is later. (Gov. Code § 12945.21.)
8. Specifies that mediation is deemed complete when: neither the employee nor the employer requests mediation within 30 days of receipt of notification from CRD of the claims, or both parties agree not to mediate; the employer fails to respond to the notification or mediation request within 30 days of receipt of the notification; CRD fails to initiate mediation within 60 days of its receipt of the request for mediation or the receipt of notification; or if CRD notifies the parties that it has determined that further mediation would be fruitless, both parties agree further mediation would be fruitless, one of the parties fails to submit information requested by the other party that is reasonably necessary or fair for the other party to obtain, or the mediator determines that the core facts of the employee’s complaint are not related to CFRA or bereavement leave. (Gov. Code § 12945.21(d).)
9. Specifies that mediation is unsuccessful when the claim is not resolved within 30 days of CRD’s initiation of mediation, unless CRD notifies both parties that it has determined that more time is needed for the mediation to be successful. (Gov. Code § 12945.21(d)(2).)

This bill:

1. Extends the small employer family leave mediation program to disputes under the reproductive loss leave provision of Government Code Section 12945.6.
2. Provides that one additional basis for mediation to be deemed complete is when the mediator determines that the employer has fewer than 5 employees, or more than 19. Specifies that this basis shall not apply when the parties disagree about whether the employer has between 5 and 19 employees, and the mediator is unable to determine that the employer has between 5 and 19 employees.
3. Eliminates the small employer family leave mediation pilot program’s sunset provisions to make the program permanent.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

SUPPORT: (Verified 6/24/24)

California Chamber of Commerce (source)
Associated General Contractors
Associated General Contractors-san Diego Chapter
California Apartment Association
California Association of Winegrape Growers
California Attractions and Parks Association
California Beer and Beverage Distributors
California Builders Alliance
California Credit Union League
California Farm Bureau
California Fuels and Convenience Alliance
California Landscape Contractor's Association
California Landscape Contractors Association
California Lodging Industry Association
California Manufacturers and Technology Association
California Restaurant Association
California Self Storage Association
California Special Districts Association
California State Council of The Society for Human Resource Management (CALSHRM)
California Trucking Association
Coalition of Small and Disabled Veteran Businesses
Danville Area Chamber of Commerce
El Dorado County Chamber of Commerce
El Dorado Hills Chamber of Commerce
Elk Grove Chamber of Commerce
Family Business Association of California
Family Winemakers of California
Flasher Barricade Association
Folsom Chamber of Commerce
Fremont Chamber of Commerce
Garden Grove Chamber of Commerce
Greater Riverside Chambers of Commerce
Independent Lodging Industry Association.
Lincoln Area Chamber of Commerce
Los Angeles Area Chamber of Commerce
Oceanside Chamber of Commerce
Rancho Cordova Chamber of Commerce
Redondo Beach Chamber of Commerce
Rocklin Area Chamber of Commerce
Sacramento Regional Builders Exchange
San Diego Regional Chamber of Commerce
San Marcos Chamber of Commerce
San Pedro Chamber of Commerce
Santee Chamber of Commerce
Shingle Springs/cameron Park Chamber of Commerce
South Bay Association of Chambers of Commerce
Torrance Area Chamber of Commerce
United Chamber Advocacy Network
Valley Industry and Commerce Association (VICA)
Western Car Wash Association
Western Electrical Contractors Association
Women Lawyers of Sacramento
Yorba Linda Chamber of Commerce
Yuba Sutter Chamber of Commerce

OPPOSITION: (Verified 6/24/24)

None received

ARGUMENTS IN SUPPORT:

According to the California Chamber of Commerce, which is the sponsor of AB 2011:

In 2020, SB 1383 (Jackson) expanded the family leave requirements under the California Family Rights Act (CFRA). Beginning January 1, 2021, CFRA went from applying to employers with 50 or more employees to small employers with just 5 or more employees. SB 1383 also expanded the family members for which an employee could take leave under CFRA to provide care.

The regulations governing CFRA are lengthy and complex. Small employers do not have the means to hire human resources professionals or counsel to advise them on the details. The private right of action in CFRA means any mistake exposes small businesses to lawsuits that could quickly put them out of business.

To alleviate SB 1383’s threat of litigation for small businesses, budget trailer bill AB 1867 of 2020 required the Department of Fair Employment and Housing (“DFEH”)1 to establish a small employer mediation pilot program. All family leave claims brought against small employers with five to nineteen employees could be sent to mediation, instead of directly to court. In 2021, AB 1033 (Bauer-Kahan) improved the processes within the program and AB 1949 (Low) added bereavement leave to the scope of the program. The program is set to sunset on January 1, 2025.

Since its inception, the program has been successful. More than half of the mediated cases have resulted in settlement with hundreds of thousands of dollars going directly to workers. We believe this mediation option has been an important way to protect small businesses while maintaining labor rights. The Legislature should make this program permanent and expand its scope to include reproductive loss leave, which is a new leave requirement that also applies to small businesses.

ASSEMBLY FLOOR: 72-0, 4/18/24

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Bains, Bauer-Kahan, Bennett, Berman, Calderon, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Davies, Dixon, Flora, Mike Fong, Vince Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Luz Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

NO VOTE RECORDED: Arambula, Boerner, Bonta, Bryan, Cervantes, Megan Dahle, Essayli, Mathis

Prepared by: Ian Dougherty / JUD. / (916) 651-4113

6/25/24 13:06:32

**** END ****

SENATE COMMITTEE ON LABOR, PUBLIC EMPLOYMENT AND RETIREMENT

Senator Lola Smallwood-Cuevas, Chair

2023 - 2024 Regular

Bill No: AB 2011 Hearing Date: June 12, 2024

SUBJECT: Unlawful employment practices: small employer family leave mediation program: reproductive loss leave

KEY ISSUE

This bill extends the existing Small Employer Family Leave Mediation Program to disputes arising over the use of reproductive loss leave and eliminates the program’s January 1, 2025 sunset date to make the program permanent.

ANALYSIS

Existing federal law:

1. Establishes the Family Medical Leave Act (FMLA) to provide most employees the right to take up to 12 weeks of job-protected, unpaid time off work for the birth or adoption of a child, due to a serious health condition of the employee, for an exigency arising out of the fact that the employee’s close relative is a military member on active duty, and for the employee to care for a close relative with a serious health condition. Applies these provisions to private employers that employ 50 or more employees during each of 20 or more calendar workweeks in the current or preceding year. (28 U.S.C. §2601 et seq., §2611)

Existing state law:

1. Establishes the Fair Employment and Housing Act (FEHA) to prohibit discrimination or harassment in employment or the provision of housing accommodations on the basis of age, ancestry, color, race or ethnicity, creed, gender or sexual orientation, national origin, religion, or disability. Prohibits denial of specified leave, retaliation for asserting rights to such leave, or refusing to rehire an employee returning from such leave by certain employers and the state or its subdivisions. (Government Code §12900 et seq.)
2. Establishes the Civil Rights Department (CRD) to combat discrimination in housing and employment. Specifies that the CRD has the power to receive, investigate, conciliate, mediate, and prosecute complaints alleging practices made unlawful by FEHA. (Government Code §12900 et seq.)
3. Establishes the California Family Rights Act (CFRA) and makes it an unlawful employment practice for an employer to refuse to grant a request from an eligible employee to take up to a total of 12 weeks off in any 12-month period for specified family care and medical leave. Defines “family care and medical leave” for this provision to mean taking leave to care for a new child; to care for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner who has a serious health condition; to take leave because of the employee’s own serious health condition; or for a qualifying exigency related to the employee’s close family’s active duty as a member of the Armed Forces, as specified. Provides that these provisions only apply to employers with five or more employees, and to employees who have held their job for at least a year and worked at least 1,250 hours in the previous 12-month period. (Government Code §12945.2)
4. Provides that it is an unlawful employment practice for an employer to refuse to grant a request by an employee to take up to five days of reproductive loss leave following a reproductive loss event, as defined. Provides that it is an unlawful employment practice to retaliate against an employee for exercising their right to reproductive loss leave, as specified, and to interfere with, restrain, or deny the exercise of any right under its provisions. Provides that a covered employee is one who has been employed by the employer for at least 30 days prior to the commencement of the leave, and specifies that a covered employer is one who employs five or more employees, or is the state or any political or civil subdivision. (Government Code §12945.6)
5. Provides that it is an unlawful employment practice for an employer to refuse to grant an employee’s request for up to five days of bereavement leave following the death of a family member. Applies these provisions to an employee who has worked for their employer for at least 30 days prior to the commencement of the leave, and to employers with five or more employees, and the state or any political or civil subdivision. (Government Code §12945.7)
6. Requires CRD to create, until January 1, 2025, a Small Employer Family Leave mediation Pilot Program (Program) for employers with between five and 19 employees. Provides that CRD must notify an employee seeking an immediate right-to-sue letter for an alleged violation of CFRA or bereavement leave of the mediation program, and that CRD must notify all named respondents of the alleged violation and the mediation program. Specifies that, if either the employer or the employee requests mediation within 30 days of receiving notice from CRD of the alleged violations, the employee may not pursue a civil action until mediation is deemed complete or unsuccessful, as specified. Specifies that CRD must initiate mediation within 60 days of receipt of a request to mediate or receipt of the notification to respondents, whichever is later. (Government Code §12945.21)
7. Specifies that mediation under the Program is deemed complete when the following occur:
   1. Neither the employee nor the employer requests mediation within 30 days of receipt of notification from CRD of the claims, or both parties agree not to mediate;
   2. The employer fails to respond to the notification or mediation request within 30 days of receipt of the notification;
   3. CRD fails to initiate mediation within 60 days of its receipt of the request for mediation or the receipt of notification; or
   4. CRD notifies the parties that it has determined that further mediation would be fruitless, both parties agree further mediation would be fruitless, one of the parties fails to submit information requested by the other party that is reasonably necessary or fair for the other party to obtain, or the mediator determines that the core facts of the employee’s complaint are not related to CFRA or bereavement leave.

(Government Code §12945.21(d))

1. Specifies that mediation is unsuccessful when the claim is not resolved within 30 days of CRD’s initiation of mediation, unless CRD notifies both parties that it has determined that more time is needed for the mediation to be successful. (Government Code §12945.21(d)(2))

This bill:

1. Extends the Small Employer Family Leave Mediation Program to disputes arising under the reproductive loss leave provision of Government Code Section 12945.6.
2. Provides one additional basis for mediation under the program to be deemed complete when the mediator determines that the employer has fewer than 5 employees or more than 19. Specifies that this basis shall not apply when the parties disagree about whether the employer has between 5 and 19 employees, and the mediator is unable to determine that the employer has between 5 and 19 employees.
3. Eliminates the Small Employer Family Leave Mediation Program’s January 1, 2025 sunset date thereby making the program permanent.

COMMENTS

1. Background:

California Family Rights Act:

Prior to 2021, the California Family Rights Act entitled eligible employees of covered employers with 50 or more employees to take up to 12 workweeks of unpaid, job-protected leave during a 12 month period for specified family care and medical leave reasons. CFRA defined “family care and medical leave” as any of the following:

• 1. Leave for reason of the birth of a child of the employee, the placement of a child with an employee in connection with the adoption or foster care of the child by the employee, or the serious health condition of a child of the employee.
  2. Leave to care for a seriously ill parent or spouse
  3. Leave because of an employee’s own serious health condition

In 2020, after almost a decade of attempts, the scope of CFRA was expanded through SB 1383 (Jackson, Chapter 86, Statutes of 2020) to apply to employers with five or more employees and allow employees to take leave to care for domestic partners, child of domestic partner, grandparents, grandchildren, siblings, and parent-in-law. The Civil Rights Department enforces CFRA and any complaints of employer violations.

Bereavement Leave:

Until recently, all provisions and medical leave programs in existing law provided protections for individuals to take time off from work to care for themselves or their family members while they were still alive. In 2022, AB 1949 (Low, Chapter 767, Statutes of 2022) was signed into law providing employee with a bereavement leave entitlement of up to five days upon the death of a specified family member. The law defines “family member” for purposes of this leave to include a spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law. Bereavement leave is available to employees working for employers with five or more employees and for which the employee has worked a minimum of 30 days. It is unlawful for an employer to discriminate or retaliate against an employee for requesting or using bereavement leave. The Civil Rights Department enforces bereavement rights and any complaints of employer violations.

Reproductive Loss Leave:

Last year, SB 848 (Rubio, Chapter 724, Statutes of 2023) created reproductive loss leave to provide up to five days of job-protected leave for an employee experiencing a failed adoption, a failed surrogacy, miscarriage, stillbirth, or unsuccessful assisted reproduction. The bill also applied reproductive loss leave to an employee who has been employed for at least 30 days by an employer with five or more employees. The law requires the leave to be taken within 3 months of the event, except as described, and pursuant to any existing leave policy of the employer. Reproductive loss leave prohibits an employer from retaliating against an employee for exercising their rights under this leave and requires the employer to maintain confidentiality.

2. Background: Small Employer Family Leave Program

In 2020, AB 1867 (Committee on the Budget, Chapter 45, Statutes of 2020), among other things, required the Department of Fair Employment and Housing (since renamed the Civil Rights Department) to create the Program with a sunset date of January 1, 2024. As noted under existing law, the pilot program authorizes a small employer or its employees to request all parties to participate in mediation through CRD’s dispute resolution division within a specified timeframe, after notice. The Program prohibits an employee from pursuing civil action until the mediation is complete.

When first enacted, the mediation program applied only to violations of CFRA provisions. AB 1867 specified that the Program would only become operative if SB 1383 (Jackson, Chapter 86, Statutes of 2020) was also enacted. When CFRA was expanded through SB 1383 to cover smaller employers, opponents argued that if the change had to happen, that a mandatory mediation program should at least accompany the expansion. The goal of the Program was to give small employers the chance to resolve disputes over family leave before employees could file a lawsuit, which would raise the dispute resolution costs for all parties.

In 2021, AB 1033 (Bauer-Kahan, Chapter 327, Statutes of 2021) expanded the provisions of the Program to provide more direction to both the department and interested parties on various aspects of the Program including the notification requirements, when a mediation is to be deemed complete or unsuccessful and steps that must be taken before legal action can be pursued.

In 2023, AB 1756 (Committee on Judiciary, Chapter 478, Statutes of 2023), among other things, extended access to the Program to alleged violations under California’s newly enacted bereavement leave and extended the January 1, 2024 sunset date to January 1, 2025.

This bill (AB 2011) would extend the Program to disputes arising under the reproductive loss leave enacted last year and would eliminate the January 1, 2025 sunset date to make the program, with all the expansions, permanent.

3. Need for this bill?

The author argues that the Small Employer Family Leave Mediation Pilot Program has been a proven meaningful resource for successfully mediating disputes in support for its permanent extension. The author asserts that, since the program’s inception in 2021, there have been 55 complaints referred to the program, 31 of which were mediated. They also highlight that 17 of these complaints were successfully settled, resulting in total settlement amounts of $688,250 for employees.

4. Proponent Arguments:

According to the sponsors, the California Chamber of Commerce, and proponents, “since its inception, the program has been successful. More than half of the mediated cases have resulted in settlement with hundreds of thousands of dollars going directly to workers. We believe this mediation option has been an important way to protect small businesses while maintaining labor rights. The Legislature should make this program permanent and expand its scope to include reproductive loss leave, which is a new leave requirement that also applies to small businesses.”

5. Opponent Arguments:

None received.

6. Double Referral:

This bill was double referred and prior to our hearing was heard and passed by the Senate Judiciary Committee.

7. Prior Legislation:

SB 848 (Rubio, Chapter 724, Statutes of 2023) created reproductive loss leave to provide up to five days of job-protected reproductive loss leave for when an employee experiences a failed adoption, a failed surrogacy, miscarriage, stillbirth, or unsuccessful assisted reproduction. The bill also applied reproductive loss leave to an employee who has been employed for at least 30 days by an employer with five or more employees.

AB 1756 (Committee on Judiciary, Chapter 478, Statutes of 2023) extended the sunset for the Program from January 1, 2024 to January 1, 2025 and extended the mediation program to violations under bereavement leave, among a variety of other changes to different provisions of unrelated law.

AB 1949 (Low, Chapter 767, Statutes of 2022) established that an employee who has worked at least 30 days for an employer with five or more employees is entitled to up to five days of bereavement leave within three months of the family member’s death, upon the death of a family member.

AB 1033 (Bauer-Kahan, Chapter 327, Statutes of 2021) expanded CFRA to cover care for a parent-in-law, and reworked the Program to require CRD notify employers of an employee’s claim and an employer’s right to request mediation under the pilot program.

AB 1867 (Committee on Budget, Chapter 45, Statutes of 2020) created the Program requiring parties to engage in CRD-run mediation of claims of CFRA and bereavement leave violations, if requested by one of the parties, among other unrelated changes to other provisions of law. Established a January 1, 2024 sunset date to the pilot program.

SB 1383 (Jackson, Chapter 86, Statutes 2020) expanded CFRA’s applicability from employers with 50 employees to those with five or more.

SUPPORT

California Chamber of Commerce (Sponsor)

Associated General Contractors California
Associated General Contractors San Diego Chapter
California Apartment Association
California Association of Winegrape Growers
California Attractions and Parks Association
California Beer and Beverage Distributors
California Builders Alliance
California Credit Union League
California Farm Bureau
California Fuels and Convenience Alliance
California Landscape Contractors Association
California Lodging Industry Association
California Manufacturers and Technology Association
California Restaurant Association
California Self Storage Association
California Special Districts Association
California State Council of The Society for Human Resource Management (CalSHRM)
California Trucking Association
Coalition of Small and Disabled Veteran Businesses
Danville Area Chamber of Commerce
El Dorado County Chamber of Commerce
El Dorado Hills Chamber of Commerce
Elk Grove Chamber of Commerce
Family Business Association of California
Family Winemakers of California
Flasher Barricade Association
Folsom Chamber of Commerce
Fremont Chamber of Commerce
Garden Grove Chamber of Commerce
Greater Riverside Chambers of Commerce
Independent Lodging Industry Association.
Lincoln Area Chamber of Commerce
Los Angeles Area Chamber of Commerce
Oceanside Chamber of Commerce
Rancho Cordova Chamber of Commerce
Redondo Beach Chamber of Commerce
Rocklin Area Chamber of Commerce
Sacramento Regional Builders Exchange
San Diego Regional Chamber of Commerce
San Marcos Chamber of Commerce
San Pedro Chamber of Commerce
Santee Chamber of Commerce
Shingle Springs/Cameron Park Chamber of Commerce
South Bay Association of Chambers of Commerce
Torrance Area Chamber of Commerce
United Chamber Advocacy Network
Valley Industry and Commerce Association (VICA)
Western Carwash Association
Western Electrical Contractors Association
Women Lawyers of Sacramento
Yorba Linda Chamber of Commerce
Yuba Sutter Chamber of Commerce

OPPOSITION

None received.

-- END --

SENATE JUDICIARY COMMITTEE

Senator Thomas Umberg, Chair

2023-2024 Regular Session

Bill No: AB 2011 (Author:Bauer-Kahan)

Version: May 13, 2024

Hearing Date: June 4, 2024

Fiscal: Yes

Urgency: No

Consultant: ID

SUBJECT

Unlawful employment practices: small employer family leave mediation program: reproductive loss leave

DIGEST

This bill eliminates the sunset provisions for the small employer family leave mediation pilot program and expands its scope to include reproductive loss leave, among other changes to the program.

EXECUTIVE SUMMARY

The California Family Rights Act (CFRA) provides Californians 12 weeks of job-protected, unpaid leave for caring for a new child, a family member with a serious health condition, or for themselves when they have a serious health condition. California law also provides for up to five days of job-protected, unpaid bereavement leave following the death of a family member. In 2023, the California Legislature enacted reproductive loss leave to provide up to five days of job-protected, unpaid leave following a reproductive loss event, as defined. CFRA and bereavement loss initially applied only to employers with 50 or more employees. However, in 2020, both programs were expanded to employers with five or more employees. At the same time, the Legislature created the small employer family leave mediation pilot program to provide small employers that have between five and 19 employees with a mandatory mediation program for alleged violations of CFRA or bereavement leave. The pilot program is set to expire January 1, 2025 pursuant to its sunset provisions. AB 2011 would eliminate this sunset provision, making the small employer family leave mediation pilot program permanent, expand the program to include claims of violations of the reproductive loss leave provisions, and would make other changes to the program’s operation. AB 2011 is sponsored by the California Chamber of Commerce, and is supported by a large coalition of business associations and organizations. The committee received no timely opposition.

PROPOSED CHANGES TO THE LAW

Existing law:

1. Establishes the Family Medical Leave Act (FMLA) to provide most employees the right to take up to 12 weeks of job-protected, unpaid time off work for the birth or adoption of a child, due to a serious health condition of the employee, for an exigency arising out of the fact that the employee’s close relative is a military member on active duty, and for the employee to care for a close relative with a serious health condition. (28 U.S.C. § 2601 et seq.) Applies these provisions to private employers that employ 50 or more employees during each of 20 or more calendar workweeks in the current or preceding year. (28 U.S.C. § 2611.)
2. Establishes the Fair Employment and Housing Act (FEHA) to prohibit discrimination or harassment in employment or the provision of housing accommodations on the basis of age, ancestry, color, race or ethnicity, creed, gender or sexual orientation, national origin, religion, or disability. Prohibits denial of specified leave, retaliation for asserting rights to such leave, or refusing to rehire an employee returning from such leave by certain employers and the state or its subdivisions. (Gov. Code § 12900 et seq.)
3. Establishes the Civil Rights Department (CRD) to combat discrimination in housing and employment. Specifies that the CRD has the power to receive, investigate, conciliate, mediate, and prosecute complaints alleging practices made unlawful by FEHA. (Gov. Code § 12900 et seq.)
4. Establishes the California Family Rights Act (CFRA) and makes it an unlawful employment practice for an employer to refuse to grant a request from an eligible employee to take up to a total of 12 weeks off in any 12-month period for specified family care and medical leave. Defines “family care and medical leave” for this provision to mean taking leave to care for a new child; to care for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner who has a serious health condition; to take leave because of the employee’s own serious health condition; or for a qualifying exigency related to the employee’s close family’s active duty as a member of the Armed Forces, as specified. Provides that these provisions only apply to employers with five or more employees, and to employees who have held their job for at least a year and worked at least 1,250 hours in the previous 12-month period. (Gov. Code § 12945.2.)
5. Provides that it is an unlawful employment practice for an employer to refuse to grant a request by an employee to take up to five days of reproductive loss leave following a reproductive loss event, as defined. Provides that it is an unlawful employment practice to retaliate against an employee for exercising their right to reproductive loss leave, as specified, and to interfere with, restrain, or deny the exercise of any right under its provisions. Provides that a covered employee is one who has been employed by the employer for at least 30 days prior to the commencement of the leave, and specifies that a covered employer is one who employs five or more employees, or is the state or any political or civil subdivision. (Gov. Code § 12945.6.)
6. Provides that it is an unlawful employment practice for an employer to refuse to grant an employee’s request for up to five days of bereavement leave following the death of a family member. Applies these provisions to an employee who has worked for their employer for at least 30 days prior to the commencement of the leave, and to employers with five or more employees, and the state or any political or civil subdivision. (Gov. Code § 12945.7.)
7. Requires CRD to create a small employer family leave mediation pilot program for employers with between five and 19 employees. Provides that CRD must notify an employee seeking an immediate right-to-sue letter for an alleged violation of CFRA or bereavement leave of the mediation program, and that CRD must notify all named respondents of the alleged violation and the mediation program. Specifies that, if either the employer or the employee requests mediation within 30 days of receiving notice from CRD of the alleged violations, the employee may not pursue a civil action until mediation is deemed complete or unsuccessful, as specified. Specifies that CRD must initiate mediation within 60 days of receipt of a request to mediate or receipt of the notification to respondents, whichever is later. (Gov. Code § 12945.21.)
8. Specifies that mediation is deemed complete when: neither the employee nor the employer requests mediation within 30 days of receipt of notification from CRD of the claims, or both parties agree not to mediate; the employer fails to respond to the notification or mediation request within 30 days of receipt of the notification; CRD fails to initiate mediation within 60 days of its receipt of the request for mediation or the receipt of notification; or if CRD notifies the parties that it has determined that further mediation would be fruitless, both parties agree further mediation would be fruitless, one of the parties fails to submit information requested by the other party that is reasonably necessary or fair for the other party to obtain, or the mediator determines that the core facts of the employee’s complaint are not related to CFRA or bereavement leave. (Gov. Code § 12945.21(d).)
9. Specifies that mediation is unsuccessful when the claim is not resolved within 30 days of CRD’s initiation of mediation, unless CRD notifies both parties that it has determined that more time is needed for the mediation to be successful. (Gov. Code § 12945.21(d)(2).)

This bill:

1. Extends the small employer family leave mediation program to disputes under the reproductive loss leave provision of Government Code Section 12945.6.
2. Provides that one additional basis for mediation to be deemed complete is when the mediator determines that the employer has fewer than 5 employees, or more than 19. Specifies that this basis shall not apply when the parties disagree about whether the employer has between 5 and 19 employees, and the mediator is unable to determine that the employer has between 5 and 19 employees.
3. Eliminates the small employer family leave mediation pilot program’s sunset provisions to make the program permanent.

COMMENTS

1. Author’s statement

According to the author:

The Small Employer Family Leave Mediation [program] protects small businesses while maintaining labor rights. AB 2011 permanently establishes the program and provides an ongoing resource for small businesses and employees. This program has been a proven meaningful resource for successfully mediating discrepancies between small businesses and their employees. This project has paid respective complainants $688,250 in total for successful settlements.

1. The California Family Rights Act

In 1993, the California Legislature enacted the California Family Rights Act (CFRA, also known as the Moore-Brown-Roberti Family Rights Act). (SB 193 (Marks), Ch. 580, Stats. 1993.) The CFRA was meant to ensure that Californians do not have to choose between their jobs and helping and attending to ill family members by providing job security when they must take leave for urgent family matters. It provides 12 weeks of guaranteed unpaid leave for an employee in any 12-month period for bonding with a new child, attending to their own serious medical needs, or for caring for a close relative with a serious medical condition. (Gov. Code § 12945.2.) During any of this leave, the employee is guaranteed to be able to return to their job, and their employer cannot fire them for taking the protected leave under CFRA. However, CFRA limited its applicability to only certain employees and employers. To be eligible, an employee must have held their job for at least a year, and must have worked at least 1,250 hours for the employer in the previous 12 months. (Gov. Code § 12945.2(a).) Originally, CFRA also limited its applicability to private employers with 50 or more employees. (AB 77 (Moore), Ch. 462, Stats. 1991.) A violation of CFRA’s provisions is enforced through the Civil Rights Department (CRD), with an aggrieved employee able to bring a lawsuit independently against their employer if given a “right to sue” letter by CRD.

CFRA is part of a constellation of state and federal programs that allow for an employee to take various types and amounts of leave. Federally, the Family Medical Leave Act (FMLA) also provides most employees the right to take up to 12 weeks of job-protected, unpaid time off work for the birth or adoption of a child, for a serious health condition of the employee, for an exigency arising out of the fact that the employee’s close relative is a military member on active duty, and for the employee to care for a close relative with a serious health condition. (28 U.S.C. § 2601 et seq.) FMLA’s leave provisions only apply to private employers that employ 50 or more employees during each of 20 or more calendar workweeks in the current or preceding year. (28 U.S.C. § 2611.) FMLA and CFRA leaves may be required to be taken concurrently in certain circumstances.

In addition to CFRA leave, California provides a variety of other types of protected leave. When a Californian is disabled by pregnancy, childbirth, or a related medical condition, they also are allowed to take up to four months of job-protected Pregnancy Disability Leave (PDL). (Gov. Code § 12945.) Under AB 1949, enacted by the Legislature in 2022, an employee who has worked at least 30 days for an employer with five or more employees is entitled to up to five days of bereavement leave upon the death of a family member within three months of the family member’s death. (AB 1949 (Low), Ch. 767, Stats. 2022.) In 2023, the Legislature additionally enacted AB 848 (Rubio, Ch. 724, Stats. 2023), which provides up to five days of job-protected reproductive loss leave for when the employee experiences a failed adoption, a failed surrogacy, miscarriage, stillbirth, or unsuccessful assisted reproduction. (Gov. Code § 12945.6.) AB 848’s reproductive loss leave applies to an employee who has been employed for at least 30 days by an employer with five or more employees. (Id.)

1. The 2020 expansion of CFRA and the creation of the small employer family leave mediation pilot program

In 2020, the Legislature expanded CFRA’s applicability from employers with 50 employees to those with 5 or more. (SB 1383 (Jackson), Ch. 86, Stats. 2020.) At the same time that the California Legislature passed SB 1383 to expand CFRA protections to more small businesses, the Legislature included in budget trailer bill AB 1867 the creation of the small employer family leave mediation pilot program to minimize the risk of costly litigation to small businesses posed by CFRA’s expansion. (AB 1867 (Committee on Budget), Ch. 45, Stats. 2020.) The small employer family leave mediation pilot program applies to employers with between 5 and 19 employees, and requires that mediation be completed before an employee may sue their employer over a violation of CFRA or bereavement leave. (Gov. Code § 12945.21.)

Under the small employer family leave mediation pilot program, either employer or the employee may request mediation through CRD within 30 days of receiving notice from CRD of the alleged violation and requirement for mediation. (Id.) CRD must initiate mediation within 60 days of receiving a request for mediation, and an employee is prohibited from pursuing any civil action unless mediation is not initiated, or the mediation is complete or deemed unsuccessful. Mediation is deemed complete when: neither the employee nor the employer requests mediation within 30 days of receipt of the required notice, or the parties agree not to enter into mediation; the employer fails to respond to a notification or mediation request within 30 days of receipt; CRD fails to initiate mediation within 60 days; or CRD notifies the parties that it has determined that further mediation would be fruitless, the parties agree that further mediation would be fruitless, or one of the parties failed to submit reasonably necessary information requested by the other party. (Gov. Code § 12945.21(d)(1).) Mediation is also considered complete when the mediator determines that the core facts of the employee’s complaint are unrelated to CFRA or bereavement leave. Mediation is considered unsuccessful when the claim is not resolved within 30 days of CRD’s initiation of mediation, unless CRD has notified the parties that more time is needed for the mediation to be successful. (Gov. Code § 12945.21(d)(2).)

The small employer family leave mediation pilot program also included a number of provisions meant to ensure that employees could still pursue claims if mediation fails, and to help ensure that unrelated claims otherwise not subject to mediation are not dragged into mediation. It specifies that the statute of limitations for any claim under CFRA or the bereavement leave provisions, as well as related claims not under those sections, are tolled until mediation is complete or deemed unsuccessful. (Gov. Code § 12945.21(c)(1).) It also specifies that, if a request by an employee for an immediate right to sue includes other violations of the provisions on prohibited discrimination, the mediation process shall only apply to the claim alleging a violation of CFRA or bereavement leave, though it also specifies that it does not prohibit the parties from voluntarily choosing to mediate all alleged violations.^[1] (Gov. Code § 12945.21(f).)

When the small employer family leave mediation pilot program was initially created, it was envisioned as a pilot program, and given a sunset date of January 1, 2024. (AB 1867 (Budget), Ch. 87, Stats. 2020.) In 2023, AB 1756 extended its sunset to January 1, 2025. (AB 1756 (Judiciary), Ch. 478, Stats. 2023.)

1. AB 2011 indefinitely extends the small employer family leave mediation program, and expands its reach to reproductive loss leave

AB 2011 eliminates the sunset provisions originally placed in the small employer family leave mediation pilot program, such that it becomes permanent. In addition, AB 2011 expands the scope of the program to apply to reproductive loss leave as well as the already-covered CFRA and bereavement leave. The author argues that the small employer family leave mediation pilot program has been a proven meaningful resource for successfully mediating disputes in support for its permanent extension. The author asserts that, since the program’s inception in 2021, there have been 55 complaints referred to the program, 31 of which were mediated. They also highlight that 17 of these complaints were successfully settled, resulting in total settlement amounts of $688,250 for employees.

In addition to these changes, AB 2011 makes a minor change to when mediation is deemed complete. It reworks part of the current provisions, and adds a provision that provides that mediation is deemed complete when the mediator determines that the employer has fewer than 5, or more than 19, employees, such that they do not qualify for the mediation program. This new provision exempts from this provision for when mediation is deemed complete the instance where the parties disagree about whether the employer has between 5 and 19 employees, and the mediator is unable to determine the employer’s number of employees.

The small employer family leave mediation pilot program was created to help smaller businesses navigate and mitigate potential costs from the expansion of CFRA and bereavement leave to smaller employers. The mediation program was designed as a tool for resolving CFRA and bereavement leave claims without the cost of litigation. The argument for the creation of such a cost-saving measure was that smaller employers do not have the resources or funds to defend themselves in court for their violations of the law.

1. Arguments in support

According to the California Chamber of Commerce, which is the sponsor of AB 2011:

In 2020, SB 1383 (Jackson) expanded the family leave requirements under the California Family Rights Act (CFRA). Beginning January 1, 2021, CFRA went from applying to employers with 50 or more employees to small employers with just 5 or more employees. SB 1383 also expanded the family members for which an employee could take leave under CFRA to provide care.

The regulations governing CFRA are lengthy and complex. Small employers do not have the means to hire human resources professionals or counsel to advise them on the details. The private right of action in CFRA means any mistake exposes small businesses to lawsuits that could quickly put them out of business.

To alleviate SB 1383’s threat of litigation for small businesses, budget trailer bill AB 1867 of 2020 required the Department of Fair Employment and Housing (“DFEH”)1 to establish a small employer mediation pilot program. All family leave claims brought against small employers with five to nineteen employees could be sent to mediation, instead of directly to court. In 2021, AB 1033 (Bauer-Kahan) improved the processes within the program and AB 1949 (Low) added bereavement leave to the scope of the program. The program is set to sunset on January 1, 2025.

Since its inception, the program has been successful. More than half of the mediated cases have resulted in settlement with hundreds of thousands of dollars going directly to workers. We believe this mediation option has been an important way to protect small businesses while maintaining labor rights. The Legislature should make this program permanent and expand its scope to include reproductive loss leave, which is a new leave requirement that also applies to small businesses.

SUPPORT

California Chamber of Commerce (sponsor)
Associated General Contractors of California

Associated General Contractors, San Diego Chapter

California Apartment Association

California Association of Winegrape Growers

California Attractions and Parks Association

California Beer & Beverage Distributors

California Credit Union League

California Farm Bureau

California Fuels and Convenience Alliance

California Landscape Contractors Association

California Lodging Industry Association

California Manufactures and Technology Association (CMTA)

California Restaurant Association

California Self Storage Association

California Special Districts Association

California State Council of the Society for Human Resource Management (CalSHRM)

California Trucking Association

Coalition of Small and Disabled Veteran Businesses

Danville Area Chamber of Commerce

El Dorado County Chamber of Commerce

El Dorado Hills Chamber of Commerce

Elk Grove Chamber of Commerce

Family Business Association of California

Family Winemakers of California

Folsom Chamber of Commerce

Flasher Barricade Association

Fremont Chamber of Commerce

Garden Grove Chamber of Commerce

Greater Riverside Chambers of Commerce

Independent Lodging Industry Association

Lincoln Area Chamber of Commerce

Los Angeles Area Chamber of Commerce

Oceanside Chamber of Commerce

Rancho Cordova Chamber of Commerce

Redondo Beach Chamber of Commerce

Rocklin Chamber of Commerce

San Marcos Chamber of Commerce

San Pedro Chamber of Commerce

Santee Chamber of Commerce

Shingle Springs/Cameron Park Chamber of Commerce

South Bay Association of Chambers of Commerce

Torrance Area Chamber of Commerce

United Chamber Advocacy Network (UCAN)

Valley Industry & Commerce Association

Western Carwash Association

Western Electrical Contractors Association (WECA)

Women Lawyers of Sacramento

Yorba Linda Chamber of Commerce

Yuba Sutter Chamber of Commerce

OPPOSITION

None received

RELATED LEGISLATION

Pending Legislation: None known.

Prior Legislation:

AB 848 (Rubio, Ch. 724, Stats. 2023) created reproductive loss leave to provide up to five days of job-protected reproductive loss leave for when an employee experiences a failed adoption, a failed surrogacy, miscarriage, stillbirth, or unsuccessful assisted reproduction. The bill also applied reproductive loss leave to an employee who has been employed for at least 30 days by an employer with five or more employees.

AB 1756 (Judiciary, Ch. 478, Stats. 2023) extended the sunset for the small employer family leave mediation pilot program from January 1, 2024 to January 1, 2025, among a variety of other changes to different provisions of unrelated law.

AB 1949 (Low, Ch. 767, Stats. 2022) established that an employee who has worked at least 30 days for an employer with five or more employees is entitled to up to five days of bereavement leave within three months of the family member’s death, upon the death of a family member.

AB 1033 (Bauer-Kahan, Ch. 327, Stats. 2021) expanded CFRA to cover care for a parent-in-law, and reworked the small employer family leave mediation pilot program to require CRD notify employers of an employee’s claim and an employer’s right to request mediation under the pilot program.

AB 1867 (Budget, Ch. 87, Stats. 2020) created the small employer family leave mediation pilot program requiring parties to engage in CRD-run mediation of claims of CFRA and bereavement leave violations, if requested by one of the parties, among other unrelated changes to other provisions of law. Established a January 1, 2024 sunset date to the pilot program.

AB 1383 (Jackson, Ch. 86, Stats. 2020) expanded CFRA’s applicability from employers with 50 employees to those with 5 or more.

PRIOR VOTES:

Assembly Floor (Ayes 72, Noes 0)

Assembly Appropriations Committee (Ayes 14, Noes 0)

Assembly Judiciary Committee (Ayes 12, Noes 0)

Assembly Labor and Employment Committee (Ayes 7, Noes 0)

**************

1. This last provision and the late amendments that created it were the source of late opposition to AB 1033 from employee and disability rights groups. Their concerns were mainly that the provision would create a system where employees are required to bring their other, non-CFRA claims into mediation, or give up their CFRA and bereavement leave claims altogether, as engaging in mediation on only one claim otherwise would be impractical, frustrating, and ineffective. ↑

Date of Hearing: April 10, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

ABPCA Bill Id:AB 2011

Author:(Bauer-Kahan) – As Introduced Ver:January 31, 2024

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill modifies and makes permanent the small employer family leave mediation pilot program administered by the Civil Rights Department (CRD).

Specifically, this bill:

1. Expands the program to include mediation of reproductive loss leave claims.
2. Revises the statute of limitations for claims related to those under mediation and revises program rules regarding when a mediation is deemed complete.
3. Eliminates the January 1, 2025, repeal date for the pilot program, thus making the program permanent.

FISCAL EFFECT:

Minor and absorbable costs to CRD to expand and continue the mediation program indefinitely.

COMMENTS:

1. Purpose. According to the author, the small employer family leave mediation pilot program “has been a proven meaningful resource for successfully mediating discrepancies between small businesses and their employees.” The author notes the “project has paid respective complainants $688,250 in total for successful settlements” and permanently establishing the program “protects small businesses while maintaining labor rights.” This bill is supported by a large coalition of employer organizations led by the California Chamber of Commerce.
2. Background.

California Family Rights Act (CFRA). The CFRA allows an employee to take up to 12 weeks of family leave to care for a newborn child or to care for a family member suffering from a serious medical condition. CFRA originally applied only to employers with 50 more employees. However, SB 1383 (Jackson), Chapter 86, Statutes of 2020, expanded the CFRA to employers with five or more employees. In order to moderate the impact of CFRA expansion on the smallest employers, AB 1867 (Committee on Budget), Chapter 45, Statutes of 2020, created a CFRA pilot program to encourage mediation of disputes when an employer has between five and 19 employees. AB 1033 (Bauer-Kahan), Chapter 327, Statutes of 2021, further revised mediation timelines and procedures to make the pilot program more accessible to small employers.

Other Job-Protected Leave Benefits. AB 1949 (Low), Chapter 767, Statutes of 2022, made it an unlawful employment practice for an employer to refuse to grant an eligible employee up to five days of bereavement leave and expanded the small employer family leave mediation pilot program to include mediation of alleged violations. SB 848 (Rubio), Chapter 724, Statutes of 2023, granted similar legal protection to an employee for reproductive loss leave.

Permanent Mediation Program. The author notes there have been 55 complaints referred to the mediation pilot program since its inception, with 31 claims going through the mediation process and 17 claims successfully settled. Although CRD previously projected needing $1.8 million annually to administer the program, CRD did not ultimately request those resources and participation rates have been lower than anticipated. This bill expands the mediation pilot program to include mediation of reproductive loss leave claims and repeals the program’s January 1, 2025, sunset date, making the mediation program permanent for family, bereavement, and reproductive loss leave claims.

Analysis Prepared by: Irene Ho / APPR. / (916) 319-2081

Date of Hearing: March 19, 2024

ASSEMBLY COMMITTEE ON JUDICIARY

Ash Kalra, Chair

ABPCA Bill Id:AB 2011

Author:(Bauer-Kahan) – As Introduced Ver:January 31, 2024

PROPOSED CONSENT

SUBJECT: Unlawful employment practices: small employer family leave mediation program

KEY ISSUES:

1. SHOULD THE SUNSET DATE FOR THE SMALL EMPLOYER FAMILY LEAVE MEDIATION PROGRAM BE REMOVED, THUS MAKING THE PROGRAM PERMANENT?
2. SHOULD REPRODUCTIVE LOSS LEAVE BE INCLUDED IN THE SMALL EMPLOYER FAMILY LEAVE MEDIATION PROGRAM?

SYNOPSIS

The California Family Rights Act (CFRA) allows employees to take up to 12 weeks of family leave to care for a newborn child or to care for family members suffering from a serious medical condition. In order to moderate the impact of the CFRA expansion on the smallest employers, AB 1867 (Chap. 45, Stats. 2020) created a CFRA pilot project to encourage mediation of disputes in cases involving employers with between five and nineteen employees. The small employer family rights leave mediation pilot program appears to have threaded the needle in balancing the right of all employees to access job-protected leave benefits promised under California law, regardless of the size of their employer, and ensuring that small businesses are not unduly burdened by costly litigation.

This bill would repeal the sunset provision on the small employer mediation pilot program that is due to expire at the end of this year and expand the program to include reproductive loss leave. The bill is sponsored by the California Chamber of Commerce and is supported by a broad coalition of business advocates, trade associations, and local chambers of commerce. There is no opposition on file. This bill was previously heard by the Assembly Committee on Labor and Employment and was passed out on a vote of 7-0.

SUMMARY: Modestly expands and makes permanent the small employer family leave mediation program. Specifically, this bill:

1. Expands the small employer family leave mediation program for the resolution of alleged violations of specified provisions of family care and medical and bereavement leave to include reproductive leave loss.
2. Expands the bases for which mediation is deemed complete, thereby ending the tolling on the statute of limitations for pursuing a legal action on the claim or specified related claims, to include the following:
   1. The mediator determines that the employer has fewer than five or more than 19 employees unless the parties disagree about whether the employer has between five and 19 employees and the mediator is unable to determine that the employer has between five and 19 employees.
3. Makes the small employer family leave mediation pilot program permanent.

EXISTING LAW:

1. Establishes the Civil Rights Department (CRD) to, among other things, enforce California’s civil rights laws and protect Californians from discrimination in employment, housing, businesses, state-funded programs, and from bias-motivated violence, and from human trafficking. (Government Code Section 12900 et seq. Unless specified all further references are to the Government Code.)
2. Establishes the Fair Employment and Housing Act (FEHA), which protects the right and opportunity of all persons to seek, obtain, and hold employment without discrimination, abridgment, or harassment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. (Section 12921 (a).)
3. Makes it an unlawful employment practice, under the California Family Rights Act (CFRA), for an employer, as defined, to refuse to grant a request by an eligible employee to take up to 12 workweeks of unpaid protected leave during any 12-month period for family care and medical leave, as specified. (Section 12945.2.)
4. Makes it an unlawful employment practice for an employer to refuse to grant a request by an eligible employee to take up to five days of bereavement leave upon the death of a family member, as specified. (Section 12945.7.)
5. Makes it an unlawful employment practice for an employer to refuse to grant a request by an eligible employee to take up to five days of reproductive loss leave following a reproductive loss event. (Section 12945.6 (b).)
6. Establishes the small employer family leave mediation pilot program for employers between 5 and 19 employees, which requires employees who allege violations of 3) or 4) to complete mediation prior to filing a civil action if requested by the employer or employee. (Section 12945.21 (a).)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: The California Family Rights Act (CFRA) allows employees to take up to 12 weeks of family leave to care for a newborn child or to care for family members suffering from a serious medical condition. When originally enacted, CFRA only applied to employers with 50 or more employees; however, SB 1383 (Chap. 86, Stats. 2020) significantly expanded the scope of CFRA by applying it to employers with five or more employees. In order to moderate the impact of the CFRA expansion on the smallest employers, AB 1867 (Chap. 45, Stats. 2020) created a CFRA pilot project to encourage mediation of disputes in cases involving employers with between five and nineteen employees. Follow-up legislation (AB 1033 (Chap. 327, Stats. 2021)) further clarified the requirement that an employee contact the Civil Rights Division’s (CRD, previously the Department of Fair Employment and Housing or DFEH) dispute resolution division prior to bringing a civil action, who would then notify the respondents of the mediation requirement if requested by either the employee or respondent or respondents.

The intent of the pilot program and follow-up legislation was to ease the potentially significant impact of the CFRA on smaller employers. While the risk of litigation may be part of a business owner’s calculus when establishing their business, it nonetheless can be quite burdensome, particularly for smaller employers. The small employer family rights leave mediation pilot program appears to have threaded the needle in balancing the right of all employees to access job-protected leave benefits promised under California law, regardless of the size of their employer, and ensuring that small businesses are not unduly burdened by costly litigation.

According to the author:

The California Family Rights Act mandates that employers provide employees with a minimum of 12 weeks of job-protected leave for all businesses with 5 or more employees.

To protect these small businesses AB 1867 was passed in 2020 to require the Department of Fair Employment and Housing (DFEH) to establish a small employer mediation pilot program. All family leave claims brought against small employers with five to nineteen employees could be sent to mediation, instead of directly to court.

However, the family leave mediation program is getting ready to sunset in 2025. This program has proven successful with 55 of complaints being referred to this program. Of those 55, 31 one of them were mediated. 17 of the complaints were successfully settled, resulting in a settlement amount of $688,250. In order to keep up the good work of this program the need for it to become permanent is evident.

This bill would repeal the sunset provision on the small employer mediation pilot program that is due to expire at the end of this year. By doing so, the program would become permanent. It would also expand the program to include Government Code section 12945.6, which requires employers to provide eligible employees up to five days of bereavement leave following a reproductive loss event, such as miscarriage or a failed adoption. Finally, the bill would establish that a mediation would be considered complete if the mediator determines that the employer has fewer than 5 or more than 19 employees, unless the parties disagree and the mediator is unable to determine whether the employer has between 5 and 19 employees.

As indicated by the author, the small employer family leave mediation program appears to have had success over the past three years since its enactment. Making the program permanent and expanding it to apply to reproductive loss leave, passed just last year, seems a logical next step to further the intent and scope of the initial legislation that has proved to be successful.

ARGUMENTS IN SUPPORT: This bill is sponsored by the California Chamber of Commerce and is supported by a broad coalition of business advocates, trade associations, and local chambers of commerce.

In support of the measure the California Chamber of Commerce writes:

The regulations governing CFRA are lengthy and complex. Small employers do not have the means to hire human resources professionals or counsel to advise them on the details. The private right of action in CFRA means any mistake exposes small businesses to lawsuits that could quickly put them out of business.

[…]

Since its inception, the program has been successful. More than half of the mediated cases have resulted in settlement with hundreds of thousands of dollars going directly to workers. We believe this mediation option has been an important way to protect small businesses while maintaining labor rights. The Legislature should make this program permanent and expand its scope to include reproductive loss leave, which is a new leave requirement that also applies to small businesses.

REGISTERED SUPPORT / OPPOSITION:

Support

California Chamber of Commerce (sponsor)

Associated General Contractors
Associated General Contractors-San Diego Chapter
California Association of Winegrape Growers
California Attractions and Parks Association
California Beer and Beverage Distributors
California Farm Bureau
California Fuels and Convenience Alliance
California Landscape Contractor's Association
California Lodging Industry Association
California Manufacturers and Technology Association
California Restaurant Association
California Self Storage Association
California Special Districts Association
California State Council of The Society for Human Resource Management (CALSHRM)
California Trucking Association
Coalition of Small and Disabled Veteran Businesses
Danville Area Chamber of Commerce
Family Business Association of California
Family Winemakers of California
Flasher Barricade Association
Fremont Chamber of Commerce
Garden Grove Chamber of Commerce
Greater Riverside Chambers of Commerce
Independent Lodging Industry Association.
Los Angeles Area Chamber of Commerce
Oceanside Chamber of Commerce
Redondo Beach Chamber of Commerce
San Marcos Chamber of Commerce
San Pedro Chamber of Commerce
Santee Chamber of Commerce
South Bay Association of Chambers of Commerce
Torrance Area Chamber of Commerce
Western Car Wash Association
Western Electrical Contractors Association
Yorba Linda Chamber of Commerce

Opposition

None on file

Analysis Prepared by: Manuela Boucher-de la Cadena / JUD. / (916) 319-2334

Date of Hearing: March 13, 2024

ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT

Liz Ortega, Chair

ABPCA Bill Id:AB 2011 (

Author:Bauer-Kahan) – As Introduced Ver:January 31, 2024

SUBJECT: Unlawful employment practices: small employer family leave mediation program

SUMMARY: Adds claims for violations of reproductive leave loss provisions to coverage under the small employer family leave mediation pilot program and makes the pilot permanent.

Specifically, this bill:

1. Expands the small employer family leave mediation program for the resolution of alleged violations of specified provisions of family care and medical and bereavement leave to include reproductive leave loss.
2. Expands the bases for which mediation is deemed complete, thereby ending the tolling on the statute of limitations for pursuing a legal action on the claim or specified related claims, to include the following:
   1. The mediator determines that the employer has fewer than five or more than 19 employees.
      1. Clause a) does not apply if the parties disagree about whether the employer has between five and 19 employees and the mediator is unable to determine that the employer has between five and 19 employees.
3. Makes the small employer family leave mediation pilot program permanent.

EXISTING LAW:

1. Establishes the Civil Rights Department (CRD) to, among other things, enforce California’s civil rights laws and protect Californians from discrimination in employment, housing, businesses, state-funded programs, and from bias-motivated violence, and from human trafficking. (Gov. Code, § 12900 et seq.)
2. Requires the CRD to create a small employer family leave mediation pilot program for the resolution of alleged violations of specified provisions of family care and medical and bereavement leave, pertaining to employers with five to 19 employees. (Gov. Code §12945.21(a)).
3. Requires the CRD to initiate mediation within 60 days following a timely request. (Gov. Code §12945.21(b)(4)).
4. Prohibits an aggrieved employee from pursuing a civil action until the mediation is complete or the mediation is deemed unsuccessful. (Gov. Code §12945.21(c)(1)).
5. Tolls the statute of limitations for the aggrieved employee, including for all related claims not subject to mediation, from the date of receipt of a request to participate in the program until the mediation is complete or the mediation is deemed unsuccessful. (Gov. Code §12945.21(c)(2)).
6. Provides that mediation is deemed complete when one of specified events occurs, including that the mediator determines that the core facts of the employee’s complaint are unrelated to the specified family care and medical and bereavement leave provisions. (Gov. Code §12945.21(d)(2)).
7. Repeals the small employer family leave mediation pilot program on January 1, 2025. (Gov. Code §12945.21(g)).
8. Provides that it is an unlawful employment practice for an employer to refuse to grant a request by any employee to take up to five days of reproductive loss leave following a reproductive loss event. (Gov. Code §12945.6 (b)(1)).

FISCAL EFFECT: Unknown

COMMENTS: Note: This measure is double referred to the Assembly Judiciary Committee upon passage out of this Committee.

Information provided by the author to committee staff demonstrates that the small employer family leave mediation program has been an important tool in resolving family leave claims. Since the program’s inception in late 2020, 55 complaints have been referred to it. Of those 55, 31 were mediated and 17 of those were successfully settled.

According to the author, “The Small Employer Family Leave Mediation protects small businesses while maintaining labor rights. AB 2011 permanently establishes the program and provides an ongoing resource for small businesses and employees. This program has been a proven meaningful resource for successfully mediating discrepancies between small businesses and their employees. This project has paid respective complainants $688,250 in total for successful settlements.”

The author further states that the bill “promotes equity solutions due to the job-protected leave conditions in this bill. People are guaranteed their time off with the secureness of knowing that their job will be protected when they come back. This program is operated under the Civil Rights Department which protects employees and employers from discrimination and harassment.”

Arguments in Support

A coalition of employer organizations, including the California Chamber of Commerce, are in support and state, “Since its inception, the program has been successful. More than half of the mediated cases have resulted in settlement with hundreds of thousands of dollars going directly to workers. We believe this mediation option has been an important way to protect small businesses while maintaining labor rights. The Legislature should make this program permanent and expand its scope to include reproductive loss leave, which is a new leave requirement that also applies to small businesses.”

Arguments in Opposition

None on file.

Prior Legislation

AB 1756 (Assembly Judiciary Committee) Chapter 478, Statutes of 2023, extended the sunset date on the small employer family leave mediation pilot program.

AB 1033 (Bauer-Kahan) Chapter 327, Statutes of 2021, adds the care of a parent-in-law to eligible family members under the definition of family care and medical leave.

AB 1867 (Assembly Committee on Budget) Chapter 45, Statutes of 2020, created the small employer family leave mediation pilot program.

REGISTERED SUPPORT / OPPOSITION:

Support

Associated General Contractors
Associated General Contractors-San Diego Chapter
California Association of Winegrape Growers
California Attractions and Parks Association
California Beer and Beverage Distributors
California Chamber of Commerce
California Farm Bureau
California Fuels and Convenience Alliance
California Lodging Industry Association
California Manufacturers and Technology Association
California Restaurant Association
California Self Storage Association
California Special Districts Association
California State Council of The Society for Human Resource Management (CALSHRM)
California Trucking Association
Coalition of Small and Disabled Veteran Businesses
Danville Area Chamber of Commerce
Family Business Association of California
Family Winemakers of California
Flasher Barricade Association
Fremont Chamber of Commerce
Garden Grove Chamber of Commerce
Greater Riverside Chambers of Commerce
Independent Lodging Industry Association.
Los Angeles Area Chamber of Commerce
Oceanside Chamber of Commerce
Redondo Beach Chamber of Commerce
San Marcos Chamber of Commerce
San Pedro Chamber of Commerce
Santee Chamber of Commerce
South Bay Association of Chambers of Commerce
Torrance Area Chamber of Commerce
Western Car Wash Association
Western Electrical Contractors Association
Yorba Linda Chamber of Commerce

Opposition

None on file.

Analysis Prepared by: Megan Lane / L. & E. /