California Employers: Governor Brown Signs Important New Legislation re Parental Leave and Hiring
Employment Defense
by Tal Burnovski Yeyni
818-907-3224
You can like it. You can hate it. But one thing is certain: California is a trend-setter when it comes to employees’ rights. Maintaining that tradition, Governor Brown just signed Senate Bill 63 and Assembly Bill 168 into law.
Here is the gist:
Senate Bill 63: Parental Leave
The new legislation provides eligible employees up to 12 weeks parental leave to bond with a new child. Parents may take this leave within one year of the child’s birth, adoption or foster care placement.
An employee is eligible for the leave if s/he has at least 12 months of service with the employer, has at least 1,250 hours of service with the employer during the previous 12-month period, and works at a worksite in which the employer employs at least 20 employees within 75 miles.
Senator Hannah-Beth Jackson, SB 63’s author, defined the governor’s endorsement as:
…a great victory for working parents and children in California […] With more women in the workforce, and more parents struggling to balance work and family responsibilities, our policies must catch up to the realities of our economy and the daily lives of working families. No one should have to choose between caring for their newborn and keeping their job.
The bill specifies it will be an unlawful employment practice for an employer to:
- Refuse to allow an eligible employee to take up to 12 weeks of the bonding leave;
- Refuse to provide a guarantee of employment in the same or a comparable position before the start of the leave;
- Refuse to maintain and pay for coverage for an eligible employee during the leave (if applicable);
- Refuse to hire, or to discharge, fine, suspend, expel, or discriminate against an individual because:
- An individual’s exercise of the right to bonding leave;
- An individual’s giving information or testimony as to his or her own bonding leave, or another person’s bonding leave, in an inquiry or proceeding concerning the bonding leave.
- Interfere with, restrain, or deny the exercise of, or the attempt to exercise any right provided with respect to the bonding leave.
The new law does not apply to employees who work for large employers (50+ employees) and are otherwise eligible for protected leave under the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA).
If an employer covered by SB 63 employs both parents that are entitled to the leave – that employer is not required to grant bonding leave that would allow the parents leave totaling more than 12 weeks.
There’s more – the legislature also seeks to create a parental leave mediation pilot program.
Under the program, if an employer receives notice regarding an employee’s claim of violation of the parental leave law, the employer may request to mediate the dispute in a special Mediation Division Program. An employee may not pursue any civil action concerning the parental leave until the mediation is complete. The pilot program will be in effect until January 1, 2020.
Employers should be mindful that the new bonding leave is provided in addition to pregnancy disability leave. Thus, an employee who works for a covered employer and is disabled by pregnancy, childbirth, or a related medical condition is eligible for up to four months of pregnancy disability leave and up to 12 weeks of bonding leave.
Assembly Bill 168: Salary Information
AB 168 prohibits all employers from:
- Relying on the salary history information of an applicant as a factor in determining whether to offer employment to an applicant or what salary to offer; and
- Seeking salary history information, including compensation and benefits, about an applicant for employment;
Furthermore, the legislation requires employers to provide, upon reasonable request, the pay scale for a position to an applicant applying for employment.
As the bill’s author Assemblymember Susan Eggman explained:
The practice of seeking or requiring the salary history of job applicants helps perpetuate wage inequality that has spanned generations of women in the workforce. AB 168 is a needed step to ensure that my 9-year-old daughter, and all women, can be confident that their pay will be based on their abilities and not their gender.
Note, however, that if an applicant, voluntarily and without prompting, discloses salary history information to a prospective employer, the employer may consider or rely on that voluntarily disclosed information in determining the salary for the applicant.
Employers, update your company policies – both new laws go into effect January 1, 2018. As always, seek experienced employment counsel if confused about state and federal laws regarding leave of absence or hiring and firing practices.
Tal Burnovski Yeyni is an Employment Defense Attorney.