California’s Small Businesses And Parental Leave Rights: It’s Complicated

As they seek to recruit talented new employees, scores of big U.S. corporations now offer perks including onsite childcare, long paid leaves for new parents, and other family-friendly benefits. But the big corporations and the attention they get obscure the reality that for many in the United States, benefits as basic as unpaid parental leave are still unavailable. California in recent years has led the nation in employee rights and family leave issues, so many were surprised in September when Governor Jerry Brown vetoed a bill that would have extended more family leave rights to more workers in California.

Senate Bill 654, titled the “New Parent Leave Act,” would have required California companies with 20 to 49 employees to provide new parents with up to six weeks of leave after the birth or adoption of a child without the fear of job loss. Introduced by Senator Hannah-Beth Jackson of Santa Barbara, the proposal received broad bipartisan support in both chambers as it was approved by the California legislature. The New Parent Leave Act would have provided leave for up to 2.7 million more California workers who are employed by smaller companies.

WHAT IS THE FEDERAL FAMILY AND MEDICAL LEAVE ACT?

Those in California who work for larger companies already have substantial parental leave rights. A federal statute, the Family and Medical Leave Act of 1993 (FMLA), requires most companies with 50 or more workers to provide those workers with up to twelve weeks off without pay after the birth or adoption of a child (or to care for themselves or a family member with a serious medical condition).

Under the FMLA, if you satisfy these three conditions, you may qualify for up to twelve weeks of unpaid leave without losing your job:

1. Your company has at least 50 employees within a 75-mile radius.
2. You’ve been with the employer for at least a year, and you’ve worked at least 1,250 hours in the previous twelve months.
3. You cannot work for up to twelve weeks because of a pregnancy, a childbirth-related health condition, a new child in the family, a serious health condition, or the need to care for a family member with a serious medical condition.

WHAT DOES CALIFORNIA LAW PROVIDE REGARDING FAMILY LEAVE?

State law in California provides even more for most workers in this state. California workers – at all companies of all sizes – who take family leave can receive up to 55 percent of their wages (and up to 70 percent beginning in 2018) for up to six weeks to care for a newborn, newly adopted, or foster child or an ill family member under California’s Paid Family Care Leave Act. Since its implementation in 2004, the Paid Family Care Leave Act has helped more than 1.5 million California workers take up to six weeks of paid leave to care for a new child or a sick family member.

Employees at smaller companies (companies with 49 or fewer employees) in the state of California are equally entitled to the same payments if they take a family leave, but those at smaller companies who take advantage of the benefit could end up unemployed. Thus, many employees of smaller California employers end up using their paid vacation time or personal days as, in effect, family leave time.

However, if a pregnancy or a childbirth-related medical condition means that an employee will be unable to work for an extended length of time, that employee may qualify for an additional four months of leave under California’s Pregnancy Disability Leave Act. The federal Pregnancy Discrimination Act protects an employee from being fired for pregnancy, and California’s Pregnancy Disability Leave Act provides family leave to all pregnant employees who are covered by health insurance, regardless of the employee’s tenure or the company’s size.

WHO HAS FAMILY LEAVE, WHO TAKES FAMILY LEAVE, AND WHY?

The U.S. Department of Labor says that nationally, only 13 percent of the employees who work in the private sector have paid family leave, although 87 percent have access to unpaid leave. In 2012, according to a study by Abt Associates conducted for the Department of Labor, 16 percent of the employees eligible for leave under the Family and Medical Leave Act took leave that year, but surprisingly, only one in five took leave because of a pregnancy or a new child. Most leaves were related to personal illnesses.

You can’t be fired for taking an FMLA leave. In fact, employers in California may not retaliate, harass, discriminate, or take any action whatsoever against employees who ask for or take FMLA, Paid Family Care, Pregnancy Disability, or military caregiver leaves. If you are being denied leave that you are entitled to, or if you believe that you are a target of retaliation regarding a leave you took or requested, discuss your concerns with a Fresno employment rights attorney. You’ll get the candid legal advice you need. If your rights regarding leave have been violated, and if you choose to sue your employer, consider these basic suggestions:

1. Put everything in writing and make copies. If your request for leave is merely verbal, for example, a manager or supervisor can simply deny remembering it. Submit it in writing and try to get responses back in writing too. Take notes. Write everything down. Your notes may become evidence if you file a lawsuit. Keep them secure.
2. Do not try to be a lawyer, act as a lawyer, or contend with an employer regarding the law. Consult a Fresno employment rights attorney if you have legal concerns or questions regarding leave or any other employment right, or if you need to take legal action against an employer.

In 2010, one survey found that approximately 90 percent of California employers reported no problems with family leaves or their impact on productivity and profits. That finding lines up with national surveys regarding family leave. While some activists were disappointed by Governor Brown’s veto of the New Parent Leave Act, others are encouraged that more employers are voluntarily offering generous family leave benefits. Maya Raghu, the director of workplace equality at the National Women’s Law Center said, “It’s a cultural shift” and a positive development because for some employees, family leave isn’t a benefit but “a necessity