As part of the recent budget deal struck last weekend between the Legislature and the Governor, SB 1383 (Jackson) would create a massive expansion of protected leave under the California Family Rights Act (CFRA). The bill came into print at 9pm on June 23 and was heard about the same time a day later in the Senate Budget & Fiscal Review Committee. It passed with the bare minimum of 10 votes, with 3 Democrats and 5 Republicans voting against it.

The state’s business community is adamantly opposed to SB 1383. Even though the bill is not a budget trailer bill, it is being rushed through as part of the budget package. This bill is another example of poor public policy that is circumventing the normal policy process of the California Legislature. With more than two months left in the Legislative Session, there is more than sufficient time for this bill to go through the normal process before adjournment on August 31.

SB 1383’s expansion of CFRA’s mandatory 12-week, protected leave of absence applies to any employer with just a single employee. Proponents cite only five states that have a similar provision. That is not sufficient justification for California to adopt this bill. The federal Family and Medical Leave Act (FMLA) and more than 40 states use a 50-employee threshold. Just last year, the State Senate declined to pass SB 135 (Jackson), which would have lowered the threshold to 5 employees. It seems implausible that the Senate would entertain a bill just a year later to drop the threshold to a single employee.

Moreover, just last week, the Governor and Legislature took great pains to protect small and mid-size businesses from the massive tax increase (“revenues” trailer bill) that was adopted as part of the budget deal, but now they are contemplating subjecting small businesses to a significant financial burden with this expanded leave program. 

Businesses have a legitimate fear of litigation under SB 1383. By amending CFRA in the California Government Code, the expanded leave subjects employers to a massive threat of litigation by way of a private right of action to enforce the law. While the plaintiff can obtain injunctive relief and attorneys’ fees, they can also pursue punitive damages. Failure to comply with CFRA will create a very real threat of substantial legal liability.

There is also a tremendous administrative burden on employers under this bill. For example, CFRA leave can be taken in just a few hours’ increments, and not the entire 12 weeks at one time. This means that the employee does not have to claim the leave and be out for twelve straight weeks. Instead, he or she could go on leave for a few weeks, or even just a few days or hours. The leave must be carefully tracked to ensure proper compliance with the law. 

And, with the changes proposed by SB 1383, there will be a lack of conformity between CFRA and the federal FMLA, which means they will not run concurrently in some instances, thereby allowing some employees in certain instances to have a protected leave of up to half a year. By expanding the list of individuals who can qualify under this expanded leave, it means an employee could stack their respective state and federal leaves of absence, thereby extending the amount of time he or she is out on leave.

If enacted, SB 1383 would create an unreasonable financial and administrative burden on California employers who are already in considerable financial strain today due to the stay-at-orders during this time of pandemic. Small businesses in particular would be hit hard by SB 1383 and hopefully the Legislature will reject this measure.