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AB-95 Employees: bereavement leave.(2021-2022)

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Date Published: 03/22/2021 02:00 PM
AB95:v98#DOCUMENT

Amended  IN  Assembly  March 22, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 95

Introduced by Assembly Member Low

December 07, 2020

An act to add Part 5.7 (commencing with Section 1515) to Division 2 of the Labor Code, relating to employment.


LEGISLATIVE COUNSEL'S DIGEST


AB 95, as amended, Low. Employees: bereavement leave.
Existing law provides employees with the right to take time off work without discharge or discrimination for a variety of reasons, including taking time off to appear in school on behalf of a child or to assist a family member who is the victim of a violent or serious felony.
This bill would enact the Bereavement Leave Act of 2021. The bill would require an employer with 25 or more employees to grant an employee a request made by any employee to take up to 10 business days of unpaid bereavement leave upon the death of a spouse, child, parent, sibling, grandparent, grandchild, or domestic partner, in accordance with certain procedures, and subject to certain exclusions. The bill would require an employer with fewer than 25 employees to grant a request by any employee to take up to 3 business days of leave, in accordance with these provisions. The bill would prohibit an employer from interfering with or restraining the exercise or attempt to exercise the employee’s right to take this leave. This bill would authorize an employee who has been discharged, disciplined, or discriminated or retaliated against for exercising their right to bereavement leave to file a complaint with the Division of Labor Standards Enforcement or bring a civil action against their employer for reinstatement, specified damages, and attorney’s fees. The provisions of the bill would not apply to an employee who is covered by a valid collective bargaining agreement that provides for at least as much bereavement leave as is required by this bill and other specified working conditions.
Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Part 5.7 (commencing with Section 1515) is added to Division 2 of the Labor Code, to read:

PART 5.7. Bereavement Leave

1515.
 This act shall be known, and may be cited, as the Bereavement Leave Act of 2021.

1516.
 For purposes of this part, the following terms apply:
(a) “Child” means a biological, adopted, or foster child, a stepchild, a legal ward, a child of a domestic partner, or a child of a person standing in loco parentis. This definition of a child is applicable regardless of age or dependency status.
(b) “Domestic partner” has the same meaning as defined in Section 297 of the Family Code, and refers to a person who is registered pursuant to Part 2 (commencing with Section 298) of Division 2.5 of the Family Code.
(c) (1) “Employee” means a person who performs services for wages or salary under a contract of employment, express or implied, for an employer.
(2) “Employee” does not include a person who is covered by a valid collective bargaining agreement if the agreement expressly provides for at least as much bereavement leave as is required by this part and the wages, hours of work, and working conditions of the employees, and if the agreement provides premium wage rates for all overtime hours worked, where applicable, and a regular hourly rate of pay for those employees of not less than 30 percent more than the state minimum wage.
(d) “Employer” means a person employing an employee under any appointment or contract of hire. “Employer” includes the state, any political subdivision of the state, and any municipality.
(e) “Parent” has the same meaning as defined in paragraph (1) of subdivision (e) of Section 230.8.
(f) “Sibling” means a person related to another person by blood, adoption, or affinity through a common legal or biological parent.

1517.
 (a) (1)  An employer with 25 or more employees shall grant an employee a request by any employee to take up to 10 business days of unpaid bereavement leave upon the death of a spouse, child, parent, parent-in-law, sibling, grandparent, grandchild, or domestic partner.
(2) An employer with fewer than 25 employees shall grant an employee a request by any employee to take up to three business days of unpaid bereavement leave upon the death of a spouse, child, parent, parent-in-law, sibling, grandparent, grandchild, or domestic partner.
(b) An employer shall not interfere with or restrain the exercise or the attempted exercise of the right of an employee to take leave pursuant to subdivision (a).
(c) The days of bereavement leave need not be consecutive.
(d) The bereavement leave shall be completed within three months of the date of death of the person listed in subdivision (a).
(e) The bereavement leave shall be taken pursuant to any existing bereavement leave policy. If there is no existing bereavement leave policy, the bereavement leave is to be unpaid, except that an employee may use vacation, personal leave, or compensatory time off that is otherwise available to the employee.
(f) The employee, if requested by the employer, shall, within 30 days of the first day of the leave, provide documentation of the death of the person listed in subdivision (a). “Documentation” includes a death certificate, a published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or governmental agency.
(g) An employee who is discharged, disciplined, or otherwise discriminated or retaliated against in the terms or conditions of employment by their employer because the employee has exercised or attempted to exercise their right to bereavement leave pursuant to this section is entitled to reinstatement and to recover actual damages.
(h) (1) An employee who believes they have been discharged, disciplined, or in any way discriminated or retaliated against in violation of this section may take either of the following actions:
(A) The employee may file a complaint with the Division of Labor Standards Enforcement in accordance with Section 98.7.
(B) The employee may bring a civil action for the remedies provided in subdivision (g) directly in a court of competent jurisdiction without exhausting any administrative remedies.
(2) In any action brought pursuant to this section, the court may, in accordance with case law governing attorney’s fees awarded pursuant to subdivision (b) of Section 12965 of the Government Code, award to the prevailing plaintiff reasonable attorney’s fees and costs, including expert witness fees.
(i) The employer shall maintain the confidentiality of any employee requesting leave under this section. Any documentation provided to the employer pursuant to subdivision (f) shall be maintained as confidential and shall not be disclosed except as required by law.
(j) The rights and remedies of this section are cumulative, nonexclusive, and in addition to any other rights and remedies afforded by contract or other provisions of law.

SEC. 2.

 The Legislature finds and declares that Section 1 of this act, which adds Part 5.7 (commencing with Section 1515) to Division 2 of the Labor Code, imposes a limitation on the public’s right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:
The personal information of persons reporting suspected violations of this act must be protected against misuse and the reporting of violations should be encouraged. Therefore, the employer shall maintain the confidentiality of any employee requesting leave pursuant to Section 1 of this act and shall not disclose this information except as required by law. It is in the interest of the health and safety of the people of California to preserve the confidentiality of this information.