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Senate Bill 63 passes, guarantees small business workers unpaid leave

on October 31, 2017

Jack Stewart remembers looking for his first employees in 2008, when he and his wife opened Aunt Mary’s Cafe in Oakland. Now they have 25 employees, which will make the Stewarts’ small business one of those that will be required to provide 12 weeks of unpaid leave to new parents.

Senate Bill 63, signed by Governor Jerry Brown on October 12, will make about 2.8 million small business workers in the state qualified to take the unpaid leave to bond with their newborn, or with a child they have recently adopted or are fostering. They will have a guarantee of job security when they return. The new law will come into effect January 1, 2018. Written by Senator Hannah-Beth Jackson (D-Santa Barbara), it will apply to employees who work in businesses with 20 to 49 workers in the same or different locations, as long as the same-owned businesses are at least 75 miles apart. To be eligible for the leave, employees must have worked at least 1,250 hours within a year.

Stewart says the new law will be something that he can work around. “Having the parents being able to take some time off to spend with their kids, especially in the early years, far outweighs whatever inconvenience it would bring to us,” Stewart said.

Stewart’s biggest concern is finding employees who will replace the ones who are on leave, he said, emphasizing that it will be difficult to find employees who would be willing to work temporarily.

“Obviously, how much it impacts a small business will really depend on how that business sets up its employment,” as well as those employees’ positions and how easy is it to find substitutes, said Lee Lambert, director of the Alameda County Small Business Development Center. “The businesses are not going to have a choice if they fall under the purview of this law. They are going to have to grant this leave. And as small businesses do, they’ll find a way to get through it.”

As director, Lambert counsels 550 to 600 businesses per year and directs seminars for over 2,000 business all over Alameda County. According to Lambert, he has yet not been approached about SB 63 by his clients, but once the bill comes closer to law he knows it will be a topic of interest. “It has not become the fabric of a day-to-day business, but it will be soon,” Lambert said. The seminars hosted by the Alameda County Small Businesses Development Center will soon begin to provide legal advice in regards to SB 63 in their upcoming seminars.

SB 63 also forbids an employer to refuse to maintain and pay for the employee’s health coverage during the duration of the leave. Other protections will allow employees to utilize accumulated vacation pay and/or paid sick time during their parental leave.

Derek Schoonmaker, a workers’ rights program director at Centro Legal de la Raza in Oakland, says they see a fair number of cases that revolve around the topic of new parents having issues navigating pregnancy leave and their rights to care for their new child. A vast majority of the clients at the Centro Legal are low-wage or immigrant workers who work for smaller businesses. “This exemption of the right is going to be very important to our clients and low wage immigrant workers, in particular, who are working in these more mid-size companies,” Schoonmaker said.

Before SB 63, only employees who worked in larger businesses with 50 or more employees were protected under the California Family Rights Act (CFRA) or Family and Medical Leave Act (FMLA), which allows employees 12 weeks of unpaid leave. Other federally-protected leaves include Paid Family Leave (PFL) and Pregnancy Disability Leave (PDL), which employees who are protected under SB 63 can also use. PDL permits employees with a pregnancy-related disability up to four months of leave.

Page Tomblin, the Early Childhood Project coordinator at First 5 Alameda County, emphasizes the importance of parental bonding with newborns. “When you have time to bond with your baby, it also helps with your own mental health as a new parent,” Tomblin said. First 5 funds programs and policies that protect children and provide childcare workshops for parents.

In September, the group showed their support for the bill when they signed a letter with the Children’s Movement of California urging Brown to sign it. The letter states that “SB 63 fulfills the promise California made to its citizens 15 years ago when it became the first state to pass Paid Family Leave” and that 41 percent of Californian workers are not eligible for job protection leave, leaving “far too many in the precarious situation of choosing between caring for a new child and keeping their job.”

Sabrina Easterling, the executive director of Then Comes Baby, an Oakland center that offers parental classes, lactation support and massage therapy to parents, was pleased to learn about the new legal protection. But, she added, she  thinks that it is “short-term thinking and not looking at the right thing.”

“It’s important for people to know that their jobs are secured and safe while they are taking care of their loved ones while they are recovering from birth, but it’s just a baby step,” Easterling said. “It’s unpaid leave and it’s only three months.” Easterling says that with such a short period of baby bonding, mothers do not meet the babies’ breastfeeding needs, since they have to go back to work.

Last year, Brown vetoed a similar bill that would provide six weeks of unpaid protected leave due to his concerns that the bill did include a section allowing employers who do not comply to pursue mediation with an employee prior to the employee filing a lawsuit.

Even though the bill was signed by the governor, some organizations opposed it, including the California Chamber of Commerce. In the Senate Rules Committee, some opponents stated that when both SB 63 and PDL are combined, it will create a seven-month protected leave of absence. They also argued that the bill will impose a cost on employers, because they have to pay for medical benefits for employees who are on parental leave, as well as pay for a temporary employee or other workers overtime to cover the shift.

But Schoonmaker and Tomblin are pleased about the bill passing. “It is really important to get the information out, making sure folks know these rights and that they can take that time to bond with their babies. It’s a really important protection. I’m glad California is moving in the right direction,” Schoonmaker said.

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