AB 1033

Bill Subjects

Abstract

Existing law, the California Fair Employment and Housing Act (FEHA) , establishes the Department of Fair Employment and Housing within the Business, Consumer Services, and Housing Agency and sets forth its powers and duties relating to enforcement of civil rights laws with respect to housing and employment and to protect and safeguard the right of all persons to obtain and hold employment without discrimination based on specified characteristics or status. Existing law grants the department the power to receive, investigate, conciliate, mediate, and prosecute complaints alleging unlawful employment practices. Existing law, the Moore-Brown-Roberti Family Rights Act, commonly known as the California Family Rights Act, which is a part of FEHA, makes it an unlawful employment practice for an employer, as defined, to refuse to grant a request by an eligible employee to take up to 12 workweeks of unpaid protected leave during any 12-month period for family care and medical leave, as specified. Existing law defines family care and medical leave to include, among other things, leave to care for a parent. This bill would additionally include leave to care for a parent-in-law within the definition of family care and medical leave, and would make other conforming changes. Existing law requires the department to create a small employer family leave mediation pilot program, for alleged violations of these family care and medical leave provisions, applicable to employers with between 5 and 19 employees. Existing law authorizes the employer or the employee to request that all parties participate in mediation through the department's dispute resolution division after the department issues a right-to-sue notice. Existing law requires the department to initiate the mediation promptly following a request, prohibits an employee from pursuing a civil action until the mediation is complete, and tolls the statute of limitations for the employee, including for all related claims not subject to mediation, from the date of receipt of a request to participate in the program until the mediation is complete. Existing law repeals the pilot program on January 1, 2024. This bill would recast those provisions to require the department, when an employee requests an immediate right to sue alleging a violation of the above-described family care and medical leave provisions by an employer, to notify the employee in writing of the requirement for mediation prior to filing a civil action, if mediation is requested by the employer or employee. The bill would also require the employee to contact the department's dispute resolution division, in the manner specified by the department, prior to filing an action and to indicate whether they are requesting mediation. This bill would require the department, upon contacting the dispute resolution division regarding the intent to pursue a legal action for an employer's violation of the family and medical leave provisions, to notify all named respondents of the alleged violation and the requirement for mediation, if mediation is requested by the employee or employer, in writing. The bill would require the department to terminate its activity if neither the employee nor the employer requests mediation within 30 days of receipt by all named respondents of the notification, as specified. The bill would require the department, if it receives a request for mediation from the employer or employee within 30 days of receipt, as described above, to initiate the mediation within 60 days of the department's receipt of the request or the receipt of the notification by all named respondents, whichever is later. The bill would require the mediator, once mediation has been initiated and no later than 7 days before the mediation date, to notify the employee of their right to request certain labor-related information and to help facilitate other reasonable requests for information, as specified. The bill would prohibit the employee from pursuing a civil action unless the mediation is not initiated by the department within the time period prescribed above or until the mediation is complete or deemed unsuccessful. The bill would toll the statute of limitations applicable to the employee's claim from the date the employee contacts the department's dispute resolution division regarding the intent to pursue a legal action until the mediation is complete or deemed unsuccessful. This bill would entitle a respondent or defendant in a civil action that did not receive the required notification as a result of the employee's failure to contact the department's alternative dispute resolution prior to filing a civil action and who had 5 to 19 employees at the time that the alleged violation occurred, to a stay of any pending civil action or arbitration until the mediation is complete or deemed unsuccessful. This bill would incorporate additional changes to Section 12945.2 of the Government Code proposed by AB 1041 to be operative only if this bill and AB 1041 are enacted and this bill is enacted last.