Changes to the California Family Rights Act and Small Employer Family Leave Mediation

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California Governor Newsom signed Senate Bill 1383 (SB 1383) which greatly expanded the California Family Rights Act (CFRA), which took effect on January 1, 2021. Some of the notable changes include:

  • Expansion to Cover Smaller Employers – SB 1383 expands CFRA coverage to private employers with five or more employees and eliminates the requirement that employees work within 75 miles of the worksite;
  • Expanded Definition of Family Members – The list of family members is expanded to include siblings, grandparents, grandchildren, and domestic partners. Additionally, the definition of “child” now covers all adult children as well as children of a domestic partner.

For more detailed information about the changes to the CFRA and its notice requirements, please see the Department of Fair Employment and Housing’s Family and Medical Leave for Employees Toolkit, https://www.dfeh.ca.gov/family-medical-pregnancy-leave/.

Employers, especially small employers, expressed concern about increased litigation risk for mistakes in implementing or administering the new requirements of the CFRA which now applies to them. To address this concern, Assembly Bill 1867 established a new Small Employer Family Leave Mediation Pilot Program. (California Government Code section 12945.21)

Who May Use this Program?

This pilot program applies only to employers with between 5 and 19 employees (Small Employers). Under this pilot program, Small Employers or the employees of Small Employers may request to participate in mediation through the Department of Fair Employment and Housing’s (DFEH) dispute resolution division after notice.

When to Request Mediation?

Small Employers who receive a notice of right-to-sue letter (the Notice) from the DFEH for violations of the CFRA, or employees who obtain the Notice from the DFEH for violations of the CFRA, may request mediation through DFEH within 30 days of receipt of or obtaining the Notice.

What Happens When a Request for Mediation is Made?

Upon the mediation request, the employee is prohibited from pursuing a claim in civil court until the mediation is complete. At the same time, the employee’s statute of limitations on claims, including additional related claims, will be tolled from the date that a request to participate in the program is received until the mediation is complete.

Conclusion

Small Employers may be able to take advantage of this pilot program to avoid costly litigation. But, nothing requires the parties to resolve the claim via mediation. In other words, employees have the option to not settle during the mediation process and proceed to court.

This pilot program remains in effect only until January 1, 2024.

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