New Law (AB 2393): School Employee Parental Leave Clarifications, Amendments and Extension

October 2016

Assembly Bill 375 (“AB 375”), effective January 1, 2016, added Education Code section 44977.5, which provided certificated employees with up to 12 weeks of differential pay for maternity/paternity leave.  The practical application of this new law has generated many questions. (For more details on AB 375, please see F3’s NewsFlash from October 2015 titled “New Law Extends Differential Pay Benefit to Certificated Employee Maternity and Paternity Leave.”) On January 1, 2017, Assembly Bill 2393 (“AB 2393”) will become effective, clarifying provisions of the existing law regarding maternity/paternity leave for certificated employees, as well as creating similar maternity/paternity leave rights for classified employees. 

AB 2393 amends Education Code section 44977.5 and adds Education Code sections 45196.1, 87780.1, and 88196.1 (for community colleges). The following is a summary of the key provisions of AB 2393:

Certificated Employees

AB 2393 makes several primary amendments to Section 44977.5, which include the following:

  • Renames the type of leave from “maternity and paternity leave” to “parental leave.” However, the definition/scope of the leave remains the same and consistent with the purposes for which baby-bonding leave is provided under the California Family Rights Act (“CFRA”).Clarifies that regular sick leave may be used for “parental leave” purposes.
  • Clarifies that employees are only entitled to one 12-week “parental leave” period per year.
  • Clarifies that “parental leave” runs concurrently with CFRA baby-bonding leave, but unlike CFRA baby-bonding leave, 1,250 work hours in the preceding 12 months is not a prerequisite to “parental leave.”
  • Clarifies that if an employer has adopted the 50 percent pay rule (also known as the 100-day rule) for extended sick leave, the differential pay formula is the same for “parental leave.”
  • Deletes the “grandfather clause” for collectively bargained provisions that “conflict” with the “parental leave” provisions and were entered into prior to January 1, 2016. Further, AB 2393 specifies that the “parental leave” provisions do not supersede any collectively bargained provisions that provide greater rights.

Classified Employees

AB 2393 also extends nearly identical “parental leave” rights to classified employees—with one notable exception regarding the calculation of differential pay. In general, for classified employees, employers may only deduct the sum that is actually paid to a substitute employee filling in for the employee on “parental leave.” Whereas, for certificated employees, employers may deduct either the sum actually paid or the amount that would have been paid to a substitute or temporary employee had one been employed. Therefore, just as with statutory extended sick leave, classified employees will be entitled to receive full pay while on “parental leave,” unless an actual substitute is hired to fill in for the employee on leave. This calculation is only applicable, however, to employers that have not adopted the 50 percent pay rule (also known as the 100-day rule).

With these new amendments and additions, employers may need to revisit side letters, MOUs or other collectively bargained provisions entered into with their certificated units over the past year concerning parental leave to ensure that such provisions are not inconsistent with AB 2393’s amendments. Further, standard maternity/paternity leave provisions, policies and notices for certificated as well as classified employees may need to be reviewed and revised to account for AB 2393’s amendments and additions.

If you have any questions regarding “parental leave,” the enactment of AB 2393 or any related matter, please contact one of our six offices.

If you have any questions regarding this decision or any other matter relating to charter schools, please call one of our six offices.

 

F3 NewsFlash prepared by Justin Simpson, James Ayden and John Norlin.
Justin is a Senior Associate in the F3 Sacramento office.
James is an Associate in the F3 Los Angeles office.
John is Special Counsel in the F3 San Diego office.

This F3 NewsFlash is a summary only and not legal advice.  We recommend that you consult with legal counsel to determine how this legal development may apply to your specific facts and circumstances.  Information on a free NewsFlash subscription can be found at www.f3law.com.

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© 2016 Fagen Friedman & Fulfrost LLP

All rights reserved, except that the Managing Partner of Fagen Friedman & Fulfrost LLP hereby grants permission to any client of Fagen Friedman & Fulfrost LLP to use, reproduce and distribute this NewsFlash intact and solely for the internal, noncommercial purposes of such client.

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