HOUSE BILL REPORT

                  HB 1259

             As Reported By House Committee On:

                      Commerce & Labor

Title:  An act relating to limiting administration and enforcement of chapter 49.78 RCW.

Brief Description:  Limiting administration and enforcement of chapter 49.78 RCW.

Sponsors:  Representatives Lisk and Horn.

Brief History:

  Committee Activity:

Commerce & Labor:  1/25/95, 2/27/95 [DPS].

HOUSE COMMITTEE ON COMMERCE & LABOR

Majority Report:  The substitute bill be substituted therefor and the substitute bill do pass.  Signed by 11 members:  Representatives Lisk, Chairman; Hargrove, Vice Chairman; Thompson, Vice Chairman; Romero, Ranking Minority Member; Conway, Assistant Ranking Minority Member; Cairnes; Cody; Cole; Fuhrman; Goldsmith and Horn.

Staff:  Chris Cordes (786-7117).

Background:

State family leave law. In 1989, the state family leave law was enacted.  The family leave law applies to state employers and all other employers of 100 or more employees.  The law entitles a covered employee to 12 workweeks of unpaid family leave during any 24-month period to care for the employee's newborn child or adopted child under the age of six, or to care for the employee's terminally ill child who is under age 18.  An employee must give 30 days' written notice of his or her plan to take family leave except in specified circumstances when notice must be given as soon as possible.  On return from leave, the employee is entitled to the same employment position as he or she held when leave commenced or to a position with equivalent benefits and pay at a workplace within 20 miles of the original workplace. 

If these entitlements are violated, the employee may file a complaint with the Department of Labor and Industries, the agency responsible for administering and enforcing the family leave law.  The department may issue a notice of infraction and employers found to have committed an infraction are subject to a penalty of up to $200 for a first offense and up to $1,000 per infraction for continuing to violate the family leave law.  If an employer fails to reinstate an employee, reinstatement may be ordered with or without back pay.

Federal family and medical leave law. The federal Family and Medical Leave Act was enacted in 1993.  The federal law applies to employers of 50 or more employees and entitles employees to up to 12 weeks of unpaid leave in any 12-month period.  Employees may take leave to care for the employee's newborn child or adopted child under age 18 or to care for a spouse, child, or parent with a serious health condition, or because of the serious health condition of the employee that makes the employee unable to perform his or her job.  Special leave rules apply to certain educational employees.

The employee must provide 30 days' notice when the leave is foreseeable. On return from leave, most employees are entitled to be restored to the same employment position as he or she held when leave commenced or to a position with equivalent benefits.

The U.S. Department of Labor is authorized to investigate complaints and bring actions in court to recover damages for violations.  Employers are liable for wages lost by the employee or actual monetary damages, and double damages may be awarded.  Employees may be ordered reinstated.  Employees may also file civil actions to recover these damages.

Under the federal law, a state law that provides greater family or medical leave rights is not superseded by the federal law.

Summary of Substitute Bill:  The Department of Labor and Industries is directed to cease administration and enforcement of the state family leave law until the earlier of the following dates:

!the effective date of repeal of the federal family and medical leave law; or

!July 1 of the year following the year that the federal family and medical leave law is amended to provide less leave than the state law.  In determining whether the federal law provides the same or more leave, the department must only consider  whether:  (1) the total period of leave under the federal law is 12 or more weeks in a 24-month period; and (2) whether the types of leave under the federal law are broader than the state leave.

However, the department will continue to enforce the requirement under state law that when an employee is returned to an alternative, comparable job, the location must be within 20 miles of the employee's original workplace.  An employer receiving an initial citation for a violation of this requirement will have 30 days to take corrective action and no penalty will issue if a correction is made.

Substitute Bill Compared to Original Bill:  The substitute bill adds that enforcement of the state family leave law will commence on July 1 of the year after the federal family and medical leave law is amended to provide less coverage than the state law.  In addition, the Department of Labor and Industries will continue to enforce the requirement for returning an employee to a job within 20 miles of the original workplace.

Appropriation:  None.

Fiscal Note:  Available.

Effective Date of Substitute Bill:  Ninety days after adjournment of session in which bill is passed.

Testimony For:  Employers are confused by the inconsistencies between the state and federal family and medical leave laws.  With two overlapping laws with differing requirements, it is not clear what employers must do to comply.  There are examples of circumstances that might allow an employee to have leave under both laws.  The business community negotiated a suspension of the law in good faith for just this reason.  The federal version of the law is generous to employees.  It is a burden on employers, and a poor use of resources to spend time sorting through these laws.

Testimony Against:  It is not clear that there is confusion in the workplace.  Most people cannot afford to use family leave because it is not paid leave.  A few provisions of the state law are more favorable to employees, such as return to work within 20 miles of the old workplace.  These provisions should be preserved.  The leave under the federal law is not onerous compared to leave requirements in other countries.  The Department of Labor and Industries has had few complaints and no infractions cited.  If employers need guidance, perhaps the department should be offering assistance.

Testified:  (In favor of original bill) Clif Finch, Clem Barnes, and Marcia Greenberg, Association of Washington Business.  (Opposed to original bill)  Ann Simons, Washington Women United; Jeff Johnson and Robby Stern, Washington State Labor Council; and Judy Turpin, Northwest Women's Law Center.