December 4, 2018, Introduced by Senators HOLLIER, HERTEL, YOUNG, CONYERS, GREGORY, WARREN, KNEZEK, BIEDA, HOPGOOD, ANANICH and HOOD and referred to the Committee on Government Operations.
A bill to require employers to provide paid parental leave to
certain employees; to specify the conditions for using paid
parental leave; to prohibit retaliation against an employee for
requesting, exercising, or enforcing rights granted in this act; to
prescribe powers and duties of certain state departments, agencies,
and officers; to provide for promulgation of rules; and to provide
remedies and sanctions.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1. This act shall be known and may be cited as the "paid
parental leave act".
Sec. 2. As used in this act:
(a) "Department" means the department of licensing and
regulatory affairs.
(b) "Director" means the director of the department or his or
her designee.
(c) "Employee" means an individual engaged in service to an
employer in the business of the employer, except that employee does
not include an individual employed by the United States government.
(d) "Employer" means an individual, person, firm, business,
educational institution, nonprofit agency, corporation, limited
liability company, government entity, or other entity that employs
1 or more individuals, except that employer does not include the
United States government.
(e) "Parental leave" means time off from work that is provided
by an employer to an employee for purposes related to the birth of
the employee's child or care of the employee's newborn child.
(f) "Retaliatory personnel action" means any of the following:
(i) Denial of any right guaranteed under this act.
(ii) A threat, discharge, suspension, demotion, reduction of
hours, or other adverse action against an employee or former
employee for exercising a right guaranteed under this act.
(iii) Sanctions against an employee who is a recipient of
public benefits for exercise of a right guaranteed under this act.
(iv) Interference with, or punishment for, a person's
participation in any manner in an investigation, proceeding, or
hearing under this act.
Sec. 3. (1) An employer shall provide 16 weeks of paid
parental leave annually to each of the employer's full-time
employees pursuant to this act. An employer shall not require an
employee to search for or secure a replacement worker as a
condition for using parental leave.
(2) An employee may take parental leave beginning on the
effective date of this act, or upon commencement of the employee's
employment, whichever is later.
(3) An employer shall pay to an employee who uses paid
parental leave at a rate equal to the greater of either the normal
hourly wage rate for that employee or the minimum hourly wage rate
established under section 4 of the workforce opportunity wage act,
2014 PA 138, MCL 408.414. For an employee whose hourly wage varies
depending on the work performed, "normal hourly wage" means the
average hourly wage of the employee in the pay period immediately
preceding the pay period in which the employee uses parental leave.
(4) An employer is in compliance with this section if the
employer provides any paid leave, or combination of paid leave,
that may be used for the same purposes and under the same
conditions provided in this act for a duration that is equal to or
greater than the duration in subsection (1). As used in this
subsection, "paid leave" includes, but is not limited to, paid
vacation, personal days, and paid time off.
(5) An employer may require advance notice, not to exceed 30
days before the date parental leave is to begin, of the intention
to use parental leave.
(6) An employer is not required to provide financial or other
reimbursement to an employee for parental leave that was not used
before the employee's termination, resignation, retirement, or
other separation from employment.
Sec. 4. (1) An employer or any other person shall not
interfere with, restrain, or deny the exercise of, or the attempt
to exercise, any right protected under this act.
(2) An employer shall not take retaliatory personnel action or
discriminate against an employee because the employee has exercised
a right protected under this act.
(3) An employer's absence control policy must not treat
parental leave taken under this act as an absence that may lead to
or result in retaliatory personnel action.
(4) The protections in this section apply to a person who
mistakenly but in good faith alleges a violation of this section.
(5) There is a rebuttable presumption of a violation of this
section if an employer takes retaliatory personnel action against a
person within 365 days after that person does any of the following:
(a) Files a complaint with the department or a court alleging
a violation of this act.
(b) Informs a person about an employer's alleged violation of
this act.
(c) Cooperates with the department or another person in the
investigation or prosecution of an alleged violation of this act.
(d) Opposes a policy, practice, or act that is prohibited
under this act.
(e) Informs a person of his or her rights under this act.
Sec. 5. If an employer violates this act, an employee affected
by the violation, at any time within 5 years after the violation or
the date when the employee first knew of the violation, whichever
is later, may do any of the following:
(a) Bring a civil action for appropriate relief, including,
but not limited to, any of the following:
(i) Payment for used parental leave.
(ii) Rehiring or reinstatement to the employee's previous job.
(iii) Payment of back wages.
(iv) Reestablishment of employee benefits for which the
employee otherwise would have been eligible if the employee had not
been subjected to the violation.
(v) An equal additional amount as damages together with costs
and reasonable attorney fees as the court allows.
(b) File a claim with the department. Filing a claim with the
department is not a prerequisite or a bar to bringing a civil
action.
Sec. 6. (1) The director shall enforce this act. The director
shall establish a system utilizing multiple means of communication
to receive complaints regarding noncompliance with this act and
investigate complaints received by the department in a timely
manner.
(2) A person alleging a violation of this act may file a
complaint with the department. The department shall encourage
reporting pursuant to this subsection by keeping the name and other
identifying information of the person reporting the violation
confidential. However, if the person reporting the violation gives
the department authorization, the department may disclose the
person's name and identifying information as necessary to enforce
this act or for other appropriate purposes.
(3) Upon receiving a complaint alleging a violation of this
act, the department shall investigate the complaint and attempt to
resolve it through mediation between the complainant and the
subject of the complaint, or other means. The department shall keep
complainants notified regarding the status of their complaint and a
related investigation. If the department determines that there is
reasonable cause to believe that a violation occurred, it shall
issue to the offending person a notice of violation and the relief
required of the offending person. The department shall prescribe
the form and wording of violation notices, which must include the
method of appealing the department's determination. If the
department is unable to obtain voluntary compliance by the person
within a reasonable amount of time, the department must bring a
civil action on behalf of the employee as provided in section 5(a).
The department may file a civil action under this subsection on
behalf of all employees of the employer who are similarly situated
at the same work site and who have not brought a civil action under
section 5(a).
(4) In addition to liability for civil remedies described in
section 5, an employer who fails to provide parental leave in
violation of this act or takes retaliatory personnel action against
an employee or former employee is subject to a civil fine of not
more than $1,500.00.
(5) An employer that willfully violates a notice or posting
requirement under section 7 is subject to a civil fine of not more
than $1,500.00 for each separate violation.
Sec. 7. (1) An employer shall provide written notice to an
employee at the time of the employee's hiring or by April 1, 2019,
whichever is later, that includes at least all of the following
information:
(a) The amount of parental leave required to be provided to an
employee under this act.
(b) The purposes for which parental leave may be used under
this act.
(c) That retaliatory personnel action by the employer against
an employee for requesting or using parental leave for which the
employee is eligible is prohibited.
(d) The employee's right to bring a civil action or file a
complaint with the department for a violation of this act.
(2) An employer shall display a poster at the employer's place
of business, in a conspicuous place that is accessible to
employees, that contains all of the information listed in
subsection (1).
(3) The department shall create and make available to
employers notices and posters that contain the information listed
in subsection (1) for employers' use in complying with this
section.
Sec. 8. An employer shall retain for not less than 3 years
records documenting the hours worked and parental leave taken by an
employee. To monitor compliance with the requirements of this act,
an employer shall allow the department access to those records,
with appropriate notice and at a mutually agreeable time. If a
question arises as to whether an employer has violated an
employee's right to parental leave under this act and the employer
does not maintain or retain adequate records documenting the hours
worked and parental leave taken by the employee or does not allow
the department reasonable access to those records, there is a
presumption that the employer violated this act, which can be
rebutted only by clear and convincing evidence.
Sec. 9. (1) This act provides minimum requirements pertaining
to parental leave and does not do any of the following:
(a) Preempt, limit, or otherwise affect the applicability of
any other law, regulation, requirement, policy, or standard,
including a collective bargaining agreement, that provides for more
paid parental leave, or that extends other protections to
employees.
(b) Prohibit an employer from providing more paid parental
leave than is required under this act or allowing an employee to
use more paid parental leave than is required under this act.
(c) Diminish any rights provided to any employee under a
collective bargaining agreement.
(d) Subject to section 10, preempt or override the terms of a
collective bargaining agreement in effect prior to the effective
date of this act.
(e) Prohibit an employer from establishing a policy that
permits an employee to donate unused parental leave to another
employee.
(2) A contract or agreement entered into on or after the
effective date of this act between an employer and an employee or
an acceptance by the employee on or after the effective date of
this act of a parental leave policy that provides fewer rights or
benefits than provided by this act is void and unenforceable.
Sec. 10. If an employer's employees are covered by a
collective bargaining agreement in effect on the effective date of
this act, this act applies to those employees beginning on the
stated expiration date in the collective bargaining agreement,
notwithstanding any statement in the agreement that it continues in
force until a future date or event or the execution of a new
collective bargaining agreement.
Sec. 11. The director may promulgate rules in accordance with
the administrative procedures act of 1969, 1969 PA 306, MCL 24.201
to 24.328, as necessary to administer this act.