Employers, regardless of size, must provide unpaid time off for a victim of a serious or violent felony to attend judicial proceedings related to the crime. The term “crime victim” applies to an employee who is a victim, the immediate family member of a victim, the registered domestic partner of a victim or the registered domestic partner of a person whose child is a victim.
SB 288 (codified as Labor Code section 230.5) allows an expanded list of employee/crime victims to take time off, to appear in court to be heard at any proceeding, including any delinquency proceeding, a post-arrest release decision, plea, sentencing, post-conviction release decision, or any proceeding in which a right of the victim is at issue, in connection with any of the following offenses:
- vehicular manslaughter while intoxicated;
- felony child abuse likely to produce great bodily harm or a death;
- assault resulting in the death of a child under eight years of age;
- felony domestic violence;
- felony physical abuse of an elder or dependent adult;
- felony stalking;
- solicitation for murder;
- a serious felony, as defined in the Penal Code;
- hit-and-run causing death or injury;
- felony driving under the influence causing injury; and
- sexual assault.
The law defines “victim” broadly to include any person who suffers direct or threatened physical,psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act. The term “victim” also includes the employee’s spouse, parent, child, sibling, or guardian.
The employee is required to provide reasonable advance notice to the employer “unless the advance notice is not feasible.” The employer is prohibited from taking any action against an employee as a result of an unscheduled absence related to the specified court proceedings if the employee provides certification of the court-related absence within a reasonable period of time after the absence. Time off for attendance at one of the specified court proceedings is unpaid, but an employee has the right to use accrued vacation or other paid time off to cover the absence.
SB 288 prohibits an employer from discharging or in any other manner discriminating or retaliating against an employee for taking time off in connection with one of the specified court proceedings, and authorizes reinstatement of employment and back pay as remedies for a violation of the law.
Domestic violence/sexual assault/stalking
Labor Code sections 230 and 230.1 currently prohibit an employer from discharging, discriminating or retaliating against an employee who is a victim of domestic violence or sexual assault for taking time off from work in connection with court proceedings or to seek medical attention and other specified services as a result of these crimes against them.SB 400 extends these time-off protections to employees who are victims of “stalking” (as defined inthe Penal Code and the Civil Code). In addition, the new law prohibits discharge, discrimination and retaliation against employees because of their “status” as a victim of domestic violence, sexual assault or stalking if the employee/victim provides notice to the employer or the employer has actual knowledge of this status.
In addition, SB 400 requires employers to provide reasonable accommodations to employees who are victims of domestic violence, sexual assault or stalking and request an accommodation for their safety while at work. The law states that reasonable accommodations may include the implementation of safety measures, including:
- job transfer;
- job reassignment;
- modified schedule;
- changed work telephone;
- changed work station;
- lock installation;
- assistance in documenting domestic violence, sexual assault, or stalking that occurs in the workplace;
- implementation of safety procedures;
- adjustment to job structure, the workplace facility, or work requirements in response to domestic violence, sexual assault, or stalking; and
- referral to a victim assistance organization.
SB 400 mirrors the reasonable accommodation procedures under disability discrimination laws by requiring the employer to engage in a timely, good faith inactive process with the employee to determine effective reasonable accommodations and does not require the employer to undertake any action that would constitute “undue hardship.” An undue hardship is defined as including “an actionthat would violate an employer’s duty to furnish and maintain a place of employment that is safe andhelpful for all employees ....” A factor in determining whether a requested accommodation isreasonable is whether there are exigent circumstances or danger facing the employee.An employer may request an employee to provide a written certification that the employee is a victimof domestic violence, sexual assault or stalking, and that the requested accommodation is for thesafety of the victim while at work. The employer may request recertification every six months. Anydocumentation provided to an employer identifying an employee as a victim of domestic violence,sexual assault or stalking must be kept confidential and not disclosed by the employer except asrequired by law or necessary for the safety of employees in the workplace. The employer must givethe employee notice before any disclosure of the information is made.The employee may request a new accommodation based on changed circumstances, and in such acase, the employer must repeat the interactive process with the employee.Employees are required to notify their employer when an accommodation is no longer needed.Employers are prohibited from retaliating against an employee who has requested a reasonableaccommodation, whether the request was granted or not. SB 400 authorizes reinstatement, back pay and injunctive relief for violations of the law.
Notice requirement. The employee must provide advance notice and a copy of the notice of each scheduled proceeding. When advance notice is not feasible or an unscheduled absence occurs, the employer shall not take any action against the employee if the employee, within a reasonable time after the absence, provides the employer with documentation evidencing the judicial proceeding from any ofthe following entities:
- The court or government agency that set the hearing.
- The district attorney’s or prosecuting attorney’s office.
- The victim or witness office that is advocating on behalf of the victim.
Employees may elect to use any of their accrued paid vacation time, personal leave time, sick leave time or compensatory time off that is otherwise available to them, or the leave may be taken as unpaid leave time.