Bill Text: CA SB400 | 2013-2014 | Regular Session | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Employment protections: victims of domestic violence, sexual assault, or stalking.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Passed) 2013-10-11 - Chaptered by Secretary of State. Chapter 759, Statutes of 2013. [SB400 Detail]
Download: California-2013-SB400-Introduced.html
Bill Title: Employment protections: victims of domestic violence, sexual assault, or stalking.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Passed) 2013-10-11 - Chaptered by Secretary of State. Chapter 759, Statutes of 2013. [SB400 Detail]
Download: California-2013-SB400-Introduced.html
BILL NUMBER: SB 400 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Jackson
FEBRUARY 20, 2013
An act to amend Sections 230 and 230.1 of the Labor Code, relating
to employment.
LEGISLATIVE COUNSEL'S DIGEST
SB 400, as introduced, Jackson. Employment protections: victims of
domestic violence, sexual assault, or stalking.
(1) Existing law provides protections to victims of domestic
violence and sexual assault and prohibits employers from taking
adverse employment action against victims of domestic violence and
sexual assault who take time off from work to attend to issues
arising as a result of the domestic violence or sexual assault, as
long as the employee complies with certain conditions. Existing law
provides that employers who violate these provisions are guilty of a
misdemeanor.
This bill would extend these protections to victims of stalking.
The bill would also prohibit an employer from discharging or in any
manner discriminating or retaliating against an employee because of
the employee's known status as a victim of domestic violence, sexual
assault, or stalking, and require the employer to provide reasonable
accommodations for such a victim. The bill would create a private
right of action for an aggrieved employee to seek enforcement of
those victim status protection and reasonable accommodation
provisions. Because a violation of the bill's requirements under
certain circumstances would be a crime, the bill would impose a
state-mandated local program.
(2) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 230 of the Labor Code is amended to read:
230. (a) An employer may shall not
discharge or in any manner discriminate against an employee for
taking time off to serve as required by law on an inquest jury or
trial jury, if the employee, prior to taking the time off, gives
reasonable notice to the employer that he or she is required to
serve.
(b) An employer may shall not
discharge or in any manner discriminate or retaliate against an
employee, including, but not limited to, an employee who is a victim
of a crime, for taking time off to appear in court to comply with a
subpoena or other court order as a witness in any judicial
proceeding.
(c) An employer may shall not
discharge or in any manner discriminate or retaliate against an
employee who is a victim of domestic violence or a victim of
, sexual assault , or stalking for
taking time off from work to obtain or attempt to obtain any relief,
including, but not limited to, a temporary restraining order,
restraining order, or other injunctive relief, to help ensure the
health, safety, or welfare of the victim or his or her child.
(d) (1) As a condition of taking time off for a purpose set forth
in subdivision (c), the employee shall give the employer reasonable
advance notice of the employee's intention to take time off, unless
the advance notice is not feasible.
(2) When 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 a certification to the
employer. Certification shall be sufficient in the form of any of the
following:
(A) A police report indicating that the employee was a victim of
domestic violence or , sexual assault
, or stalking .
(B) A court order protecting or separating the employee from the
perpetrator of an act of domestic violence or
, sexual assault, or stalking, or other evidence
from the court or prosecuting attorney that the employee has appeared
in court.
(C) Documentation from a medical professional, domestic violence
advocate or advocate for victims of sexual assault, health care
provider, or counselor that the employee was undergoing treatment for
physical or mental injuries or abuse resulting in victimization from
an act of domestic violence or ,
sexual assault , or stalking .
(3) To the extent allowed by law and consistent with
subparagraph (D) of paragraph (7) of subdivision (f) , the
employer shall maintain the confidentiality of any employee
requesting leave under subdivision (c).
(e) An employer shall not discharge or in any manner discriminate
or retaliate against an employee because of the employee's known
status as a victim of domestic violence, sexual assault, or stalking.
(f) (1) An employer shall provide reasonable accommodations for a
victim of domestic violence, sexual assault, or stalking who requests
an accommodation for the safety of the victim while at work.
(2) For purposes of this subdivision, reasonable accommodations
may include the implementation of safety measures, including a
transfer, reassignment, modified schedule, changed work telephone,
changed work station, installed lock, assistance in documenting
domestic violence, sexual assault, or stalking that occurs in the
workplace, an implemented safety procedure, or another adjustment to
a job structure, workplace facility, or work requirement in response
to domestic violence, sexual assault, or stalking, or referral to a
victim assistance organization.
(3) An employer is not required to provide a reasonable
accommodation to an employee who has not disclosed his or her status
as a victim of domestic violence, sexual assault, or stalking.
(4) The employer shall make reasonable accommodations in a timely
fashion.
(5) In determining whether the accommodation is reasonable, the
employer shall consider an exigent circumstance or danger facing the
employee.
(6) This subdivision does not require the employer to undertake an
action that constitutes an undue hardship on the employer's business
operations, as defined by Section 12926 of the Government Code.
(7) (A) Upon the request of an employer, an employee requesting a
reasonable accommodation pursuant to this subdivision shall provide
the employer a written statement signed by the employee or an
individual acting on the employee's behalf, certifying that the
accommodation is for a purpose authorized under this subdivision.
(B) The employer may also request certification from an employee
requesting an accommodation pursuant to this subdivision
demonstrating the employee's status as a victim of domestic violence,
sexual assault, or stalking. Certification shall be sufficient in
the form of any of the categories described in paragraph (2) of
subdivision (d).
(C) An employer who requests certification pursuant to
subparagraph (B) may request recertification of an employee's status
as a victim of domestic violence, sexual assault, or stalking every
six months after the date of the previous certification.
(D) Any verbal or written statement, police or court record, or
other documentation provided to an employer identifying an employee
as a victim of domestic violence, sexual assault, or stalking shall
be maintained as confidential by the employer and shall not be
disclosed by the employer except as required by federal or state law
or as necessary to protect the employee's safety in the workplace.
The employee shall be given notice before any authorized disclosure.
(8) An employer shall not retaliate against a victim of domestic
violence, sexual assault, or stalking for requesting a reasonable
accommodation, regardless of whether the request was granted.
(e) Any
(g) (1) An
employee who is discharged, threatened with discharge, demoted,
suspended, or in any other manner discriminated or retaliated against
in the terms and conditions of employment by his or her employer
because the employee has taken time off for a purpose set forth in
subdivision (a) , or (b) , or
(c) shall be entitled to reinstatement and reimbursement
for lost wages and work benefits caused by the acts of the employer.
Any
(2) An employee who is discharged, threatened with discharge,
demoted, suspended, or in any other manner discriminated or
retaliated against in the terms and conditions of employment by his
or her employer for reasons prohibited in subdivision (c) or (e), or
because he or she has requested or received a reasonable
accommodation as set forth in subdivision (f), is entitled to
reinstatement and reimbursement for lost wages and work benefits
caused by the acts of the employer, as well as appropriate equitable
relief. If the employee prevails in an action pursuant to this
paragraph, the court may award reasonable attorney's fees and costs.
(3) An employer who willfully
refuses to rehire, promote, or otherwise restore an employee or
former employee who has been determined to be eligible for rehiring
or promotion by a grievance procedure or hearing authorized by law is
guilty of a misdemeanor.
(f)
(h) (1) Any An employee
who is discharged, threatened with discharge, demoted, suspended, or
in any other manner discriminated or retaliated against in the terms
and conditions of employment by his or her employer because the
employee has exercised his or her rights as set forth in subdivision
(a), (b), or (c) may file a complaint with the Division of Labor
Standards Enforcement of the Department of Industrial Relations
pursuant to Section 98.7.
(2) Notwithstanding any time limitation in Section 98.7, an
employee filing may file a complaint
with the division based upon a violation of subdivision (c)
shall have within one year from the date of
occurrence of the violation to file his or her complaint
.
(i) An employee who is discharged, threatened with discharge,
demoted, suspended, or denied a reasonable accommodation under
subdivision (e) or (f) may bring a civil action in the superior court
of the appropriate county to enforce those provisions.
(g)
(j) An employee may use vacation, personal leave, or
compensatory time off that is otherwise available to the employee
under the applicable terms of employment, unless otherwise provided
by a collective bargaining agreement, for time taken off for a
purpose specified in subdivision (a), (b), or (c). The entitlement of
any employee under this section shall not be diminished by any
collective bargaining agreement term or condition.
(h)
(k) For purposes of this section:
(1) "Domestic violence" means any of the types of abuse set forth
in Section 6211 of the Family Code, as amended.
(2) "Sexual assault" means any of the crimes set forth in Section
261, 261.5, 262, 265, 266, 266a, 266b, 266c, 266g, 266j, 267, 269,
273.4, 285, 286, 288, 288a, 288.5, 289, or 311.4 of the Penal Code,
as amended.
(3) "Stalking" means a crime set forth in Section 646.9 of the
Penal Code or Section 1708.7 of the Civil Code.
SEC. 2. Section 230.1 of the Labor Code is amended to read:
230.1. (a) In addition to the requirements and prohibitions
imposed on employees pursuant to Section 230, an employer with 25 or
more employees may shall not discharge
or in any manner discriminate or retaliate against an employee who is
a victim of domestic violence or a victim of
, sexual assault , or stalking for taking time off
from work to attend to any of the following:
(1) To seek medical attention for injuries caused by domestic
violence or , sexual assault , or
stalking .
(2) To obtain services from a domestic violence shelter, program,
or rape crisis center as a result of domestic violence or
, sexual assault , or stalking
.
(3) To obtain psychological counseling related to an experience of
domestic violence or , sexual assault
, or stalking .
(4) To participate in safety planning and take other actions to
increase safety from future domestic violence or
, sexual assault, or stalking, including
temporary or permanent relocation.
(b) (1) As a condition of taking time off for a purpose set forth
in subdivision (a), the employee shall give the employer reasonable
advance notice of the employee's intention to take time off, unless
the advance notice is not feasible.
(2) When an unscheduled absence occurs, the employer may
shall not take any action against the employee
if the employee, within a reasonable time after the absence, provides
a certification to the employer. Certification shall be sufficient
in the form of any of the following:
categories described in paragraph (2) of subdivision (d) of Section
230.
(A) A police report indicating that the employee was a victim of
domestic violence or sexual assault.
(B) A court order protecting or separating the employee from the
perpetrator of an act of domestic violence or sexual assault, or
other evidence from the court or prosecuting attorney that the
employee appeared in court.
(C) Documentation from a medical professional, domestic violence
advocate or advocate for victims of sexual assault, health care
provider, or counselor that the employee was undergoing treatment for
physical or mental injuries or abuse resulting in victimization from
an act of domestic violence or sexual assault.
(3) To the extent allowed by law and consistent with
subparagraph (D) of paragraph (7) of subdivision (f) of Section 230
, employers shall maintain the confidentiality of any employee
requesting leave under subdivision (a).
(c) Any An employee who is
discharged, threatened with discharge, demoted, suspended, or in any
other manner discriminated or retaliated against in the terms and
conditions of employment by his or her employer because the employee
has taken time off for a purpose set forth in subdivision (a) is
entitled to reinstatement and reimbursement for lost wages and work
benefits caused by the acts of the employer , as well as
appropriate equitable relief . Any An
employer who willfully refuses to rehire, promote, or otherwise
restore an employee or former employee who has been determined to be
eligible for rehiring or promotion by a grievance procedure or
hearing authorized by law is guilty of a misdemeanor.
(d) (1) Any An employee who is
discharged, threatened with discharge, demoted, suspended, or in any
other manner discriminated or retaliated against in the terms and
conditions of employment by his or her employer because the employee
has exercised his or her rights as set forth in subdivision (a) may
file a complaint with the Division of Labor Standards Enforcement of
the Department of Industrial Relations pursuant to Section 98.7.
(2) Notwithstanding any time limitation in Section 98.7, an
employee filing may file a complaint
with the division based upon a violation of subdivision (a)
has within one year from the date of occurrence
of the violation to file his or her complaint .
(e) If an employee prevails in an action pursuant to this section,
the court may award reasonable attorney's fees and costs.
(e)
(f) An employee may use vacation, personal leave, or
compensatory time off that is otherwise available to the employee
under the applicable terms of employment, unless otherwise provided
by a collective bargaining agreement, for time taken off for a
purpose specified in subdivision (a). The entitlement of any employee
under this section may shall not be
diminished by any collective bargaining agreement term or condition.
(f)
(g) This section does not create a right for an
employee to take unpaid leave that exceeds the unpaid leave time
allowed under, or is in addition to the unpaid leave time permitted
by, the federal Family and Medical Leave Act of 1993 (29 U.S.C. Sec.
2601 et seq.).
(g)
(h) For purposes of this section:
(1) "Domestic violence" means any of the types of abuse set forth
in Section 6211 of the Family Code, as amended.
(2) "Sexual assault" means any of the crimes set forth in Section
261, 261.5, 262, 265, 266, 266a, 266b, 266c, 266g, 266j, 267, 269,
273.4, 285, 286, 288, 288a, 288.5, 289, or 311.4 of the Penal Code,
as amended.
(3) "Stalking" means a crime set forth in Section 646.9 of the
Penal Code or Section 1708.7 of the Civil Code.
SEC. 3. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
