Amended in Senate April 1, 2013

Senate Bill No. 288

Introduced by Senator Lieu

February 14, 2013

An act to amend Section begin delete 51 end delete begin insert 230 end insert of the Labor Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

SB 288, as amended, Lieu. begin delete Director of Industrial Relations. end delete begin insert Employment protections: time off. end insert

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Existing law prohibits an employer from discharging or in any manner discriminating against an employee for taking time off to serve on a jury, an employee who is a victim of a crime for taking time off to appear in court as a witness in any judicial proceeding, or an employee who is a victim of domestic violence or a victim of sexual assault for taking time off from work to obtain or attempt to obtain prescribed relief. A violation of these provisions, under certain circumstances, is a misdemeanor.

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This bill would additionally prohibit an employer from discharging or in any manner discriminating or retaliating against an employee who is a victim, as defined, of specified offenses, as defined, for taking time off from work, upon the victim’s request, to appear in court to be heard at any proceeding, including any delinquency proceeding, involving a postarrest release decision, plea, sentencing, postconviction release decision, or any proceeding in which a right of the victim is at issue. Because a violation of the bill’s requirements under certain circumstances would be a crime, the bill would impose a state-mandated local program.

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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.

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This bill would provide that no reimbursement is required by this act for a specified reason.

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Existing law establishes the Department of Industrial Relations for specified purposes and provides for its administration by the Director of Industrial Relations.

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This bill would make a technical, nonsubstantive change to that administration provision.

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Vote: majority. Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program:  begin delete no end delete begin insert yes end insert .

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

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begin insert Section 230 of the end insert begin insert Labor Code end insert begin insert is amended to
read: end insert

230.  

(a) An employer may 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 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)  begin insert (1) end insert begin insert   end insert An employer may 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 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.

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(2) An employer may not discharge or in any manner
discriminate or retaliate against an employee who is a victim of
an offense listed in this paragraph for taking time off from work,
upon the victim’s request, to appear in court to be heard at any
proceeding, including any delinquency proceeding, involving a
postarrest release decision, plea, sentencing, postconviction release
decision, or any proceeding in which a right of the victim is at
issue. The offenses include all of the following:

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(A) Vehicular manslaughter while intoxicated, as defined in
subdivision (c) of Section 191.5 of the Penal Code.

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(B) Felony child abuse likely to produce great bodily harm or
a death, as defined in Section 273a of the Penal Code.

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(C) Assault resulting in the death of a child under eight years
of age, as defined in Section 273ab of the Penal Code.

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(D) Felony domestic violence, as defined in Section 273.5 of
the Penal Code.

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(E) Felony physical abuse of an elder or dependent adult, as
defined in subdivision (b) of Section 368 of the Penal Code.

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(F) Felony stalking, as defined in Section 646.9 of the Penal
Code.

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(G) Solicitation for murder, as defined in subdivision (b) of
Section 653f of the Penal Code.

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(H) A serious felony, as defined in subdivision (c) of Section
1192.7 of the Penal Code.

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(I) Hit and run causing death or injury, as defined in Section
20001 of the Vehicle Code.

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(J) Felony driving under the influence causing injury, as defined
in Section 23153 of the Vehicle Code.

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(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 begin delete domestic violence or sexual assault end delete begin insert an offense specified in
subdivision (c) end insert .

(B) A court order protecting or separating the employee from
the perpetrator of an begin delete act of domestic violence or sexual assault end delete
begin insert offense specified in subdivision (c) end insert , 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.

(3) To the extent allowed by law, the employer shall maintain
the confidentiality of any employee requesting leave under
subdivision (c).

(e) Any 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), (b), or (c) shall be entitled
to reinstatement and reimbursement for lost wages and work
benefits caused by the acts of the employer. Any 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) (1) Any 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 a complaint with the division based upon a
violation of subdivision (c) shall have one year from the date of
occurrence of the violation to file his or her complaint.

(g) 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 begin delete subdivision (a), (b), or (c) end delete begin insert this section end insert .
The entitlement of any employee under this section shall not be
diminished by any collective bargaining agreement term or
condition.

(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.

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(3) “Victim” means 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 person’s spouse, parent, child,
sibling, or guardian.

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begin insert SEC. 2. end insert   

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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.

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SECTION 1.  

Section 51 of the Labor Code is amended to read:

51.  

The department shall be conducted under the control of an
executive officer known as the Director of Industrial Relations.
The Director of Industrial Relations shall be appointed by the
Governor with the advice and consent of the Senate and hold office
at the pleasure of the Governor and shall receive an annual salary
provided for by Chapter 6 (commencing with Section 11550) of
Part 1 of Division 3 of Title 2 of the Government Code.

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