BILL ANALYSIS �
Senate Committee on Labor and Industrial Relations
Ted W. Lieu, Chair
Date of Hearing: April 24, 2013 2013-2014 Regular
Session
Consultant: Gideon L. Baum Fiscal:Yes
Urgency: No
Bill No: SB 288
Author: Lieu
As Introduced/Amended: April 1, 2013
SUBJECT
Employment protections: time off.
KEY ISSUE
Should the Legislature allow victims of serious crimes to take
protected leave from their employment in order to appear in
court?
ANALYSIS
The California Constitution provides protections for crime
victim's due process rights.
(Article I, Section XXVIII)
Existing law states that an employer may not discharge,
discriminate or retaliate against an employee who is a victim of
domestic violence or sexual assault for taking time off from
work to attend to any of the following:
To seek medical attention for injuries caused by
domestic violence or sexual assault
To obtain services from a domestic violence shelter,
program, or rape crisis center
To obtain psychological counseling related to the
domestic violence or sexual assault
To participate in safety planning and take other actions
to increase safety from future domestic violence or sexual
assault, including temporary or permanent relocation
To appear as a witness in any judicial proceeding or
obtain any injunctive relief to help ensure the welfare of
the victim or his or her child.
(Labor Code �230 and �230.1)
Existing law states that an employee who is discharged,
threatened with discharge, suspended, or in any other manner
discriminated against for taking time off for the above purposes
is entitled to reinstatement and reimbursement for lost wages
and work benefits and may file a complaint with the Division of
Labor Standards Enforcement. Additionally, an employer that
willfully refuses to rehire, promote, or otherwise restore an
employee who has been determined to be eligible for rehiring or
promotion is guilty of a misdemeanor. (Labor Code �230.1)
Existing law states that an employee shall give the employer
reasonable advance notice of the employee's intention to take
time off, unless the advance notice is not feasible.
(Labor Code �230)
Existing law states that when an unscheduled absence occurs, the
employer shall not take any action against the employee if
certification is provided within a reasonable time, including a
police report, court order protecting the employee from the
perpetrator, or documentation from a medical professional,
victim advocate, health care provider or counselor stating the
employee was undergoing treatment from an act of domestic
violence or sexual assault.
(Labor Code �230.1)
This bill would provide that an employer may not discharge or in
any manner discriminate or retaliate against an employee who is
a victim for taking time off from work, upon the victim's
request, to appear in court to be heard at any proceeding for
the following offenses:
1) Vehicular manslaughter while intoxicated;
2) Felony child abuse likely to produce great bodily harm
or a death;
3) Assault resulting in the death of a child under eight
years of age;
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Senate Committee on Labor and Industrial Relations
4) Felony domestic violence;
5) Felony physical abuse of an elder or dependent adult;
6) Felony stalking;
7) Solicitation for murder;
8) A serious felony, such as kidnapping, rape, or assault;
9) Hit and run causing death or injury; and
10) Felony driving under the influence causing injury.
For the purposes of this section, a proceeding would include any
delinquency proceeding, involving a post-arrest release
decision, plea, sentencing, post-conviction release decision, or
any proceeding in which a right of the victim is at issue.
This bill would also define a victim as 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" would also include the
person's spouse, parent, child, sibling, or guardian.
This bill would also make technical, conforming changes.
COMMENTS
1. Need for this bill?
According to Center for Disease Control and Prevention's (CDC)
2010 National Intimate Partner and Sexual Violence Survey,
nearly 1 in 4 women and 1 in 7 men in the United States have
experienced severe physical violence by an intimate partner -
among victims of intimate partner violence, more than 1 in 3
women experienced multiple forms of rape, stalking, or
physical violence. One in 6 women and 1 in 19 men in the
United States have experienced stalking victimization in which
they felt very fearful or believed that they or someone close
to them would be harmed or killed.
In California, through the passage of Proposition 9 in 2008
(also known as Marsy's Law), a crime victim has the right to
be heard, upon request, at any proceeding. However, despite
having that right, utilizing that right would not be
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Senate Committee on Labor and Industrial Relations
employment-protected. Therefore, while a crime victim has
delineated rights in the Constitution, he or she could be
terminated for utilizing them.
SB 288 would address this by providing an employee with
protected leave to participate in a hearing if they are the
victim of serious crime, including domestic violence,
stalking, murder, kidnapping, or rape.
2. Proponent Arguments :
Proponents note that the California Constitution provides that
crime victims have the right to be heard, upon request, in all
of the proceedings covered by the bill. Proponents also note
that there is no employment protection for a victim who
desires to appear in a criminal or juvenile court proceeding
to be heard on pleas, sentencing, release issues or other
matters that may affect the rights of the victim. Proponents
argue that this inhibits the ability of crime victims to avail
themselves of their constitutional rights. Proponents believe
that SB 288 will address this by allowing workers protected
leave if they are the victim of serious felonies, such as
homicide, rape, and crimes involving the infliction of great
bodily injury.
3. Opponent Arguments :
None on file.
4. Current Legislation :
SB 400 (Jackson) would, among other things, prohibit an
employer from retaliating or discriminating against an
employee because of his or her known status as a victim of
domestic violence, sexual assault, or stalking.
SUPPORT
Los Angeles County District Attorney's Office (Sponsor)
Crime Victims United of California
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Senate Committee on Labor and Industrial Relations
OPPOSITION
None on file.
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Senate Committee on Labor and Industrial Relations