Senate BillNo. 400


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:

P2    1

SECTION 1.  

Section 230 of the Labor Code is amended to
2read:

3

230.  

(a) An employerbegin delete mayend deletebegin insert shallend insert not discharge or in any manner
4discriminate against an employee for taking time off to serve as
5required by law on an inquest jury or trial jury, if the employee,
6prior to taking the time off, gives reasonable notice to the employer
7that he or she is required to serve.

8(b) An employerbegin delete mayend deletebegin insert shallend insert not discharge or in any manner
9 discriminate or retaliate against an employee, including, but not
10limited to, an employee who is a victim of a crime, for taking time
11off to appear in court to comply with a subpoena or other court
12order as a witness in any judicial proceeding.

13(c) An employerbegin delete mayend deletebegin insert shallend insert not discharge or in any manner
14discriminate or retaliate against an employee who is a victim of
15domestic violencebegin delete or a victim ofend deletebegin insert,end insert sexual assaultbegin insert, or stalkingend insert for
16taking time off from work to obtain or attempt to obtain any relief,
17including, but not limited to, a temporary restraining order,
18restraining order, or other injunctive relief, to help ensure the
19health, safety, or welfare of the victim or his or her child.

20(d) (1) As a condition of taking time off for a purpose set forth
21in subdivision (c), the employee shall give the employer reasonable
22advance notice of the employee’s intention to take time off, unless
23the advance notice is not feasible.

24(2) When an unscheduled absence occurs, the employer shall
25not take any action against the employee if the employee, within
26a reasonable time after the absence, provides a certification to the
27employer. Certification shall be sufficient in the form of any of
28the following:

29(A) A police report indicating that the employee was a victim
30of domestic violencebegin delete orend deletebegin insert,end insert sexual assaultbegin insert, or stalkingend insert.

31(B) A court order protecting or separating the employee from
32the perpetrator of an act of domestic violencebegin delete orend deletebegin insert,end insert sexual assault,
P3    1begin insert or stalking,end insert or other evidence from the court or prosecuting attorney
2that the employee has appeared in court.

3(C) Documentation from a medical professional, domestic
4violence advocate or advocate for victims of sexual assault, health
5care provider, or counselor that the employee was undergoing
6treatment for physical or mental injuries or abuse resulting in
7victimization from an act of domestic violencebegin delete orend deletebegin insert,end insert sexual assaultbegin insert,
8or stalkingend insert
.

9(3) To the extent allowed by lawbegin insert and consistent with
10subparagraph (D) of paragraph (7) of subdivision (f)end insert
, the employer
11shall maintain the confidentiality of any employee requesting leave
12under subdivision (c).

begin insert

13(e) An employer shall not discharge or in any manner
14 discriminate or retaliate against an employee because of the
15employee’s known status as a victim of domestic violence, sexual
16assault, or stalking.

end insert
begin insert

17(f) (1) An employer shall provide reasonable accommodations
18for a victim of domestic violence, sexual assault, or stalking who
19requests an accommodation for the safety of the victim while at
20work.

end insert
begin insert

21(2) For purposes of this subdivision, reasonable
22accommodations may include the implementation of safety
23measures, including a transfer, reassignment, modified schedule,
24changed work telephone, changed work station, installed lock,
25assistance in documenting domestic violence, sexual assault, or
26stalking that occurs in the workplace, an implemented safety
27procedure, or another adjustment to a job structure, workplace
28facility, or work requirement in response to domestic violence,
29sexual assault, or stalking, or referral to a victim assistance
30organization.

end insert
begin insert

31(3) An employer is not required to provide a reasonable
32accommodation to an employee who has not disclosed his or her
33status as a victim of domestic violence, sexual assault, or stalking.

end insert
begin insert

34(4) The employer shall make reasonable accommodations in a
35timely fashion.

end insert
begin insert

36(5) In determining whether the accommodation is reasonable,
37the employer shall consider an exigent circumstance or danger
38facing the employee.

end insert
begin insert

39(6) This subdivision does not require the employer to undertake
40an action that constitutes an undue hardship on the employer’s
P4    1business operations, as defined by Section 12926 of the
2Government Code.

end insert
begin insert

3(7) (A) Upon the request of an employer, an employee
4requesting a reasonable accommodation pursuant to this
5subdivision shall provide the employer a written statement signed
6by the employee or an individual acting on the employee’s behalf,
7certifying that the accommodation is for a purpose authorized
8under this subdivision.

end insert
begin insert

9(B) The employer may also request certification from an
10employee requesting an accommodation pursuant to this
11subdivision demonstrating the employee’s status as a victim of
12domestic violence, sexual assault, or stalking. Certification shall
13be sufficient in the form of any of the categories described in
14paragraph (2) of subdivision (d).

end insert
begin insert

15(C) An employer who requests certification pursuant to
16subparagraph (B) may request recertification of an employee’s
17status as a victim of domestic violence, sexual assault, or stalking
18every six months after the date of the previous certification.

end insert
begin insert

19(D) Any verbal or written statement, police or court record, or
20other documentation provided to an employer identifying an
21employee as a victim of domestic violence, sexual assault, or
22stalking shall be maintained as confidential by the employer and
23shall not be disclosed by the employer except as required by federal
24or state law or as necessary to protect the employee’s safety in the
25workplace. The employee shall be given notice before any
26authorized disclosure.

end insert
begin insert

27(8) An employer shall not retaliate against a victim of domestic
28violence, sexual assault, or stalking for requesting a reasonable
29accommodation, regardless of whether the request was granted.

end insert
begin delete

30(e) Any

end delete

31begin insert(g)end insertbegin insertend insertbegin insert(1)end insertbegin insertend insertbegin insertAn end insertemployee who is discharged, threatened with
32discharge, demoted, suspended, or in any other manner
33discriminated or retaliated against in the terms and conditions of
34employment by his or her employer because the employee has
35taken time off for a purpose set forth in subdivision (a)begin delete,end deletebegin insert orend insert (b)begin delete, or
36(c)end delete
shall be entitled to reinstatement and reimbursement for lost
37wages and work benefits caused by the acts of the employer.begin delete Anyend delete

begin insert

38(2) An employee who is discharged, threatened with discharge,
39demoted, suspended, or in any other manner discriminated or
40retaliated against in the terms and conditions of employment by
P5    1his or her employer for reasons prohibited in subdivision (c) or
2(e), or because he or she has requested or received a reasonable
3accommodation as set forth in subdivision (f), is entitled to
4reinstatement and reimbursement for lost wages and work benefits
5caused by the acts of the employer, as well as appropriate equitable
6relief. If the employee prevails in an action pursuant to this
7paragraph, the court may award reasonable attorney’s fees and
8costs.

end insert

9begin insert(3)end insertbegin insertend insertbegin insertAnend insert employer who willfully refuses to rehire, promote, or
10otherwise restore an employee or former employee who has been
11determined to be eligible for rehiring or promotion by a grievance
12procedure or hearing authorized by law is guilty of a misdemeanor.

begin delete

13(f)

end delete

14begin insert(h)end insert (1) begin deleteAny end deletebegin insertAn end insertemployee who is discharged, threatened with
15discharge, demoted, suspended, or in any other manner
16discriminated or retaliated against in the terms and conditions of
17employment by his or her employer because the employee has
18exercised his or her rights as set forth in subdivision (a), (b), or
19(c) may file a complaint with the Division of Labor Standards
20Enforcement of the Department of Industrial Relations pursuant
21to Section 98.7.

22(2) Notwithstanding any time limitation in Section 98.7, an
23employeebegin delete filingend deletebegin insert may fileend insert a complaint with the division based upon
24a violation of subdivision (c)begin delete shall haveend deletebegin insert withinend insert one year from the
25date of occurrence of the violationbegin delete to file his or her complaintend delete.

begin insert

26(i) An employee who is discharged, threatened with discharge,
27demoted, suspended, or denied a reasonable accommodation under
28subdivision (e) or (f) may bring a civil action in the superior court
29of the appropriate county to enforce those provisions.

end insert
begin delete

30(g)

end delete

31begin insert(j)end insert An employee may use vacation, personal leave, or
32compensatory time off that is otherwise available to the employee
33under the applicable terms of employment, unless otherwise
34provided by a collective bargaining agreement, for time taken off
35for a purpose specified in subdivision (a), (b), or (c). The
36entitlement of any employee under this section shall not be
37diminished by any collective bargaining agreement term or
38condition.

begin delete

39(h)

end delete

40begin insert(k)end insert For purposes of this section:

P6    1(1) “Domestic violence” means any of the types of abuse set
2forth in Section 6211 of the Family Code, as amended.

3(2) “Sexual assault” means any of the crimes set forth in Section
4261, 261.5, 262, 265, 266, 266a, 266b, 266c, 266g, 266j, 267, 269,
5273.4, 285, 286, 288, 288a, 288.5, 289, or 311.4 of the Penal Code,
6as amended.

begin insert

7(3) “Stalking” means a crime set forth in Section 646.9 of the
8Penal Code or Section 1708.7 of the Civil Code.

end insert
9

SEC. 2.  

Section 230.1 of the Labor Code is amended to read:

10

230.1.  

(a) In addition to the requirements and prohibitions
11imposed on employees pursuant to Section 230, an employer with
1225 or more employeesbegin delete mayend deletebegin insert shallend insert not discharge or in any manner
13discriminate or retaliate against an employee who is a victim of
14domestic violencebegin delete or a victim ofend deletebegin insert,end insert sexual assaultbegin insert, or stalkingend insert for
15taking time off from work to attend to any of the following:

16(1) To seek medical attention for injuries caused by domestic
17violencebegin delete orend deletebegin insert,end insert sexual assaultbegin insert, or stalkingend insert.

18(2) To obtain services from a domestic violence shelter,
19program, or rape crisis center as a result of domestic violencebegin delete orend deletebegin insert,end insert
20 sexual assaultbegin insert, or stalkingend insert.

21(3) To obtain psychological counseling related to an experience
22of domestic violencebegin delete orend deletebegin insert,end insert sexual assaultbegin insert, or stalkingend insert.

23(4) To participate in safety planning and take other actions to
24increase safety from future domestic violencebegin delete orend deletebegin insert,end insert sexual assault,
25begin insert or stalking,end insert including temporary or permanent relocation.

26(b) (1) As a condition of taking time off for a purpose set forth
27in subdivision (a), the employee shall give the employer reasonable
28advance notice of the employee’s intention to take time off, unless
29the advance notice is not feasible.

30(2) When an unscheduled absence occurs, the employerbegin delete mayend delete
31begin insert shallend insert not take any action against the employee if the employee,
32within a reasonable time after the absence, provides a certification
33to the employer. Certification shall be sufficient in the form of any
34of thebegin delete following:end deletebegin insert categories described in paragraph (2) of
35subdivision (d) of Section 230.end insert

begin delete

36(A) A police report indicating that the employee was a victim
37of domestic violence or sexual assault.

end delete
begin delete

38(B) A court order protecting or separating the employee from
39the perpetrator of an act of domestic violence or sexual assault, or
P7    1other evidence from the court or prosecuting attorney that the
2employee appeared in court.

end delete
begin delete

3(C) Documentation from a medical professional, domestic
4violence advocate or advocate for victims of sexual assault, health
5care provider, or counselor that the employee was undergoing
6treatment for physical or mental injuries or abuse resulting in
7victimization from an act of domestic violence or sexual assault.

end delete

8(3) To the extent allowed by lawbegin insert and consistent with
9subparagraph (D) of paragraph (7) of subdivision (f) of Section
10230end insert
, employers shall maintain the confidentiality of any employee
11requesting leave under subdivision (a).

12(c) begin deleteAny end deletebegin insertAn end insertemployee who is discharged, threatened with
13discharge, demoted, suspended, or in any other manner
14discriminated or retaliated against in the terms and conditions of
15employment by his or her employer because the employee has
16taken time off for a purpose set forth in subdivision (a) is entitled
17to reinstatement and reimbursement for lost wages and work
18benefits caused by the acts of the employerbegin insert, as well as appropriate
19equitable reliefend insert
.begin delete Anyend deletebegin insert Anend insert employer who willfully refuses to rehire,
20promote, or otherwise restore an employee or former employee
21who has been determined to be eligible for rehiring or promotion
22by a grievance procedure or hearing authorized by law is guilty of
23a misdemeanor.

24(d) (1) begin deleteAny end deletebegin insertAn end insertemployee who is discharged, threatened with
25discharge, demoted, suspended, or in any other manner
26discriminated or retaliated against in the terms and conditions of
27employment by his or her employer because the employee has
28exercised his or her rights as set forth in subdivision (a) may file
29a complaint with the Division of Labor Standards Enforcement of
30the Department of Industrial Relations pursuant to Section 98.7.

31(2) Notwithstanding any time limitation in Section 98.7, an
32employeebegin delete filingend deletebegin insert may fileend insert a complaint with the division based upon
33a violation of subdivision (a)begin delete hasend deletebegin insert withinend insert one year from the date of
34occurrence of the violationbegin delete to file his or her complaintend delete.

begin insert

35(e) If an employee prevails in an action pursuant to this section,
36the court may award reasonable attorney’s fees and costs.

end insert
begin delete

37(e)

end delete

38begin insert(f)end insert An employee may use vacation, personal leave, or
39compensatory time off that is otherwise available to the employee
40under the applicable terms of employment, unless otherwise
P8    1provided by a collective bargaining agreement, for time taken off
2for a purpose specified in subdivision (a). The entitlement of any
3employee under this sectionbegin delete mayend deletebegin insert shallend insert not be diminished by any
4collective bargaining agreement term or condition.

begin delete

5(f)

end delete

6begin insert(g)end insert This section does not create a right for an employee to take
7unpaid leave that exceeds the unpaid leave time allowed under, or
8is in addition to the unpaid leave time permitted by, the federal
9Family and Medical Leave Act of 1993 (29 U.S.C. Sec. 2601 et
10seq.).

begin delete

11(g)

end delete

12begin insert(h)end insert For purposes of this section:

13(1) “Domestic violence” means any of the types of abuse set
14forth in Section 6211 of the Family Code, as amended.

15(2) “Sexual assault” means any of the crimes set forth in Section
16261, 261.5, 262, 265, 266, 266a, 266b, 266c, 266g, 266j, 267, 269,
17273.4, 285, 286, 288, 288a, 288.5, 289, or 311.4 of the Penal Code,
18as amended.

begin insert

19(3) “Stalking” means a crime set forth in Section 646.9 of the
20Penal Code or Section 1708.7 of the Civil Code.

end insert
21

SEC. 3.  

No reimbursement is required by this act pursuant to
22Section 6 of Article XIII B of the California Constitution because
23the only costs that may be incurred by a local agency or school
24district will be incurred because this act creates a new crime or
25infraction, eliminates a crime or infraction, or changes the penalty
26for a crime or infraction, within the meaning of Section 17556 of
27the Government Code, or changes the definition of a crime within
28the meaning of Section 6 of Article XIII B of the California
29Constitution.



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