Amended in Senate April 16, 2013

Senate BillNo. 400


Introduced by Senator Jackson

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(Principal coauthor: Senator Leno)

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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 amended, 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.begin delete Existing law provides that employers who violate these provisionsend deletebegin insert Under existing law, an employee who is discriminated or retaliated against in the terms and conditions of employment by his or her employer for prohibited reasons, or because the employee has taken time off for specified purposes, is entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer. Employers who willfully refuse 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 lawend insert 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 employer shall 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
7thatbegin delete he or sheend deletebegin insert the employeeend insert is required to serve.

8(b) An employer shall 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 employer shall not discharge or in any manner
14discriminate or retaliate against an employee who is a victim of
15domestic violence, sexual assault, or stalking for taking time off
16from work to obtain or attempt to obtain any relief, including, but
17not limited to, a temporary restraining order, restraining order, or
18other injunctive relief, to help ensure the health, safety, or welfare
19of 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
P3    1advance notice of the employee’s intention to take time off, unless
2the advance notice is not feasible.

3(2) When an unscheduled absence occurs, the employer shall
4not take any action against the employee if the employee, within
5a reasonable time after the absence, provides a certification to the
6employer. Certification shall be sufficient in the form of any of
7the following:

8(A) A police report indicating that the employee was a victim
9of domestic violence, sexual assault, or stalking.

10(B) A court order protecting or separating the employee from
11the perpetrator of an act of domestic violence, sexual assault, or
12stalking, or other evidence from the court or prosecuting attorney
13that the employee has appeared in court.

14(C) Documentation from a medical professional, domestic
15violence advocate or advocate for victims of sexual assault, health
16care provider, or counselor that the employee was undergoing
17treatment for physical or mental injuries or abuse resulting in
18victimization from an act of domestic violence, sexual assault, or
19stalking.

20(3) To the extent allowed by law and consistent with
21subparagraph (D) of paragraph (7) of subdivision (f), the employer
22shall maintain the confidentiality of any employee requesting leave
23under subdivision (c).

24(e) An employer shall not discharge or in any manner
25 discriminate or retaliate against an employee because of the
26employee’s known status as a victim of domestic violence, sexual
27assault, or stalking.

28(f) (1) An employer shall provide reasonable accommodations
29for a victim of domestic violence, sexual assault, or stalking who
30requests an accommodation for the safety of the victim while at
31work.

32(2) For purposes of this subdivision, reasonable accommodations
33may include the implementation of safety measures, including a
34transfer, reassignment, modified schedule, changed work telephone,
35changed work station, installed lock, assistance in documenting
36domestic violence, sexual assault, or stalking that occurs in the
37workplace, an implemented safety procedure, or another adjustment
38to a job structure, workplace facility, or work requirement in
39response to domestic violence, sexual assault, or stalking, or
40referral to a victim assistance organization.

P4    1(3) An employer is not required to provide a reasonable
2accommodation to an employee who has not disclosed his or her
3status as a victim of domestic violence, sexual assault, or stalking.

4(4) The employer shallbegin delete make reasonable accommodations in a
5timely fashion.end delete
begin insert engage in a timely, good faith, and interactive
6process with the employee to determine effective reasonable
7accommodations.end insert

8(5) In determining whether the accommodation is reasonable,
9the employer shall consider an exigent circumstance or danger
10facing the employee.

11(6) This subdivision does not require the employer to undertake
12an action that constitutes an undue hardship on the employer’s
13business operations, as defined by Section 12926 of the
14Government Code.

15(7) (A) Upon the request of an employer, an employee
16requesting a reasonable accommodation pursuant to this
17subdivision shall provide the employer a written statement signed
18by the employee or an individual acting on the employee’s behalf,
19certifying that the accommodation is for a purpose authorized
20under this subdivision.

21(B) The employer may also request certification from an
22employee requesting an accommodation pursuant to this
23subdivision demonstrating the employee’s status as a victim of
24domestic violence, sexual assault, or stalking. Certification shall
25be sufficient in the form of any of the categories described in
26paragraph (2) of subdivision (d).

27(C) An employer who requests certification pursuant to
28subparagraph (B) may request recertification of an employee’s
29status as a victim of domestic violence, sexual assault, or stalking
30every six months after the date of the previous certification.

31(D) Any verbal or written statement, police or court record, or
32other documentation provided to an employer identifying an
33employee as a victim of domestic violence, sexual assault, or
34stalking shall be maintained as confidential by the employer and
35shall not be disclosed by the employer except as required by federal
36or state law or as necessary to protect the employee’s safety in the
37workplace. The employee shall be given notice before any
38authorized disclosure.

P5    1(8) An employer shall not retaliate against a victim of domestic
2violence, sexual assault, or stalking for requesting a reasonable
3accommodation, regardless of whether the request was granted.

4(g) (1) An employee who is discharged, threatened with
5discharge, demoted, suspended, or in any other manner
6discriminated or retaliated against in the terms and conditions of
7employment by his or her employer because the employee has
8taken time off for a purpose set forth in subdivision (a) or (b) shall
9be entitled to reinstatement and reimbursement for lost wages and
10work benefits caused by the acts of the employer.

11(2) An employee who is discharged, threatened with discharge,
12demoted, suspended, or in any other manner discriminated or
13retaliated against in the terms and conditions of employment by
14his or her employer for reasons prohibited in subdivision (c) or
15(e), or becausebegin delete he or sheend deletebegin insert the employeeend insert has requested or received
16a reasonable accommodation as set forth in subdivision (f), is
17entitled to reinstatement and reimbursement for lost wages and
18work benefits caused by the acts of the employer, as well as
19appropriate equitable relief.begin delete If the employee prevails in an action
20pursuant to this paragraph, the court may award reasonable
21attorney’s fees and costs.end delete

22(3) An employer who willfully refuses to rehire, promote, or
23otherwise restore an employee or former employee who has been
24determined to be eligible for rehiring or promotion by a grievance
25procedure or hearing authorized by law is guilty of a misdemeanor.

26(h) (1) An employee who is discharged, threatened with
27discharge, demoted, suspended, or in any other manner
28discriminated or retaliated against in the terms and conditions of
29employment by his or her employer because the employee has
30exercised his or her rights as set forth in subdivision (a), (b), or
31(c) may file a complaint with the Division of Labor Standards
32Enforcement of the Department of Industrial Relations pursuant
33to Section 98.7.

34(2) Notwithstanding any time limitation in Section 98.7, an
35employee may file a complaint with the division based upon a
36violation of subdivision (c) within one year from the date of
37occurrence of the violation.

38(i) An employee who is discharged, threatened with discharge,
39demoted, suspended, or denied a reasonable accommodation under
40subdivision (e) or (f) may bring a civil action in the superior court
P6    1of the appropriate county to enforce those provisions.begin insert If the
2employee prevails in an action pursuant to this subdivision, the
3court may award reasonable attorney’s fees and costs.end insert

4(j) An employee may use vacation, personal leave, or
5compensatory time off that is otherwise available to the employee
6under the applicable terms of employment, unless otherwise
7provided by a collective bargaining agreement, for time taken off
8for a purpose specified in subdivision (a), (b), or (c). The
9entitlement of any employee under this section shall not be
10diminished by any collective bargaining agreement term or
11condition.

12(k) 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.

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

21

SEC. 2.  

Section 230.1 of the Labor Code is amended to read:

22

230.1.  

(a) In addition to the requirements and prohibitions
23imposed on employees pursuant to Section 230, an employer with
2425 or more employees shall not discharge or in any manner
25discriminate or retaliate against an employee who is a victim of
26domestic violence, sexual assault, or stalking for taking time off
27from work to attend to any of the following:

28(1) To seek medical attention for injuries caused by domestic
29violence, sexual assault, or stalking.

30(2) To obtain services from a domestic violence shelter,
31program, or rape crisis center as a result of domestic violence,
32sexual assault, or stalking.

33(3) To obtain psychological counseling related to an experience
34of domestic violence, sexual assault, or stalking.

35(4) To participate in safety planning and take other actions to
36increase safety from future domestic violence, sexual assault, or
37stalking, including temporary or permanent relocation.

38(b) (1) As a condition of taking time off for a purpose set forth
39in subdivision (a), the employee shall give the employer reasonable
P7    1advance notice of the employee’s intention to take time off, unless
2the advance notice is not feasible.

3(2) When an unscheduled absence occurs, the employer shall
4not take any action against the employee if the employee, within
5a reasonable time after the absence, provides a certification to the
6employer. Certification shall be sufficient in the form of any of
7the categories described in paragraph (2) of subdivision (d) of
8Section 230.

9(3) To the extent allowed by law and consistent with
10subparagraph (D) of paragraph (7) of subdivision (f) of Section
11230, employers shall maintain the confidentiality of any employee
12requesting leave under subdivision (a).

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

24(d) (1) An employee 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
32employee may file a complaint with the division based upon a
33violation of subdivision (a) within one year from the date of
34occurrence of the violation.

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

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

4(g) This section does not create a right for an employee to take
5unpaid leave that exceeds the unpaid leave time allowed under, or
6is in addition to the unpaid leave time permitted by, the federal
7Family and Medical Leave Act of 1993 (29 U.S.C. Sec. 2601 et
8seq.).

9(h) For purposes of this section:

10(1) “Domestic violence” means any of the types of abuse set
11forth in Section 6211 of the Family Code, as amended.

12(2) “Sexual assault” means any of the crimes set forth in Section
13261, 261.5, 262, 265, 266, 266a, 266b, 266c, 266g, 266j, 267, 269,
14273.4, 285, 286, 288, 288a, 288.5, 289, or 311.4 of the Penal Code,
15as amended.

16(3) “Stalking” means a crime set forth in Section 646.9 of the
17Penal Code or Section 1708.7 of the Civil Code.

18

SEC. 3.  

No reimbursement is required by this act pursuant to
19Section 6 of Article XIII B of the California Constitution because
20the only costs that may be incurred by a local agency or school
21district will be incurred because this act creates a new crime or
22infraction, eliminates a crime or infraction, or changes the penalty
23for a crime or infraction, within the meaning of Section 17556 of
24the Government Code, or changes the definition of a crime within
25the meaning of Section 6 of Article XIII B of the California
26Constitution.



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