Amended in Assembly June 27, 2013

Amended in Senate April 16, 2013

Senate BillNo. 400


Introduced by Senator Jackson

(Principal coauthor: Senator Leno)

begin insert

(Coauthor: Senator De León)

end insert

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. 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 law 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,begin insert as specified,end insert andbegin insert wouldend insert 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
7that the employee 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.

P3    1(d) (1) As a condition of taking time off for a purpose set forth
2in subdivision (c), the employee shall give the employer reasonable
3advance notice of the employee’s intention to take time off, unless
4the advance notice is not feasible.

5(2) When an unscheduled absence occurs, the employer shall
6not take any action against the employee if the employee, within
7a reasonable time after the absence, provides a certification to the
8employer. Certification shall be sufficient in the form of any of
9the following:

10(A) A police report indicating that the employee was a victim
11of domestic violence, sexual assault, or stalking.

12(B) A court order protecting or separating the employee from
13the perpetrator of an act of domestic violence, sexual assault, or
14stalking, or other evidence from the court or prosecuting attorney
15that the employee has appeared in court.

16(C) Documentation from a medical professional, domestic
17violence advocate or advocate for victims of sexual assault, health
18care provider, or counselor that the employee was undergoing
19treatment for physical or mental injuries or abuse resulting in
20victimization from an act of domestic violence, sexual assault, or
21stalking.

22(3) To the extent allowed by law and consistent with
23subparagraph (D) of paragraph (7) of subdivision (f), the employer
24shall maintain the confidentiality of any employee requesting leave
25under subdivision (c).

26(e) An employer shall not discharge or in any manner
27 discriminate or retaliate against an employee because of the
28employee’sbegin delete knownend delete status as a victim of domestic violence, sexual
29assault, or stalkingbegin insert, if the victim provides notice to the employer
30of the status or the employer has actual knowledge of the statusend insert
.

31(f) (1) An employer shall provide reasonable accommodations
32for a victim of domestic violence, sexual assault, or stalking who
33requests an accommodation for the safety of the victim while at
34work.

35(2) For purposes of this subdivision, reasonable accommodations
36may include the implementation of safety measures, including a
37transfer, reassignment, modified schedule, changed work telephone,
38changed work station, installed lock, assistance in documenting
39domestic violence, sexual assault, or stalking that occurs in the
40workplace, an implemented safety procedure, or another adjustment
P4    1to a job structure, workplace facility, or work requirement in
2response to domestic violence, sexual assault, or stalking, or
3referral to a victim assistance organization.

4(3) An employer is not required to provide a reasonable
5accommodation to an employee who has not disclosed his or her
6status as a victim of domestic violence, sexual assault, or stalking.

7(4) The employer shall engage in a timely, good faith, and
8interactive process with the employee to determine effective
9reasonable accommodations.

10(5) In determining whether the accommodation is reasonable,
11the employer shall consider an exigent circumstance or danger
12facing the employee.

13(6) This subdivision does not require the employer to undertake
14an action that constitutes an undue hardship on the employer’s
15business operations, as defined by Section 12926 of the
16Government Code.

17(7) (A) Upon the request of an employer, an employee
18requesting a reasonable accommodation pursuant to this
19subdivision shall provide the employer a written statement signed
20by the employee or an individual acting on the employee’s behalf,
21certifying that the accommodation is for a purpose authorized
22under this subdivision.

23(B) The employer may also request certification from an
24employee requesting an accommodation pursuant to this
25subdivision demonstrating the employee’s status as a victim of
26domestic violence, sexual assault, or stalking. Certification shall
27be sufficient in the form of any of the categories described in
28paragraph (2) of subdivision (d).

29(C) An employer who requests certification pursuant to
30subparagraph (B) may request recertification of an employee’s
31status as a victim of domestic violence, sexual assault, or stalking
32every six months after the date of the previous certification.

33(D) Any verbal or written statement, police or court record, or
34other documentation provided to an employer identifying an
35employee as a victim of domestic violence, sexual assault, or
36stalking shall be maintained as confidential by the employer and
37shall not be disclosed by the employer except as required by federal
38or state law or as necessary to protect the employee’s safety in the
39workplace. The employee shall be given notice before any
40authorized 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 because the employee has requested or received a reasonable
16accommodation as set forth in subdivision (f), is entitled to
17reinstatement and reimbursement for lost wages and work benefits
18caused by the acts of the employer, as well as appropriate equitable
19relief.

20(3) An employer who willfully refuses to rehire, promote, or
21otherwise restore an employee or former employee who has been
22determined to be eligible for rehiring or promotion by a grievance
23procedure or hearing authorized by law is guilty of a misdemeanor.

24(h) (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), (b), or
29(c) may file a complaint with the Division of Labor Standards
30Enforcement of the Department of Industrial Relations pursuant
31to Section 98.7.

32(2) Notwithstanding any time limitation in Section 98.7, an
33employee may file a complaint with the division based upon a
34violation of subdivision (c) within one year from the date of
35occurrence of the violation.

36(i) An employee who is discharged, threatened with discharge,
37demoted, suspended, or denied a reasonable accommodation under
38subdivision (e) or (f) may bring a civil action in the superior court
39of the appropriate county to enforce those provisions. If the
P6    1employee prevails in an action pursuant to this subdivision, the
2court may award reasonable attorney’s fees and costs.

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

11(k) For purposes of this section:

12(1) “Domestic violence” means any of the types of abuse set
13forth in Section 6211 of the Family Code, as amended.

14(2) “Sexual assault” means any of the crimes set forth in Section
15261, 261.5, 262, 265, 266, 266a, 266b, 266c, 266g, 266j, 267, 269,
16273.4, 285, 286, 288, 288a, 288.5, 289, or 311.4 of the Penal Code,
17as amended.

18(3) “Stalking” means a crime set forth in Section 646.9 of the
19Penal Code or Section 1708.7 of the Civil Code.

20

SEC. 2.  

Section 230.1 of the Labor Code is amended to read:

21

230.1.  

(a) In addition to the requirements and prohibitions
22imposed on employees pursuant to Section 230, an employer with
2325 or more employees shall not discharge or in any manner
24discriminate or retaliate against an employee who is a victim of
25domestic violence, sexual assault, or stalking for taking time off
26from work to attend to any of the following:

27(1) To seek medical attention for injuries caused by domestic
28violence, sexual assault, or stalking.

29(2) To obtain services from a domestic violence shelter,
30program, or rape crisis center as a result of domestic violence,
31sexual assault, or stalking.

32(3) To obtain psychological counseling related to an experience
33of domestic violence, sexual assault, or stalking.

34(4) To participate in safety planning and take other actions to
35increase safety from future domestic violence, sexual assault, or
36stalking, including temporary or permanent relocation.

37(b) (1) As a condition of taking time off for a purpose set forth
38in subdivision (a), the employee shall give the employer reasonable
39advance notice of the employee’s intention to take time off, unless
40the advance notice is not feasible.

P7    1(2) When an unscheduled absence occurs, the employer shall
2not take any action against the employee if the employee, within
3a reasonable time after the absence, provides a certification to the
4employer. Certification shall be sufficient in the form of any of
5the categories described in paragraph (2) of subdivision (d) of
6Section 230.

7(3) To the extent allowed by law and consistent with
8subparagraph (D) of paragraph (7) of subdivision (f) of Section
9230, employers shall maintain the confidentiality of any employee
10requesting leave under subdivision (a).

11(c) 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 because the employee has taken time off for
15a purpose set forth in subdivision (a) is entitled to reinstatement
16 and reimbursement for lost wages and work benefits caused by
17the acts of the employer, as well as appropriate equitable relief.
18An employer who willfully refuses to rehire, promote, or otherwise
19restore an employee or former employee who has been determined
20to be eligible for rehiring or promotion by a grievance procedure
21or hearing authorized by law is guilty of a misdemeanor.

22(d) (1) An employee who is discharged, threatened with
23discharge, demoted, suspended, or in any other manner
24discriminated or retaliated against in the terms and conditions of
25employment by his or her employer because the employee has
26exercised his or her rights as set forth in subdivision (a) may file
27a complaint with the Division of Labor Standards Enforcement of
28the Department of Industrial Relations pursuant to Section 98.7.

29(2) Notwithstanding any time limitation in Section 98.7, an
30employee may file a complaint with the division based upon a
31violation of subdivision (a) within one year from the date of
32occurrence of the violation.

33(e) If an employee prevails in an action pursuant to this section,
34the court may award reasonable attorney’s fees and costs.

35(f) An employee may use vacation, personal leave, or
36compensatory time off that is otherwise available to the employee
37under the applicable terms of employment, unless otherwise
38provided by a collective bargaining agreement, for time taken off
39for a purpose specified in subdivision (a). The entitlement of any
P8    1employee under this section shall not be diminished by any
2collective bargaining agreement term or condition.

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

8(h) For purposes of this section:

9(1) “Domestic violence” means any of the types of abuse set
10forth in Section 6211 of the Family Code, as amended.

11(2) “Sexual assault” means any of the crimes set forth in Section
12261, 261.5, 262, 265, 266, 266a, 266b, 266c, 266g, 266j, 267, 269,
13273.4, 285, 286, 288, 288a, 288.5, 289, or 311.4 of the Penal Code,
14as amended.

15(3) “Stalking” means a crime set forth in Section 646.9 of the
16Penal Code or Section 1708.7 of the Civil Code.

17

SEC. 3.  

No reimbursement is required by this act pursuant to
18Section 6 of Article XIII B of the California Constitution because
19the only costs that may be incurred by a local agency or school
20district will be incurred because this act creates a new crime or
21infraction, eliminates a crime or infraction, or changes the penalty
22for a crime or infraction, within the meaning of Section 17556 of
23the Government Code, or changes the definition of a crime within
24the meaning of Section 6 of Article XIII B of the California
25Constitution.



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