Amended in Assembly August 6, 2013

Amended in Assembly June 27, 2013

Amended in Senate April 16, 2013

Senate BillNo. 400


Introduced by Senator Jackson

(Principal coauthor: Senator Leno)

(Coauthor: Senator De León)

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 violencebegin delete andend deletebegin insert orend insert sexualbegin delete assault andend deletebegin insert assault. Existing lawend insert prohibitsbegin delete employersend deletebegin insert an employerend insert from taking adverse employment action againstbegin delete victimsend deletebegin insert a victimend insert of domestic violencebegin delete andend deletebegin insert orend insert sexual assault whobegin delete takeend deletebegin insert takesend insert 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 Under existing law,end deletebegin insert Existing law entitlesend insert an employee who is discriminated or retaliated against in the terms and conditions of employment by his or her employerbegin delete for prohibited reasons, orend delete because the employee has taken time off for specified purposes,begin delete is entitledend delete to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer.begin delete Employersend deletebegin insert Under existing law, an employerend insert who willfullybegin delete refuseend deletebegin insert refusesend insert 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 lawbegin delete areend deletebegin insert isend insert guilty of a misdemeanor.begin insert Existing law authorizes an employee who is discharged, threatened with discharge, demoted, suspended, or otherwise discriminated or retaliated against by his or her employer in violation of these provisions to file a complaint with the Division of Labor Standards Enforcement of the Department of Industrial Relations, as specified.end insert

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, orbegin delete stalking, as specified, andend deletebegin insert stalking if the victim provides notice to the employer of the status or the employer has actual knowledge of the status. The bill end insert would begin insertalso end insertrequire the employer to provide reasonable accommodationsbegin insert that may include the implementation of safety measures or proceduresend insert for such a victim.begin delete 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.end delete 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
P3    1limited to, an employee who is a victim of a crime, for taking time
2off to appear in court to comply with a subpoena or other court
3order as a witness in any judicial proceeding.

4(c) An employer shall not discharge or in any manner
5discriminate or retaliate against an employee who is a victim of
6domestic violence, sexual assault, or stalking for taking time off
7from work to obtain or attempt to obtain any relief, including, but
8not limited to, a temporary restraining order, restraining order, or
9other injunctive relief, to help ensure the health, safety, or welfare
10of the victim or his or her child.

11(d) (1) As a condition of taking time off for a purpose set forth
12in subdivision (c), the employee shall give the employer reasonable
13advance notice of the employee’s intention to take time off, unless
14the advance notice is not feasible.

15(2) When an unscheduled absence occurs, the employer shall
16not take any action against the employee if the employee, within
17a reasonable time after the absence, provides a certification to the
18employer. Certification shall be sufficient in the form of any of
19the following:

20(A) A police report indicating that the employee was a victim
21of domestic violence, sexual assault, or stalking.

22(B) A court order protecting or separating the employee from
23the perpetrator of an act of domestic violence, sexual assault, or
24stalking, or other evidence from the court or prosecuting attorney
25that the employee has appeared in court.

26(C) Documentation from abegin insert licensedend insert medical professional,
27domestic violencebegin delete advocate or advocate for victims ofend deletebegin insert counselor,
28as defined in Section 1037.1 of the Evidence Code, aend insert
sexual assault
29begin insert counselor, as defined in Section 1035.2 of the Evidence Codeend insert,
30begin insert licensedend insert health care provider, or counselor that the employee was
31undergoing treatment for physical or mental injuries or abuse
32resulting in victimization from an act of domestic violence, sexual
33assault, or stalking.

34(3) To the extent allowed by law and consistent with
35subparagraph (D) of paragraph (7) of subdivision (f), the employer
36shall maintain the confidentiality of any employee requesting leave
37under subdivision (c).

38(e) An employer shall not discharge or in any manner
39 discriminate or retaliate against an employee because of the
40employee’s status as a victim of domestic violence, sexual assault,
P4    1or stalking, if the victim provides notice to the employer of the
2status or the employer has actual knowledge of the status.

3(f) (1) An employer shall provide reasonable accommodations
4for a victim of domestic violence, sexual assault, or stalking who
5requests an accommodation for the safety of the victim while at
6work.

7(2) For purposes of this subdivision, reasonable accommodations
8may include the implementation of safety measures, including a
9transfer, reassignment, modified schedule, changed work telephone,
10changed work station, installed lock, assistance in documenting
11domestic violence, sexual assault, or stalking that occurs in the
12workplace, an implemented safety procedure, or another adjustment
13to a job structure, workplace facility, or work requirement in
14response to domestic violence, sexual assault, or stalking, or
15referral to a victim assistance organization.

16(3) An employer is not required to provide a reasonable
17accommodation to an employee who has not disclosed his or her
18status as a victim of domestic violence, sexual assault, or stalking.

19(4) The employer shall engage in a timely, good faith, and
20interactive process with the employee to determine effective
21reasonable accommodations.

22(5) In determining whether the accommodation is reasonable,
23the employer shall consider an exigent circumstance or danger
24facing the employee.

25(6) This subdivision does not require the employer to undertake
26an action that constitutes an undue hardship on the employer’s
27business operations, as defined by Section 12926 of the
28Government Code.begin insert For the purposes of this subdivision, an undue
29hardship also includes an action that would violate an employer’s
30duty to furnish and maintain a place of employment that is safe
31and healthful for all employees as required by Section 6400 of the
32Labor Code.end insert

33(7) (A) Upon the request of an employer, an employee
34requesting a reasonable accommodation pursuant to this
35subdivision shall provide the employer a written statement signed
36by the employee or an individual acting on the employee’s behalf,
37certifying that the accommodation is for a purpose authorized
38under this subdivision.

39(B) The employer may also request certification from an
40employee requesting an accommodation pursuant to this
P5    1subdivision demonstrating the employee’s status as a victim of
2domestic violence, sexual assault, or stalking. Certification shall
3be sufficient in the form of any of the categories described in
4paragraph (2) of subdivision (d).

5(C) An employer who requests certification pursuant to
6subparagraph (B) may request recertification of an employee’s
7status as a victim of domestic violence, sexual assault, or stalking
8every six months after the date of the previous certification.

9(D) Any verbal or written statement, police or court record, or
10other documentation provided to an employer identifying an
11employee as a victim of domestic violence, sexual assault, or
12stalking shall be maintained as confidential by the employer and
13shall not be disclosed by the employer except as required by federal
14or state law or as necessary to protect the employee’s safety in the
15workplace. The employee shall be given notice before any
16authorized disclosure.

begin insert

17(E) (i) If circumstances change and an employee needs a new
18accommodation, the employee shall request a new accommodation
19from the employer.

end insert
begin insert

20(ii) Upon receiving the request, the employer shall engage in a
21timely, good faith, and interactive process with the employee to
22determine effective reasonable accommodations.

end insert
begin insert

23(F) If an employee no longer needs an accommodation, the
24employee shall notify the employer that the accommodation is no
25longer needed.

end insert

26(8) An employer shall not retaliate against a victim of domestic
27violence, sexual assault, or stalking for requesting a reasonable
28accommodation, regardless of whether the request was granted.

29(g) (1) An employee who is discharged, threatened with
30discharge, demoted, suspended, or in any other manner
31discriminated or retaliated against in the terms and conditions of
32employment by his or her employer because the employee has
33taken time off for a purpose set forth in subdivision (a) or (b) shall
34be entitled to reinstatement and reimbursement for lost wages and
35work benefits caused by the acts of the employer.

36(2) An employee who is discharged, threatened with discharge,
37demoted, suspended, or in any other manner discriminated or
38retaliated against in the terms and conditions of employment by
39his or her employer for reasons prohibited in subdivision (c) or
40(e), or because the employee has requested or received a reasonable
P6    1accommodation as set forth in subdivision (f),begin delete isend deletebegin insert shall beend insert entitled
2to reinstatement and reimbursement for lost wages and work
3benefits caused by the acts of the employer, as well as appropriate
4equitable relief.

5(3) An employer who willfully refuses to rehire, promote, or
6otherwise restore an employee or former employee who has been
7determined to be eligible for rehiring or promotion by a grievance
8procedure or hearing authorized by law is guilty of a misdemeanor.

9(h) (1) An employee who is discharged, threatened with
10discharge, demoted, suspended, or in any other manner
11discriminated or retaliated against in the terms and conditions of
12employment by his or her employer because the employee has
13exercised his or her rights as set forth in subdivision (a), (b), begin deleteorend delete
14 (c)begin insert, (e), or (f)end insert may file a complaint with the Division of Labor
15Standards Enforcement of the Department of Industrial Relations
16pursuant to Section 98.7.

17(2) Notwithstanding any time limitation in Section 98.7, an
18employee may file a complaint with the division based upon a
19violation of subdivision (c)begin insert, (e), or (f)end insert within one year from the
20date of occurrence of the violation.

begin delete

21(i) An employee who is discharged, threatened with discharge,
22demoted, suspended, or denied a reasonable accommodation under
23subdivision (e) or (f) may bring a civil action in the superior court
24of the appropriate county to enforce those provisions. If the
25employee prevails in an action pursuant to this subdivision, the
26court may award reasonable attorney’s fees and costs.

end delete
begin delete

27(j)

end delete

28begin insert(i)end insert An employee may use vacation, personal leave, or
29compensatory time off that is otherwise available to the employee
30under the applicable terms of employment, unless otherwise
31provided by a collective bargaining agreement, for time taken off
32for a purpose specified in subdivision (a), (b), or (c). The
33entitlement of any employee under this section shall not be
34diminished by any collective bargaining agreement term or
35condition.

begin delete

36(k)

end delete

37begin insert(j)end insert For purposes of this section:

38(1) “Domestic violence” means any of the types of abuse set
39forth in Section 6211 of the Family Code, as amended.

P7    1(2) “Sexual assault” means any of the crimes set forth in Section
2261, 261.5, 262, 265, 266, 266a, 266b, 266c, 266g, 266j, 267, 269,
3273.4, 285, 286, 288, 288a, 288.5, 289, or 311.4 of the Penal Code,
4as amended.

5(3) “Stalking” means a crime set forth in Section 646.9 of the
6Penal Code or Section 1708.7 of the Civil Code.

7

SEC. 2.  

Section 230.1 of the Labor Code is amended to read:

8

230.1.  

(a) In addition to the requirements and prohibitions
9imposed on employees pursuant to Section 230, an employer with
1025 or more employees shall not discharge or in any manner
11discriminate or retaliate against an employee who is a victim of
12domestic violence, sexual assault, or stalking for taking time off
13from work to attend to any of the following:

14(1) To seek medical attention for injuries caused by domestic
15violence, sexual assault, or stalking.

16(2) To obtain services from a domestic violence shelter,
17program, or rape crisis center as a result of domestic violence,
18sexual assault, or stalking.

19(3) To obtain psychological counseling related to an experience
20of domestic violence, sexual assault, or stalking.

21(4) To participate in safety planning and take other actions to
22increase safety from future domestic violence, sexual assault, or
23stalking, including temporary or permanent relocation.

24(b) (1) As a condition of taking time off for a purpose set forth
25in subdivision (a), the employee shall give the employer reasonable
26advance notice of the employee’s intention to take time off, unless
27the advance notice is not feasible.

28(2) When an unscheduled absence occurs, the employer shall
29not take any action against the employee if the employee, within
30a reasonable time after the absence, provides a certification to the
31employer. Certification shall be sufficient in the form of any of
32the categories described in paragraph (2) of subdivision (d) of
33Section 230.

34(3) To the extent allowed by law and consistent with
35subparagraph (D) of paragraph (7) of subdivision (f) of Section
36230, employers shall maintain the confidentiality of any employee
37requesting leave under subdivision (a).

38(c) 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
P8    1his or her employer because the employee has taken time off for
2a purpose set forth in subdivision (a) is entitled to reinstatement
3 and reimbursement for lost wages and work benefits caused by
4the acts of the employer, as well as appropriate equitable relief.
5An employer who willfully refuses to rehire, promote, or otherwise
6restore an employee or former employee who has been determined
7to be eligible for rehiring or promotion by a grievance procedure
8or hearing authorized by law is guilty of a misdemeanor.

9(d) (1) An employee who is discharged, threatened with
10discharge, demoted, suspended, or in any other manner
11discriminated or retaliated against in the terms and conditions of
12employment by his or her employer because the employee has
13exercised his or her rights as set forth in subdivision (a) may file
14a complaint with the Division of Labor Standards Enforcement of
15the Department of Industrial Relations pursuant to Section 98.7.

16(2) Notwithstanding any time limitation in Section 98.7, an
17employee may file a complaint with the division based upon a
18violation of subdivision (a) within one year from the date of
19occurrence of the violation.

begin delete

20(e) If an employee prevails in an action pursuant to this section,
21the court may award reasonable attorney’s fees and costs.

end delete
begin delete

22(f)

end delete

23begin insert(e)end insert An employee may use vacation, personal leave, or
24compensatory time off that is otherwise available to the employee
25under the applicable terms of employment, unless otherwise
26provided by a collective bargaining agreement, for time taken off
27for a purpose specified in subdivision (a). The entitlement of any
28employee under this section shall not be diminished by any
29collective bargaining agreement term or condition.

begin delete

30(g)

end delete

31begin insert(f)end insert This section does not create a right for an employee to take
32unpaid leave that exceeds the unpaid leave time allowed under, or
33is in addition to the unpaid leave time permitted by, the federal
34Family and Medical Leave Act of 1993 (29 U.S.C. Sec. 2601 et
35seq.).

begin delete

36(h)

end delete

37begin insert(g)end insert For purposes of this section:

38(1) “Domestic violence” means any of the types of abuse set
39forth in Section 6211 of the Family Code, as amended.

P9    1(2) “Sexual assault” means any of the crimes set forth in Section
2261, 261.5, 262, 265, 266, 266a, 266b, 266c, 266g, 266j, 267, 269,
3273.4, 285, 286, 288, 288a, 288.5, 289, or 311.4 of the Penal Code,
4as amended.

5(3) “Stalking” means a crime set forth in Section 646.9 of the
6Penal Code or Section 1708.7 of the Civil Code.

7

SEC. 3.  

No reimbursement is required by this act pursuant to
8Section 6 of Article XIII B of the California Constitution because
9the only costs that may be incurred by a local agency or school
10district will be incurred because this act creates a new crime or
11infraction, eliminates a crime or infraction, or changes the penalty
12for a crime or infraction, within the meaning of Section 17556 of
13the Government Code, or changes the definition of a crime within
14the meaning of Section 6 of Article XIII B of the California
15Constitution.



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