BILL ANALYSIS Ó AB 2337 Page 1 Date of Hearing: April 19, 2016 ASSEMBLY COMMITTEE ON JUDICIARY Mark Stone, Chair AB 2337 (Burke) - As Amended March 18, 2016 As Proposed to be Amended SUBJECT: Employment protections: victims of domestic violence, sexual assault, or stalking KEY ISSUE: should employers be required to provide written notice to each employee of his or her right to take time off from work, for specified purposes, if he or she is a victim of domestic violence, sexual assault, or stalking? SYNOPSIS Existing law requires an employer of 25 or more employees to permit any employee who is a victim of domestic violence, sexual assault, or stalking to take time off from work in order to obtain appropriate medical or counseling services or to take steps to ensure his or her safety, including temporary or permanent relocation. According to the author, however, not enough employees are aware of their right to take time off from work for these purposes. This bill, accordingly, requires employers to inform each employee, in writing, of his or her rights under existing law. This bill is supported by the AB 2337 Page 2 California Partnership to End Domestic Violence and the Consumer Attorneys of California. There is no opposition to this bill. However, in response to a concern raised by the Chamber of the Commerce about the need for uniform notices, the author has agreed to take an amendment today in this Committee that would require the Labor Commissioner to develop a form that employers could use to provide notice and to post the form on the Commissioner's Internet website. These amendments are reflected in the summary and analysis below. The bill recently passed out of the Assembly Labor Committee unanimously. SUMMARY: Requires an employer to inform each employee of his or her existing right to take time off from work, for certain purposes, if he or she is a victim of domestic violence, sexual assault, or stalking. Specifically this bill: 1)Requires an employer to inform each employee of his or her rights, if he or she is or should become a victim of domestic violence, sexual assault, or stalking, by providing information on these rights in writing to new employees upon hire and to other employees upon request. 2)Requires the Labor Commissioner to develop a form that an employer may use to comply with the notice required by this bill. The form shall set forth the rights and duties of employers and employees in clear and concise language and post this form on the Labor Commissioner's Internet website so that it is reasonably accessible to employers who must comply with this section. If the employer elects not to use the form developed by the Labor Commissioner, the notice provided by an employer to its employees shall be substantially similar to the Labor Commissioner's form in content and clarity. AB 2337 Page 3 EXISTING LAW: 1)Prohibits an employer with 25 or more employees from discharging or in any manner discriminating or retaliating against an employee who is a victim of domestic violence, sexual assault, or stalking, for taking time off from work for any of the following purposes: a) To seek medical attention for injuries caused by domestic violence, sexual assault, or stalking. b) To obtain services from a domestic violence shelter, program, or rape crisis center as a result of domestic violence, sexual assault, or stalking. c) To obtain psychological counseling related to an experience of domestic violence, sexual assault, or stalking. d) To participate in safety planning and take other actions to increase safety from future domestic violence, sexual assault, or stalking. (Labor Code Section 230.1 (a).) 1)Requires an employee, as a condition of taking time off for the purposes set forth above, to give the employer reasonable advance notice of the employee's intention to take time off, unless the advance notice is not feasible. (Labor Code Section 230.1 (b).) 2)Requires an employer to maintain the confidentiality of any employee taking time off for the reasons set forth above, except as provided. (Labor Code Section 230.1 (b)(2).) AB 2337 Page 4 3)Entitles an employee who faces any adverse action for taking time off for the purposes set forth above to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer, as well as appropriate equitable relief. Provides that an employer who willfully refuses to rehire, promote, or otherwise restore an employee or former employee, as specified, is guilty of a misdemeanor. Also authorizes an employee who faces discrimination in violation of the above provisions to file a complaint with the Division of Labor Standards Enforcement, as specified. (Labor Code Section 230.1 (c)-(d).) 4)Allows an employee to use vacation, personal leave, or compensatory time that is otherwise available to the employee under the applicable terms of the employment agreement, unless otherwise provided by a collective bargaining agreement. However, the entitlement of any employee under the above provisions shall not be diminished by any term or condition of a collective bargaining agreement. (Labor Code Section 230.1 (e).) FISCAL EFFECT: As currently in print this bill is keyed fiscal. COMMENTS: Existing law requires an employer of 25 or more employees to permit any employee who is a victim of domestic violence, sexual assault, or stalking to take time off in order to obtain appropriate medical or counseling services or to take steps to ensure their safety, including temporary or permanent relocation. This bill would require an employer to provide information about these rights to each new employee upon hire and any other employee upon request. AB 2337 Page 5 California employees have had these rights, to some degree or another, for nearly two decades. SB 56 (Chapter 340, Statutes of 1999) prohibited discrimination and retaliation against employees who are victims of domestic violence and who must take time off to appear in court to obtain judicial relief. AB 2357 (Chapter 487, Statutes of 2000) expanded these protections to allow an employee to take time off for medical treatment or psychological counseling. AB 2195 (Ch. 275, Stats. 2002) extended these protections to employees who are victims of sexual assault. Most recently, SB 400 (Chapter 759, Statutes of 2013) extended these protections to victims of stalking and also required employers to make reasonable accommodations for employees who are survivors of domestic violence, sexual assault, and stalking. The protections afforded by existing law are vital in allowing victims to maintain employment. For example, a study conducted by the Legal Aid Society-Employment Law Center's Project SURVIVE found that 40% of survivors reported that they were either fired, or feared being fired, because of complications arising from their status as victims of domestic violence. Yet, according to the author, for as long as employees have been afforded these protections, too often they remain unaware that they possess these rights. This common-sense measure requires employers to inform each employee of these rights by providing the relevant information in writing to new employees upon hire and to other employees upon request. As proposed to be amended, the bill would additionally require the Labor Commissioner to develop, and post on its Internet website, a form that employers could use to provide this notice and comply with the provisions of this bill. This amendment was apparently suggested to the author by the California Chamber of Commerce, who feared that leaving this disclosure to each individual employer would result in a lack of uniformity. Indeed, a standard form summarizing the employee's rights would benefit the employee, who otherwise might be AB 2337 Page 6 provided with a copy of the relevant code section; the language in the code might make sense to lawyers and people who draft legislation for a living, but it might be less readable and understandable to an employer or employee. As proposed to be amended, therefore, the bill would specify that any form developed by the Labor Commissioner must be written in "clear and concise" language. If an employer elects not to use the Commissioner's form, the notice provided by the employer would need to conform in substantial part to the Commissioner's form, especially in terms of its clarity. Making use of the Labor Commissioner's form optional would allow an employer who already informs employees about their rights in an employee handbook could continue doing so, so long as the notice in the employee handbook provides the same information and in an equally clear and concise manner. Proposed Author Amendment: As noted, the author wishes to take an amendment in this Committee that will require the California Labor Commissioner to develop, and post on its Internet website, a form that employers may use to comply with the notice requirement proposed by this bill. Specifically, the author wishes to take the following amendment: - On page 4 line 1 after (h) insert: (1) - On page 4 after line 4 insert: (2) The Labor Commissioner shall develop a form that an employer may use to comply with the notice requirement in paragraph (1). The form shall set forth the rights and duties of employers and employees under this section in clear and concise language and post this form on the Labor Commissioner's Internet website so that it is reasonably accessible to employers who must comply with this section. If the employer elects not to use the form developed by the Labor Commissioner, the notice provided by an employer to its employees shall be substantially similar to the Labor Commissioner's form in content and clarity. AB 2337 Page 7 ARGUMENTS IN SUPPORT: According to the author, "AB 2337 ensures that employees are actively informed about workplace protections guaranteed to them if they disclose that they are victims of intimate partner violence (IPV). Not enough employees are aware that they have protections, such as a right to reasonable accommodation and freedom from retaliation." The author points out that when "other guaranteed benefits were expanded under Paid Family Leave in California employers were required to spread this information to their employees. The workplace protections for victims of IPV are just as important and can only assist victims in maintaining employment if they are aware that these protections exist. AB 2337 works to close this information gap so if employees are victimized by IPV they will trigger their rights instead of quitting their jobs and increasing the likelihood of homelessness and further abuse." The Consumer Attorneys of California (CAOC) supports this bill for the same reasons cited by the author. CAOC adds that while "SB 400 [discussed in the analysis] made progress in alleviating the burden placed on survivors and expanding their protections . . . many victims are unaware that they have these rights . . . which effectively hinders maintaining employment." The California Partnership to End Domestic Violence adds that "AB 2337 moves us forward by helping to ensure that employees are aware of these rights and protections, by requiring employers to distribute information in writing to their employees regarding rights and protections guaranteed to them . . . Without requiring that employees are notified of their rights, survivors are unlikely to know these vital protections are available to them." REGISTERED SUPPORT / OPPOSITION: AB 2337 Page 8 Support California Partnership to End Domestic Violence Consumer Attorneys of California Opposition None on file Analysis Prepared by:Thomas Clark / JUD. / (916) 319-2334