AB 2337 Assembly Bill - Bill Analysis

BILL ANALYSIS Ó

SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session

AB 2337 (Burke)
Version: June 9, 2016
Hearing Date: June 21, 2016
Fiscal: Yes
Urgency: No
ME

SUBJECT

Employment protections: victims of domestic violence, sexual
assault, or stalking

DESCRIPTION

This bill would require employers to provide written notice to
each employee of the employee's statutory rights to take time
off from work when they are a victim of domestic violence,
sexual assault, or stalking. In order to facilitate compliance
by employers, the bill would require the Labor Commissioner to
develop a form that employers could use to comply with the
notice requirement, require the Commissioner to post the
compliant form on his or her Internet Web site on or before July
1, 2017, and provide that an employer is not required to comply
with the disclosure requirement until the Commissioner posts the
form.

BACKGROUND

California has a strong public policy of supporting survivors of
domestic violence, sexual assault, and stalking. In 1999, the
Legislature prohibited discrimination and retaliation against
employees who are victims of domestic violence and who take time
off to appear in court to obtain, or attempt to obtain, judicial
relief to help ensure their health, safety, or welfare or that
of their child. (See SB 56 (Solis, Ch. 340, Stats. 1999).)
Prior to the enactment of SB 56, domestic violence victims were
often forced to choose either economic security (stay at work
and forego obtaining legal protection) or personal safety (leave
work, at the risk of being terminated, to appear in court as a
witness or to obtain relief to guarantee their safety and the
safety of their children).

The next year, the Victims of Domestic Violence Employment Leave

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Act (AB 2357 (Honda, Ch. 487, Stats. 2000)) provided
discrimination and retaliation protections for employees who are
victims of domestic violence and take leave from work to seek
medical attention or other services related to their abuse. In
2002, AB 2195 (Corbett, Ch. 275, Stats. 2002) extended these
protections to employees who are victims of sexual assault.
And, in 2013, SB 400 (Jackson, Ch. 759, Stats. 2013) extended
these discrimination and retaliation protections to employees
who are victims of stalking.

This bill would require employers with 25 or more employees to
provide information in writing to new employees upon hire and to
other employees upon request regarding their rights under
Sections 230(c), (e), and (f) and 230.1 of the Labor Code, which
include their right to take time off from work for specified
purposes if they are a victim of domestic violence, sexual
assault, or stalking. In order to facilitate compliance by
employers, the bill would require the Labor Commissioner to
develop a form that employers could use to adequately provide
written notice of the employees' rights and would require the
Commissioner to also post the form on the Commissioner's
Internet Web site by July 1, 2017.

CHANGES TO EXISTING LAW

Existing law 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:

to seek medical attention for injuries caused by
domestic violence, sexual assault, or stalking;
to obtain services from a domestic violence shelter,
program, or rape crisis center as a result of domestic
violence, sexual assault, or stalking;
to obtain psychological counseling related to an
experience of domestic violence, sexual assault, or
stalking; and
to participate in safety planning and take other actions
to increase safety from future domestic violence, sexual
assault, or stalking. (Lab. Code Sec. 230.1(a).)

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Existing law 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. (Lab. Code
Sec. 230.1(b).)

Existing law requires an employer to maintain the
confidentiality of any employee taking time off for the reasons
set forth above, except as provided. (Lab. Code Sec.
230.1(b)(2).)

Existing law 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; and
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. (Lab. Code Sec.
230.1(c)-(d).)

Existing law 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 may not be diminished by any term or condition of a
collective bargaining agreement. (Lab. Code Sec. 230.1(e).)

Existing law prohibits an employer 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 to obtain or attempt to obtain any
relief, including, but not limited to, a temporary restraining
order, restraining order, or other injunctive relief, to help
ensure the health, safety, or welfare of the victim or his or
her child. (Lab. Code Sec 230(c).)

Existing law prohibits an employer from discharging or in any

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manner discriminating or retaliating against an employee because
of the employee's status as a victim of domestic violence,
sexual assault, or stalking, if the victim provides notice to
the employer of the status or the employer has actual knowledge
of the status. (Lab. Code Sec 230(e).)

Existing law provides that an employer must provide reasonable
accommodations, as specified, for a victim of domestic violence,
sexual assault, or stalking who requests an accommodation for
the safety of the victim while at work. (Lab. Code Sec.
230(f)(1)-(3).)

Existing law requires the employer to engage in a timely, good
faith, and interactive process with the employee to determine
effective reasonable accommodations and must consider any
exigent circumstance or danger facing the employee in making the
determination of whether an accommodation is reasonable. (Lab.
Code Sec. 230(f)(4-(5)).)

Existing law provides that the employer is not required to
undertake an action that constitutes an undue hardship on the
employer's business operations, as defined, and specifies that
an undue hardship also includes an action that would violate an
employer's duty to furnish and maintain a place of employment
that is safe and healthful for all employees as specified. (Lab.
Code Sec. 230(f)(6).)

Existing law prohibits an employer from retaliating against a
victim of domestic violence, sexual assault, or stalking for
requesting a reasonable accommodation, regardless of whether the
request was granted. (Lab. Code Sec. 230(f)(8).)

Existing law provides that upon the request of an employer, an
employee requesting a reasonable accommodation shall provide the
employer a written statement signed by the employee or an
individual acting on the employee's behalf, certifying that the
accommodation is for an authorized purpose. (Lab. Code Sec.
230(f)(7)(A).)

Existing law provides that the employer may also request
certification and recertification (every six months after
certification) from an employee requesting an accommodation that
demonstrates the employee's status as a victim of domestic
violence, sexual assault, or stalking, as specified. (Lab.

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Code. Sec. 230(f)(7)(B)-(C)

Existing law provides that any verbal or written statement,
police or court record, or other documentation provided to an
employer identifying an employee as a victim of domestic
violence, sexual assault, or stalking shall be maintained as
confidential by the employer and shall not be disclosed by the
employer except as required by federal or state law or as
necessary to protect the employee's safety in the workplace, and
requires that the employee be given notice before any authorized
disclosure. (Lab. Code. Sec. 230(f)(7)(D).)

Existing law provides that if circumstances change and an
employee needs a new accommodation, the employee shall request a
new accommodation from the employer, and upon receiving the
request, the employer must engage in a timely, good faith, and
interactive process with the employee to determine effective
reasonable accommodations. (Lab. Code. Sec. 230(f)(7)(E).)

Existing law requires an employee who no longer needs an
accommodation to notify the employer that the accommodation is
no longer needed. (Lab. Code. Sec. 230(f)(7)(F).)

This bill would require the Labor Commissioner to develop a form
that employers could use to adequately provide written notice of
the employees' rights and would require the Commissioner to also
post the form on the Commissioner's Internet Web site on or
before July 1, 2017.

This bill would provide that an employer is not required to
comply with the disclosure requirements until the Commissioner
posts the form.

COMMENT

1. Stated need for the bill

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According to the author:

There is a growing public awareness surrounding the
prevalence of intimate partner violence (IPV) and
California met the moment by passing some of the most
comprehensive protections for victims in the workplace.
When other guaranteed benefits were expanded under Paid
Family Leave employers were required to disseminate
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 requires employers
to inform employees of their rights guaranteed under
existing law, which include freedom from retaliation or
discrimination and reasonable accommodation. There are
victims who quit their jobs and become further entrenched
in abusive relationships because they feel disclosure is a
burden. Therefore, we must do our part to empower
vulnerable survivors in the workplace and this is a
necessary step to reach that goal.

2. Informing employees of their rights promotes California's
public policy in support of survivors of domestic violence,
sexual assault, and stalking

California has a strong public policy in support of survivors of
domestic violence, sexual assault, and stalking. In 2013, the
current chair of this committee passed Senate Bill 400 (Jackson,
Ch. 759, Stats. 2013). SB 400 prohibited discrimination and
retaliation against employees who are victims of stalking and
who must take time off to appear in court to obtain judicial
relief or for medical treatment or psychological counseling.
The measure also required employers to make reasonable
accommodations for employees who are survivors of domestic
violence, sexual assault, and stalking. Additionally, the bill
prohibited an employer from discharging or in any manner
discriminating or retaliating against an employee because of the
employee's status as a victim of domestic violence, sexual
assault, or stalking if the victim provides notice to the
employer of the status or the employer has actual knowledge of
the status. SB 400 built upon previous bills that prohibited
discrimination and retaliation against employees who are victims
of sexual assault or domestic violence and who must take time

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off to appear in court to obtain judicial relief or for medical
treatment or psychological counseling. (AB 2195 (Corbett, Ch.
275, Stats. 2002); AB 2357 (Honda, Ch. 487, Stats. 2000); SB 56
(Solis, Ch. 340, Stats. 1999)).

This bill will make more workers aware of job protections that
exist for them if they are victims of domestic violence, sexual
assault, or stalking by requiring employers to inform new
employees upon hire and other employees upon request of their
job protections under Section 230(c), (e), and (f), and Section
230.1 of the Labor Code. These are the sections that detail
that robust job protections California workers have when they
are victims of domestic violence, sexual assault, or stalking.
These are also the sections that detail the process an employee
and employer must go through to ensure that the employee is
provided their accommodations so that they are safe from
violence, not retaliated against, and their privacy is
respected. Making more workers aware of their rights under the
law will arguably lead to more workers properly exercising their
rights and seeking the care that they need at a very critical
time in their lives.

3. Provisions in the bill help businesses comply

The author has built in provisions that help ensure that
employers will be able to easily comply with the requirements
under the bill. Under the bill, employers must inform each
employee of his or her rights established under Section 230.1
and 230(c), (e), and (f) of the Labor Code. To help businesses
comply with this requirement, the bill requires the Labor
Commissioner to develop a form that an employer could use to be
in compliance and give adequate notice. The bill requires the
Labor Commissioner to post the form on his or her Internet Web
site on or before July 1, 2017. An employer can thus go to the
Labor Commissioner's Internet Web site and obtain the form for
their use with their employees. Additionally, the bill provides
that the notice requirements do not go into effect until the
Labor Commissioner posts the form on his or her Internet Web
site.

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Support : California Partnership to End Domestic Violence;
Consumer Attorneys of California; The Legal Aid Society -
Employment Law Center

Opposition : None Known

HISTORY

Related Pending Legislation : None Known

Prior Legislation :

SB 400 (Jackson, Ch. 759, Stats. 2013) See Comment 2.

AB 2195 (Corbett, Ch. 275, Stats. 2002) prohibited
discrimination and retaliation against employees who are victims
of sexual assault and who must take time off to appear in court
to obtain judicial relief or for medical treatment or
psychological counseling.

AB 2357 (Honda, Ch. 487, Stats. 2000) prohibited discrimination
and retaliation against employees who are victims of domestic
violence and who take time off for medical treatment or
psychological counseling.

SB 56 (Solis, Ch. 340, Stats. 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.

Prior Vote :

Assembly Floor (Ayes 73, Noes 0)
Assembly Appropriations Committee (Ayes 20, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Labor and Employment Committee (Ayes 7, Noes 0)

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