Bill Text: CA SB400 | 2013-2014 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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

Spectrum: Partisan Bill (Democrat 3-0)

Status: (Passed) 2013-10-11 - Chaptered by Secretary of State. Chapter 759, Statutes of 2013. [SB400 Detail]

Download: California-2013-SB400-Amended.html

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BILL NUMBER: SB 400	AMENDED
	BILL TEXT

	AMENDED IN SENATE  APRIL 16, 2013

INTRODUCED BY   Senator Jackson
    (   Principal coauthor:   Senator 
 Leno   ) 

                        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. 
Existing law provides that employers who violate these provisions
  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, 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:

  SECTION 1.  Section 230 of the Labor Code is amended to read:
   230.  (a) An employer shall not discharge or in any manner
discriminate against an employee for taking time off to serve as
required by law on an inquest jury or trial jury, if the employee,
prior to taking the time off, gives reasonable notice to the employer
that  he or she   the employee  is
required to serve.
   (b) An employer shall not discharge or in any manner discriminate
or retaliate against an employee, including, but not limited to, an
employee who is a victim of a crime, for taking time off to appear in
court to comply with a subpoena or other court order as a witness in
any judicial proceeding.
   (c) An employer shall not discharge or in any manner discriminate
or retaliate 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.
   (d) (1) As a condition of taking time off for a purpose set forth
in subdivision (c), the employee shall give the employer reasonable
advance notice of the employee's intention to take time off, unless
the advance notice is not feasible.
   (2) When an unscheduled absence occurs, the employer shall not
take any action against the employee if the employee, within a
reasonable time after the absence, provides a certification to the
employer. Certification shall be sufficient in the form of any of the
following:
   (A) A police report indicating that the employee was a victim of
domestic violence, sexual assault, or stalking.
   (B) A court order protecting or separating the employee from the
perpetrator of an act of domestic violence, sexual assault, or
stalking, or other evidence from the court or prosecuting attorney
that the employee has appeared in court.
   (C) Documentation from a medical professional, domestic violence
advocate or advocate for victims of sexual assault, health care
provider, or counselor that the employee was undergoing treatment for
physical or mental injuries or abuse resulting in victimization from
an act of domestic violence, sexual assault, or stalking.
   (3) To the extent allowed by law and consistent with subparagraph
(D) of paragraph (7) of subdivision (f), the employer shall maintain
the confidentiality of any employee requesting leave under
subdivision (c).
   (e) An employer shall not discharge or in any manner discriminate
or retaliate against an employee because of the employee's known
status as a victim of domestic violence, sexual assault, or stalking.

   (f) (1) An employer shall provide reasonable accommodations for a
victim of domestic violence, sexual assault, or stalking who requests
an accommodation for the safety of the victim while at work.
   (2) For purposes of this subdivision, reasonable accommodations
may include the implementation of safety measures, including a
transfer, reassignment, modified schedule, changed work telephone,
changed work station, installed lock, assistance in documenting
domestic violence, sexual assault, or stalking that occurs in the
workplace, an implemented safety procedure, or another adjustment to
a job structure, workplace facility, or work requirement in response
to domestic violence, sexual assault, or stalking, or referral to a
victim assistance organization.
   (3) An employer is not required to provide a reasonable
accommodation to an employee who has not disclosed his or her status
as a victim of domestic violence, sexual assault, or stalking.
   (4) The employer shall  make reasonable accommodations in
a timely fashion.   engage in a timely, good faith, and
interactive process with the employee to determine effective
reasonable accommodations. 
   (5) In determining whether the accommodation is reasonable, the
employer shall consider an exigent circumstance or danger facing the
employee.
   (6) This subdivision does not require the employer to undertake an
action that constitutes an undue hardship on the employer's business
operations, as defined by Section 12926 of the Government Code.
   (7) (A) Upon the request of an employer, an employee requesting a
reasonable accommodation pursuant to this subdivision 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 a purpose authorized under this subdivision.
   (B) The employer may also request certification from an employee
requesting an accommodation pursuant to this subdivision
demonstrating the employee's status as a victim of domestic violence,
sexual assault, or stalking. Certification shall be sufficient in
the form of any of the categories described in paragraph (2) of
subdivision (d).
   (C) An employer who requests certification pursuant to
subparagraph (B) may request recertification of an employee's status
as a victim of domestic violence, sexual assault, or stalking every
six months after the date of the previous certification.
   (D) 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.
The employee shall be given notice before any authorized disclosure.
   (8) An employer shall not retaliate against a victim of domestic
violence, sexual assault, or stalking for requesting a reasonable
accommodation, regardless of whether the request was granted.
   (g) (1) An employee who is discharged, threatened with discharge,
demoted, suspended, or in any other manner discriminated or
retaliated against in the terms and conditions of employment by his
or her employer because the employee has taken time off for a purpose
set forth in subdivision (a) or (b) shall be entitled to
reinstatement and reimbursement for lost wages and work benefits
caused by the acts of the employer.
   (2) An employee who is discharged, threatened with discharge,
demoted, suspended, or in any other manner discriminated or
retaliated against in the terms and conditions of employment by his
or her employer for reasons prohibited in subdivision (c) or (e), or
because  he or she   the employee  has
requested or received a reasonable accommodation as set forth in
subdivision (f), is entitled to reinstatement and reimbursement for
lost wages and work benefits caused by the acts of the employer, as
well as appropriate equitable relief.  If the employee
prevails in an action pursuant to this paragraph, the court may award
reasonable attorney's fees and costs. 
   (3) An employer who willfully refuses 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 is guilty of a misdemeanor.
   (h) (1) An employee who is discharged, threatened with discharge,
demoted, suspended, or in any other manner discriminated or
retaliated against in the terms and conditions of employment by his
or her employer because the employee has exercised his or her rights
as set forth in subdivision (a), (b), or (c) may file a complaint
with the Division of Labor Standards Enforcement of the Department of
Industrial Relations pursuant to Section 98.7.
   (2) Notwithstanding any time limitation in Section 98.7, an
employee may file a complaint with the division based upon a
violation of subdivision (c) within one year from the date of
occurrence of the violation.
   (i) An employee who is discharged, threatened with discharge,
demoted, suspended, or denied a reasonable accommodation under
subdivision (e) or (f) may bring a civil action in the superior court
of the appropriate county to enforce those provisions.  If the
employee prevails in an action pursuant to this subdivision, the
court may award reasonable attorney's fees and costs. 
   (j) An employee may use vacation, personal leave, or compensatory
time off that is otherwise available to the employee under the
applicable terms of employment, unless otherwise provided by a
collective bargaining agreement, for time taken off for a purpose
specified in subdivision (a), (b), or (c). The entitlement of any
employee under this section shall not be diminished by any collective
bargaining agreement term or condition.
   (k) For purposes of this section:
   (1) "Domestic violence" means any of the types of abuse set forth
in Section 6211 of the Family Code, as amended.
   (2) "Sexual assault" means any of the crimes set forth in Section
261, 261.5, 262, 265, 266, 266a, 266b, 266c, 266g, 266j, 267, 269,
273.4, 285, 286, 288, 288a, 288.5, 289, or 311.4 of the Penal Code,
as amended.
   (3) "Stalking" means a crime set forth in Section 646.9 of the
Penal Code or Section 1708.7 of the Civil Code.
  SEC. 2.  Section 230.1 of the Labor Code is amended to read:
   230.1.  (a) In addition to the requirements and prohibitions
imposed on employees pursuant to Section 230, an employer with 25 or
more employees shall not discharge or in any manner discriminate or
retaliate against an employee who is a victim of domestic violence,
sexual assault, or stalking for taking time off from work to attend
to any of the following:
   (1) To seek medical attention for injuries caused by domestic
violence, sexual assault, or stalking.
   (2) To obtain services from a domestic violence shelter, program,
or rape crisis center as a result of domestic violence, sexual
assault, or stalking.
   (3) To obtain psychological counseling related to an experience of
domestic violence, sexual assault, or stalking.
   (4) To participate in safety planning and take other actions to
increase safety from future domestic violence, sexual assault, or
stalking, including temporary or permanent relocation.
   (b) (1) As a condition of taking time off for a purpose set forth
in subdivision (a), the employee shall give the employer reasonable
advance notice of the employee's intention to take time off, unless
the advance notice is not feasible.
   (2) When an unscheduled absence occurs, the employer shall not
take any action against the employee if the employee, within a
reasonable time after the absence, provides a certification to the
employer. Certification shall be sufficient in the form of any of the
categories described in paragraph (2) of subdivision (d) of Section
230.
   (3) To the extent allowed by law and consistent with subparagraph
(D) of paragraph (7) of subdivision (f) of Section 230, employers
shall maintain the confidentiality of any employee requesting leave
under subdivision (a).
   (c) An employee who is discharged, threatened with discharge,
demoted, suspended, or in any other manner discriminated or
retaliated against in the terms and conditions of employment by his
or her employer because the employee has taken time off for a purpose
set forth in subdivision (a) is entitled to reinstatement and
reimbursement for lost wages and work benefits caused by the acts of
the employer, as well as appropriate equitable relief. An employer
who willfully refuses 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 is guilty of a misdemeanor.
   (d) (1) An employee who is discharged, threatened with discharge,
demoted, suspended, or in any other manner discriminated or
retaliated against in the terms and conditions of employment by his
or her employer because the employee has exercised his or her rights
as set forth in subdivision (a) may file a complaint with the
Division of Labor Standards Enforcement of the Department of
Industrial Relations pursuant to Section 98.7.
   (2) Notwithstanding any time limitation in Section 98.7, an
employee may file a complaint with the division based upon a
violation of subdivision (a) within one year from the date of
occurrence of the violation.
   (e) If an employee prevails in an action pursuant to this section,
the court may award reasonable attorney's fees and costs.
   (f) An employee may use vacation, personal leave, or compensatory
time off that is otherwise available to the employee under the
applicable terms of employment, unless otherwise provided by a
collective bargaining agreement, for time taken off for a purpose
specified in subdivision (a). The entitlement of any employee under
this section shall not be diminished by any collective bargaining
agreement term or condition.
   (g) This section does not create a right for an employee to take
unpaid leave that exceeds the unpaid leave time allowed under, or is
in addition to the unpaid leave time permitted by, the federal Family
and Medical Leave Act of 1993 (29 U.S.C. Sec. 2601 et seq.).
   (h) For purposes of this section:
   (1) "Domestic violence" means any of the types of abuse set forth
in Section 6211 of the Family Code, as amended.
   (2) "Sexual assault" means any of the crimes set forth in Section
261, 261.5, 262, 265, 266, 266a, 266b, 266c, 266g, 266j, 267, 269,
273.4, 285, 286, 288, 288a, 288.5, 289, or 311.4 of the Penal Code,
as amended.
   (3) "Stalking" means a crime set forth in Section 646.9 of the
Penal Code or Section 1708.7 of the Civil Code.
  SEC. 3.  No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.