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AB-1478 Employment discrimination.(2019-2020)

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Date Published: 09/18/2019 04:00 AM
AB1478:v94#DOCUMENT

Enrolled  September 17, 2019
Passed  IN  Senate  September 10, 2019
Passed  IN  Assembly  September 11, 2019
Amended  IN  Senate  September 06, 2019
Amended  IN  Senate  August 30, 2019
Amended  IN  Senate  July 11, 2019
Amended  IN  Assembly  March 27, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 1478


Introduced by Assembly Member Carrillo

February 22, 2019


An act to amend Sections 230 and 230.1 of the Labor Code, relating to employment.


LEGISLATIVE COUNSEL'S DIGEST


AB 1478, Carrillo. Employment discrimination.
Existing law prohibits an employer from discriminating against or discharging an employee for specified reasons, including that the employee is a victim of domestic violence, sexual assault, or stalking and takes time off work to obtain judicial or medical relief, as provided. Existing law further provides that an employee who is discharged, threatened with discharge, or otherwise discriminated against, as provided, 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. Existing law authorizes an aggrieved employee to file a complaint with the Division of Labor Standards Enforcement of the Department of Industrial Relations, which is created by existing law within the Labor and Workforce Development Agency.
Existing law, the Labor Code Private Attorneys General Act of 2004, authorizes an aggrieved employee on behalf of that employee and other current or former employees to bring a civil action to recover specified civil penalties, which would otherwise be assessed and collected by the Labor and Workforce Development Agency, for the violation of certain provisions affecting employees. The act prescribes specified civil penalties for violations brought under these provisions.
This bill, as an alternative to filing a complaint with the division, would authorize an employee aggrieved under the provisions prohibiting specified types of discrimination described above to bring a private civil action against the employee’s employer and would not require that employee to pursue any other remedy prior to bringing that action.
This bill would also make nonsubstantive changes.
This bill would incorporate additional changes to Section 230 of the Labor Code proposed by AB 171 to be operative only if this bill and AB 171 are enacted and this bill is enacted last.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

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 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 the victim’s 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 licensed medical professional, domestic violence counselor, as defined in Section 1037.1 of the Evidence Code, a sexual assault counselor, as defined in Section 1035.2 of the Evidence Code, licensed health care provider, or counselor that the employee was undergoing treatment for physical or mental injuries or abuse resulting 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 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.
(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 the employee’s status as a victim of domestic violence, sexual assault, or stalking.
(4) The employer shall 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. For the purposes of this subdivision, 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 required by Section 6400 of the Labor 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.
(E) (i) If circumstances change and an employee needs a new accommodation, the employee shall request a new accommodation from the employer.
(ii) Upon receiving the request, the employer shall engage in a timely, good faith, and interactive process with the employee to determine effective reasonable accommodations.
(F) If an employee no longer needs an accommodation, the employee shall notify the employer that the accommodation is no longer needed.
(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 their 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 their employer for reasons prohibited in subdivision (c) or (e), or because the employee has requested or received a reasonable accommodation as set forth in subdivision (f), shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer as well as appropriate equitable relief.
(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 their employer because the employee has exercised their rights as set forth in subdivision (a), (b), (c), (e), or (f) may file a complaint with the Division of Labor Standards Enforcement of the Department of Industrial Relations pursuant to Section 98.7. An aggrieved employee may also bring a private civil action against an employer in a court of competent jurisdiction. If a complainant files an action in court against an employer based upon the same or similar facts as a complaint filed with the division under this section, the Labor Commissioner may, at their discretion, close the investigation into the matter. The court may award reasonable attorney’s fees to a prevailing employee in addition to any other relief that, in the judgment of the court, will effectuate the purpose of this section, including, but not limited to, reinstatement, damages for backpay, front pay, and emotional distress. An aggrieved employee who brings a private civil action pursuant to this subdivision shall not be required to pursue any other remedy before bringing that action.
(2) Notwithstanding any time limitation in Section 98.7, an employee may file a complaint with the division or in the court of competent jurisdiction based upon a violation of subdivision (c), (e), or (f) within one year from the date of occurrence of the violation.
(i) 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.
(j) 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, 287, 288, 288.5, 289, or 311.4 of, or former Section 288a 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. 1.5.

 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 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 the victim’s 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 licensed medical professional, domestic violence counselor, as defined in Section 1037.1 of the Evidence Code, a sexual assault counselor, as defined in Section 1035.2 of the Evidence Code, licensed health care provider, or counselor that the employee was undergoing treatment for physical or mental injuries or abuse resulting 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) (1) An employer shall not discharge or in any manner discriminate or retaliate against an employee because of the employee’s status as a victim of domestic violence, sexual assault, sexual harassment, or stalking, if the victim provides notice to the employer of the status or the employer has actual knowledge of the status.
(2) (A) There shall be a rebuttable presumption of unlawful retaliation for purposes of this subdivision if an employer, within 90 days following either the date when the victim provides notice to the employer or when the employer has actual knowledge of the status, discharges, threatens to discharge, demotes, suspends, or takes any other adverse action against the employee. The presumption may be rebutted by evidence that the employer has a nonretaliatory business reason for the adverse action taken.
(B) Where an employer has authorized a person or entity to receive confidential reports of workplace conduct violations, the receipt of a confidential report by that person or entity does not constitute providing notice to the employer.
(3) For purposes of this subdivision, “harassment” shall be defined as in subdivision (j) of Section 12940 of the Government Code.
(4) The amendments to this subdivision made by the act adding this paragraph shall become operative on July 1, 2020.
(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 the employee’s status as a victim of domestic violence, sexual assault, or stalking.
(4) The employer shall 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. For the purposes of this subdivision, 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 required by Section 6400.
(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.
(E) (i) If circumstances change and an employee needs a new accommodation, the employee shall request a new accommodation from the employer.
(ii) Upon receiving the request, the employer shall engage in a timely, good faith, and interactive process with the employee to determine effective reasonable accommodations.
(F) If an employee no longer needs an accommodation, the employee shall notify the employer that the accommodation is no longer needed.
(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 their 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 their employer for reasons prohibited in subdivision (c) or (e), or because the employee has requested or received a reasonable accommodation as set forth in subdivision (f), shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer, as well as appropriate equitable relief.
(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 their employer because the employee has exercised their rights as set forth in subdivision (a), (b), (c), (e), or (f) may file a complaint with the Division of Labor Standards Enforcement of the Department of Industrial Relations pursuant to Section 98.7. An aggrieved employee may also bring a private civil action against an employer in a court of competent jurisdiction. If a complainant files an action in court against an employer based upon the same or similar facts as a complaint filed with the division under this section, the Labor Commissioner may, at their discretion, close the investigation into the matter. The court may award reasonable attorney’s fees to a prevailing employee in addition to any other relief that, in the judgment of the court, will effectuate the purpose of this section, including, but not limited to, reinstatement, damages for backpay, front pay, and emotional distress. An aggrieved employee who brings a private civil action pursuant to this subdivision shall not be required to pursue any other remedy before bringing that action.
(2) Notwithstanding any time limitation in Section 98.7, an employee may file a complaint with the division or in a court of competent jurisdiction based upon a violation of subdivision (c), (e), or (f) within one year from the date of occurrence of the violation.
(i) 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.
(j) 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) “Employer” means any person employing another under any appointment or contract of hire and includes the state, political subdivisions of the state, and municipalities.
(3) “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, 287, 288, 288.5, 289, or 311.4 of, or former Section 288a of, the Penal Code, as amended.
(4)  “Sexual harassment” has the same meaning as in subdivision (j) of Section 12940 of the Government Code.
(5) “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 for any of the following purposes:
(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 the employee’s 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 the employee’s employer because the employee has exercised the employee’s 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. An aggrieved employee may also bring a private civil action against an employer in a court of competent jurisdiction. If a complainant files an action in court against an employer based upon the same or similar facts as a complaint filed with the division under this section, the Labor Commissioner may, at their discretion, close the investigation into the matter. The court may award reasonable attorney’s fees to a prevailing employee in addition to any other relief that, in the judgment of the court, will effectuate the purpose of this section, including, but not limited to, reinstatement, damages for backpay, front pay, and emotional distress. An aggrieved employee who brings a private civil action pursuant to this subdivision shall not be required to pursue any other remedy before bringing that action.
(2) Notwithstanding any time limitation in Section 98.7, an employee may file a complaint with the division or in the court of competent jurisdiction based upon a violation of subdivision (a) within one year from the date of occurrence of the violation.
(e) 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 term or condition of a collective bargaining agreement.
(f) 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.).
(g) 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, 287, 288, 288.5, 289, or 311.4 of, or former Section 288a 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.
(h) (1) Employers shall inform each employee of the employee’s rights established under this section and subdivisions (c), (e), and (f) of Section 230 in writing. The information shall be provided to new employees upon hire and to other employees upon request.
(2) The Labor Commissioner shall develop a form that an employer may use to comply with the notice requirements in paragraph (1). The form shall set forth the rights and duties of employers and employees under this section in clear and concise language. The Labor Commissioner shall post the form on the commissioner’s internet website to make it available to employers who are required to comply with this section. If an employer elects not to use the form developed by the Labor Commissioner, the notice provided by the employer to the employees shall be substantially similar in content and clarity to the form developed by the Labor Commissioner. The Labor Commissioner shall develop the form and post it in accordance with this paragraph on or before July 1, 2017.
(3) Employers shall not be required to comply with paragraph (1) until the Labor Commissioner posts the form on the commissioner’s internet website in accordance with paragraph (2).

SEC. 3.

 Section 1.5 of this bill incorporates amendments to Section 230 of the Labor Code proposed by both this bill and Assembly Bill 171. That section shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2020, (2) each bill amends Section 230 of the Labor Code, and (3) this bill is enacted after Assembly Bill 171, in which case Section 1 of this bill shall not become operative.