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AB-2992 Employment practices: leave time.(2019-2020)

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Date Published: 09/01/2020 09:00 PM
AB2992:v96#DOCUMENT

Enrolled  September 01, 2020
Passed  IN  Senate  August 29, 2020
Passed  IN  Assembly  August 30, 2020
Amended  IN  Senate  August 20, 2020
Amended  IN  Assembly  May 11, 2020

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 2992


Introduced by Assembly Member Weber
(Principal coauthor: Senator Bradford)
(Coauthor: Assembly Member Eggman)

February 21, 2020


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


LEGISLATIVE COUNSEL'S DIGEST


AB 2992, Weber. Employment practices: leave time.
(1) Existing law prohibits an employer from discharging, or 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 relief to help ensure the health, safety, or welfare of the victim or victim’s child. Existing law requires an employee, as a condition of taking time off for these purposes, to give the employer reasonable advance notice of the employee’s intention to take time off, unless doing so is not feasible. Existing law prohibits an employer, when an unscheduled absence occurs, from taking any action against the employee if the employee, within a reasonable time after the absence, provides a certification to the employer meeting certain criteria, including documentation from one of specified persons that the employee was undergoing treatment for specific injuries. Existing law authorizes an employee to file a complaint with the Division of Labor Standards Enforcement for a violation of that prohibition, and makes it a misdemeanor for an employer to refuse to rehire, promote, or restore an employee who has been determined to be so eligible by a grievance procedure or legal hearing.
This bill would expand the above provision to prohibit an employer from discharging, or discriminating or retaliating against, an employee who is a victim of crime or abuse for taking time off from work to obtain or attempt to obtain relief, as prescribed. The bill would also prohibit an employer from taking action against an employee, when an unscheduled absence occurs, if the employee victim of crime or abuse provides certification that they were receiving services for certain injuries, or if the documentation is from a victim advocate, as defined. The bill would additionally prohibit such action if the employee provides certification in any other form of documentation that reasonably verifies that the crime or abuse occurred. The bill would also define “victim” and “crime” for purposes of these provisions. By expanding the definition of a crime, the bill would impose a state-mandated local program.
(2) Existing law also prohibits an employer with 25 or more employees from discharging, or 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 specified purposes, including seeking medical attention for injuries caused by domestic violence, sexual assault, or stalking.
This bill would prohibit the discharge of, or discrimination or retaliation against, an employee who is a victim, as defined, for taking off work, as specified. The bill would revise the categories of time off work under these circumstances, to include taking time off work to seek medical attention for injuries caused by crime or abuse, to obtain services from prescribed entities as a result of the crime or abuse, to obtain psychological counseling or mental health services related to an experience of crime or abuse, or to participate in safety planning and take other actions to increase safety from future crime or abuse. The bill would define terms for these purposes.
(3) 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   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 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 for taking time off from work to obtain or attempt to obtain any relief. Relief includes, but is 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 their 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.
(B) A court order protecting or separating the employee from the perpetrator of the crime or abuse, 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, victim advocate, licensed health care provider, or counselor that the employee was undergoing treatment or receiving services for physical or mental injuries or abuse resulting in victimization from the crime or abuse.
(D) Any other form of documentation that reasonably verifies that the crime or abuse occurred, including but not limited to, a written statement signed by the employee, or an individual acting on the employee’s behalf, certifying that the absence is for a purpose authorized under this section or under Section 230.1.
(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 crime or abuse, if the employee 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, stalking, or other crime 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, stalking, or other crime, 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 (3) 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, or ongoing circumstances related to the crime or abuse, 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 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 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.
(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), (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) “Crime” means a crime or public offense as set forth in Section 13951 of the Government Code, and regardless of whether any person is arrested for, prosecuted for, or convicted of, committing the crime.
(2) “Domestic violence” means any of the types of abuse set forth in Section 6211 of the Family Code, as amended.
(3) “Immediate family member” means a person who is any of the following:
(A) Regardless of age, a biological, adopted, or foster child, stepchild, or legal ward, a child of a domestic partner, a child to whom the employee stands in loco parentis, or a person to whom the employee stood in loco parentis when the person was a minor.
(B) A biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or an employee’s spouse or domestic partner, or a person who stood in loco parentis when the employee or the employee’s spouse or domestic partner was a minor child.
(C) A person to whom the employee is legally married under the laws of any state, or a domestic partner of an employee as registered under the laws of any state or political subdivision.
(D) A biological, foster, or adoptive sibling, a stepsibling, or a half-sibling.
(E) Any other individual whose close association with the employee is the equivalent of a family relationship described in subparagraph (A), (B), (C), or (D).
(4) “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.
(5) “Stalking” means a crime set forth in Section 646.9 of the Penal Code or Section 1708.7 of the Civil Code.
(6) “Victim” includes any of the following:
(A) A victim of stalking, domestic violence, or sexual assault.
(B) A victim of a crime that caused physical injury or that caused mental injury and a threat of physical injury.
(C) A person whose immediate family member is deceased as the direct result of a crime.
(D) For the purposes of subdivision (b) only, any person against whom any crime has been committed.
(7) “Victim advocate” means an individual, whether paid or serving as a volunteer, who provides services to victims under the auspices or supervision of an agency or organization that has a documented record of providing services to victims, or under the auspices or supervision of a court or a law enforcement or prosecution agency.

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, for taking time off from work for any of the following purposes:
(1) To seek medical attention for injuries caused by crime or abuse.
(2) To obtain services from a domestic violence shelter, program, rape crisis center, or victim services organization or agency as a result of the crime or abuse.
(3) To obtain psychological counseling or mental health services related to an experience of crime or abuse.
(4) To participate in safety planning and take other actions to increase safety from future crime or abuse, 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 their 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 their employer because the employee has exercised their 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) 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) “Crime” means a crime or public offense as set forth in Section 13951 of the Government Code, and regardless of whether any person is arrested for, prosecuted for, or convicted of, committing the crime.
(2) “Domestic violence” means any of the types of abuse set forth in Section 6211 of the Family Code, as amended.
(3) “Immediate family member” means a person who is any of the following:
(A) Regardless of age, a biological, adopted, or foster child, stepchild, or legal ward, a child of a domestic partner, a child to whom the employee stands in loco parentis, or a person to whom the employee stood in loco parentis when the person was a minor.
(B) A biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or an employee’s spouse or domestic partner, or a person who stood in loco parentis when the employee or the employee’s spouse or domestic partner was a minor child.
(C) A person to whom the employee is legally married under the laws of any state, or a domestic partner of an employee as registered under the laws of any state or political subdivision.
(D) A biological, foster, or adoptive sibling, a stepsibling, or a half-sibling.
(E) Any other individual whose close association with the employee is the equivalent of a family relationship described in subparagraph (A), (B), (C), or (D).
(4) “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.
(5) “Stalking” means a crime set forth in Section 646.9 of the Penal Code or Section 1708.7 of the Civil Code.
(6) “Victim” includes any of the following:
(A) A victim of stalking, domestic violence, or sexual assault.
(B) A victim of a crime that caused physical injury or that caused mental injury and a threat of physical injury.
(C) A person whose immediate family member is deceased as the direct result of a crime.
(7) “Victim services organization or agency” means an agency or organization that has a documented record of providing services to victims.
(h) (1) Employers shall inform each employee of their 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 revise the form and post it in accordance with this paragraph on or before January 1, 2022.
(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.

 The provisions of this act are severable. If any provision of this act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

SEC. 4.

 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.