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AB-2366 Employment: victims of sexual harassment: protections.(2017-2018)

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Date Published: 04/25/2018 09:00 PM
AB2366:v97#DOCUMENT

Amended  IN  Assembly  April 25, 2018
Amended  IN  Assembly  April 12, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill
No. 2366

Introduced by Assembly Member Bonta
(Coauthor: Senator Jackson)

February 14, 2018

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


LEGISLATIVE COUNSEL'S DIGEST


AB 2366, as amended, Bonta. Employment: victims of sexual harassment: protections.
(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 and who takes time off from work to obtain, or attempt to obtain, any relief to help ensure the health, safety, or welfare of the victim or his or her child. Existing law also prohibits an employer from discriminating or retaliating against an employee who is a victim of domestic violence, sexual assault, or stalking because of the employee’s status as a victim, if the employer has notice or knowledge of that status. Existing law additionally prohibits an employer with 25 or more employees from discharging, or discriminating or retaliating against an employee who is a victim, in this regard, who takes time off to obtain specified services or counseling. Existing law 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 extend these employment protections to victims of sexual harassment, as defined. The bill would also extend these employment protections to immediate family members, as defined, of the victims for taking time off from work to provide assistance to the victims when seeking relief or obtaining those services and counseling, as described above. above. The bill would apply these protections to state and local public employers and to the Legislature. By expanding the definition of a crime, this bill would impose a state-mandated local program. The bill would extend confidentiality protections provided to victims in this context, which existing law applies only to people employed by employers with 25 or more employees, to employers generally. The bill would make conforming changes.
(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   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) (1) An employer shall not discharge or in any manner discriminate or retaliate against an employee who is a victim of domestic violence, sexual assault, sexual harassment, 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.
(2) An employer shall not discharge or in any manner discriminate or retaliate against an employee who is an immediate a family member of a victim described in paragraph (1) for taking time off from work to provide assistance and support to the victim seeking relief.
(d) To the extent allowed by law and consistent with subparagraph (D) of paragraph (7) of subdivision (f), employers shall maintain the confidentiality of any employee requesting leave under subdivision (b) or (c).
(e) (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, sexual harassment, or stalking.
(B) A court order protecting or separating the employee from the perpetrator of an act of domestic violence, sexual assault, sexual harassment, 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 in victimization from an act of domestic violence, sexual assault, sexual harassment, or stalking.
(3) To the extent allowed by law and consistent with subparagraph (D) of paragraph (7) of subdivision (g), the employer shall maintain the confidentiality of any employee requesting leave under subdivision (c).
(f) 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.
(g) (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 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 (e).
(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.
(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 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 (f), or because the employee has requested or received a reasonable accommodation as set forth in subdivision (g), 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.
(i) (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), (c), (f), or (g) 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), (f), or (g) 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 or in Section 11165.6 of the Penal Code.
(2) “Immediate family “Family member” means any of the following: means:
(A) A child, including a biological, adopted, or foster child, stepchild, or legal ward. legal ward, or a child to whom the employee stands in loco parentis. This definition of a child is applicable regardless of age or dependency status.
(B) A biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner. partner, or a person who stood in loco parentis when the employee was a minor child.
(C) A spouse.
(D) A registered domestic partner.
(E) A grandparent.
(F) A grandchild.
(G) A sibling.
(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, 288, 288a, 288.5, 289, or 311.4 of the Penal Code, as amended.

(4)“Sexual harassment” means unwanted sexual advances, or visual, verbal, or physical conduct of a sexual nature and includes gender-based harassment of a person of the same sex as the harasser. “Sexual harassment” includes, but is not limited to, the following:

(A)Leering, making sexual gestures, displaying of sexually suggestive objects, pictures, cartoons, or posters.

(B)Derogatory comments, epithets, slurs, or jokes, verbal abuse of a sexual nature, or graphic verbal commentaries or sexually degrading words used to describe an individual.

(C)Touching, assault, impeding, or blocking movements.

(D)Offering employment benefits in exchange for sexual favors.

(E)Making or threatening retaliatory action after receiving a negative response to sexual advances.

(4) “Sexual harassment” means unwanted sexual advances, or visual, verbal, or physical conduct of a sexual nature and includes gender-based harassment of a person of the same sex as the harasser. Sexual harassment need not occur in the workplace. Sexual harassment includes, but is not limited to, the following:
(A) Leering, making sexual gestures, displaying of sexually suggestive objects, pictures, cartoons, or posters.
(B) Derogatory comments, epithets, slurs, or jokes, verbal abuse of a sexual nature, or graphic verbal commentaries or sexually degrading words used to describe an individual.
(C) Touching, assault, impeding, or blocking movements.
(D) Offering employment benefits in exchange for sexual favors.
(5) “Employer” means any person employing another under any appointment or contract of hire and includes the state, any political subdivision of the state, and the Legislature.

(5)

(6) “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) (1) 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, sexual harassment, 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 harassment, 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, sexual harassment, or stalking.
(C) To obtain psychological counseling related to an experience of domestic violence, sexual assault, sexual harassment, or stalking.
(D) To participate in safety planning and take other actions to increase safety from future domestic violence, sexual assault, sexual harassment, or stalking, including temporary or permanent relocation.
(2) An employer with 25 or more employees shall not discharge, or in any manner discriminate or retaliate against, an employee who is an immediate a family member of a victim described in paragraph (1) for taking time off from work to provide assistance and support to the victim in connection with the purposes described in paragraph (1).
(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 (e) of Section 230.
(3) To the extent allowed by law and consistent with subparagraph (D) of paragraph (7) of subdivision (g) 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) 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. Code or in Section 11165.6 of the Penal Code.

(2)“Immediate family member” means spouse, child, stepchild, brother, stepbrother, sister, stepsister, mother, stepmother, father, or stepfather.

(2) “Family member” means:
(A) A child, including a biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis. This definition of a child is applicable regardless of age or dependency status.
(B) A biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child.
(C) A spouse.
(D) A registered domestic partner.
(E) A grandparent.
(F) A grandchild.
(G) A sibling.
(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, 288, 288a, 288.5, 289, or 311.4 of the Penal Code, as amended.

(4)“Sexual harassment” means unwanted sexual advances, or visual, verbal, or physical conduct of a sexual nature and includes gender-based harassment of a person of the same sex as the harasser. “Sexual harassment” includes, but is not limited to, the following:

(A)Leering, making sexual gestures, displaying of sexually suggestive objects, pictures, cartoons, or posters.

(B)Derogatory comments, epithets, slurs, or jokes, verbal abuse of a sexual nature, or graphic verbal commentaries or sexually degrading words used to describe an individual.

(C)Touching, assault, impeding, or blocking movements.

(D)Offering employment benefits in exchange for sexual favors.

(E)Making or threatening retaliatory action after receiving a negative response to sexual advances.

(4) “Sexual harassment” means unwanted sexual advances, or visual, verbal, or physical conduct of a sexual nature and includes gender-based harassment of a person of the same sex as the harasser. Sexual harassment need not occur in the workplace. Sexual harassment includes, but is not limited to, the following:
(A) Leering, making sexual gestures, displaying of sexually suggestive objects, pictures, cartoons, or posters.
(B) Derogatory comments, epithets, slurs, or jokes, verbal abuse of a sexual nature, or graphic verbal commentaries or sexually degrading words used to describe an individual.
(C) Touching, assault, impeding, or blocking movements.
(D) Offering employment benefits in exchange for sexual favors.
(5) “Employer” means any person employing another under any appointment or contract of hire and includes the state, any political subdivision of the state, and the Legislature.

(5)

(6) “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 his or her rights established under this section and subdivisions (c), (f), and (g) 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 Web site 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 Web site in accordance with paragraph (2).

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.