Today's Law As Amended


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AB-628 Employment: victims of sexual harassment: protections.(2019-2020)



As Amends the Law Today


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. Relief includes, but is  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 their child.
(d) (2)  (1) An  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.  employer shall not discharge or in any manner discriminate or retaliate against an employee who is a family member of a victim described in paragraph (1) and who is not alleged to have committed the domestic violence, sexual assault, sexual harassment, or stalking against the victim for taking time off from work to provide assistance and support to the victim seeking relief. 
(2) (d)  When (1)   an unscheduled absence occurs, the employer  If the employee’s need for leave pursuant to subdivision (c) is foreseeable, the employee shall provide the employer with reasonable advance notice of the need for leave, unless advance notice is not feasible. An employer may require that the employee’s request for leave be supported by a certification. If it is not feasible for the employee to provide certification prior to the leave, 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. or the employee’s family member was a victim of domestic violence, sexual assault, sexual harassment, or stalking. 
(B) A court order protecting or separating the employee or the employee’s family member  from the perpetrator of the crime or abuse, an act of domestic violence, sexual assault, sexual harassment, or stalking,  or other evidence from the court or prosecuting attorney that the employee or the employee’s family member  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 counselor,  that the employee or the employee’s family member  was undergoing treatment or receiving services  for physical or mental injuries or abuse resulting in victimization from the crime or abuse. an act of domestic violence, sexual assault, sexual harassment, or stalking. 
(D) (2)  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. 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 (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). (b) or (c), including, but not limited to, maintaining the confidentiality of any verbal or written statement, police or court record, or other documentation provided to an employer identifying an employee or an employee’s family member as a victim of domestic violence, sexual assault, sexual harassment, or stalking. 
(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  domestic violence, sexual assault, sexual harassment, or stalking, or the employee’s status as the family member of a victim described in paragraph (1) of subdivision (c), if the victim or the family member  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, 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  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 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  their  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) (1)  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,  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.
(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) (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. 
(3) (2)  “Immediate family member” means a person who is any of the following: “Family member” means: 
(A) Regardless of age, A child, including  a biological, adopted, or foster child, stepchild, or  legal ward, or  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. 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 an the  employee’s spouse or registered  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. spouse. 
(D) A biological, foster, or adoptive sibling, a stepsibling, or a half-sibling. registered domestic partner. 
(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).  A grandparent. 
(F) A grandchild.
(G) A sibling.
(4) (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.
(5) (4)  “Stalking” means a crime set forth in Section 646.9 of the Penal Code or Section 1708.7 of the Civil Code. “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: 
(6) “Victim” includes any of the following:
(A) A victim of stalking, domestic violence, or sexual assault. Leering, making sexual gestures, displaying of sexually suggestive objects, pictures, cartoons, or posters. 
(B) A victim of a crime that caused physical injury or that caused mental injury and a threat of physical injury. Derogatory comments, epithets, slurs, jokes, verbal abuse of a sexual nature, or graphic verbal commentaries or sexually degrading words used to describe an individual. 
(C) A person whose immediate family member is deceased as the direct result of a crime. Touching, assault, impeding, or blocking movements. 
(D) For the purposes of subdivision (b) only, any person against whom any crime has been committed.  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.
(7) (6)  “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.  “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,  victim of domestic violence, sexual assault, sexual harassment, or stalking  for taking time off from work for any of the following purposes:
(1) (A)  To seek medical attention for injuries caused by crime or abuse. domestic violence, sexual assault, sexual harassment, or stalking. 
(2) (B)  To obtain services from a domestic violence shelter, program, rape crisis center, or victim services organization or agency  or rape crisis center  as a result of the crime or abuse. domestic violence, sexual assault, sexual harassment, or stalking. 
(3) (C)  To obtain psychological counseling or mental health services  related to an experience of crime or abuse. domestic violence, sexual assault, sexual harassment, or stalking. 
(4) (D)  To participate in safety planning and take other actions to increase safety from future crime or abuse,  domestic violence, sexual assault, or stalking, sexual harassment,  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 a family member of a victim described in paragraph (1) and who is not alleged to have committed the domestic violence, sexual assault, sexual harassment, or stalking against the victim 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), If the employee’s need for leave pursuant to subdivision (a) is foreseeable,  the employee shall give provide  the employer with  reasonable advance notice of the employee’s intention to take time off, unless the  need for leave, unless  advance notice is not feasible. An employer may require that the employee’s request for leave be supported by a certification. If it is not feasible for the employee to provide certification prior to the leave, 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 (1) of subdivision (d) of Section 230. 
(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) (1)  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). (a), including, but not limited to, maintaining the confidentiality of any verbal or written statement, police or court record, or other documentation provided to an employer identifying an employee or an employee’s family member as a victim of domestic violence, sexual assault, sexual harassment, or stalking. 
(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) (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. 
(3) (2)  “Immediate family member” means a person who is any of the following: “Family member” means: 
(A) Regardless of age, A child, including  a biological, adopted, or foster child, stepchild, or  legal ward, or  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. 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 an the  employee’s spouse or registered  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. spouse. 
(D) A biological, foster, or adoptive sibling, a stepsibling, or a half-sibling. registered domestic partner. 
(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).  A grandparent. 
(F) A grandchild.
(G) A sibling.
(4) (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.
(5) (4)  “Stalking” means a crime set forth in Section 646.9 of the Penal Code or Section 1708.7 of the Civil Code. “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: 
(6) “Victim” includes any of the following:
(A) A victim of stalking, domestic violence, or sexual assault. Leering, making sexual gestures, displaying of sexually suggestive objects, pictures, cartoons, or posters. 
(B) A victim of a crime that caused physical injury or that caused mental injury and a threat of physical injury. Derogatory comments, epithets, slurs, 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.
(C) (5)  A person whose immediate family member is deceased as the direct result of a crime. “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. 
(7) (6)  “Victim services organization or agency” means an agency or organization that has a documented record of providing services to victims. “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 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 develop  the form and post it in accordance with this paragraph on or before January July  1, 2022. 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.
 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.