California’s Broader Protections for Victim-Related Employee Time Off

Effective January 1, 2021, California workers will have expanded protection for crime victim-related leaves. Assembly Bill (AB) 2992.

Labor Code section 230 currently prohibits any employer, regardless of size, from terminating, discriminating or retaliating against an employee who is a victim of domestic violence, sexual assault, or stalking, for taking time off to obtain or attempt to obtain court-related “relief” stemming from such crimes (for example, restraining orders). Labor Code 230.1, applicable to employers with 25 or more on payroll, further includes medical, shelter, counseling services and related prevention action as qualified “relief” time.

Unless not possible under the circumstances, an employee must give reasonable advance notice of the need to take such time off. A worker must provide management within reasonable time a satisfactory written certification establishing the need for any unscheduled absence, including a police report, court order, or a medical or counseling attestation.

An employee may file a complaint for claimed violation with the Division of Labor Standards Enforcement. It is a misdemeanor for an employer to refuse to rehire, promote, or restore a worker determined by a grievance procedure or legal hearing to be eligible for such rehiring, etc.

Current law does not state who is a “victim” protected against such adverse employer action. Revised sections 230 and 230.1 provide specific definitions:

• a victim of stalking, domestic violence, or sexual assault;
• a victim of a crime that caused physical injury or that caused mental injury and a threat of physical injury;
• a person whose immediate family member is deceased as the direct result of a crime; or
• a victim of a crime compelled to testify on the matter.

Rather than just domestic- and sex-related offenses, “crime” for which such leave protection is justified will now include any California-prohibited misdemeanor or felony and any federally prohibited act of terrorism against any state resident wherever that act may have occurred.

In addition to police, medical or counseling documentation, the expanded law includes a catch-all category for the required certification confirming the need for any unscheduled absence:  any other writing that reasonably verifies that the crime or abuse occurred.

See also:

• Workplace Pandemic Prevention – Model Employee Handbook and Forms Include Vital COVID-19 Protocols (September 3, 2020)
• Give Me a Break! – Time Off for Fire Fighting, Crime Victims, Drug Rehab, School Visits, and More. (June 22, 2018)
• Helping the Haunted – California Employers Must Accommodate Victims of Domestic Violence, Sexual Assault or Stalking. (July 7, 2017)

For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles

October 15, 2020