Governor Newsom recently signed into law new legislation that expands job-related protections for crime victims. Assembly Bill 2992 (“AB 2992”) prohibits employers of any size from discharging, discriminating, or retaliating against an employee who is a victim of crime or abuse for taking time off work to obtain relief. The new law also expands leave requirements for employers with 25 or more employees. AB 2992 becomes effective January 1, 2021.
Expanded Protections under AB 2992
Prior to enactment of AB 2992, California Labor Code section 230 applied only to victims of domestic violence, sexual assault, or stalking who miss work to obtain relief. “Relief” includes a temporary restraining order (“TRO”), restraining order, injunctive relief, or to help ensure the health or safety of the victim or the victim's child. The new law extends such protection to any employee (1) who is a victim of a crime that caused physical injury or mental injury and a threat of physical injury, or (2) whose immediate family member died as a result of a crime.
“Crime” is broadly defined to include a crime or public offense set forth in Section 13951 of the Government Code, regardless of whether anyone is arrested, prosecuted, or convicted of the crime.
“Immediate family member” is similarly broadly defined to include any of the following: (1) regardless of age, a biological, foster, or adopted child, stepchild, or legal ward; child of the employee's domestic partner; or 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; (2) a biological, foster, adopted parent, stepparent, or legal guardian of the employee, the employee's spouse, or domestic partner; a person who stood in loco parentis to the employee, the employee's spouse, or domestic partner when any one of the foregoing was a minor; (3) an employee's spouse or registered domestic partner; and (4) a biological, foster, or adoptive sibling, step-sibling, or half-sibling. Notably, the definition also includes a catchall category, including any “other individual whose close association with the employee is the equivalent of a family relationship.”
Further, the new law increases protections for crime victims who miss work to obtain relief without advance notice to their employers. An employer may not take any action against an employee for an unscheduled absence, as long as the employee provides the employer with any form of documentation, including a writing signed by the employee or an individual acting on the employee's behalf, indicating that the absence was for an authorized purpose. The documentation must be provided within a reasonable time after the unscheduled absence. Prior to enactment of AB 2992, employees were protected for unscheduled absences only if they provided a police report, evidence that the employee appeared in court, or medical certification providing that the employee was undergoing treatment for physical or mental injuries.
Expanded Leave Obligations under AB 2992
AB 2992 requires employers with 25 or more employees to provide leave to employees who are crime victims for specified purposes. Previously, California Labor Code Section 230.1 required employers with 25 or more employees to provide leave only to victims of domestic violence, sexual assault, or stalking. Under the new law, employees who are crime victims are entitled to time off work for any of the following reasons: (1) to seek medical attention for injuries due to crime or abuse; (2) to obtain services from a domestic violence shelter, program, rape crisis center, or victim services organization or agency due to crime or abuse; (3) to obtain psychological counseling or mental health services related to crime or abuse; and (4) to participate in safety planning or to take other actions to increase safety from future crime or abuse, including temporary or permanent relocation.
As with unscheduled absences to obtain relief, employers may not take any action against an employee who misses work for an authorized purpose without advance notice, as long as the employee provides certification within a reasonable time after the unscheduled absence. Again, acceptable certification includes a written statement from the employee or someone acting on the employee's behalf indicating that the absence was for an authorized purpose.
Employees who believe their rights have been violated under the new provisions may file a complaint with the Division of Labor Standards Enforcement (“DLSE”). Employers who violate the provisions of the new law may be ordered to reinstate the employee and reimburse him or her for lost wages and benefits. An employee may also obtain appropriate equitable relief.
Action Items for Employers
Employers should begin preparing now before the new law takes effect on January 1, 2021. Current law requires employers to inform employees, in writing, of their rights under Sections 230 and 230.1. Employers should begin preparing written notices that include employees' expanded rights and distribute them to employees no later than January 1, 2021. The Labor Commissioner will also likely develop a form that employers may use to satisfy the notice requirements. Employers should also educate Human Resources and supervisory employees on the new requirements well before the law becomes effective.