Employers Cannot Terminate Victims of Serious Crimes Who Take Time Off to Attend Court Proceedings

Laws You Should Know – Labor Code § 230.5  – Branigan Robertson is a California employment lawyer who focuses his practice on harassment, retaliation, and wrongful termination. Call for a free consultation with one of our lawyers.

Governor Brown signed into law SB 288 this year. The bill adds Section 230.5 to the California Labor Code. The new law makes it illegal for employers to fire employees who are victims of violent crimes who take time off to attend court proceedings.

Here is an abridged version of the statute:

Labor Code 230.5

(a) (1) An employer shall not discharge or in any manner discriminate or retaliate against an employee who is a victim of an offense listed in paragraph (2) for taking time off from work, upon the victim’s request, to appear in court to be heard at any proceeding, including any delinquency proceeding, involving a postarrest release decision, plea, sentencing, postconviction release decision, or any proceeding in which a right of the victim is at issue.

(2) The offenses include all of the following:
(A) Vehicular manslaughter while intoxicated
(B) Felony child abuse likely to produce great bodily harm or a death, as defined in Section 273a of the Penal Code.
(C) Assault resulting in the death of a child under eight years of age, as defined in Section 273ab of the Penal Code.
(D) Felony domestic violence, as defined in Section 273.5 of the Penal Code.
(E) Felony physical abuse of an elder or dependent adult, as defined in subdivision (b) of Section 368 of the Penal Code.
(F) Felony stalking, as defined in Section 646.9 of the Penal Code.
(G) Solicitation for murder, as defined in subdivision (b) of Section 653f of the Penal Code.
(H) A serious felony, as defined in subdivision (c) of Section 1192.7 of the Penal Code.
(I) Hit-and-run causing death or injury, as defined in Section 20001 of the Vehicle Code.
(J) Felony driving under the influence causing injury, as defined in Section 23153 of the Vehicle Code.
(K) Sexual assault as set forth in Section 261, 261.5, 262, 265, 266, 266a, 266b, 266c, 266g, 266j, 267, 269, 273.4, 285, 286, 288, 288.5, 288a, 289, or 311.4 of the Penal Code.
(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 following:
(A) A police report indicating that the employee was a victim of an offense specified in subdivision (a).
(B) A court order protecting or separating the employee from the perpetrator of an offense specified in subdivision (a), or other evidence from the court or prosecuting attorney that the employee has appeared in court.
(C) Documentation from a medical professional, domestic violence advocate or advocate for victims of sexual assault, health care provider, or counselor that the employee was undergoing treatment for physical or mental injuries or abuse resulting in victimization from an offense specified in subdivision (a).
(3) To the extent allowed by law, the employer 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) shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer. Any 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.
(f) For purposes of this section, “victim” means any person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act. The term “victim” also includes the person’s spouse, parent, child, sibling, or guardian.

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