Employees who suffer physical or mental injury due to a crime will be entitled to job-protected leave and other protections from their employers under legislation signed this week by Governor Gavin Newsom. Employers will bear such obligations without confirmation from law enforcement that a crime occurred and where no one is arrested or prosecuted. Prior to the Governor’s approval of the new legislation, only employees victimized by domestic violence, sexual assault or stalking were entitled to such protections. The expanded provisions become effective January 1, 2021.
New Obligations of All Employers, Regardless of Size
Expanded Obligation to Provide Time Off Work to Seek TROs, etc.
Prior to approval of the new legislation, AB 2992, California Labor Code section 230 barred employers of any size from firing or discriminating against employees victimized by domestic violence, sexual assault or stalking for missing work to seek judicial relief, including restraining orders against perpetrators.
AB 2992 extends such protection to any employee who is (1) the victim of a crime that either caused physical injury or that caused mental injury and included a threat of physical injury; and, (2) any employee whose immediate family member died due to a crime. The new legislation broadly defines “crime” to mean “a crime or public offense, wherever it may take place, that would constitute a misdemeanor or a felony if the crime had been committed in California by a competent adult” and “regardless of whether any person is arrested for, prosecuted for, or convicted of, committing the crime.”
As for employees whose families suffer a crime-related death, the new provisions embrace a great many people as “immediate family members,” including any variety of child (biological, adoptive, foster, etc.), parent (biological, adoptive, foster, stepparent, etc.), sibling (biological, foster, half-sibling, etc.) and partner (whether married or a registered domestic partner). Also included is “any other individual whose close association with the employee is the equivalent of a family relationship . . .”
When employees miss work without advance notice to seek a restraining order or other judicial relief due to a crime, AB 2992 will obligate employers to treat them with greater leniency. An employee missing work in that circumstance will be protected from discharge or other discrimination so long as, “within a reasonable time after the absence,” they give their employer a writing signed by the employee, or someone on the employee’s behalf, stating the employee missed work in order to seek a restraining order or other relief due to a crime. Prior to AB 2992, Labor Code section 230 protected employees missing work without advance notice only where they promptly gave the employer a police report, evidence the employee appeared in court or medical certification that the employee was undergoing medical treatment for injuries.
Expanded Prohibition of Crime-Victim Status Discrimination
Employers will also be broadly prohibited from firing an employee or otherwise discriminating or retaliating against them because of the employee’s status as the victim of a crime or abuse, under amendments to section 230 made by AB 2992.
New Leave Obligations for Employers of 25 or More Employees
AB 2992 imposes additional new obligations on employers of 25 or more employees. Under the new provisions, employees who either are crime victims or have suffered the death of an immediate family member will be entitled to job-protected leave in order to: (1) seek medical attention for injuries caused by the crime or abuse; (2) obtain services from a domestic violence shelter, program, rape crisis center or victim services organization or agency as a result of the crime or abuse; (3) obtain psychological counseling or mental health services related to the crime or abuse; or (4) participate in safety planning or take other actions to increase safety from future crime or abuse.
“Crime,” “victim” and “immediate family members” have the same meaning in Labor Code section 230.1, as amended, as they will in Labor Code section 230, as amended.
Prior to the signing of AB 2992, employers of 25 or more employees were obligated to provide such job-protected leave to only employees subjected to domestic violence, sexual assault and stalking.
Where it violates Labor Code sections 230 or 230.1, an employer may be ordered to reinstate the employee and reimburse the employee for all lost wages and benefits. Employees and former employees may file their complaints of violations with the California Labor Commissioner.
Action Items to Consider
Employers should consider the following steps well before the changes made by AB 2992 become effective on January 1, 2021:
- Revise applicable policies and circulate them no later than January 1, 2021. In fact, Labor Code section 230.1 requires employers to “inform each employee of their rights” under that section and Labor Code section 230. Be on the lookout for a new notice form the Labor Commissioner should develop and release.
- Educate first line supervisors, managers and HR staff on these changes. A supervisor or manager who is unaware of these changes and takes action against an employee in violation of their new rights may prove costly to the company.
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