NEW CALIFORNIA LAWS RELATED TO DISCRIMINATION AND TIME OFF

John GarnerDMEC News

There are new laws in California that will be effective January 1, 2014 that should be of interest to human resource professionals.

AB 556 Fair Employment and Housing Act: military veterans

Existing law, the California Fair Employment and Housing Act (FEHA), protects and safeguards the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation.  FEHA applies to employers with 5 or more employees.

This new law adds “military and veteran status,” as defined, to the list of categories protected from employment discrimination under the act.  The law also provides an exemption for an inquiry by an employer regarding military or veteran status for the purpose of awarding a veteran’s preference as permitted by law.

SB 400 Employment protections: victims of domestic violence, sexual assault, or stalking

Existing law provides protections to victims of domestic violence or sexual assault.  Existing law prohibits an employer from taking adverse employment action against a victim of domestic violence or sexual assault who takes time off from work to attend to issues arising as a result of the domestic violence or sexual assault, as long as the employee complies with certain conditions.  Existing law entitles an employee who is discriminated or retaliated against in the terms and conditions of employment by his or her employer because the employee has taken time off for specified purposes, to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer.  Under existing law, 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.  Existing law authorizes an employee who is discharged, threatened with discharge, demoted, suspended, or otherwise discriminated or retaliated against by his or her employer in violation of these provisions to file a complaint with the Division of Labor Standards Enforcement of the Department of Industrial Relations.

This new law extends these protections to victims of stalking.  The law also prohibits an employer from discharging or in any manner discriminating or retaliating against an employee because of the employee’s status as a victim of domestic violence, sexual assault, or stalking if the victim provides notice to the employer of the status or the employer has actual knowledge of the status.  The law also requires the employer to provide reasonable accommodations that may include the implementation of safety measures or procedures for a victim of domestic violence, sexual assault, or stalking.

SB 288 Employment protections: time off

Existing law prohibits an employer from discharging or in any manner discriminating against an employee for taking time off to serve on a jury, an employee who is a victim of a crime for taking time off to appear in court as a witness in any judicial proceeding, or an employee who is a victim of domestic violence or a victim of sexual assault for taking time off from work to obtain or attempt to obtain prescribed relief.

Existing law entitles an employee who is discriminated or retaliated against in the terms and conditions of employment by his or her employer because the employee has taken time off for specified purposes to reinstatement and reimbursement for lost wages and benefits caused by the acts of the employer.  Under existing law, 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.  Existing law authorizes an employee who is discharged, threatened with discharge, demoted, suspended, or otherwise discriminated or retaliated against by his or her employer in violation of these provisions to file a complaint with the Division of Labor Standards Enforcement of the Department of Industrial Relations.

This new law additionally prohibits an employer from discharging or in any manner discriminating or retaliating against an employee who is a victim of specified offenses 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.  The law also extends protections, including, but not limited to, reinstatement and reimbursement, to an employee who is a victim of specified offenses for taking time off from work to appear at such a court proceeding.  The offenses include all of the following:

  • Vehicular manslaughter while intoxicated
  • Felony child abuse likely to produce great bodily harm or a death
  • Assault resulting in the death of a child under eight years of age
  • Felony domestic violence
  • Felony physical abuse of an elder or dependent adult
  • Felony stalking
  • Solicitation for murder
  • A serious felony
  • Hit-and-run causing death or injury
  • Felony driving under the influence causing injury
  • Sexual assault

As a condition of taking time off, the employee must give the employer reasonable advance notice of the employee’s intention to take time off, unless the advance notice is not feasible.  When an unscheduled absence occurs, the employer must not take any action against the employee if the employee, within a reasonable time after the absence, provides a certification to the employer.  Certification in the form of any of the following is considered sufficient:

  • A police report indicating that the employee was a victim of an offense specified
  • A court order protecting or separating the employee from the perpetrator of an offense specified, or other evidence from the court or prosecuting attorney that the employee has appeared in court.
  • 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

AB 11 Employees: reserve peace officers and emergency rescue personnel

Existing law requires an employer employing 50 or more employees to permit an employee who is a volunteer firefighter to take temporary leaves of absence, not to exceed an aggregate of 14 days per calendar year, for the purpose of engaging in fire or law enforcement training.

This new law revises these provisions to require those employers to permit an employee who performs emergency duty as a volunteer firefighter, reserve peace officer, or as emergency rescue personnel to take the leave of absence for the purpose of engaging in fire, law enforcement, or emergency rescue training.

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