September 6, 2017 -- Client Alert
On September 14, 2016, the Governor signed AB 2337 into law. While AB 2337 became effective on January 1, 2017, the new law did not require employers to comply with its notice requirements until the Labor Commissioner developed and posted a model notice on the Department of Industrial Relations’ website. Employers could then use the model notice to inform their employees of their rights under Section 230.1. The Labor Commissioner’s Office posted the model notice in May 2017. This client alert provides an update on the amended law and the new notice requirement placed on supervisors.
The California Labor Code Sections 230 and 230.1 prohibit employers from discharging, discriminating, or retaliating against an employee who is a victim of domestic violence, sexual assault, or stalking, for taking time off from work to address such domestic violence, sexual assault, or stalking. AB 2337 amended Labor Code Section 230.1 to specify the existing requirements and to require employers to inform each employee of these rights by providing specific information to them in writing. The California Division of Labor Standards Enforcement (DLSE) through the Labor Commissioner’s Office has published a notice form that employers may use to satisfy the written notice requirements of the new law
Employers with 25 or more employees must provide new hires, and other employees who ask, written notice of their rights as a victim of domestic violence, sexual assault, and/or stalking. The employer is prohibited from discriminating against an employee who is a victim of domestic violence, sexual assault, or stalking, for taking time off from work to seek medical attention or services such as counseling, for participating in safety planning, or for obtaining services from a domestic violence shelter, program, or rape crisis center.
Employees who are victims may use available vacation, personal leave, accrued paid sick leave, or compensatory time off unless an employee is covered by a collective bargaining agreement that provides for different rights regarding use of leave. The law does not expand an employee’s right to unpaid leave past that provided in the federal FMLA. An employee without available leave may still take time off for such purposes. Note that employees have a right to request, as a reasonable accommodation, that employers make changes in the workplace to ensure their safety.
As a condition of taking time off for the purposes set forth in this law, 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.” In the event of an unscheduled absence due to these reasons, “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.” (Labor Code §§ 230.1(b)(1-2)).
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 Labor Code Section 230.1 is entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer, as well as appropriate equitable relief. 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.
Links to Notice
You will find website links below to the Labor Commissioner’s approved form of Notice for your reference. We recommend using the form provided by the Labor Commissioner since it has been approved as satisfying the requirements of the new law.
For further information, please contact Colin J. Tanner, Pam K. Lee, Laura A. Walker or Tommi Saghatelian from Aleshire & Wynder, LLP’s Labor & Employment Practice Group at (949) 223-1170.
Disclaimer: Aleshire & Wynder, LLP legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Please seek legal advice before acting or relying upon any information in this communication.