The 12 days of California Labor & Employment Series – Day 4 "Domestic Violence, Sexual Assault and Stalking"

It's the end of the year and while everyone is busy, employers in California should be aware of new laws and regulations that go into effect on January 1, 2018. In the spirit of the season, we are using the next "12 days of the holidays" to blog about one California law a day and that law's impact on California employers. On the fourth day of Christmas, my Labor and Employment attorney gave to me – four calling birds and AB 2337.

For today's blog, we are discussing a law which was signed in 2016 by Governor Brown and became effective July 1, 2017. We thought it was important to remind California employers about this law to ensure they are in compliance. Prior to AB 2337 being enacted, California Labor Code Section 230.1 prohibited employers from discharging, discriminating or retaliating against an employee who is a victim of domestic violence, sexual assault or stalking for taking time off of work to seek medical attention from resulting injuries, obtaining services from a domestic violence shelter or rape crisis center, undergoing counseling or participating in safety planning. AB 2337 expanded the protections and also added a notice requirement to ensure employees are aware of their rights when it comes to domestic violence, sexual assault and stalking.

AB 2337 applies to employers with 25 or more employees. Under the law, employers are required to post a notice that is substantially similar in content and clarity to the Labor Commissioner's form or they are free to post the Labor Commissioner's form. If you create your own notice, the notice must:

1. Inform employees that they have the right to take time off to obtain a restraining order/court order, seek medical attention, seek services from a domestic violence shelter, program or rape crisis center, seek counseling, or receive safety planning related to domestic violence, sexual assault or stalking;
2. Inform employees that they can use available vacation, personal leave, accrued paid sick leave, or compensatory time off for such purposes, unless they are covered by a collective bargaining agreement which provides different leave uses;
3. Inform employees that even if they do not have paid leave, they still have the right to take time off;
4. Inform employees that, if possible, they should tell the employer before taking time off but that they cannot be disciplined if they do not give advance notice. Generally, employees do not have to provide employer proof to use leave for any of the reasons given;
5. Advise employees that they have a right to ask the employer for help or changes in the workplace to ensure the employee is safe at work. Changes might include putting in locks, changing an employee's shift or phone number, transferring or reassigning the employee or help with keeping a record of what happens to the employee. The employer is not allowed to discuss with your coworkers or anyone else;
6. Advise employees that they have the right to be free from retaliation and discrimination and that they cannot be discharged because they are a victim of domestic violence, sexual assault or stalking; and
7. Advise employees that they have the right to file a complaint with the Labor Commissioner's office if the employer discriminates against the employee.

What should an employer do to ensure they comply with AB 2337? Employers should review their employee handbooks to ensure the employee's rights to take time off for domestic violence, sexual assault or stalking are adequately set forth. The handbook should note that employees can take time off from work to get help to protect the employee or their children's health, safety or welfare or to obtain a restraining order or other court order. It should also expressly provide time off of work to receive medical attention or services from a domestic violence shelter, program or rape crisis center, psychological counseling or receive safety planning related to domestic violence, sexual assault or stalking. Finally, employers should remember to keep adequate records and to take any issue involving domestic violence, sexual assault and stalking victims seriously.