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May 26, 2020

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Now in Effect: California Employers Must Provide New Hires with Written Notice of Victim Rights

As reported in our new laws for 2017 post, employers must give written notice to new employees (and to current employees upon request) explaining the rights of victims of domestic violence, sexual assault and stalking. All California employers with at least 25 employees must be in compliance, effective July 1, 2017.

Labor Commissioner Sample Form

The California Labor Commission posted a sample form employers may use to comply with this new notice requirement. If an employer chooses not to use the sample form, the substitute notice must be substantially similar in content and clarity. As further described below, the form must include information explaining an employee’s right to take time off, right to reasonable accommodations, right to be free from discrimination and retaliation, and right to file a complaint.

Rights for Victims Provided by Labor Code Sections 230 and 230.1

The mandatory written notice must explain employee rights provided to victims of domestic violence, sexual assault or stalking.

  • Right to Time Off. Labor Code section 230.1 permits employees who are the victims of domestic violence, sexual assault or stalking to take time off to: protect their own or their children’s health, safety or welfare; obtain a restraining order or other court order; and get medical attention counseling or other services for themselves or their children. Employees may take unpaid leave or use paid time off benefits that may be accrued including vacation, PTO, personal leave, or paid sick leave.
  • Right to be Free from Discrimination/Retaliation. Labor Code section 230 prohibits an employer from discharging, or in any manner discriminating or retaliating against employees who are the victims of domestic violence, sexual assault or stalking and who take time off to obtain a restraining order, appear in court, or seek other forms of relief. If adverse action is taken against an employee in violation of sections 230 or 230.1, the employee is entitled to reinstatement and reimbursement for lost wages and work benefits.
  • Right to Accommodations/Interactive Process. Employers are required to engage in an interactive process that is timely and confidential. Employers must also provide reasonable accommodations which may include “safety measures, including a transfer, reassignment, modified schedule, changed work telephone, changed work station, installed lock, assistance in documenting domestic violence, sexual assault, or stalking that occurs in the workplace, an implemented safety procedure, or another adjustment to a job structure, workplace facility, or work requirement.”
  • Right to Complain. Employees also must be notified of their right to file a complaint with the California Division of Labor Standards Enforcement if the employer retaliates or discriminates against the employee for violating Labor Code sections 230 and 230.1.

Compliance Checklist

  • Ensure written notice is included with onboarding documents and a copy is provided to new employees on date of hire.
  • Make victims’ rights policies available to current employees.
  • Update your employee handbooks and policies. Include employee obligations like providing advance notice of the employee’s intention to take time off and providing proof or certification if the absence is unscheduled.
  • Revamp your interactive process procedures to include accommodations for victims. Employers may require a signed statement certifying the request is for a proper purpose, and may also request proof showing the need for an accommodation. Recertification of an employee’s need for accommodation is permitted every 6 months.
  • Train managers and supervisors about employer duties and the protections afforded to employees who are the victims of domestic violence, sexual assault or stalking.
Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.

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About this Author

Justine M. Phillips Labor & Employment Attorney Shepard Mullin Law Firm San Diego
Special Counsel

Justine Phillips is a special counsel in both Data Privacy & Security and Labor and Employment Practice Groups in the firm's San Diego (Del Mar) office.

Areas of Practice

Justine focuses her practice on cybersecurity, data privacy, employment litigation and counseling, and commercial litigation. Justine takes a holistic approach to assist clients on everyday issues related to electronically stored information including: cyber risk management and mitigation; eWorkforce policies; compliance with data regulations; retention/destruction...

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Associate

Ms. English is an associate in the Labor and Employment Practice Group in the firm's Los Angeles office.

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