Leaves of Absence for Victims of Crimes

Prior to 2004, while existing law enabled employees to take time off to appear in court if summoned as a witness and for parents to take time off from work to care for an unwell child without fear of retaliation from employers, there was no similar protection under existing law for parents who needed to take time off from work when their child was the victim of a crime. Family members of crime victims were sometimes placed in the unenviable position of having to choose between their jobs or participating in the judicial process. The Office of the Attorney General (AG) sponsored Senate Bill No. 478 to change that situation. The AG cited several cases that demonstrated the necessity to protect parents who needed to take time off from work when their child was the victim of crime. For example, in the case of Ms. Danella George, her son Carl, an eighth-grader in the Tustin Unified School District, was murdered. Her son was taken to a secluded spot and shot three times in the head by two teenagers who police theorized shot Carl because they wanted to keep the expensive sound equipment he had loaned them. After her employer, the U.S. Forest Service, denied her a leave of absence without pay to attend the trial and assist in the investigation, Ms. George lost her job and ultimately lost her home. There is the belief that for a victim-survivor, participating in the criminal justice system is an important part of the recovery process. Family members, by attending the criminal trial, can better empathize with what happened to the victim-survivor and better help their loved one or themselves to recover from the experience. While the California Chamber of Commerce opposed the bill as “an unnecessary and enormously broad new leave program,” fortunately for employees the bill came into law effective January 1, 2004. Senate Rules Committee, Office of Senate Floor Analyses, 3^rd reading analysis of Senate Bill No. 478 (2003-2004 Regular Session) as amended April 30, 2003.

Employers now must allow "an employee who is a victim of a crime, an immediate family member of a victim, a registered domestic partner of a victim, or the child of a registered domestic partner of a victim to be absent from work in order to attend judicial proceedings related to that crime." California Labor Code section 230.2(b).

The term “immediate family member” is defined as "spouse, child, stepchild, brother, stepbrother, sister, stepsister, mother, stepmother, father, or stepfather." California Labor Code section 230.2(a)(1).

Victim is defined as "a person against whom one of the following crimes has been committed.”

• A violent or serious felony (including murder, attempted murder, manslaughter, rape, arson, robbery, kidnapping, and carjacking)
• A felony provision of law proscribing theft or embezzlement. California Labor Code section 230.2(a)(3).

Before being absent from work to attend a judicial proceeding related to a crime as described above, the employee must give advance notice by giving the employer a copy of the notice of the scheduled proceeding unless advance notice is not feasible. If advance notice is not feasible, the employee must later provide the employer with documentation evidencing the judicial proceeding. California Labor Code section 230.2(c).

An employee who is absent from work to attend a judicial proceeding concerning a victim of crime as described above, may use his or her accrued paid vacation time, personal leave time, or sick leave time, if any, so that the employee will not lose income. California Labor Code section 230.2(d).

The employer must keep confidential any records regarding the employee’s absence from work” to attend a judicial proceeding related to a crime. California Labor Code section 230.2(e).

An employer “may not discharge from employment or in any manner discriminate against an employee, in compensation or other terms, conditions, or privileges of employment, including, but not limited to the loss of seniority or precedence, because the employee is absent from work pursuant to this section.” California Labor Code section 230.2(f).

An employee who has been discriminated against for attending a judicial proceeding related to a crime may file a complaint with the Division of Labor Standards Enforcement of the Department of Industrial Relations. The employee must do so within one year from the date of the occurrence of the violation. California Labor Code section 230.2(g). “’Violation’ includes a failure to comply with any requirement of the code.” California Labor Code section 22.

A related statute, California Labor Code section 230.5, prohibits an employer from discharging or discriminating or retaliating against an employee who is a victim of a criminal offense listed under section 230.5 “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 criminal offenses listed under section 230.5 include vehicular manslaughter, felony child abuse, felony domestic violence, felony stalking, solicitation for murder, hit-and-run causing death or injury, and sexual assault. The term “victim” for purposes of this statute is broadly defined to encompass those persons most affected by the crime and includes “any person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act” and it also includes “the person’s spouse, parent, child, sibling, or guardian.”

An employee who is discharged or discriminated or retaliated against by his or her employer because the employee took time off to appear in court for the reasons stated in section 230.5 is entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer. “Any 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.” California Labor Code section 230.5(c).

Neither California Labor Code section 230.2 nor section 230.5 limits application of the law to California state courts. Thus, these statutes should protect employees compelled to attend federal judicial proceedings.

If you have not been granted a leave in order to attend judicial proceedings related to a crime committed against you or an immediate family member, or if you have experienced negative treatment or termination from having taken a leave to attend such proceedings, contact the experienced attorneys at Kokozian Law Firm, APC. Ask about our free initial consultation.