Lesson Last Updated: October 8, 2024

Lesson Highlights

California has had laws on the books for quite awhile that provide workplace protections for employees who are victims of crime or abuse. However, in September 2024, Governor Gavin Newsom passed a new law, redefining who is entitled to protection and making other improvements to existing legal framework. This includes repealing some of the existing law around victims’ rights in employment contexts.

Of course, this means you’ll need to make updates to existing policies to remain in compliance. Next steps we recommend are highlighted in yellow below. 

In this lesson, we'll cover the following topics:

• Basic explanation of what these legal changes do;
• Clarification on who is entitled to protection under the new law;  
• Clarification on the protections offered under the new law; 
• New protections for employees working for larger employers; and
• Reasonable accommodations.

Buckle up. This one’s going to be long. 

What’s Changed?

Under the existing Labor Code (as of 2024), employers are prohibited from discharging or discriminating against an employee because of the employee’s status as a victim of “crime or abuse” or for taking time off for certain purposes. That same Labor Code section also requires employers to provide reasonable accommodations for a victim of domestic violence, sexual assault, or stalking, who requests an accommodation for the safety of the victim while at work. [1] A second Labor Code section imposes additional requirements and prohibitions on employers that have 25 or more employees. [2] 

However, the new law (which takes effect on January 1, 2025) repeals and replaces these Labor Code sections as part of the Fair Employment and Housing Act (“FEHA”), which is actually part of the Government Code! That distinction is probably not particularly important sounding to the layman, but what this means is that this new law is enforceable by the Civil Rights Department (“CRD”). 

When a law is enforceable by the CRD, it means employees are then permitted to bring civil actions in court, rather than the Division of Labor Standards Enforcement, an administrative agency. It’s usually more stressful (and costly) for employers to deal with litigation in court than it is to deal with an administrative agency claim. This is purposeful, because it strengthens protections for employees. 

Who is Entitled to Protection Under the New Law?

As currently written, the Labor Code requires employers to provide time off for victims of “crime or abuse” in some parts, and for victims of “domestic violence, sexual assault, or stalking” in others. However, this new law replaces that terminology with “qualifying acts of violence” (“QAV”). This should streamline everything a bit more! 

QAV is defined as the following acts: “domestic violence; sexual assault; stalking; or any act, conduct, or pattern of conduct that includes (i) bodily injury or death to another; (ii) brandishing, exhibiting, or drawing a firearm or other dangerous weapon; or (iii) a perceived or actual threat to use force against another to cause physical injury or death.” It’s important to note that an act can be a QAV even if no one is arrested, prosecuted, or convicted for the act. 

If you have an employee handbook (and if you have employees, you really should), then you will need to make updates to your Crime Victim’s Leave policies to reflect this change (and all the other changes described in this update). You’ll also want to make changes to the verbiage of your paid sick days policy, as these laws do change that slightly. As a gentle reminder, this is the time of the year that usually necessitates a review/updates to your handbook; if you are diligent about updates each year, this can actually keep your overall costs for reviewing/updating lower in the long run. So please, be diligent!

What Protections Are Extended to Victims? 

The new law expands some of the protections that were already in place previously. First, employers are prohibited from:

• Discharging or in any manner discriminating against an employee for taking time off to serve as required by law on an inquest jury or trial jury, if the employee, prior to taking the time off, gives reasonable notice to the employer that the employee is required to serve.
• Discharging or in any manner discriminating or retaliating against an employee, including, but not limited to, an employee who is a victim, for taking time off to appear in court to comply with a subpoena or other court order as a witness in any judicial proceeding.
• Discharging or in any manner discriminating or retaliating against an employee who is a victim for taking time off from work to obtain or attempt to obtain any relief. Relief includes, but is not limited to, a temporary restraining order, restraining order, or other injunctive relief, to help ensure the health, safety, or welfare of the victim or their child.
• Discharging or in any manner discriminating or retaliating against an employee because of the employee’s status, or the employee’s family member’s status, as a victim if the employee provides notice to the employer of the status or the employer has actual knowledge of the status. “Family member” is defined to include: a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner (as those terms are defined under the California Family Rights Act, or “CFRA”); or a designated person, who does not need to be a blood relative, so long as their association with the employee is the equivalent of a family relationship. An employee may identify a “designated person” at the time they request leave, but the employer may limit an employee to one designated person per 12-month period.

When an employee needs to take 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. Feasibility is not defined, and like most situations, will be largely context specific. For example, if an employee knows that they will need time off to attend a court hearing, they will be given a subpoena in advance and will be able to give their employer notice of their time away from work. However, if the employee needs time off to seek an emergency temporary restraining order, then advance notice may not be feasible. 

So what happens if an employee no-shows to work as a result of a QAV? “When an unscheduled absence occurs, 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 upon request by the employer.” [1] The law clarifies that certification can include any of the following: 

• A police report indicating that the employee or a family member of the employee was a victim.
• A court order protecting or separating the employee or a family member of the employee from the perpetrator of the qualifying act of violence, or other evidence from a court or prosecuting attorney that the employee or a family member of the employee has appeared in court.
• Documentation from a licensed medical professional, domestic violence counselor, as defined in Section 1037.1 of the Evidence Code, a sexual assault counselor, as defined in Section 1035.2 of the Evidence Code, victim advocate, licensed health care provider, or counselor that the employee or a family member of the employee was undergoing treatment or seeking or receiving services directly related to the qualifying act of violence.
• Any other form of documentation that reasonably verifies that the qualifying act of violence occurred, including, but not limited to, a written statement signed by the employee, or an individual acting on the employee’s behalf, certifying that the absence is for a purpose authorized under this section.

To the extent allowed by law and consistent with any actions the employer needs to take to comply with the law, the employer must maintain the confidentiality of any employee requesting leave under this law. Asking an employee to furnish evidence or providing a certification under this section of FEHA does not waive any confidentiality or privilege that may exist between the employee or employee’s family member and a third party, like a doctor, so keep that in mind if an employee says they don’t want to provide you with a certification for their absence!

The question that we anticipate employers asking (and rightfully so) is: “where does it end?!” Well, the law says that employers may limit the total leave time taken to twelve (12) weeks total per year, if the leave being taken is because the employee is a victim of a QAV. This leave is allowed to run concurrently with any leave under the CFRA and the federal Family Medical Leave Act (“FMLA”), which basically means that this law does not provide an employee with a right to leave that exceeds that provided under the CFRA or FMLA–another win for employers.

If you anticipate use of this policy becoming a potential issue for your workplace, you need to be proactive about including language limiting use to twelve (12) weeks in your handbook policy. If you try to add it after someone has requested time off, it could create a big ol’ mess that we want you to avoid if possible. So again, this is a great time to get ahead of things and make your handbook updates! 

Expanded Protections for Employers Working for Larger Employers

An employer with twenty-five (25) or more employees is prohibited from discharging or in any manner discriminating or retaliating against an employee who is a victim or who has a family member who is a victim for taking time off from work for any of the following purposes:

• To obtain or attempt to obtain any relief for the family member. Relief includes, but is not limited to, a temporary restraining order, restraining order, or other injunctive relief, to help ensure the health, safety, or welfare of the family member of the victim.
• To seek, obtain, or assist a family member to seek or obtain, medical attention for or to recover from injuries caused by a qualifying act of violence.
• To seek, obtain, or assist a family member to seek or obtain services from a domestic violence shelter, program, rape crisis center, or victim services organization or agency as a result of a qualifying act of violence.
• To seek, obtain, or assist a family member to seek or obtain psychological counseling or mental health services related to an experience of a qualifying act of violence.
• To participate in safety planning or take other actions to increase safety from future qualifying acts of violence.
• To relocate or engage in the process of securing a new residence due to the qualifying act of violence, including, but not limited to, securing temporary or permanent housing or enrolling children in a new school or childcare.
• To provide care to a family member who is recovering from injuries caused by a qualifying act of violence.
• To seek, obtain, or assist a family member to seek or obtain civil or criminal legal services in relation to the qualifying act of violence.
• To prepare for, participate in, or attend any civil, administrative, or criminal legal proceeding related to the qualifying act of violence.
• To seek, obtain, or provide childcare or care to a care-dependent adult if the childcare or care is necessary to ensure the safety of the child or dependent adult as a result of the qualifying act of violence.

We mentioned the leave limit above for when the employee is the victim of a QAV, but what if their family member is the one who was victimized? In that case, regardless of the employer’s size, the employer generally may limit leave as follows:

• If an employee’s family member is a victim who is not deceased as a result of a crime, and the employee is not a victim, and the employee takes leave to assist in relocation purposes, the employer may limit the leave taken for that reason to five (5) days.
• If any employee’s family member is a victim who is not deceased as a result of crime, and the employee is not a victim, the employer may limit the total leave taken for any reason under this law to ten (10) days. 
• If an employee’s family member is a victim and is deceased as a result of a crime, leave cannot be limited as described above, and instead is subject to the twelve (12) week benefit that the employee would be entitled to if they were the victim themselves. 

Big takeaway here: discrimination or retaliation against any victim of a QAV (in any workplace) will get you into trouble. If a situation involving a victim of a QAV comes up in your workplace, that’s your signal to email your attorney before you act, or refrain from acting for too long! 

Reasonable Accommodations

The new law will require employers to provide reasonable accommodations to any employee who is (or who has a family member who is) a victim of a QAV and who requests an accommodation for the safety of the employee while at work. This dovetails with California’s Workplace Violence Prevention law, which went into effect in 2024. If you haven’t created this for your workplace yet or you don’t understand what this is, read more about it here!

The law clarifies that reasonable accommodations may include “the implementation of safety measures, including a transfer, reassignment, modified schedule, changed work telephone, permission to carry telephone at work, changed work station, installed lock, assistance in documenting domestic violence, sexual assault, stalking, or another qualifying act of violence that occurs in the workplace, an implemented safety procedure, or another adjustment to a job structure, workplace facility, or work requirement in response to domestic violence, sexual assault, stalking, or other qualifying act of violence, or referral to a victim assistance organization.” [1] 

An employer is not required to provide a reasonable accommodation to an employee who has not disclosed the employee’s status, or the employee’s family member’s status, as a victim, but once that has been disclosed to the employer, they must engage in a timely, good faith, and interactive process with the employee to determine effective reasonable accommodations.

In determining whether the accommodation is reasonable, the employer should consider an exigent circumstance or danger facing the employee or their family member. However, the law does not require the employer to undertake an action that constitutes an undue hardship. What’s an undue hardship? For the purposes of this law, an undue hardship means either of the two following scenarios: 

• An action requiring significant difficulty or expense, when considered in light of the following factors:
  • The nature and cost of the accommodation needed.
  • The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility.
  • The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities.
  • The type of operations, including the composition, structure, and functions of the workforce of the entity.
  • The geographic separateness or administrative or fiscal relationship of the facility or facilities. [2]
• An action that would violate an employer’s duty to furnish and maintain a place of employment that is safe and healthful for all employees as required under the Labor Code. [1]

Upon the request of the employer, an employee requesting a reasonable accommodation under this law can be required to provide the employer a written statement signed by the employee or an individual acting on the employee’s behalf, certifying that the accommodation is for a purpose authorized under this law. The employer may also request certification from an employee requesting an accommodation pursuant to this subdivision demonstrating the employee’s status, or the employee’s family member’s status, as a victim. Certification shall be sufficient in the form of any of the categories described above. 

An employer who requests certification pursuant to subparagraph is permitted to request recertification of an employee’s status, or an employee’s family member’s status, as a victim, or ongoing circumstances related to the qualifying act of violence, every six (6) months after the date of the previous certification.

Any verbal or written statement, police or court record, or other documentation provided to an employer identifying an employee or the employee’s family member as a victim must be maintained as confidential by the employer and must not be disclosed by the employer except as required by federal or state law or as necessary to protect the employee’s safety in the workplace. The employee must be given notice before any authorized disclosure. Make sure your personnel files are organized so that this information stays confidential! 

If circumstances change and an employee needs a new accommodation, the employee is allowed to request a new accommodation from the employer. Upon receiving the request, the employer shall engage in the interactive process all over again. And if an employee no longer needs an accommodation, the employee must notify the employer that the accommodation is no longer needed.

Last, but certainly not least, employers must not retaliate against employees for exercising their rights under this law. Remember, the burden of proof almost always lies on the employer to prove they’re not retaliating against employees, so play it safe and if you aren’t sure what to do in a situation where this law may be implicated, contact your attorney! 

This Lesson's Sources:

[1] Cal. Gov. Code § 12945.8

[2] Cal. Gov. Code § 12926