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Crime Victim's Leave

All employers must grant leave for employees who meet the requirements for crime victims’ leave so the employees can attend judicial proceedings. Beginning in January of 2014, new protections were added for crime victims to attend any proceeding in which the right of the victim is at issue. There are now two types of crime victims leave — victim leave for judicial proceedings related to specified serious crimes and, as of January 1, 2014, leave for any proceeding involving victims' rights.​​​​

Victims' Leave for Judicial Proceedings Related to the Crime. Labor Code section 230.2 prohibits an employer from discriminating against an employee who is a crime victim for taking time off to appear in court to attend judicial proceedings related to the crime. The employee can take the leave after providing notice of the scheduled proceeding; such notice is provided to victims by the courts, prosecuting offices or victim advocate offices. The leave can be of any length. However, the time off from work must be used to attend judicial proceedings related to a:

• Violent felony
  
• Serious felony
  
• Felony theft or felony embezzlement
  

An employee who is a victim of one of these serious crimes or whose immediate family member is a crime victim can take time off to attend judicial proceedings related to that crime. Employers may not discharge or discriminate against an employee who is absent to attend judicial proceedings related to a crime. This protection extends to compensation or other terms, conditions or privileges of employment. It also includes protection of seniority. You must allow an employee to take time off from work to attend judicial proceedings related to one of these serious crimes if the employee is:

• A victim of a crime
  
• A crime victim’s immediate family member
  
• A crime victim’s registered domestic partner
  
• A child of a registered domestic partner who is a crime victim
  
• Immediate family members include the employee’s:
  
• Spouse
  
• Child or stepchild
  
• Brother or stepbrother
  
• Sister or stepsister
  
• Mother or stepmother
  
• Father or stepfather

Leave for Any Proceeding Involving Victims' Rights. Effective January 1, 2014, Labor Code section 230.5 is added, providing new protections for crime victims to take time off from work, at the victim’s request, to appear in court to be heard at any proceeding in which a right of the victim is at issue. Labor Code section 230.5 prohibits an employer from discriminating against an employee who takes such time off.​
Unlike the leave under section 230.2, this leave can be initiated at the victim’s request and does not need to be initiated by a notice from a government agency. For this particular leave, you are required to provide time off from work to a “victim” which is defined as “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 a delinquent act.”  A victim includes various family members’ for whom you will have to provide leave. A victim also includes the person’s:

• Spouse
  
• Parent
  
• Child
  
• Sibling
  
• Guardian
  

The leave can be of any length. The employee must be a victim, as defined above, of one of the following covered offenses:

• Vehicular manslaughter while intoxicated
  
• Felony child abuse likely to produce great bodily harm or a death
  
• Assault resulting in the death of a child under eight years of age
  
• Felony domestic violence
  
• Felony physical abuse of an elder or dependent adult
  
• Felony stalking
  
• Solicitation for murder
  
• A serious felony, such as kidnapping, rape or assault
  
• Hit-and-run causing death or injury
  
• Felony driving under the influence causing injury
  
• Specified sexual assault
  

An employee who is a victim of one of these crimes can take time off to attend proceedings related to that crime. The law protects time off to attend any “proceeding,” including any delinquency proceeding, involving a post-arrest release decision, plea, sentencing, post-conviction release decision; or any proceeding in which a right of the victim is at issue. Employers may not discharge, demote, suspend, discriminate or retaliate against an employee who is absent to appear in court to be heard at any proceeding in which a right of the victim is at issue. This protection extends to compensation or other terms, conditions or privileges of employment. 

Documentation of Victims’ Leave for Judicial Proceedings Related to the Crime. Before taking leave to attend the judicial proceeding, the employee must give you a copy of the notice of each scheduled proceeding. These notices are provided to the victim by the pertinent government agency. Documentation can come from any of the following sources:

• The court or government agency setting the hearing
  
• The district attorney or prosecuting attorney’s office
  
• The victim or witness assistance office advocating on the victim’s behalf
  

When advance notice is not feasible, or if an unscheduled absence occurs, you cannot take action against the employee if he/she, within a reasonable time after the absence, provides documentation from one of the above sources confirming the judicial proceeding.

Rights of Employees Using Victims’ Leave for Judicial Proceedings Related to the Crime. Employees can use accrued sick time, vacation, personal leave or PTO for victims’ leave to attend judicial proceedings related to the crime. An employee can also use unpaid leave time. Leave cannot be reduced by any collective bargaining agreement term or condition. Records regarding the employee’s absence from work for this purpose are to be confidential. All employers are prohibited from discharging, discriminating or retaliating against an employee who takes time off from work to appear in court to comply with a subpoena or other court order as a witness in any judicial proceeding. You cannot terminate or discriminate against an employee who is absent to attend judicial proceedings related to a crime. The employee is entitled to the conditions and privileges of employment, including seniority. An employee who is denied his/her rights under this victims’ leave law can file a complaint with the DLSE within one year from the date that the violation occurred. If you must lay off an employee who takes crime victims’ leave, the employee has the same rights and seniority as if he/she had been at work. If you must terminate or lay off an employee who takes crime victims’ leave, consult legal counsel.

Documentation of Leave for Proceedings Involving Victims’ Rights. This type of leave can be taken at the victim’s request. However, before taking this type of leave, the employee must give you reasonable advance notice of his/her intention to take the time off. When advance notice is not feasible, or if an unscheduled absence occurs, you cannot take action against the employee if he/she, within a reasonable time after the absence, provides you with certification. Any one of the following forms will be sufficient:

• A police report indicating that the employee was a victim of one of the specified offenses
  
• A court order protecting or separating the employee from the perpetrator of one of the specified offenses.
  

Documentation verifying that the employee was undergoing treatment for physical or mental injuries or abuse as a result of being a victim of one of the specified offenses. Documentation must be accepted from a:

• Medical professional
  
• Domestic violence advocate
  
• Victims of sexual assault advocate
  
• Health care provider
  
• Counselor
  

Rights of Employees Using Leave for Proceedings Involving Victims’ Rights. Leave to attend proceedings involving victims’ rights is unpaid, but employees can use available vacation or personal leave while on leave. Unlike the leave under section 230.2, sick leave is not specifically included. Leave cannot be reduced by any collective bargaining agreement term or condition. You must maintain the confidentiality of any employee requesting this leave. You cannot terminate, discriminate or retaliate against an employee who is absent to attend judicial proceedings involving his/her victim rights. An employee who is denied his/her rights under this leave law can file a complaint with the Department of Labor Standards and Enforcement (DLSE) within one year from the date that the violation occurred.4A violation of this leave law entitles the employee to reinstatement and reimbursement for lost wages and work benefits. Refusal to reinstate someone wrongfully fired under this law is a misdemeanor.