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Wise Employers Listen to Their Conscience

Posted by Nicole Liotine | Jan 24, 2014 | 0 Comments

By Rafael A. Icaza –

An employer's intuition will warn it not to make things difficult for employees who have to serve on a jury or have been the victims of crime.  Such fears are well placed.  Section 230 of the California Labor Code, for example, provides that employers “shall not discharge or in any manner discriminate against an employee for taking time off to serve as required by law on an inquest jury or trial jury. . . [And] neither shall employers discharge or in any manner discriminate or retaliate against an employee . . . who is a victim of a crime, for taking time off to appear in court to comply with a subpoena or other court order as a witness in any judicial proceeding.”  Domestic violence, sexual assault and stalking are crimes expressly covered under the statute.

Employees who are “discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated or retaliated against in the terms and conditions of employment [for taking time off or requesting or receiving a reasonable accommodation]. . . shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer.”  Such employees are also entitled to equitable relief and can file a complaint against their employer with the Labor Commissioner.  Under certain circumstances, an employer will be guilty of a misdemeanor for refusing “to rehire, promote, or otherwise restore an employee or former employee”.

As in employee disability cases, an employer must “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.”  “Reasonable accommodation” may include implementing safety measures, changing work telephones or work stations, installing locks or making other adjustments to a workplace.  The parties “shall engage in a timely, good faith, and interactive process . . . to determine effective reasonable accommodations.”

Also as in disability cases, Section 230 states that it “does not require the employer to undertake an action that constitutes an undue hardship on the employer's business operations”, as defined by Section 12926 of the Government Code.  But an employer would be extremely imprudent to refuse an action on such grounds without consulting legal counsel beforehand.

Employees also have obligations towards their employer under Section 230.  These obligations include:  Giving reasonable notice to their employer that they are required to participate in the judicial proceedings; Giving notice (unless the employer already has actual knowledge) of their status as victims of crime; Providing, upon request, signed statements certifying that the desired accommodation is for a purpose authorized by Section 230; and providing certifications demonstrating their “status as victim[s] of domestic violence, sexual assault, or stalking.” While it's legal and necessary to hold employees to their legal obligations, an employer should be thoughtful and sensitive towards its employees.  Otherwise it might not just be their conscience that bothers them, but the Labor Commissioner or its employees' counsel.

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