The Law
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Domestic Violence Defined
California (Penal Code 13700)(Penal Code 273.5)
Abuse means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to that person or another in physical violence or the threat of physical violence.
Domestic violence means abuse committed against an adult or a fully emancipated minor who is a spouse, former spouse, cohabitant, former cohabitant, or parent of a child (in common), or current or former dating or engagement relationship.
In California this definition has been interpreted by the courts to include emotional, verbal and psychological abuse, as well as stalking and coercive behavior.
Legal Compliance and Domestic Violence in the Workplace
Introduction
There are various federal and state laws, regulations, and remedies that organizations must follow to both protect their legal interests as well as to support their employees who are experiencing domestic violence. The below overview and Fact Sheets provided in the Appendix briefly describe these laws and regulations as they pertain to California employers as well as provide information on resources you may contact to learn more about protecting yourself and your employees.
Our appreciation goes to the Legal Aid Society - Employment Law Center (www.las-elc.org) for development of these educational materials.
Practices in the Field
1. Understand exceptions to the "at will" employment termination rule.
Generally employers can terminate employees "at will," meaning at any time for any reason, however there are exceptions to the "at will" rule. It is illegal for employers to terminate, retaliate or discriminate against employees due to any of the following reasons:
- an employee's race, sex, color, national origin, religion, gender, sexual orientation, gender identity, age, disability, pregnancy, medical condition, language (or accent), or marital status;
- in violation of a real or "implied" (employees have a reasonable expectation of continued employment) contract;
- in retaliation for employees enforcing their own legal rights (such as filing a claim for unpaid wages); or
- because an employee has reported you to a government agency or to the police.
2. Employees are entitled to job-protected time off from work to go to court.
Employees are entitled to take job-protected but unpaid time off from work to comply with a subpoena, testify in a case, or go to court to obtain a temporary restraining order, restraining order, or any other type of judicial relief to protect themselves or their family from domestic violence abuse. As an employer you cannot fire, retaliate or discriminate against an employee for taking this time off. Generally an employee is required to provide you with advance notice of her/his need to take time off. If your employee cannot provide advance notice, however, s/he is still protected for taking this time off if s/he can provide proof to you that s/he is a domestic violence survivor.
3. Employees may be entitled to job-protected time off from work to obtain domestic violence services.
If you employ 25 or more employees, your employees are entitled to take up to 12 weeks of job-protected but unpaid time off from work to obtain medical services, services from a domestic violence or sexual assault/rape crisis center, counseling, or to participate in safety planning, including staying in a shelter or moving. Employers cannot fire, retaliate or discriminate against employees for taking this time off. Generally employees are required to provide their employer with advance notice of their need to take time off. If an employee cannot provide advance notice, however, s/he is still protected for taking this time off if s/he provides proof to her/his employer that s/he is a domestic violence survivor.
4. Employees may be eligible for disability law protections and accommodations in the workplace.
If an employee has physical or mental health disabilities that were caused or exacerbated by domestic violence, s/he may be entitled to a workplace free of disability-based discrimination and harassment and may be eligible for workplace reasonable accommodations for her/his disability, including a reduced work schedule, a leave of absence from work, or a transfer to a vacant position. The California Fair Employment and Housing Act's reasonable accommodation and anti-discrimination provisions apply to employers with 5 or more employees, while the harassment provisions apply to employers with 1 or more employees.
5. Many workers can get 12 weeks of job-protected unpaid medical leave, with the right to return to work.
Under family/medical leave laws, an employee may be entitled to 12 weeks of job-protected but unpaid time off from work to care for a child, parent, spouse or registered domestic partner with a "serious health condition," or for her/his own "serious health condition," such as a condition that was caused or exacerbated by domestic violence abuse (or to "bond" with a newly born, adopted or foster child). Employers must maintain the employee's health benefits if s/he has them and must reinstate an employee to the same or an equivalent position upon return. To qualify:
- An employer must have 50 employees within a 75-mile radius of the employee's worksite;
- Employees must have worked at their job for at least one year; and
- Employees must have worked at least 1,250 hours during the previous 12 months.
Regardless of whether they meet the above employer-size or employment-length rules, workers who participate in the State Disability Insurance (SDI) Program are entitled to a maximum of six weeks of partial pay each year while taking time off from work to care for a seriously ill parent, child, spouse or registered domestic partner (or to bond with a new child). Additionally, California employees are entitled to use up to one-half of their annual sick leave time to attend to the illness of a family member.
6. Employees may be eligible for unemployment insurance if employees quit because of domestic violence.
If an employee quits to protect herself/himself or her/his family from domestic violence abuse, that employee may have "good cause" to receive benefits and the employer's reserve account will not be charged.
Resources
Please refer to the below Fact Sheets for additional information on legal considerations related to domestic violence.
(NOTE: These Fact Sheets were developed by Legal Aid Society - Employment Law Center to educate employees on their legal rights. While the language is oriented to an employee audience, the information captured is relevant to employers as well.)
- Job-Guaranteed time off to go to court (PDF)
- Job-guaranteed time off to obtain services (PDF)
- Paid Family Leave Benefit (PDF)
- Taking Leave for Your Own Health Condition (PDF)
- Taking Leave to Care For A Family Member (PDF)
- Unemployment Insurance If You Must Quit (PDF)
- Disabilities in the Workplace: An Introduction to State and Federal Laws (PDF)
For additional information, please contact
Domestic Violence and Employment Project of the Legal Aid Society -
Employment Law Center toll-free at (888) 864-8335.
Note: The intention of the information on this Web site is to provide accurate, general information regarding legal rights relating to employment in California. Because laws and legal procedures are subject to frequent change and differing interpretations, Blue Shield of California Foundation and the Legal Aid Society - Employment Law Center cannot ensure the information on this Web page is current nor be responsible for any use to which it is put. Do not rely on this information without consulting an attorney or the appropriate agency about you and your employees' rights in a particular situation.
