Domestic Violence/Crime Victims Now Covered Under the FEHA
Assembly Bill (“AB”) 2499, which took effect on January 1, 2025, expands the list of crimes for which employees can take time off and allows employees to take protected time off to assist family members who are victims of specified crimes.
AB 2499 broadens the definition of “victims” to include a victim of a “qualifying act of violence,” which means any of the following, regardless of whether anyone is arrested for, prosecuted for, or convicted of committing any crime including (1) domestic violence; (2) sexual assault; (3) stalking; or (4) an act, conduct, or pattern of conduct that of an individual that (i) causes bodily injury or death to another, (ii) exhibits, draws, brandishes, (iii) uses a firearm or other dangerous weapon, with respect to another, or (iv) makes a reasonably perceived or actual threat of use of force against another to cause physical injury or death.
Employees are permitted to use vacation, personal leave, and/or paid sick leave (“PTO”) that is available unless otherwise provided in a collective bargaining agreement.
Under AB 2499, Labor Code Sections 230 and 230.1 which encompass jury, court, and victim time off provisions, will be considered unlawful employment practices within the California Fair Employment and Housing Act (the “FEHA”) and will be enforced by the California’s Department of Civil Rights.
AB 2499 also requires employers to provide written notice of employees’ rights established under the bill (1) to new hires, (2) to all employees annually, (3) at any time upon request, and (4) any time the employer becomes newly aware that an employee or an employee’s family member is a victim.
Employers should also consult with their legal counsel to ensure that their current handbook and any related policies and practices are compliant with these upcoming new standards.
California Appeals Court Rules on Scope of the EFAA
As a reminder, in 2022 the federal Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“EFAA”) was signed into law by President Biden, which bans “forced” arbitration of sexual assault and sexual harassment disputes. Specifically, it renders pre-dispute arbitration agreements invalid and unenforceable with respect to any “case” relating to a sexual assault or sexual harassment dispute.
The California Court of Appeal in two recent decisions held that a plaintiff who brings a mix of sexual harassment and unrelated non-sexual harassment claims, for example, a claim for failure to pay wages, cannot be compelled to arbitration because at least one of the claims asserted in the “case” is a sexual assault or sexual harassment claim covered by EFAA.
In Doe v. Second Street Corp. and Liu v. Miniso Depot CA, Inc., the Court held that the EFAA gives plaintiffs the option to invalidate an entire arbitration agreement so long as they allege at least one act of sexual assault or sexual harassment occurring after March 3, 2022. The Court further held that individual wage and hour claims were exempt from the mandatory arbitration agreement under the EFAA because the plaintiffs alleged a variety of discrimination and retaliation claims, sexual harassment claims, and wage and hour violations.
Employers should ensure that they have effective policies and procedures in place, as well as employee and supervisor training to help recognize and prevent harassing conduct. Employers should also consult with their legal counsel to review their arbitration agreements to confirm any carveouts are sufficient following these decisions and to develop strategies to combat the anticipated increase in the tacking on of meritless sexual harassment claims onto wage and hour lawsuits in order to void enforceable arbitration agreements.
Don’t forget to register for Delfino Madden’s annual employment law update on January 28, 2025, from 11:30 a.m. to 1:00 p.m. Topics will include legislative changes, court opinions, and legal trends that will impact California workplaces in 2025 and beyond. Register here.
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Nothing in this blog is intended to constitute legal advice and your interactions with this blog do not result in the formation of an attorney-client relationship. All matters are different and, as such, nothing in this blog is intended to guarantee, warrant, or predict a specific outcome.
