The 12 Days of California Labor and Employment Series – Day 1 "Additional Protections for Victims of Violence"

The end of one thing is always the beginning of another. That also rings true for years end and new employment laws. It is time, once again, for all California employers to sit down, buckle up, and get ready for the 2025 employment law updates and changes.

For the first time since 2020, COVID-19 has dropped off the radar regarding new or changing employment laws. Workplace violence and safety, discrimination, and paid leave laws are at the top of the list as we enter 2025. Before we pop the champagne and say goodbye to 2024, it is time to reprise our annual review of key California labor and employment law developments.

In the spirit of the season, we are kicking off our annual "12 Days of the Holidays" blog series to address new California laws and their impact on employers. On the first day of the holidays, my labor and employment attorney gave to me a partridge in a pear tree and AB 2499. 

What is AB 2499?

AB 2499 is packed with various expansions of protections for victims of violence. First and foremost, there are currently three Labor Code Sections that provide protection to victims of certain crimes. AB 2499 repeals and replaces two of these Labor Code sections and amends the third one. 

With its repeal of these Labor Code provisions, AB 2499 shifts the existing rules to the Fair Employment and Housing Act ("FEHA") bringing claims under AB 2499 instead under the enforcement of the Civil Rights Department ("CRD").

In addition to that shift, AB 2499 expands:

• the type of crimes that qualify;
• the discrimination and retaliation provisions;
• the time off protections for both the employee and employer, and also creates required notices to employees.

What is Covered?

Currently, Labor Code 230 provides protection to victims of domestic violence, sexual assault, or stalking. AB 2499 creates a new term, "Qualifying Act of Violence," which expands the type of events warranting violence protections. "Qualifying Act of Violence" means any of the following, regardless of whether anyone is arrested for, prosecuted for, or convicted of committing any crime:

• Domestic violence;
• Sexual assault;
• Stalking;
• An act, conduct, or pattern of conduct that includes any of the following:

(i) In which an individual causes bodily injury or death to another individual;

(ii) In which an individual exhibits, draws, brandishes, or uses a firearm, or other dangerous weapon, with respect to another individual; and

(iii) In which an individual uses or makes a reasonably perceived or actual threat to use force against another individual to cause physical injury or death.

As of January 1, 2025, an employer must provide time off for victims of all defined qualifying acts of violence; it is not limited solely to domestic violence, sexual assault, or stalking any longer.

Discrimination and Retaliation Updates

Under the current law, an employer with 25 or more employees is prohibited from discriminating or retaliating against an employee, who is a victim, for taking time off from work to:

• seek medical attention for injuries caused by crime or abuse;
• obtain services from a domestic violence shelter, program, rape crisis center, or victim services organization or agency as a result of the crime or abuse;
• obtain psychological counseling or mental health services related to an experience of crime or abuse; or
• participate in safety planning and take other actions, including temporary or permanent relocation, to increase safety from future crime or abuse.

However, AB 2499 adds additional requirements for employers with 25 or more employees. Moving forward, an employer with 25 or more employees is prohibited from 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, including, but 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.

All employers, regardless of size, are still prohibited from discharging or discriminating against an employee who is a victim for taking time off from work to:

• serve as required by law on an inquest jury or trial jury; or
• appear in court to comply with a subpoena or other court order as a witness in any judicial proceeding; or
• obtain or attempt to obtain any relief, including, but 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.

Certification for Unscheduled Absence

Prior law held that an employer could not take any action against the employee if the employee provided a certification to the employer within a reasonable time after the absence. This remains the same with AB 2499.

The types of certification remain the same as well with the only difference being that the certification can now be for the victim or a family member. Previously, it could only be for the victim. The certification shall be in any of the following forms:

1. A police report indicating that the employee or a family member was a victim.
2. A court order protecting or separating the employee or a family member from the perpetrator of the qualifying act of violence or other evidence from the court or prosecuting attorney that the employee or a family member of the employee has appeared in court.
3. 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 receiving services directly related to the qualifying act of violence.
4. 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.

Employers should note that a family member, per AB 2499, is defined as a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner, as those terms are defined in Section 12945.2, or designated person.

Reasonable Accommodations

AB 2499 incorporated the current law regarding providing reasonable accommodations. The only significant changes to this section are that an employer must now also provide reasonable accommodations for an employee whose family member is a victim of a qualifying act of violence. It is no longer solely for when the employee is the victim. Similar to before, no reasonable accommodation is required if an employee has not disclosed the employee’s or the employee’s family member’s status as a victim.

Reasonable accommodations may include the implementation of safety measures, including:

• a transfer;
• a reassignment;
• a modified schedule;
• a changed work telephone;
• permission to carry telephone at work;
• a changed workstation;
• an 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 acts of violence;
• or referral to a victim assistance organization.

The only new accommodation created by AB 2499 is the permission to carry a telephone at work.

Use and Limits of Leave Time

Prior to AB 2499, an employee could use vacation, personal leave, or compensatory time off that was otherwise available to the employee under the applicable terms of employment, unless otherwise provided by a collective bargaining agreement, for time taken off due to crime or abuse.

With the enactment of AB 2499, an employee can now also utilize sick leave in addition to vacation, personal leave, or compensatory time off when there is a qualifying act of violence.

Additionally, AB 2499 sets a limit on total leave time taken. If the employee is the victim, the employee is allowed to take a total leave time of up to 12 weeks. This leave will run concurrently with any other leave available to the employee under the FMLA or CFRA.

If the victim is the employee’s family member, the employer may limit the total leave taken to five days for relocation or 10 days for any other eligible reason. However, if the employee’s family member is deceased due to the qualifying act of violence, the employee is entitled to a total leave time of up to 12 weeks. It is not limited to 10 days.

Notice Requirement

Lastly, AB 2499 requires that an employer inform each employee of their rights established under this section in writing. The information shall be provided to new employees upon hire, to all employees annually, at any time upon request, and any time an employee informs an employer that the employee or the employee’s family member is a victim.

The CRD has been tasked with developing a form that employers can utilize to provide the required notice. The CRD deadline for completion of this form is on or before July 1, 2025.

Employers are not required to comply with the notice requirement until the CRD posts the form on the department’s internet website. If an employer elects not to use the form developed by the department, the notice provided by the employer to the employees shall be substantially similar in content and clarity to that form developed by the department.

Moving Forward

AB 2499 takes effect on January 1, 2025. Since the law falls under the CRD's enforcement, employees will now be allowed to file civil claims in court rather than with the Division of Labor Standards Enforcement. This likely will increase litigation costs and perhaps lead to more lawsuits for employers.

Employers should follow these recommended next steps to mitigate these risks and ensure compliance with AB 2499:

• It is recommended that employers review their handbooks to ensure they are in compliance with the new law.
• In addition, employers should update their Workplace Violence Prevention Plan if needed.
• When an employer is made aware of a qualifying act of violence, it should pay close attention to time off requests and document the employee’s personnel file accordingly to ensure proper leave is provided.
• Employers should also carefully review any request for accommodation stemming from a qualifying act of violence and engage in the interactive process as required to avoid any missteps.

Is your business prepared for the significant changes to California labor and employment laws slated for 2025? Follow along for the next 11 days of our "12 Days of the Holidays" blog series, where we’ll provide an in-depth look at these crucial laws you need to know to ensure compliance in the upcoming year.