“Crime Victims Leave” – Are California workers entitled to it?

Crimes victims leave is time off from work granted to people in California who are victims of a crime. There are two variations of this leave:

1. victim’s leave for judicial proceedings related to the crime; and
2. leave for any proceeding involving victims’ rights.

Both are similar and in many cases provide for the same rights to take unpaid leave when a crime has been committed against an employee.

Who is considered a “victim?”

A person is a victim under the law if:

• he or she suffers
• physical, psychological, or financial harm
• as a result of the commission or attempted commission of a crime or delinquent act.

A victim also includes that person’s immediate family member or guardian, including:

• spouse or domestic partner,
• parent,
• child, or
• sibling.

The term is defined broadly under state law to grant entitlement to nearly any person who has been affected by a crime.

Notification Requirements

California law requires that employees provide reasonable advance notice of the intent to take leaves of absence from work unless reasonable advance notice is not possible.

If an employee misses work and that absence is unscheduled, the employer has the right to ask for certification of the event which caused the employee to miss work.

No Discrimination or Retaliation

An employer is not allowed to:

• demote,
• wrongfully terminate,
• refuse to rehire,
• fail to promote,
• suspend, or
• in any other way discriminate against the employee for taking leave.

If the employer violates the law by committing one of these acts, the employer is guilty of a California misdemeanor. Additionally, an employment attorney can file a claim with the Division of Labor Standards Enforcement of the Department of Industrial Relations on your behalf.

Below, our California employment and labor lawyers discuss the following frequently asked questions about California workplace leave laws for crime victims:

• 1. Are victims of crime entitled to leave in California?
• 2. What crimes are covered?
• 3. Do I have to notify my employer if I take leave?
• 4. Am I entitled to pay while I am off work?
• 5. Can an employer punish me for taking time off work?
• 6. What if my employer violated my rights?
• 7. How does AB 2992 affect crime victim leave laws?

1. Are victims of crime entitled to leave in California?

California law provides two different forms of crime victims leave:

1. for judicial proceedings related to the crime; and ¹
2. for any proceeding involving the victim’s rights. ²

Both are largely similar, and this article will reference all of the rights you have under both laws.

2. What crimes are covered?

Under the two forms of protected leave, the types of crimes included are:

• a violent felony
• a serious felony
• a felony provision of law proscribing theft or embezzlement
• 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
• hit-and-run causing death or injury
• felony driving under the influence causing injury; and
• sexual assault. ³

Many different crimes are covered under California law, and the definition of “crime” is intended to be broad. Victims have eligibility for coverage in many different situations.

3. Do I have to notify my employer if I take leave?

An employee is required to give his or her employer reasonable advance notice – such as to Human Resources – if he or she intends to take time off from work. If advance notice is not feasible, it is not required.⁴

If the time taken off work is unexpected or an unscheduled absence – like in a crisis situation – an employer may require certain written documentation to show that the employee was the victim of a crime. Proof can include:

• a police report from a law enforcement agency regarding the incident of domestic violence or sexual assault;
• a court order which separates the employee from the alleged perpetrator, or other documents from the court; or
• documentation from a medical professional such as a doctor, domestic violence advocate, health care provider, or a therapist providing psychological counseling.

An employee is not required to prove that a crime has occurred as part of the advance notice.

If the leave would cause the employer undue hardship, the victim may tell the prosecuting attorney in the case. Then the court hearing may be rescheduled.

4. Am I entitled to pay while I am off work?

Employees are not guaranteed the right to a continued paycheck by law. However, certain union or employment agreements may guarantee the right to pay during such times. To receive a paycheck, California law allows employees to use any accrued:

• vacation days,
• personal leave, or
• compensatory time.

5. Can an employer punish me for taking time off work?

No. It is illegal for an employer to punish an employee for taking reasonable time off work under these circumstances.

Employers may not:

• demote,
• wrongfully terminate,
• refuse to rehire,
• fail to promote,
• suspend, or
• in any other way discriminate against the employee for taking leave.

Abuse of an employee for taking needed time off from work can come in many forms. If you have questions about how you were treated, an experienced employment attorney can tell you if your rights were violated.

6. What if my employer violated my rights?

If an employer illegally acts against an employee because of the use of crime victims leave, the employee may file a claim with the Division of Labor Standards Enforcement of the Department of Industrial Relations.

The Division will review the employee’s claim for illegal actions on the part of the employer. If the employee’s rights were violated, he or she may be entitled to:

• reinstatement,
• reimbursement for lost wages, and
• reimbursement for work benefits.

The employer may also be found guilty of a misdemeanor. ⁵

7. How does AB 2992 affect crime victim leave laws?

The 2020 California Assembly Bill 2992 expands protections for crime victims in the following three ways:

1. Employers are now prohibited from discharging, discriminating, or retaliating against victims of any misdemeanor or felony crime – not just domestic violence, stalking, or rape – for taking time off work to obtain relief (such as getting a restraining order).
2. Employees can now use documentation by a victim advocate to show the employer why the absence to obtain relief was necessary. Alternatively, employees can now use a written statement signed by themselves (or someone representing them) as documentation. Prior to the new law, the only forms of acceptable documentation included police reports, court orders, and reports from health care providers or counselors.
3. Businesses employing 25 or more people now cannot fire or retaliate against crime victims for missing work to obtain services from a victim services organization or agency. This is a broadening of the prior law, which specified services from only domestic violence shelters and rape crisis centers. ⁶