Bill S5954-2013

Relates to the entitlement to unpaid leave of absence for victims of domestic violence

Relates to the entitlement to unpaid leave of absence for victims of domestic violence; permits victims of domestic violence to take an unpaid leave of absence for twenty days from employment to address on-going domestic violence; defines "address on-going domestic violence"; contains provision to protect the individual's job position and benefits.

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  • Jan 8, 2014: REFERRED TO LABOR
  • Oct 11, 2013: REFERRED TO RULES

Memo

BILL NUMBER:S5954

TITLE OF BILL: An act to amend the labor law, in relation to the entitlement to unpaid leave of absence from employment for victims of domestic violence

PURPOSE:

To provide medical leave for victims of domestic violence or sexual abuse, or for parents of child that was a victim of domestic violence or sexual abuse, or needs counseling for such domestic violence or sexual abuse.

SUMMARY OF PROVISIONS:

Section 1: Provides for the creation of a new section 19-D of the labor law, which defines terms, creates an entitlement to medical leave for victims of domestic violence or sexual abuse, provides parameters for the grant and use of such leave, and provides a right to return to a position from which an employee takes a medical leave because such employee was a victim of domestic violence or sexual abuse.

Section 2: Provides the act shall take effect ninety days after it shall have become law.

JUSTIFICATION:

Domestic violence,: often defined as mental or physical abuse at the hands of an intimate partner, affects the victims' ability to work. In 2008, in the United States, intimate partners committed approximately 552,000 violent crimes against women, including 35,690 rapes or sexual assaults, 38,820 robberies, 70,550 aggravated assaults, and 406,530 simple assaults.* Notwithstanding the prevalence of domestic violence across demographic categories, it is overwhelmingly a crime perpetrated against women. Women are far more

likely than men to be victims of domestic violence; the rate of intimate partner victimization per 1,000 persons is 4.3 for women compared with 0.8 for men.**

More broadly, African-American, Latina, and other minority women experience a heightened risk of domestic abuse. The victimization of minority women is exacerbated by the institutionalized under-protection and discrimination by the police. Law enforcement's failure to adequately investigate and respond to reports of violence -- particularly domestic violence -involving minority and immigrant women is often influenced by racial and ethnic stereotypes. In addition, such stereotyping often results in underreporting of violence and in disproportionate arrests of female victims rather than, or in addition to, their perpetrators.

In addition, every year, according to Safe Horizons,*** more than 3 million children witness domestic violence in their homes. Children who live in homes where there is domestic violence also suffer abuse or neglect at high rates (30% to 60%). A 2005 Michigan study found that children exposed to domestic violence at home are more likely to

have health problems, including becoming sick more often, having frequent headaches or stomachaches, and being more tired and lethargic.****

It has been found that victims of domestic violence lose an average of 137 hours of work a year. Some victims need time off from work to seek medical attention; others need time to seek restraining orders, or relocate to a safe place where an abuser cannot find for further victimize them. Other victims are prevented from getting to work when an abuser disables or takes the car, sabotages childcare arrangements, cancels service to or steals a cell phone, or leaves the victim without cash to use public transportation.

These problems have led a number of states to pass domestic violence leave laws, which give victims of domestic violence the right to take time off for certain reasons. New Jersey signed its Domestic Violence Leave Act into law in October of 2013 Other states with similar laws include but are not limited to: California, Florida, Illinois, Washington and Washington, D.C.

While state laws providing employment rights for victims of domestic violence are not uniform, there is a clear trend toward awarding medical leave for victims of domestic violence and sexual abuse. It is time New York provided these victims with greater protections, similar to those done it its sister states.

LEGISLATIVE HISTORY:

None. It is a new bill.

FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE:

This act shall take effect ninety days after it shall have become law.

*See 1CPR "Shadow Report" submitted to the United Nations Human Rights Committee, https://www.legalmomentum.org/resources/iccpi-shadow -report-domestic-violence-gun-violence-and-syg-laws-sept-2013, last visited October 8, 2013, citing from the U.S. Justice Department report, Catalano, S., et al, U.S.Dept of Just., Female Victims of Violence (Sept. 2009), http://bjs.ojp.usdoj.gov/content/pub/pdf/fvv.pdf (Table 1 Violence by intimate partners, by type of crime and gender of the victims, 2008)

** Id

*** See, httpliwww.safehorizon.org/index/what-we-do-2/domestic-violence-abuse53/domestic-violence-the-facts.195.html, last visited October 8, 2013.

****Id.


Text

STATE OF NEW YORK ________________________________________________________________________ 5954 2013-2014 Regular Sessions IN SENATE October 11, 2013 ___________
Introduced by Sen. PARKER -- read twice and ordered printed, and when printed to be committed to the Committee on Rules AN ACT to amend the labor law, in relation to the entitlement to unpaid leave of absence from employment for victims of domestic violence THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. The labor law is amended by adding a new article 19-D to read as follows: ARTICLE 19-D UNPAID LEAVE OF ABSENCE FOR VICTIMS OF DOMESTIC OR SEXUAL VIOLENCE SECTION 696. DEFINITIONS. 696-A. ENTITLEMENT TO LEAVE. 696-B. LEAVE TAKEN INTERMITTENTLY OR ON REDUCED LEAVE SCHEDULE. 696-C. NOTICE OF INTENTION TO TAKE LEAVE. 696-D. CERTIFICATION. 696-E. CONFIDENTIALITY. 696-F. RESTORATION TO POSITION. 696-G. PROHIBITED ACTS. 696-H. CIVIL ACTION. 696-I. SAVINGS CLAUSE. S 696. DEFINITIONS. AS USED IN THIS ARTICLE: 1. "VICTIM OF DOMESTIC OR SEXUAL ABUSE" SHALL MEAN A VICTIM OF DOMES- TIC VIOLENCE, A SEX OFFENSE, OR STALKING. 2. "VICTIM OF DOMESTIC VIOLENCE" SHALL MEAN AN INDIVIDUAL WHO IS A VICTIM OF AN ACT WHICH WOULD CONSTITUTE A FAMILY OFFENSE PURSUANT TO SUBDIVISION ONE OF SECTION EIGHT HUNDRED TWELVE OF THE FAMILY COURT ACT. 3. "VICTIM OF A SEX OFFENSE" SHALL MEAN A VICTIM OF AN ACT OR ACTS THAT WOULD CONSTITUTE A VIOLATION OF ARTICLE ONE HUNDRED THIRTY OF THE PENAL LAW.
4. "VICTIM OF STALKING" SHALL MEAN A VICTIM OF AN ACT OR ACTS THAT WOULD CONSTITUTE A VIOLATION OF SECTION 120.45, 120.50, 120.55 OR 120.60 OF THE PENAL LAW. 5. "EMPLOYEE" SHALL MEAN A PERSON WHO IS EMPLOYED FOR AT LEAST TWELVE MONTHS FOR NOT LESS THAN ONE THOUSAND BASE HOURS DURING THE IMMEDIATELY PROCEEDING TWELVE MONTH PERIOD. 6. "EMPLOYER" SHALL MEAN A PERSON OR CORPORATION, PARTNERSHIP, INDI- VIDUAL PROPRIETORSHIP, JOINT VENTURE, FIRM OR COMPANY, OR OTHER SIMILAR LEGAL ENTITY WHICH ENGAGES THE SERVICES OF AN EMPLOYEE AND EMPLOYS TWEN- TY-FIVE OR MORE EMPLOYEES FOR EACH WORKING DAY DURING EACH OF TWENTY OR MORE CALENDAR WORK WEEKS IN THE THEN CURRENT OR IMMEDIATELY PRECEDING CALENDAR YEAR. "EMPLOYER" INCLUDES THE STATE, ANY POLITICAL SUBDIVISION THEREOF, AND ALL PUBLIC OFFICES, AGENCIES, BOARDS OR BODIES. S 696-A. ENTITLEMENT TO LEAVE. ANY EMPLOYEE OF AN EMPLOYER IN THE STATE WHO IS A VICTIM OF DOMESTIC OR SEXUAL VIOLENCE SHALL BE ELIGIBLE FOR TWENTY DAYS OF UNPAID LEAVE FROM THEIR EMPLOYMENT DURING ANY TWELVE MONTH PERIOD IN ORDER TO ADDRESS DOMESTIC OR SEXUAL VIOLENCE OR ONGOING EFFECTS OF SUCH DOMESTIC OR SEXUAL VIOLENCE, INCLUDING BUT NOT LIMITED TO: 1. SEEKING MEDICAL ATTENTION FOR, OR RECOVERING OR TAKING CARE OF THE VICTIM'S CHILD WHILE THE CHILD RECOVERS FROM, ANY PHYSICAL OR PSYCHOLOG- ICAL INJURIES CAUSED BY THE DOMESTIC OR SEXUAL VIOLENCE; OR 2. ATTENDING COUNSELING SESSIONS FOR THE VICTIM OF DOMESTIC OR SEXUAL VIOLENCE OR FOR SUCH VICTIM'S CHILD IN ORDER TO DEAL WITH THE EFFECTS OF THE DOMESTIC OR SEXUAL VIOLENCE; OR 3. SEEKING LEGAL ASSISTANCE INCLUDING ATTENDING COURT PROCEEDINGS OR MEETING OR COMMUNICATING WITH AN ATTORNEY OR A MEMBER OF LAW ENFORCE- MENT; OR 4. SEEKING SERVICES FOR THE VICTIM OF DOMESTIC OR SEXUAL VIOLENCE OR FOR SUCH VICTIM'S CHILD FROM A RESIDENTIAL OR NON-RESIDENTIAL PROGRAM FOR VICTIMS OF DOMESTIC OR SEXUAL VIOLENCE; OR 5. ENGAGING IN SAFETY PLANNING, INCLUDING ARRANGING TO RELOCATE AND RELOCATING TO A TEMPORARY OR PERMANENT NEW RESIDENCE, IN ORDER TO DECREASE THE RISK OF FUTURE DOMESTIC OR SEXUAL VIOLENCE. S 696-B. LEAVE TAKEN INTERMITTENTLY OR ON REDUCED LEAVE SCHEDULE. THE LEAVE PURSUANT TO SECTION SIX HUNDRED NINETY-SIX-A OF THIS ARTICLE MAY BE TAKEN ON A REDUCED LEAVE SCHEDULE OR INTERMITTENTLY IF THE EMPLOYEE AND EMPLOYER AGREE ON THE SCHEDULE. TAKING LEAVE ON A REDUCED LEAVE OR INTERMITTENT SCHEDULE SHALL NOT RESULT IN A REDUCTION IN THE AMOUNT OF TOTAL LEAVE A VICTIM OF DOMESTIC OR SEXUAL VIOLENCE IS ENTITLED TO IN THE TWELVE MONTH PERIOD. S 696-C. NOTICE OF INTENTION TO TAKE LEAVE. AN EMPLOYEE SHALL PROVIDE AN EMPLOYER WITH REASONABLE NOTICE OF THE EMPLOYEE'S INTENTION TO TAKE LEAVE PURSUANT TO SECTION SIX HUNDRED NINETY-SIX-A OF THIS ARTICLE UNLESS PROVIDING SUCH NOTICE IS NOT PRACTICABLE. WHEN AN UNSCHEDULED ABSENCE OCCURS, THE EMPLOYER MAY NOT TAKE ANY ACTION AGAINST THE EMPLOY- EE IF THE EMPLOYEE, WITHIN A REASONABLE PERIOD OF TIME AFTER THE ABSENCE, PROVIDES CERTIFICATION AS SET FORTH IN SECTION SIX HUNDRED NINETY-SIX-D OF THIS ARTICLE. S 696-D. CERTIFICATION. IN ORDER TO DETERMINE WHETHER THE EMPLOYEE IS A VICTIM OF DOMESTIC OR SEXUAL VIOLENCE, THE EMPLOYER MAY REQUIRE THAT THE REQUEST FOR LEAVE BE SUPPORTED BY ONE OF THE FOLLOWING: 1. A SWORN STATEMENT SUBMITTED BY THE VICTIM OF DOMESTIC OR SEXUAL VIOLENCE DESCRIBING SUCH VICTIM'S NEED FOR LEAVE TO ADDRESS THE ONGOING EFFECTS OF DOMESTIC OR SEXUAL VIOLENCE; OR
2. ANY DOCUMENTATION OF THE DOMESTIC OR SEXUAL VIOLENCE, INCLUDING POLICE REPORTS, COURT RECORDS, STATEMENTS FROM A SHELTER WORKER, LAW ENFORCEMENT OFFICER, MEDICAL WORKER, COUNSELOR, CLERGY MEMBER, ATTORNEY OR ANY OTHER PROFESSIONAL FROM WHOM THE EMPLOYEE HAS SOUGHT ASSISTANCE TO ADDRESS THE DOMESTIC OR SEXUAL VIOLENCE AND ITS EFFECTS; OR 3. ANY OTHER CORROBORATING EVIDENCE INCLUDING PHYSICAL EVIDENCE, PHOTOGRAPHS, OR STATEMENTS FROM OTHER INDIVIDUALS WHO ARE AWARE OF THE DOMESTIC OR SEXUAL VIOLENCE AND ITS EFFECTS. S 696-E. CONFIDENTIALITY. ANY INFORMATION PROVIDED TO THE EMPLOYER, INCLUDING BUT NOT LIMITED TO INFORMATION UNDER SECTION SIX HUNDRED NINE- TY-SIX-D OF THIS ARTICLE, DESCRIBING THE DOMESTIC OR SEXUAL VIOLENCE IN THE EMPLOYEE'S LIFE AND THE REQUEST TO TAKE A LEAVE TO ADDRESS THE EFFECTS OF DOMESTIC OR SEXUAL VIOLENCE, SHALL BE KEPT CONFIDENTIAL BY THE EMPLOYER. DISCLOSURE SHALL ONLY BE ALLOWED IF THE EMPLOYEE, IN WRITING, CONSENTS TO OR REQUESTS DISCLOSURE. S 696-F. RESTORATION TO POSITION. 1. ANY EMPLOYEE WHO TAKES LEAVE UNDER SECTION SIX HUNDRED NINETY-SIX-A OF THIS ARTICLE, SHALL BE ENTI- TLED TO RETURN FROM SUCH LEAVE AND BE RESTORED TO THE SAME POSITION HELD BY SUCH EMPLOYEE WHEN THE LEAVE BEGAN OR BE RESTORED TO AN EQUIVALENT POSITION WITH EQUIVALENT BENEFITS, PAY AND OTHER TERMS AND CONDITIONS OF EMPLOYMENT. 2. THE TAKING OF LEAVE UNDER SECTION SIX HUNDRED NINETY-SIX-A OF THIS ARTICLE SHALL NOT RESULT IN THE LOSS OF ANY EMPLOYMENT BENEFITS ACCRUED PRIOR TO THE DATE ON WHICH THE LEAVE BEGAN. 3. (A) EXCEPT AS PROVIDED IN SUBDIVISION TWO OF THIS SECTION, ANY EMPLOYEE WHO TAKES LEAVE UNDER SECTION SIX HUNDRED NINETY-SIX-A OF THIS ARTICLE SHALL BE ENTITLED TO CONTINUED COVERAGE UNDER ANY HEALTH CARE BENEFITS PLAN PROVIDED BY SUCH PERSON'S EMPLOYER FOR THE DURATION OF THE LEAVE. (B) THE EMPLOYER MAY RECOVER THE PREMIUM THAT THE EMPLOYER PAID FOR MAINTAINING COVERAGE UNDER A HEALTH BENEFITS PLAN FOR THE EMPLOYEE ENTI- TLED TO LEAVE UNDER SECTION SIX HUNDRED NINETY-SIX-A OF THIS ARTICLE, IF: (I) THE EMPLOYEE FAILS TO RETURN TO SUCH PERSON'S EMPLOYMENT ONCE THE LEAVE HAS EXPIRED; AND (II) THE EMPLOYEE FAILS TO RETURN TO WORK FOR A REASON OTHER THAN: (A) THE CONTINUATION, RECURRENCE, OR ONSET OF DOMESTIC OR SEXUAL VIOLENCE THAT ENTITLES THE EMPLOYEE TO LEAVE PURSUANT TO THIS SECTION; OR (B) OTHER CIRCUMSTANCES BEYOND THE CONTROL OF THE EMPLOYEE. S 696-G. PROHIBITED ACTS. 1. INTERFERENCE WITH RIGHTS. (A) EXERCISE OF RIGHTS. IT SHALL BE UNLAWFUL FOR ANY EMPLOYER TO INTERFERE WITH, RESTRAIN, OR DENY THE EXERCISE OF OR THE ATTEMPT TO EXERCISE ANY RIGHT PROVIDED UNDER THIS ARTICLE. (B) EMPLOYER DISCRIMINATION. IT SHALL BE UNLAWFUL FOR ANY EMPLOYER TO DISCHARGE OR HARASS ANY INDIVIDUAL, OR OTHERWISE DISCRIMINATE AGAINST ANY INDIVIDUAL WITH RESPECT TO COMPENSATION, TERMS, CONDITIONS, OR PRIV- ILEGES OF EMPLOYMENT OF THE INDIVIDUAL (INCLUDING RETALIATION IN ANY FORM OR MANNER) BECAUSE THE INDIVIDUAL EXERCISED ANY RIGHT PROVIDED UNDER THIS ARTICLE OR OPPOSED ANY PRACTICE MADE UNLAWFUL BY THIS ARTI- CLE. 2. INTERFERENCE WITH PROCEEDINGS OR INQUIRIES. IT SHALL BE UNLAWFUL FOR ANY PERSON TO DISCHARGE OR IN ANY OTHER MANNER DISCRIMINATE (AS DESCRIBED IN PARAGRAPH (B) OF SUBDIVISION ONE OF THIS SECTION) AGAINST ANY INDIVIDUAL BECAUSE SUCH INDIVIDUAL:
(A) HAS FILED ANY CHARGE, OR HAS INSTITUTED OR CAUSED TO BE INSTITUTED ANY PROCEEDING, UNDER OR RELATED TO THIS ARTICLE; (B) HAS GIVEN, OR IS ABOUT TO GIVE, ANY INFORMATION IN CONNECTION WITH ANY INQUIRY OR PROCEEDING RELATING TO ANY RIGHT PROVIDED UNDER THIS ARTICLE; OR (C) HAS TESTIFIED, OR IS ABOUT TO TESTIFY, IN ANY INQUIRY OR PROCEED- ING RELATING TO ANY RIGHT PROVIDED UNDER THIS ARTICLE. S 696-H. CIVIL ACTION. 1. BY EMPLOYEE. ANY PERSON DENIED LEAVE OR BENEFITS DUE UNDER THIS ARTICLE OR AGGRIEVED BY AN ACTION MADE UNLAWFUL BY THIS ARTICLE SHALL HAVE A CAUSE OF ACTION IN ANY COURT OF APPROPRIATE JURISDICTION FOR DAMAGES, INCLUDING ANY WAGES, SALARY, EMPLOYMENT BENE- FITS OR OTHER COMPENSATION DENIED OR LOST TO SUCH INDIVIDUAL BY REASONS OF THE VIOLATION AND/OR ANY ACTUAL MONETARY LOSSES SUSTAINED BY THE INDIVIDUAL AS A DIRECT RESULT OF THE VIOLATION, AS WELL AS INTEREST ON SUCH AMOUNT CALCULATED AT THE PREVAILING RATE, AND SUCH EQUITABLE RELIEF AS MAY BE APPROPRIATE, INCLUDING EMPLOYMENT, REINSTATEMENT, AND PROMOTION, TOGETHER WITH COSTS AND SUCH REASONABLE ATTORNEYS' FEES AS MAY BE ALLOWED BY THE COURT, AND IF THE VIOLATION WAS WILLFUL, AN ADDI- TIONAL AMOUNT AS LIQUIDATED DAMAGES EQUAL TO TWENTY-FIVE PERCENT OF THE TOTAL OF SUCH DAMAGES FOUND TO BE DUE. 2. BY COMMISSIONER. ON BEHALF OF ANY EMPLOYEE DENIED LEAVE OR BENEFITS DUE UNDER THIS ARTICLE OR AGGRIEVED BY AN ACTION MADE UNLAWFUL BY THIS ARTICLE, THE INDUSTRIAL COMMISSIONER MAY BRING A LEGAL ACTION NECESSARY TO COLLECT DAMAGES DUE TO THE VIOLATION, AND THE EMPLOYER SHALL BE REQUIRED TO PAY SUCH DAMAGES AND IF SUCH VIOLATION WAS WILLFUL, AN ADDI- TIONAL AMOUNT AS LIQUIDATED DAMAGES EQUAL TO TWENTY-FIVE PERCENT OF THE TOTAL OF SUCH DAMAGES FOUND TO BE DUE. 3. LIMITATION OF TIME. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, AN ACTION TO RECOVER UPON LIABILITY IMPOSED BY THIS ARTICLE MUST BE COMMENCED WITHIN TWO YEARS. S 696-I. SAVINGS CLAUSE. IF ANY PROVISION OF THIS ARTICLE OR THE APPLICATION THEREOF TO ANY PERSON, EMPLOYER, OCCUPATION OR CIRCUMSTANCE IS HELD INVALID, THE REMAINDER OF THE ARTICLE AND THE APPLICATION OF SUCH PROVISION TO OTHER PERSONS, EMPLOYEES, OCCUPATIONS, OR CIRCUM- STANCES SHALL NOT BE AFFECTED THEREBY. S 2. This act shall take effect on the ninetieth day after it shall have become a law.

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