PRINTER'S NO. 28
No. 24 Session of 2005
INTRODUCED BY YOUNGBLOOD, LEDERER, WATSON, THOMAS, TIGUE, STABACK, MANN, DeWEESE, BLACKWELL, BELFANTI, BELARDI, MELIO, E. Z. TAYLOR, FRANKEL, WASHINGTON, PISTELLA, McCALL, BEBKO- JONES AND W. KELLER, JANUARY 25, 2005
REFERRED TO COMMITTEE ON LABOR RELATIONS, JANUARY 25, 2005
AN ACT 1 Requiring certain employers to provide employment leave for 2 victims of domestic violence; prohibiting certain acts; and 3 prescribing penalties. 4 The General Assembly of the Commonwealth of Pennsylvania 5 hereby enacts as follows: 6 Section 1. Short title. 7 This act shall be known and may be cited as the Victims of 8 Domestic Violence Employment Leave Act. 9 Section 2. Definitions. 10 The following words and phrases when used in this act shall 11 have the meanings given to them in this section unless the 12 context clearly indicates otherwise: 13 "Domestic violence." Any act or acts of abuse as defined in 14 23 Pa.C.S. § 6102 (relating to definitions). 15 "Eligible employee." An individual who: 16 (1) is a victim of domestic violence or is the parent of 17 a minor child who is a victim of domestic violence;
1 (2) has been employed for at least 12 months by the 2 employer to whom a request for leave under this act is 3 directed; 4 (3) has performed at least 1,250 hours of service during 5 the previous 12 months of employment for said employer; and 6 (4) is employed at a worksite or within 75 miles of a 7 worksite, in which the employer employs at least 50 8 employees. 9 "Employer." Any of the following: 10 (1) the Commonwealth or an agency or instrumentality of 11 the Commonwealth; 12 (2) a political subdivision of the Commonwealth or an 13 agency or instrumentality of a political subdivision; 14 (3) a person or entity that currently employs at least 15 50 persons each work day for 20 or more weeks in a calendar 16 year; or 17 (4) a person or entity that employed at least 50 persons 18 each work day for 20 or more weeks in the immediately 19 preceding calendar year. 20 "Perpetrator." A person who has committed domestic violence 21 against another person or persons. 22 "Victim of domestic violence." A person who is subjected to 23 domestic violence by a perpetrator. 24 Section 3. Domestic violence employee leave. 25 (a) Leave requirement.-- 26 (1) An eligible employee may request and an employer 27 shall permit an eligible employee to take unpaid leave from 28 work for any of the following reasons: 29 (i) for the eligible employee to secure medical 30 treatment to recover from injuries suffered as a result 20050H0024B0028 - 2 -
1 of domestic violence; 2 (ii) for the eligible employee to attend to legal 3 proceedings relating to domestic violence involving the 4 eligible employee or the eligible employee's minor child; 5 (iii) for the eligible employee to relocate to a new 6 temporary or permanent residence for reasons related to 7 domestic violence; 8 (iv) for the eligible employee to obtain counseling 9 or advocacy services; or 10 (v) for the eligible employee to assist their minor 11 child who is a victim of domestic violence in any of the 12 actions in subparagraphs (i) through (iv). 13 (2) Except as provided in subsection (c), an eligible 14 employee shall be entitled to a total of 30 days of leave 15 during any 12-month period. This act shall not create a right 16 for an eligible employee to take unpaid leave that exceeds 17 the unpaid leave time allowed under, nor is it in addition to 18 the unpaid leave time permitted by, the Family and Medical 19 Leave Act of 1993 (Public Law 103-3, 29 U.S.C. 2601 et seq.). 20 (3) An eligible employee shall make a reasonable effort 21 to schedule matters described in paragraph (1) so as not to 22 unduly disrupt the operations of the employer. 23 (b) Notice.-- 24 (1) Except as provided in paragraph (2), an eligible 25 employee shall provide the employer with at least five days' 26 advance notice of the eligible employee's intention to take 27 leave pursuant to subsection (a). 28 (2) An eligible employee shall provide notice to the 29 employer as soon as practicable if notice in accordance with 30 paragraph (1) is not possible due to any of the following: 20050H0024B0028 - 3 -
1 (i) the safety of the eligible employee or the 2 eligible employee's minor child; 3 (ii) the scheduling of any legal proceeding; or 4 (iii) the availability of counseling or advocacy 5 services. 6 (3) When an unscheduled absence occurs, the employer may 7 not take any action against an eligible employee if the 8 eligible employee, within a reasonable period after the 9 absence, provides certification under subsection (c). 10 (c) Certification.-- 11 (1) An employer may require an eligible employee to 12 provide certification to the employer that: 13 (i) the eligible employee or the eligible employee's 14 minor child is a victim of domestic violence; and 15 (ii) the leave is requested for one of the purposes 16 enumerated in subsection (a)(1). 17 (2) The eligible employee shall provide the 18 certification to the employer within a reasonable period 19 after the employer requests certification. 20 (3) An eligible employee may satisfy the certification 21 requirement of paragraph (1) by providing to the employer one 22 of the following: 23 (i) a police report indicating that the eligible 24 employee or the eligible employee's minor child was a 25 victim of domestic violence; 26 (ii) a court order protecting or separating the 27 eligible employee or the eligible employee's minor child 28 from the perpetrator; 29 (iii) a signed statement from a medical 30 professional, therapist, clergy member, counselor, 20050H0024B0028 - 4 -
1 domestic violence counselor or domestic violence advocate 2 affirming that the eligible employee or the eligible 3 employee's minor child is undergoing counseling for 4 physical or mental injuries resulting from domestic 5 violence; 6 (iv) a signed statement from a victim and witness 7 advocate or other court personnel affirming that the 8 eligible employee or the eligible employee's minor child 9 is involved in legal proceedings relating to domestic 10 violence; or 11 (v) a signed statement from a police officer, victim 12 and witness advocate or other court personnel, medical 13 professional, therapist, clergy member, counselor, 14 domestic violence counselor or domestic violence advocate 15 affirming that the eligible employee or the eligible 16 employee's minor child has ongoing safety concerns that 17 warrant absence from work. 18 (d) Confidentiality.--All information provided to the 19 employer pursuant to subsection (b) or (c), including the fact 20 that the eligible employee has requested or obtained leave 21 pursuant to this section, shall be retained in the strictest 22 confidence by the employer, except to the extent that disclosure 23 is: 24 (1) requested or consented to in writing by the eligible 25 employee; or 26 (2) otherwise required by applicable Federal or State 27 law. 28 (e) Employment and benefits protection.-- 29 (1) The following shall apply: 30 (i) An eligible employee who takes leave pursuant to 20050H0024B0028 - 5 -
1 subsection (a) shall, on return from such leave, be 2 entitled to: 3 (A) restoration to the position held by the 4 eligible employee when leave commenced; or 5 (B) restoration to an equivalent position with 6 equivalent employment benefits, pay and other terms 7 and conditions of employment. 8 (ii) The taking of leave pursuant to subsection (a) 9 shall not result in the loss of any employment benefits 10 accrued prior to the date on which the leave commenced. 11 (iii) Nothing in this subsection shall be construed 12 to entitle any restored eligible employee to: 13 (A) the accrual of any seniority or employment 14 benefits during any period of leave; or 15 (B) any right, benefit or position or employment 16 other than any right, benefit or position to which 17 the restored employee would have been entitled to had 18 the restored employee not taken the leave. 19 (iv) Nothing in this section shall be construed to 20 prohibit an employer from requiring an eligible employee 21 on leave pursuant to subsection (a) to report 22 periodically to the employer on the status and intention 23 of the employee to return to work. 24 (2) The following shall apply: 25 (i) Except as provided in subparagraph (ii), during 26 any period that an eligible employee takes leave pursuant 27 to subsection (a), the employer shall maintain coverage 28 under a group health plan for the duration of the leave 29 at the same level and under the same conditions that 30 would have been provided if the eligible employee's 20050H0024B0028 - 6 -
1 employment had not been interrupted by the leave. 2 (ii) The employer may recover the premium paid by 3 that employer for maintaining coverage for an eligible 4 employee from an eligible employee who does not return to 5 work after the leave expires unless: 6 (A) the eligible employee is unable to return to 7 work on account of having relocated to a new 8 temporary or permanent place of residence for reasons 9 relating to the security of the eligible employee or 10 the eligible employee's minor child; or 11 (B) the eligible employee is unable to return to 12 work because of continuing or recurring domestic 13 violence or other circumstances beyond the control of 14 the eligible employee. 15 Section 4. Existing leave usable for addressing domestic 16 violence. 17 An eligible employee who is entitled to take paid or unpaid 18 leave, including, family, medical, sick, annual, personal or 19 similar leave, from employment, pursuant to Federal, State or 20 local law, a collective bargaining agreement or an employment 21 benefits program or plan, may elect to substitute any period of 22 such leave for an equivalent period of leave provided under 23 section 3 (relating to domestic violence employee leave). 24 Section 5. Prohibited acts. 25 (a) General rule.--An employer shall not interfere with, 26 restrain or deny the exercise of or the attempted exercise of 27 any right provided by this act. 28 (b) Discrimination.--An employer shall not discriminate 29 against an eligible employee for exercising the eligible 30 employee's rights under this act. 20050H0024B0028 - 7 -
1 Section 6. Penalties. 2 (a) Fine.--An employer who violates the provisions of this 3 act shall be subject to a fine of $500 for each violation. 4 (b) Jurisdiction.--The Attorney General of the Commonwealth 5 shall have jurisdiction to investigate and prosecute employers 6 for violations of this act. 7 Section 7. Private cause of action. 8 (a) General rule.--Legal action to recover damages or 9 equitable relief under this act may be maintained against an 10 employer in a court of competent jurisdiction in this 11 Commonwealth by an eligible employee. 12 (b) Relief.--The following shall apply: 13 (1) An employer who violates the provisions of this act 14 shall be liable for damages equal to any wages, salary, 15 employment benefits or other compensation denied or lost to 16 an eligible employee by reason of a violation of this act. 17 (2) An employer who violates the provisions of this act 18 shall be liable for damages sustained by an eligible employee 19 as a direct result of the violation of this act. 20 (3) An employer who violates the provisions of this act 21 shall be liable for such equitable relief as may be 22 appropriate, including reinstatement and promotion. 23 (4) The court in an action under this subsection may, in 24 addition to any other award, order the employer to reimburse 25 the eligible employee for reasonable attorney and expert fees 26 and other costs incurred by the plaintiff in bringing the 27 action. 28 Section 8. Statute of limitations. 29 Any action brought under the provisions of this act shall be 30 commenced not later than one year following the date of the last 20050H0024B0028 - 8 -
1 event constituting the alleged violation of this act. 2 Section 40. Effective date. 3 This act shall take effect in 90 days. L29L43DMS/20050H0024B0028 - 9 -