BILL REQ. #:  H-5352.1 

READ FIRST TIME 02/06/08.   

     AN ACT Relating to increasing the safety and economic security of victims of domestic violence, sexual assault, or stalking; amending RCW 7.69.030; adding a new chapter to Title 49 RCW; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   (1) It is in the public interest to reduce domestic violence, sexual assault, and stalking by enabling victims to maintain the financial independence necessary to leave abusive situations, achieve safety, and minimize physical and emotional injuries, and to reduce the devastating economic consequences of domestic violence, sexual assault, and stalking to employers and employees. Victims of domestic violence, sexual assault, and stalking should be able to recover from and cope with the effects of such violence and participate in criminal and civil justice processes without fear of adverse economic consequences.
     (2) One of the best predictors of whether a victim of domestic violence, sexual assault, or stalking will be able to stay away from an abuser is his or her degree of economic independence. However, domestic violence, sexual assault, and stalking often negatively impact victims' ability to maintain employment.
     (3) An employee who is a victim of domestic violence, sexual assault, or stalking, or an employee whose family member is a victim, must often take leave from work due to injuries, court proceedings, or safety concerns requiring legal protection.
     (4) Thus, it is in the public interest to provide reasonable leave from employment for employees who are victims of domestic violence, sexual assault, or stalking, or for employees whose family members are victims, to participate in legal proceedings, receive medical treatment, or obtain other necessary services.

NEW SECTION.  Sec. 2   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Child," "spouse," "parent," "parent-in-law," "grandparent," and "sick leave and other paid time off" have the same meanings as in RCW 49.12.265.
     (2) "Dating relationship" has the same meaning as in RCW 26.50.010.
     (3) "Department," "director," "employer," and "employee" have the same meanings as in RCW 49.12.005.
     (4) "Domestic violence" has the same meaning as in RCW 26.50.010.
     (5) "Family member" means any individual whose relationship to the employee can be classified as a child, spouse, parent, parent-in-law, grandparent, or person with whom the employee has a dating relationship.
     (6) "Intermittent leave" and "reduced leave schedule" have the same meanings as in RCW 49.78.020.
     (7) "Sexual assault" has the same meaning as in RCW 70.125.030.
     (8) "Stalking" has the same meaning as in RCW 9A.46.110.

NEW SECTION.  Sec. 3   An employee may take reasonable leave from work, intermittent leave, or leave on a reduced leave schedule, with or without pay, to:
     (1) Seek legal or law enforcement assistance or remedies to ensure the health and safety of the employee or employee's family members including, but not limited to, preparing for, or participating in, any civil or criminal legal proceeding related to or derived from domestic violence, sexual assault, or stalking;
     (2) Seek treatment by a health care provider for physical or mental injuries caused by domestic violence, sexual assault, or stalking, or to attend to health care treatment for a victim who is the employee's family member;
     (3) Obtain, or assist a family member in obtaining, services from a domestic violence shelter, rape crisis center, or other social services program for relief from domestic violence, sexual assault, or stalking;
     (4) Obtain, or assist a family member in obtaining, mental health counseling related to an incident of domestic violence, sexual assault, or stalking, in which the employee or the employee's family member was a victim of domestic violence, sexual assault, or stalking; or
     (5) Participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee's family members from future domestic violence, sexual assault, or stalking.

NEW SECTION.  Sec. 4   (1) As a condition of taking leave for any purpose described in section 3 of this act, an employee shall give an employer advance notice of the employee's intention to take leave. The timing of the notice shall be consistent with the employer's stated policy for requesting such leave, if the employer has such a policy. When advance notice cannot be given because of an emergency or unforeseen circumstances due to domestic violence, sexual assault, or stalking, the employee or his or her designee must give notice to the employer no later than the end of the first day that the employee takes such leave.
     (2) When an employee requests leave under section 3 of this act the employer may require that the request be supported by verification that:
     (a) The employee or employee's family member is a victim of domestic violence, sexual assault, or stalking; and
     (b) The leave taken was for one of the purposes described in section 3 of this act.
     (3) If an employer requires verification, verification must be provided in a timely manner. In the event that advance notice of the leave cannot be given because of an emergency or unforeseen circumstances due to domestic violence, sexual assault, or stalking, and the employer requires verification, verification must be provided to the employer within a reasonable time period during or after the leave.
     (4) An employee may satisfy the verification requirement of this section by providing the employer with one or more of the following:
     (a) A police report indicating that the employee or employee's family member was a victim of domestic violence, sexual assault, or stalking;
     (b) A court order protecting or separating the employee or employee's family member from the perpetrator of the act of domestic violence, sexual assault, or stalking, or other evidence from the court or the prosecuting attorney that the employee or employee's family member appeared, or is scheduled to appear, in court in connection with an incident of domestic violence, sexual assault, or stalking;
     (c) Documentation that the employee or the employee's family member is a victim of domestic violence, sexual assault, or stalking, from any of the following persons from whom the employee or employee's family member sought assistance in addressing the domestic violence, sexual assault, or stalking: An advocate for victims of domestic violence, sexual assault, or stalking; an attorney; a member of the clergy; or a medical or other professional. The provision of documentation under this section does not waive or diminish the confidential or privileged nature of communications between a victim of domestic violence, sexual assault, or stalking with one or more of the individuals named in this subsection (4)(c) pursuant to RCW 5.60.060, 70.123.075, 70.123.076, or 70.125.065; or
     (d) An employee's written statement that the employee or the employee's family member is a victim of domestic violence, sexual assault, or stalking and that the leave taken was for one of the purposes described in section 3 of this act.
     (5) If the victim of domestic violence, sexual assault, or stalking is the employee's family member, verification of the familial relationship between the employee and the victim may include, but is not limited to, a statement from the employee, a birth certificate, a court document, or other similar documentation.
     (6) An employee who is absent from work pursuant to section 3 of this act may elect to use the employee's sick leave and other paid time off, compensatory time, or unpaid leave time.
     (7) An employee is required to provide only the information enumerated in subsection (2) of this section to establish that the employee's leave is protected under this chapter. An employee is not required to produce or discuss any information with the employer that is beyond the scope of subsection (2) of this section, or that would compromise the employee's safety or the safety of the employee's family member in any way, and an employer is prohibited from requiring any such disclosure.
     (8)(a) Except as provided in (b) of this subsection, an employer shall maintain the confidentiality of all information provided by the employee under this section, including the fact that the employee or employee's family member is a victim of domestic violence, sexual assault, or stalking, that the employee has requested or obtained leave under this chapter, and any written or oral statement, documentation, record, or corroborating evidence provided by the employee.
     (b) Information given by an employee may be disclosed by an employer only if:
     (i) Requested or consented to by the employee;
     (ii) Ordered by a court or administrative agency; or
     (iii) Otherwise required by applicable federal or state law.

NEW SECTION.  Sec. 5   (1) The taking of leave under section 3 of this act may not result in the loss of any pay or benefits to the employee that accrued before the date on which the leave commenced.
     (2) Upon an employee's return, an employer shall either:
     (a) Restore the employee to the position of employment held by the employee when the leave commenced; or
     (b) Restore the employee to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.
     (3) To the extent allowed by law, an employer shall maintain coverage under any health insurance plan for an employee who takes leave under section 3 of this act. The coverage must be maintained for the duration of the leave at the level and under the conditions coverage would have been provided if the employee had not taken the leave.

NEW SECTION.  Sec. 6   (1) The rights provided in this act are in addition to any other rights provided by state and federal law.
     (2) Nothing in this chapter shall be construed to discourage employers from adopting policies that provide greater leave rights to employees who are victims of domestic violence, sexual assault, or stalking than those required by this act.
     (3) Nothing in this act shall be construed to diminish an employer's obligation to comply with any collective bargaining agreement, or any employment benefit program or plan, that provides greater leave rights to employees than the rights provided by this act.

NEW SECTION.  Sec. 7   Upon complaint by an employee, the director shall investigate to determine if there has been compliance with this chapter and the rules adopted under this chapter. If the investigation indicates that a violation has occurred, the director shall issue a notice of infraction. Appeal from the director's decision is governed by chapter 34.05 RCW.

NEW SECTION.  Sec. 8   Any finding, determination, conclusion, declaration, or notice of infraction made for the purposes of enforcing this chapter by the director or by an appeal tribunal, administrative law judge, or reviewing officer is neither conclusive nor binding in any civil action filed pursuant to section 12 of this act or in any other common law or civil action, regardless of whether the prior action was between the same or related parties or involved the same facts.

NEW SECTION.  Sec. 9   (1) If an employer is found to have committed an infraction under section 7 of this act, the director may impose upon the employer a fine of up to five hundred dollars for the first infraction and a fine of up to one thousand dollars for each subsequent infraction committed within three years of a previous infraction.
     (2) The director may also order an employer found to have committed an infraction under section 7 of this act to comply with section 5(2) of this act.

NEW SECTION.  Sec. 10   (1) Except as provided in subsection (2) of this section, information contained in the department's complaint files and records of employees under this chapter is confidential and shall not be open to public inspection.
     (2) Except as limited by state or federal statute or regulations:
     (a) The information in subsection (1) of this section may be provided to public employees in the performance of their official duties; and
     (b) A complainant or a representative of a complainant, be it an individual or an organization, may review a complaint file or receive specific information therefrom upon the presentation of the signed authorization of the complainant.

NEW SECTION.  Sec. 11   No employer may discharge, threaten to discharge, demote, deny a promotion to, sanction, discipline, retaliate against, harass, or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment because the employee:
     (1) Exercised rights under section 3 of this act;
     (2) Filed or communicated to the employer an intent to file a complaint under section 7 or 12 of this act; or
     (3) Participated or assisted, as a witness or otherwise, in another employee's attempt to exercise rights under section 3, 7, or 12 of this act.

NEW SECTION.  Sec. 12   (1) Any employee deeming herself or himself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys' fees.
     (2) The remedy provided by this section is in addition to any common law remedy or other remedy that may be available to an employee.
     (3) An employee is not required to exhaust administrative remedies before filing a civil action to enforce this chapter.

NEW SECTION.  Sec. 13   The department shall include notice of the provisions of this chapter in the next reprinting of employment posters printed under RCW 49.78.340. Employers shall post this notice as required in RCW 49.78.340.

NEW SECTION.  Sec. 14   Prosecuting attorney and victim/witness offices are encouraged to make information regarding this chapter available for distribution at their offices.

NEW SECTION.  Sec. 15   The director shall adopt rules as necessary to implement this chapter.

Sec. 16   RCW 7.69.030 and 2004 c 120 s 8 are each amended to read as follows:
     There shall be a reasonable effort made to ensure that victims, survivors of victims, and witnesses of crimes have the following rights, which apply to any criminal court and/or juvenile court proceeding:
     (1) With respect to victims of violent or sex crimes, to receive, at the time of reporting the crime to law enforcement officials, a written statement of the rights of crime victims as provided in this chapter. The written statement shall include the name, address, and telephone number of a county or local crime victim/witness program, if such a crime victim/witness program exists in the county;
     (2) To be informed by local law enforcement agencies or the prosecuting attorney of the final disposition of the case in which the victim, survivor, or witness is involved;
     (3) To be notified by the party who issued the subpoena that a court proceeding to which they have been subpoenaed will not occur as scheduled, in order to save the person an unnecessary trip to court;
     (4) To receive protection from harm and threats of harm arising out of cooperation with law enforcement and prosecution efforts, and to be provided with information as to the level of protection available;
     (5) To be informed of the procedure to be followed to apply for and receive any witness fees to which they are entitled;
     (6) To be provided, whenever practical, a secure waiting area during court proceedings that does not require them to be in close proximity to defendants and families or friends of defendants;
     (7) To have any stolen or other personal property expeditiously returned by law enforcement agencies or the superior court when no longer needed as evidence. When feasible, all such property, except weapons, currency, contraband, property subject to evidentiary analysis, and property of which ownership is disputed, shall be photographed and returned to the owner within ten days of being taken;
     (8) To be provided with appropriate employer intercession services to ensure that employers of victims, survivors of victims, and witnesses of crime will cooperate with the criminal justice process in order to minimize an employee's loss of pay and other benefits resulting from court appearance;
     (9) To access to immediate medical assistance and not to be detained for an unreasonable length of time by a law enforcement agency before having such assistance administered. However, an employee of the law enforcement agency may, if necessary, accompany the person to a medical facility to question the person about the criminal incident if the questioning does not hinder the administration of medical assistance. Victims of domestic violence, sexual assault, or stalking, as defined in section 2 of this act, shall be notified of their right to reasonable leave from employment under chapter 49. . . . RCW (sections 1 through 15 of this act);
     (10) With respect to victims of violent and sex crimes, to have a crime victim advocate from a crime victim/witness program, or any other support person of the victim's choosing, present at any prosecutorial or defense interviews with the victim, and at any judicial proceedings related to criminal acts committed against the victim. This subsection applies if practical and if the presence of the crime victim advocate or support person does not cause any unnecessary delay in the investigation or prosecution of the case. The role of the crime victim advocate is to provide emotional support to the crime victim;
     (11) With respect to victims and survivors of victims, to be physically present in court during trial, or if subpoenaed to testify, to be scheduled as early as practical in the proceedings in order to be physically present during trial after testifying and not to be excluded solely because they have testified;
     (12) With respect to victims and survivors of victims, to be informed by the prosecuting attorney of the date, time, and place of the trial and of the sentencing hearing for felony convictions upon request by a victim or survivor;
     (13) To submit a victim impact statement or report to the court, with the assistance of the prosecuting attorney if requested, which shall be included in all presentence reports and permanently included in the files and records accompanying the offender committed to the custody of a state agency or institution;
     (14) With respect to victims and survivors of victims, to present a statement personally or by representation, at the sentencing hearing for felony convictions;
     (15) With respect to victims and survivors of victims, to entry of an order of restitution by the court in all felony cases, even when the offender is sentenced to confinement, unless extraordinary circumstances exist which make restitution inappropriate in the court's judgment; and
     (16) With respect to victims and survivors of victims, to present a statement in person, via audio or videotape, in writing or by representation at any hearing conducted regarding an application for pardon or commutation of sentence.

NEW SECTION.  Sec. 17   Sections 1 through 15 of this act constitute a new chapter in Title 49 RCW.

NEW SECTION.  Sec. 18   This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.