Report Title:

Victims; Economic Security; Safety

Description:

Prohibits discrimination by employers against victims of domestic abuse. Entitles victims to employment leave. Establishes eligibility for unemployment insurance.(SB2438 HD1)

THE SENATE

S.B. NO.

2438

TWENTY-FIRST LEGISLATURE, 2002

S.D. 2

STATE OF HAWAII

H.D. 1


 

A BILL FOR AN ACT

 

relating to hawaii victims' economic security and safety act.

 

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

PART I.

SECTION 1. The legislature finds that domestic abuse crimes account for approximately fifteen per cent of total crime costs in the United States each year. Violence against women has been reported to be the leading cause of physical injury, having a devastating impact on women's physical and emotional health and financial security.

According to recent federal government surveys, from 1993 through 1998, the average annual number of violent victimizations committed by intimate partners was one million eighty-two thousand one hundred ten. Eighty-seven per cent of these assaults were committed against women, with women victims being substantially more likely to have been killed by an intimate partner.

According to recent federal government estimates, approximately nine hundred eighty-seven thousand four hundred rapes occur annually in the United States. Eighty-nine per cent of rapes are perpetrated against female victims. In addition, approximately ten million two hundred thousand people have been stalked at some time in their lives with four of every five stalking victims being women. Stalkers harass and terrorize their victims by spying on them, standing outside their places of work or homes, making unwanted phone calls, sending or leaving unwanted letters or items, and by vandalizing victims' property.

Employees in the United States who have been victims of domestic abuse, dating violence, sexual assault, or stalking too often also suffer associated adverse consequences in the workplace as a result of their victimization. In fact, seventy-four per cent of harassment of women in the work place is because of domestic abuse.

According to a 1998 report of the U.S. General Accounting Office, between one-fourth and one-half of domestic abuse victims surveyed in three studies reported that the victims lost a job due, at least in part, to domestic abuse. Women who have experienced domestic abuse or dating violence are more likely than other women to be unemployed, suffer from health problems affecting their employability and job performance, report lower personal income, and rely on welfare. Abusers frequently seek to control their partners by actively interfering with their ability to work, including preventing their partners from going to work, harassing their partners at work, limiting the access of their partners to cash or transportation, and sabotaging the child care arrangements of their partners. More than one-half of women receiving welfare have been victims of domestic abuse as adults and between one-fourth and one-third reported being abused in the last year.

Sexual assault, whether occurring in or out of the workplace, can impair an employee's work performance, require time away from work, and undermine the employee's ability to maintain a job. Almost fifty per cent of sexual assault survivors lose their jobs or are forced to quit in the aftermath of the assaults.

According to the National Institute of Justice, crime costs an estimated $450,000,000,000 annually in medical expenses, lost earnings, social service costs, pain, suffering, and reduced quality of life for victims, which harms the nation's productivity and drains the nation's resources. Violent crime accounts for $426,000,000,000 per year of this amount. Rape exacts the highest costs per victim of any criminal offense, and accounts for $127,000,000,000 per year.

The Bureau of National Affairs has estimated that domestic abuse costs United States employers between $3,000,000,000 and $5,000,000,000 annually in lost time and productivity. Other reports have estimated that domestic abuse costs United States employers $13,000,000,000 annually and the overall medical cost for the United States for domestic abuse have been estimated to be $31,000,000,000 per year.

Ninety-four per cent of corporate security and safety directors at companies nationwide rank domestic abuse as a high security concern. Forty-nine per cent of senior executives recently surveyed said domestic abuse has a harmful effect on their company's productivity, forty-seven per cent said domestic abuse negatively affects attendance, and forty-four per cent said domestic abuse increases health care costs. Employees, including individuals participating in welfare to work programs, may need to take time during business hours to obtain orders of protection, seek medical or legal assistance, counseling, other services, or look for housing in order to escape from domestic abuse.

The purpose of this part is to:

(1) Promote the State’s interest in reducing domestic abuse, sexual assault, and stalking by enabling victims of domestic abuse or sexual violence to maintain the financial independence necessary to leave abusive situations, achieve safety, and minimize the physical and emotional injuries from domestic abuse or sexual violence, and reduce the devastating economic consequences of domestic abuse or sexual violence to employers and employees;

(2) Promote the State’s interest in ensuring that victims of domestic abuse or sexual violence can recover from and cope with the effects of such violence, and participate in criminal and civil justice processes, without fear of adverse economic consequences from their employers;

(3) Ensure that victims of domestic abuse or sexual violence can recover from the effects of such violence and participate in criminal and civil justice processes, without fear of adverse economic consequences; and

(4) Address the failure of existing laws to protect the employment rights of victims of domestic abuse or sexual violence, by protecting the civil and economic rights of victims of domestic abuse or sexual violence, and by guaranteeing that victims of domestic abuse and sexual violence will be allowed to maintain economic self-sufficiency and employment free from discrimination related to their victimization.

To accomplish these purposes, this Act prohibits employer discrimination against actual or perceived victims of domestic abuse or sexual violence but also recognizes legitimate employer interests related to the safety of all persons in the workplace.

SECTION 2. Chapter 378, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§378-   Leave of absence for domestic abuse or sexual violence. (a) An employee may take paid or unpaid leave from work if the employee or the employee’s family or household member is a victim of domestic abuse or sexual violence; provided the leave is to:

(1) Seek medical attention for the employee to recover from physical or psychological injury or disability caused by domestic abuse or sexual violence;

(2) Obtain services from a victim services organization;

(3) Obtain psychological or other counseling;

(4) Temporarily or permanently relocate; or

(5) Take legal action including but not limited to preparing for or participating in any civil or criminal legal proceeding related to or resulting from the domestic abuse or sexual violence or other actions to enhance the physical, psychological, or economic health or safety of the employee or the employee's family or household member or to enhance the safety of those who associate with or work with the employee.

(b) An employee’s absence from work that is demonstrated to be due to or resulting from domestic abuse or sexual violence against the employee or the employee's family or household member as provided in this section shall be considered by an employer to be a justification for leave, with or without pay, for a reasonable period of time.

"Reasonable period of time" as used in this section means:

(1) Where due to physical or psychological injury or disability to the employee, the period of time determined to be necessary by the attending physician or other treating medical professional, considering both the employee's condition and the job requirements; and

(2) Where due to an employee’s need to take legal or other actions including but not limited to preparing for or participating in any civil or criminal legal proceeding, obtaining services from a victim services organization, or permanently or temporarily relocating, the period of time necessary to complete the activity as is determined by the employee’s or employee's family or household member's attorney or advocate, court, or personnel of the relevant victim services organization.

(c) Where an employee is a victim of domestic abuse or sexual violence and seeks leave for medical attention to recover from physical or psychological injury or disability caused by domestic abuse or sexual violence, the employer may request that the employee provide:

(1) A doctor's certificate estimating the length of leave and the estimated commencement and termination dates of leave required by the employee; and

(2) Prior to the employee's return, a medical certificate from the employee's attending physician attesting to the employee’s condition and approving the employee’s return to work.

(d) Where an employee has taken leave for non-medical reasons, the employer may require, after five days total leave in a twelve-month period, the employee to provide certification to the employer, within a reasonable period after the employer’s written request, that the employee or the employee’s family or household member is a victim of domestic abuse or sexual violence, and the leave is for one of the purposes enumerated in subsection (a). The certification shall be provided by one of the following methods:

(1) A signed written statement from an employee, agent, or volunteer of a victim services organization, from the employee’s attorney or advocate, from a family or household member’s attorney or advocate, from a member of the clergy, or a medical or other professional from whom the employee or the employee’s family or household member has sought assistance related to the domestic abuse or sexual violence;

(2) A police or court record related to the domestic abuse or sexual violence; or

(3) Other corroborating evidence related to the domestic abuse or sexual violence.

(e) The employee shall provide the employer with reasonable notice of the employee's intention to take the leave, unless providing notice is not practicable.

(f) Nothing in this section shall be construed to prohibit an employer from requiring an employee on leave to report periodically to the employer on the status and intention of the employee to return to work.

(g) The employer shall allow the leave under this section to be taken intermittently or on a reduced work schedule.

(h) An employee who is entitled to take paid or unpaid leave (including family, medical, sick, annual, personal, or similar leave) from employment, pursuant to federal, state, or county law, or pursuant to an employment agreement, a collective bargaining agreement, or an employment benefits program or plan, may elect to substitute any period of such leave for an equivalent period of leave provided for under this section.

(i) Upon return from leave under this section, the employee shall return to the employee's original job or to a position of comparable status and pay, without loss of accumulated service credits and privileges, except that nothing in this subsection shall be construed to entitle any restored employee to the accrual of:

(1) Any seniority or employment benefits during any period of leave, unless such seniority or benefits would be provided to a similarly situated employee who was on leave due to a reason other than domestic abuse or sexual violence; or

(2) Any right, benefit, or position of employment to which the employee would not have otherwise been entitled.

(j) All information provided to the employer under this section, including statements of the employee or any other documentation, record, or corroborating evidence, and the fact that the employee’s or employee's family or household member has been a victim of domestic abuse or sexual violence, or has requested leave pursuant to this section, shall be maintained in the strictest confidence by the employer, and shall not be disclosed except to the extent that disclosure is:

(1) Requested or consented to by the employee;

(2) Ordered by a court or administrative agency; or

(3) Otherwise required by applicable federal or state law."

SECTION 3. Chapter 378, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§378-   Effect on employment and collective bargaining agreements; benefits. (a) Nothing in this chapter shall be construed to supersede any provision of any employment agreement, collective bargaining agreement, or employment benefits program or plan that provides greater benefits or rights than those benefits or rights established under this chapter.

(b) The rights established under this chapter shall not be diminished by any employment agreement, collective bargaining agreement, or employment benefits program or plan."

SECTION 4. Section 378-1, Hawaii Revised Statutes, is amended by adding eight new definitions to be appropriately inserted and to read as follows:

""Course of conduct" means a course of repeatedly maintaining a visual or physical proximity to a person or conveying verbal or written threats, including threats conveyed through electronic communications, or threats implied by conduct.

"Dating relationship" means a romantic, courtship, or engagement relationship, often but not necessarily characterized by actions of an intimate or sexual nature, but does not include a casual acquaintanceship or ordinary fraternization between persons in a business or social context.

"Domestic abuse" means:

(1) Physical harm, bodily injury, assault, or the threat of imminent physical harm, bodily injury, or assault, extreme psychological abuse or malicious property damage between family or household members; or

(2) Any act that would constitute an offense under section 709-906, or under part V or VI of chapter 707 committed against a minor family or household member by an adult family or household member.

"Electronic communications" includes communications via telephone, mobile phone, computer, e-mail, video recorder, fax machine, telex, or pager.

"Extreme psychological abuse" means an intentional or knowing course of conduct directed at an individual that seriously alarms or disturbs consistently or continually bother the individual, and that serves no legitimate purpose; provided that such course of conduct would cause a reasonable person to suffer extreme emotional distress.

"Family or household member" means spouses or reciprocal beneficiaries, former spouses or former reciprocal beneficiaries, persons who have a child in common, parents, children, persons related by consanguinity, persons jointly residing or formerly residing in the same dwelling unit, and persons who have or have had a dating relationship.

"Malicious property damage" means an international or knowing damage to the property of another, without his consent, with an intent to thereby cause emotional distress.

"Sexual assault" means any conduct proscribed by sections 707-730 to 707-741, including both assaults committed by offenders who are strangers to the victim and assaults committed by offenders who are known or related by blood or marriage to the victim.

"Sexual violence" means sexual assault or stalking.

"Stalking" means engaging in a course of conduct directed at a specific targeted person that would cause a reasonable person to suffer substantial emotional distress or to fear bodily injury, sexual assault, or death to the person, or to the person's spouse, parent, son, or daughter, or any other person who regularly resides in the person's household, and where such conduct does cause the targeted person to have such distress or fear.

"Victim of domestic abuse" means and includes any person who has been the subject of domestic abuse.

"Victim of sexual violence" means and includes any person who has been the subject of sexual violence.

"Victim services organization" includes:

(1) A nonprofit, nongovernmental organization that provides assistance to victims of domestic abuse or sexual violence or to advocates for such victims, including a rape crisis center;

(2) An organization carrying out a domestic abuse program;

(3) An organization operating a shelter or providing counseling services;

(4) A legal services organization;

(5) An organization providing assistance through the legal process; or

(6) A domestic abuse coalition or a sexual assault coalition."

SECTION 5. Section 378-2, Hawaii Revised Statutes, is amended to read as follows:

"§378-2 Discriminatory practices made unlawful; offenses defined. It shall be an unlawful discriminatory practice:

(1) Because of race, sex, sexual orientation, age, religion, color, ancestry, disability, marital status, or arrest and court record:

(A) For any employer to refuse to hire or employ or to bar or discharge from employment, or otherwise to discriminate against any individual in compensation or in the terms, conditions, or privileges of employment;

(B) For any employment agency to fail or refuse to refer for employment, or to classify or otherwise to discriminate against, any individual;

(C) For any employer or employment agency to print, circulate, or cause to be printed or circulated any statement, advertisement, or publication or to use any form of application for employment or to make any inquiry in connection with prospective employment, which expresses, directly or indirectly, any limitation, specification, or discrimination;

(D) For any labor organization to exclude or expel from its membership any individual or to discriminate in any way against any of its members, employer, or employees; or

(E) For any employer or labor organization to refuse to enter into an apprenticeship agreement as defined in section 372-2; provided that no apprentice shall be younger than sixteen years of age;

(2) For any employer, labor organization, or employment agency to discharge, expel, or otherwise discriminate against any individual because the individual has opposed any practice forbidden by this part or has filed a complaint, testified, or assisted in any proceeding respecting the discriminatory practices prohibited under this part;

(3) For any person whether an employer, employee, or not, to aid, abet, incite, compel, or coerce the doing of any of the discriminatory practices forbidden by this part, or to attempt to do so;

(4) For any employer to violate the provisions of section 121-43 relating to nonforfeiture for absence by members of the national guard;

(5) For any employer to refuse to hire or employ or to bar or discharge from employment, any individual because of assignment of income for the purpose of satisfying the individual's child support obligations as provided for under section 571-52;

(6) For any employer, labor organization, or employment agency to exclude or otherwise deny equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association; [or]

(7) For any employer or labor organization to refuse to hire or employ, or to bar or discharge from employment, or withhold pay, demote, or penalize a lactating employee because an employee breastfeeds or expresses milk at the workplace. For purposes of this paragraph, the term "breastfeeds" means the feeding of a child directly from the breast[.];

(8) For any employer to fail to hire, refuse to hire, discharge, or otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment of the individual (including retaliation in any form or manner) because:

(A) The individual or the individual's family or household member is a victim of domestic abuse or sexual violence;

(B) The individual required leave from work for medical treatment for injuries resulting from or relating to domestic abuse or sexual violence;

(C) The individual required leave from work to attend, participate in, or prepare for a criminal or civil court proceeding relating to an incident of domestic abuse or sexual violence of which the individual, or the individual’s family or household member, was a victim;

(D) The individual requested a reasonable accommodation due to actual or threatened domestic abuse or sexual violence regardless of whether the request was granted; or

(E) The workplace is disrupted or threatened by the action of a person whom the individual states has committed or threatened to commit domestic abuse or sexual violence against the individual;

provided that the individual may be requested by the employer to provide proof that the individual has taken or is taking appropriate actions to lessen the threat of future incidents of domestic abuse or sexual violence and to lessen the possibility of harm to others in the workplace, including but not limited to, reporting the domestic abuse or sexual violence to appropriate law enforcement entities or taking action to obtain a restraining order against the perpetrator of the domestic abuse or sexual violence; or

(9) For any employer to refuse to provide an applicant or employee with reasonable accommodation related to the individual being a victim of domestic abuse or sexual violence including, but not limited to, job restructuring, change of work place facility or location, transfer, reassignment, or modified schedule, leave, changed telephone number or seating assignment, installation of a lock, or implementation of a safety procedure."

PART II.

SECTION 6. The purposes of this Part are to:

(1) Promote the State’s interest in reducing domestic abuse, sexual assault, and stalking by enabling victims of domestic abuse or sexual violence to maintain the financial independence necessary to leave abusive situations, achieve safety, and minimize the physical and emotional injuries from domestic abuse or sexual violence, and to reduce the devastating economic consequences of domestic abuse or sexual violence to employers and employees; and

(2) Promote the State’s interest in ensuring that victims of domestic abuse or sexual violence can recover from and cope with the effects of such victimization and participate in the criminal and civil justice processes without fear of adverse economic consequences.

To accomplish these purposes, this Act provides unemployment insurance to those who are separated from their employment as a result of domestic abuse or sexual violence, in a manner that accommodates the legitimate interests of employers and protects the safety of all persons in the workplace.

SECTION 7. Chapter 383, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§383-   Eligibility of benefits for domestic abuse or sexual violence victims. (a) As used in this section, the terms "domestic abuse or sexual violence", "domestic abuse", and "victim service organization" shall be as defined in section 378-1. For purposes of this section, the term "individual" means the individual who has filed a claim for any unemployment benefits authorized under section 383-32 and "child of the individual" means a minor child domiciled with the individual.

(b) An individual’s voluntary separation from employment shall be considered for good cause under any of the following circumstances resulting from the individual or a child of the individual being a victim of domestic abuse or sexual violence:

(1) The individual has a reasonable fear of the occurrence of future domestic abuse or sexual violence at, en route to, or en route from, the individual’s place of employment;

(2) The individual’s efforts to seek or reside in an emergency shelter, or to temporarily or permanently relocate to avoid future domestic abuse or sexual violence against the individual or the child of the individual, prevents the individual from working;

(3) The need of the individual or the child of the individual to obtain treatment to address the physical or psychological effects of domestic abuse or sexual violence prevents the individual from working;

(4) The individual's request for leave was denied by the employer or the individual believes that alternatives such as taking a leave of absence, transferring jobs, or receiving an alternate work schedule would not be sufficient to guarantee the safety of the individual or the child of the individual; or

(5) Any other circumstance in which domestic abuse or sexual violence causes the individual to reasonably believe that separation from employment is necessary for the future safety of the individual or the child of the individual.

(c) An individual who is a victim of domestic abuse or sexual violence shall be deemed to be seeking work if the individual has registered for work in accordance with section 383-29(a)(2) and rules that the department may prescribe.

(d) To demonstrate the individual's eligibility for benefits, the department may request the following evidence:

(1) A statement from the individual attesting to the individual or the child of the individual having been a victim of domestic abuse or sexual violence causes the individual's loss of employment;

(2) A statement from an employee, agent, or volunteer of a victim services organization, from the individual's attorney or advocate, from a member of the clergy, or from a medical or other professional from whom the individual or the child of the individual has sought assistance attesting to the domestic abuse or sexual violence and explaining how the domestic abuse or sexual violence was the cause of the individual's loss of employment;

(3) A police record, court record, or other corroborating evidence suggesting or demonstrating that the domestic abuse or sexual violence was the cause of the individual's loss of employment.

(e) Except as otherwise provided in this chapter, all information provided to the department relating to the sexual or domestic abuse, and all information regarding the individual's inquiry, application or receipt of unemployment benefits shall be retained in the strictest confidence by the individual's former or current employer, and shall not be disclosed except to the extent that disclosure is requested or consented to by the individual, ordered by a court or administrative agency, or otherwise required by applicable federal or state law."

PART III.

SECTION 8. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act, which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 9. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 10. This Act shall take effect on July 1, 2050.