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Leaves taken to give Witness Testimony
"An employer shall not discharge or in any manner Discriminate or Retaliate against an employee, including, but not limited to, an employee who is a victim of a crime, for taking time off to appear in court to comply with a subpoena or other court order as a witness in any judicial proceeding." California Labor Code section 230(b). Thus, this law applies equally to employees who are the victim of a crime for which they are to give witness testimony and employees who are giving testimony for reasons other than because they are the victim of crime, such as because they were witness to an injury-causing motor vehicle. Generally in California, the rights and remedies of employees taking or requesting a leave in order to provide witness testimony at a judicial proceeding are the same as for employees taking Leaves for Jury Duty under California Labor Code section 230(a).
The Labor Commissioner, State of California, Department of Industrial Relations, Division of Labor Standards Enforcement, Retaliation Complaint Investigation Unit investigates many workplace retaliation complaints, including those under California Labor Code section 230(b). According to the Labor Commissioner’s 2019 Retaliation Complaint Report, four (4) retaliation complaints were filed or opened concerning taking time off to appear as a witness in court in violation of California Labor Code section 230(b), while 1,950 retaliation complaints were filed or opened for filing or threatening to file a claim with the Labor Commissioner in violation of California Labor Code 98.6. It is important to note that complaints of retaliation or discrimination due to a work-related injury are handled by the California Worker’s Compensation Appeals Board. Complaints of retaliation or discrimination based on Race, Religion, Disability, Medical Condition, Sexual Orientation, Sex, Marital Status, or National Origin are handled by the California Department of Fair Employment and Housing.
A related statute, California Education Code section 45207(a)(3), authorizes employees of school districts to use days of absence for illness or injury earned pursuant to Section 45191 (“Every classified employee employed five days a week by a school district shall be entitled to 12 days leave of absence for illness or injury . . . with full pay for a fiscal year of service”) for “Appearance in any court or before any administrative tribunal as a litigant, party, or witness under subpoena or any order made with jurisdiction.”
While the California Labor Code is technically silent on the issue, the right to give Witness Testimony at a judicial proceeding extends to federal cases as well as state cases. Thus, employees are entitled to attend any judicial proceeding, civil, criminal, or administrative, in order to provide witness testimony, and employers are not allowed to retaliate against the attendance in any manner.
Witness testimony may arise via subpoena. If you have received a subpoena requesting your testimony at a judicial proceeding, then a trial may be dependent on the knowledge you possess in order to be carried out successfully and effectively. If you have been summoned to appear as a witness in any administrative or judicial proceeding you should promptly provide a copy of the subpoena or order to your supervisor or your human resources department. The matter is confidential and your employer should not share this information with coworkers or other individuals at your workplace who do not have a legitimate need to know that you are taking time off to give witness testimony.
Witness testimony is essential to the successful conduction of a trial. Without witness testimony, there would be no one to corroborate the stories of the plaintiff, defendant, accused, victim, or prosecutor, and consequentially judges and juries would be compelled to weigh only the physical evidence presented in the abstract in order to determine the guilt or liability of their peer. Witness testimony enables the discovery of further truths that may decide the eventual outcome of the case.
The elements of a claim of wrongful discharge under California Labor Code section 230(b) are:
- “discharge of, or discrimination in the terms and conditions of employment against, an employee; and,
- that the employer's conduct was motivated by the employee's taking or having taken time off to appear in court as a witness.
In defense of such a claim an employer can argue that either the employee did not give reasonable notice of the court appearance or that the employer did not act out of the prohibited motive.”
Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 41-42.
The “terms and conditions of employment” has a broad meaning that includes the location, hours, rate of pay, duties of the job, meals, housing, safety rules, workload and scheduling, break periods, holiday and vacation time, sick leave, promotions and transfers, allowable causes of discharge, grievance and arbitration procedures, layoffs, retraining, and severance pay. Thus, if, after you requested a leave of absence from work to testify at a judicial proceeding, your employer changed your work hours or suspended or demoted you for reasons not stated in the employee handbook you received at the time of hiring, this may be a violation of California Labor Code section 230(b).
If the employee's lawsuit is successful, the employee may have several remedies. Statutory remedies for a violation of California Labor Code §230 include reinstatement, which entitles the employee to his or her job in the event the employer discharged the employee for having taken the leave to provide witness testimony at a proceeding. Secondly, the employee can sue for reimbursement of lost wages for the period of time during which he or she was not allowed to work by the employer. Finally, the employee can also sue for work benefits that were lost due to the employer's discrimination, such as perhaps health insurance that was denied while the employee was discharged. “An employer who willfully refuses to rehire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for rehiring or promotion by a grievance procedure or hearing authorized by law is guilty of a misdemeanor.” California Labor Code §230(g)(3).Contact Us
If you have not been granted a leave in order to testify as a witness, or if you have experienced negative treatment or termination from having taken a leave at your workplace in order to give witness testimony, contact the seasoned lawyers at Kokozian Law Firm, APC. Ask about our free initial consultation.