Virginia law now requires employers to give time off from work to certain crime victims or their immediate family members to attend various legal proceedings. The employer need not pay for the time off, but must grant the time off unless it would result in a provable undue hardship. Finally, the law makes it illegal to take any adverse employment action against an employee in retaliation for exercising such rights.
In general, Virginia Code §40.1-28.7:2, passed in the last legislative session and currently effective, requires all employers, regardless of size, to provide employees who are victims of certain crimes with time off to attend criminal proceedings relating to the crime. §40.1-28.7:2 B. Victims of crimes will be notified of these rights by a standard crime victims’ rights form given to them by the investigating law enforcement agency. §19.2-11.01 A. Employers may require employees requesting time off to provide a copy of this standard form. §40.1-28.7:2 B. The employer need not pay the employee for the time off; however, the employer may limit the employee’s time off only if it would be an “undue hardship” to the employer. See §40.1-28.7:2 D and §40.1-28.7:2 B. Finally, employers may not take any adverse employment action against an employee exercising rights under this section, (e.g., dismissal, refusal to hire, or discrimination against such employee). §40.1-28.7:2 C and E.
The law applies not only to victims of certain crimes, but also to the parents or guardians of minor crime victims, and the children, spouses, and certain other relatives of crime victims:
- a person who has suffered physical, psychological or economic harm as a direct result of the commission of a felony or of assault and battery in violation of § 18.2-57 or § 18.2-57.2, stalking in violation of § 18.2-60.3, sexual battery in violation of § 18.2-67.4, attempted sexual battery in violation of § 18.2-67.5, maiming or driving while intoxicated in violation of § 18.2-51.4 or § 18.2-266,
- a spouse or child of such a person,
- a parent or legal guardian of such a person who is a minor,
- for the purposes of subdivision A 4 of this section only, a current or former foster parent or other person who has or has had physical custody of such a person who is a minor, for six months or more or for the majority of the minor’s life, or
- a spouse, parent, sibling or legal guardian of such a person who is physically or mentally incapacitated or was the victim of a homicide.
Va. Code § 19.2-11.01 B.
Likewise, the law entitles employees to take time off to attend several different “criminal proceedings.”
Criminal proceedings means a proceeding at which the victim has the right or opportunity to appear involving a crime against the victim, including:
- The initial appearance of the person suspected of committing the criminal offense against the victim;
- Any proceeding in which the court considers the post-arrest release of the person accused of committing a criminal offense against the victim or the conditions of that release;
- Any proceeding in which a negotiated plea for the person accused of committing the criminal offense against the victim will be presented to the court;
- Any sentencing proceeding;
- Any proceeding in which post-conviction release from confinement is considered;
- Any probation revocation disposition proceeding or any proceeding in which the court is requested to terminate the probation of a person who is convicted of committing a criminal offense against the victim; or
- Any proceeding in which the court is requested to modify the terms of probation or intensive probation of a person if the modification will substantially affect the person’s contact with or safety of the victim or if the modification involves restitution or incarceration status.
Va. Code § 40.1-28.7:2 A.
An employer may deny or limit the leave granted under § 40.1-28.7:2 B only if granting such leave would place an “undue hardship” on such employer. According to the new section, “undue hardship” means “a significant difficulty and expense to a business and includes the consideration of the size of the employer’s business and the employer’s critical need of the employee.” § 40.1-28.7:2 A. If the employer places limits on leave requested, an employee may file suit in state court to compel the employer to provide the requested leave. The employer has the burden of demonstrating that the expense and administration of granting such leave would create an undue hardship. Although this law has yet to be tested, courts have set high burdens on employers tasked with analogous tests.