• Arizona's Victim Leave Law
  • June 3, 2003 | Author: Jane E. Reddin
  • Law Firm: Lewis and Roca LLP - Phoenix Office
  • Effective August 9, 2001, Arizona's legislature created a new law to give leave rights and job protection to victims of crime.

    The Law

    This article will discuss the new "leave rights" this bill created for employees. The law is mainly contained in A.R.S. § 8-420 (for victims of juvenile offenses) and A.R.S. §13-4439 (for victims of adult crime), but its references reach across many other laws, including the Employment Protection Act, A.R.S. § 23-1501.

    Covered Employers

    The first thing you need to know is that the law only applies to employers who have 50 or more employees. The total is counted during "each working day for each of twenty or more calendar weeks" in the current or prior year.

    The law does not specify whether you must count your "part-time" or "half-time" employees as one employee or if the law calculates the number of employees based on "full time equivalent." Because the law is silent on this point, we suspect that it will be interpreted to require you to count all employees on your payroll, no matter how many hours they typically work in a week.

    Eligible Employees

    An employee is eligible for leave and certain job protections if they are a "victim" of a crime. Victim is defined separately for victims of juvenile offenses and victims of adult crimes, but the definition is essentially the same:

    • "Victim" means a person against whom a criminal offense or delinquent act has been committed, or if the victim was killed or incapacitated, the person's immediate family or other lawful representative.

    • "Immediate family" is defined as "spouse, parent, child, sibling, grandparent or lawful guardian."

    • "Lawful representative" is someone who is designated by the victim or appointed by the court to act in the best interests of the victim.

    The law makes an exception for family members who are in custody for the offense themselves, or are accused of the crime - they are not entitled to take this leave.

    Notably, there is no waiting period for an employee to be eligible (such as the limit in the Family & Medical Leave Act of an employee having worked for at least a year, and having worked 1,250 hours before they are eligible). It appears that all "employees" are eligible, no matter how long or how little they have worked for you.

    The Protections

    Crime victims are entitled to attend all court proceedings involving the perpetrator of their crime, and may take time off to do so. This would include any trials, and many preliminary and post-trial hearings as well.

    Specifically, victims of juvenile offenses are given the right to leave work to be present at proceedings under A.R.S. §8-395 (hearing to consider the post-conviction release from custody of the accused), §8-400 (any hearing at which the accused as the right to be present), §8-401 (detention hearing), §8-402 (hearing on possible post-arrest release), §8-403 (plea negotiation hearing); §8-405 (disposition hearing), §8-406 (probation modification or termination hearing) and/or §8-415 (re-examination proceeding).

    Similarly, victims of adult offenses are given the right to leave work to be present at proceedings under A.R.S. §13-4414 (hearing on post-conviction release), §13-4420 (any proceedings in which the defendant has a right to be present), §13-4421 (initial appearance), §13-4422 (post-arrest release), §13-4423 (plea negotiations), §13-4426 (sentencing), §13-4427 (probation modification or termination), and §13-4436 (re-examination proceeding).

    In addition, employees who take this leave may not lose "seniority or precedence" while absent. The law does not say anything about whether the employee is entitled to continue to accrue benefits, or if you must maintain their health or other benefits.

    The Procedure

    The law requires the criminal or juvenile prosecutor to give notice to the "victim" whenever one of the above-referenced hearings is scheduled to take place. The victim may then seek time off from his or her employer in order to attend the proceeding.

    This law requires you, as the employer of a victim, to provide the time off. You do not need to pay the employee for their time. However, you may require the employee to use up available paid time - such as vacation time, personal leave or sick leave - if you so desire. Additionally, the employee may insist that they be allowed to use their vacation, personal leave or sick leave, if they so desire.

    Note: This law seems to say that an employee must be allowed to use their paid sick time for court appearances, even if your sick leave policy is limited to bona fide illness. This is another difference from the Family & Medical Leave Act, which does allow you to limit your paid sick leave to qualifying medical illnesses; for example, you are not required to give an employee paid sick time to take care of the employee's parent, unless you design your sick leave to allow for such events.

    The victim leave law requires your employees provide you with the following before you must allow them time off:

    • A copy of the notice they received from law enforcement or the prosecutor regarding their status as a crime victim and their rights; and
    • A copy of the notice of any scheduled proceeding, if applicable.

    The law also requires you to keep the information that you have about the employee's status as a crime victim and their need for leave in a "confidential" file. The law does not define what that means. However, we believe it would not be sufficient to keep this information in the employee's general personnel file. Nor would it be acceptable to mix this information in with the employee's medical information. Therefore we believe that the most cautious approach would be to have a new, separate confidential file for any crime victim leave information about each employee who requests such leave.

    Limits on Time Off

    Unlike the Family & Medical Leave Act, there is no limit on the time an employee can take off under this law.

    However, the law does contain an "undue hardship" provision. That section states that an employer may limit the leave an employee takes if the leave creates an undue hardship to the business. The term "undue hardship" is defined as "a significant difficulty and expense to a business," and includes "consideration of the size of the employer's business and the employer's critical need of the employee."

    Generally, the standard of "undue hardship" is extremely difficult to meet for employers, and it is not further defined in this law.

    In an interesting provision, the victim has a right to inform the prosecutor that the scheduled hearing time would create an undue hardship on his employer. That provision law implies that the Court should take this into account when scheduling hearings and proceedings. However, there is no procedure which would allow the employer to directly make this request. And, apparently, if the Court does not reschedule the hearing to better suit the victim's work schedule, the victim retains the right to take the time off work.

    Penalties

    Employees who exercise their rights under the victim's law have job protection. They may not be discriminated against in terms of hiring, firing, or with regard to "compensation or other terms, conditions or privileges of employment."

    The law does not specifically provide a remedy to an employee who is denied the right to take time off under the statute. However, the law does create a "wrongful termination" tort claim under A.R.S. § 23-1501 (3)(c)(x). That statute provides that if an employer terminates the employee for exercising their rights under the "Victim's Leaves Rights" statutes (either the juvenile or adult versions), the employee may sue the employer for damages. There are no limits on the damages the employee could collect for a wrongful termination under that section.