Legal Updates

New Laws In Virginia And Nebraska Extend Protections For Employee Leave

The Virginia Leave for Victims of a Crime Act

Effective July 1, 2007, Virginia employers are required to allow any employee who is a victim of a crime to take leave in order to participate in any proceedings related to the crime.  The amended law expands the current protections of employees from adverse actions where the employee has been summoned for jury duty or to testify as a witness in court.  However, the law does not protect defendants in a criminal action.

The new law requires employers to grant leave to employees who have been victims of a crime to attend “criminal proceedings,” 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 pre-sentencing or sentencing proceeding;
• Any proceeding in which post-conviction release from confinement will be considered;
• Any probation revocation disposition proceedings or any proceeding in which the court is required 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 involves restitution or incarceration status.

Employers are allowed to deny a request for such leave if the leave would cause the employer “undue hardship,” 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.”  The employee also must provide the employer with a copy of a mandated form provided by the applicable law-enforcement agency, and, if applicable, a copy of the notice of each scheduled criminal proceeding.  The employer is not required to compensate the employee who is on leave, but the employee may elect to use paid vacation, personal or sick leave.

The Nebraska Family Military Leave Act

Recently, the Governor of Nebraska signed the Family Military Leave Act, 2007 NE L.B. 497 (the “Act”) into law.

Pursuant to the Act, any employer that employs between 15 and 50 employees must provide up to 15 days of unpaid family military leave to an employee who is the spouse or parent of a person called to military service lasting 179 days or longer during the time deployment orders are in effect.  An employer with more than 50 employees must provide up to 30 days of unpaid family military leave.  It is not clear whether the employees must be employed in Nebraska for purposes of meeting the threshold.

Eligible employees include employees who have been employed by the employer for at least 12 months and have been employed for at least 1,250 hours of service during the 12-month period immediately preceding the commencement of the requested leave.

If the leave is expected to last 5 or more consecutive work days, the employee must give the employer at least 14 days’ notice of the intended date upon which the leave will begin.  If the leave is expected to last less than 5 consecutive work days, the employee must give the employer as much advance notice as is practicable.

Upon expiration of the leave, the employee must be restored to the position held by the employee when the leave commenced or to a position with equivalent seniority status, employee benefits, pay, and other terms and conditions of employment.  During the leave, the employer must make it possible for the employee to continue his/her benefits (all benefits an employer provides or makes available to its employees other than salary and wages) at the employee’s expense.  The employer may agree to provide benefits at its own expense as well.

Under the Act, it is unlawful for an employer to discharge, fine, suspend, expel, discipline, or in any other manner discriminate against any employee who exercises any right provided under the Act or opposes any practice made unlawful by the Act.

Policy Implications

Numerous states now provide some form of employment protection to victims of a crime, most notably, for victims of domestic or sexually violent crimes, and for family military leave.  Please contact us if you would like assistance in developing policies in regard to these and/or other leave laws, or for more information about the specific employee leave requirements in the states in which your organization operates.