SB 306: Retaliation actions: complaints: administrative review.
- Session Year: 2017-2018
- House: Senate
- Latest Version Date: 2017-10-03
(1)Existing law prohibits a person from discharging or otherwise discriminating, retaliating, or taking any adverse action against any employee or applicant for employment because the employee or applicant engaged in specified protected conduct. Under existing law, an aggrieved employee or applicant is entitled to reinstatement or employment and reimbursement for lost wages and work benefits caused by acts of the employer in violation of this prohibition, and may file a complaint with the Division of Labor Standards Enforcement (division).
Existing law requires a discrimination complaint investigator to investigate, and submit a report on, each complaint to the Labor Commissioner; authorizes the commissioner to designate specified officers to review the report; and authorizes the commissioner to hold an investigative hearing on the report if, after reviewing the report, the commissioner determines that a hearing is necessary.
This bill would authorize the division to commence an investigation of an employer, with or without a complaint being filed, when specified retaliation or discrimination is suspected during the course of a wage claim or other specified investigation being conducted by the Labor Commissioner. The bill would also authorize the commissioner, upon finding reasonable cause to believe that any person has engaged in or is engaging in a violation, to petition a superior court for prescribed injunctive relief. The bill would require a court, if an employee has been discharged or faced adverse action for raising a claim of retaliation for asserting rights under any law under the jurisdiction of the commissioner, to order appropriate injunctive relief on a showing that reasonable cause exists to believe a violation has occurred.
The bill would provide that temporary injunctive relief under these provisions would not prohibit an employer from disciplining or terminating an employee for conduct that is unrelated to the claim of the retaliation.
(2)Existing law requires the commissioner, if the commissioner determines a violation has occurred, to direct the respondent to cease and desist from, and to remedy, the violation, as specified. Existing law authorizes the commissioner to bring a civil action against a respondent that does not comply with such an order. Existing law authorizes a complainant, if the commissioner does not promptly bring an action, to bring an action in court for a writ of mandate to compel the commissioner to bring an action.
The bill would also authorize the commissioner to issue citations directing specific relief to persons determined to be responsible for violations. The bill would establish review procedures, including procedures for requesting a hearing before a hearing officer for the commissioner and for a petition for a writ of mandate. The bill would authorize the commissioner to adopt regulations to establish hearing procedures. The bill would subject an employer who willfully refuses to comply with a final order pursuant to the bill to prescribed civil penalties payable to the affected employee.
(3)Existing law prohibits an employer from discharging an employee or in any manner discriminating, retaliating, or taking any adverse action against any employee or applicant for employment because the employee or applicant has engaged in protected conduct, as specified. Existing law provides that an employee who made a bona fide complaint, and was consequently discharged or otherwise suffered an adverse action, is entitled to reinstatement and reimbursement for lost wages. Existing law makes it a misdemeanor for an employer to willfully refuse to reinstate or otherwise restore an employee who is determined by a specified procedure to be eligible for reinstatement. Existing law subjects a person who violates these provisions to a civil penalty of up to $10,000 per violation.
The bill would authorize an employee who is bringing a civil action under these provisions to also seek injunctive relief from the court. The bill would provide notice procedures and criteria for the court to evaluate in granting or denying the application for injunction. The bill would provide that injunctive relief granted under these provisions is not stayed pending appeal.
(1)Existing law prohibits a person from discharging or otherwise discriminating, retaliating, or taking any adverse action against any employee or applicant for employment because the employee or applicant engaged in specified protected conduct. Under existing law, an aggrieved employee or applicant is entitled to reinstatement or employment and reimbursement for lost wages and work benefits caused by acts of the employer in violation of this prohibition, and may file a complaint with the Division of Labor Standards Enforcement (division).
Existing law requires a discrimination complaint investigator to investigate, and submit a report on, each complaint to the Labor Commissioner; authorizes the commissioner to designate specified officers to review the report; and authorizes the commissioner to hold an investigative hearing on the report if, after reviewing the report, the commissioner determines that a hearing is necessary.
This bill would authorize the division to commence an investigation of an employer, with or without a complaint being filed, when specified retaliation or discrimination is suspected during the course of a wage claim or other specified investigation being conducted by the Labor Commissioner. The bill would also authorize the commissioner, upon finding reasonable cause to believe that any person has engaged in or is engaging in a violation, to petition a superior court for prescribed injunctive relief. The bill would require a court, if an employee has been discharged or faced adverse action for raising a claim of retaliation for asserting rights under any law under the jurisdiction of the commissioner, to order appropriate injunctive relief on a showing that reasonable cause exists to believe a violation has occurred.
The bill would provide that temporary injunctive relief under these provisions would not prohibit an employer from disciplining or terminating an employee for conduct that is unrelated to the claim of the retaliation.
(2)Existing law requires the commissioner, if the commissioner determines a violation has occurred, to direct the respondent to cease and desist from, and to remedy, the violation, as specified. Existing law authorizes the commissioner to bring a civil action against a respondent that does not comply with such an order. Existing law authorizes a complainant, if the commissioner does not promptly bring an action, to bring an action in court for a writ of mandate to compel the commissioner to bring an action.
The bill would also authorize the commissioner to issue citations directing specific relief to persons determined to be responsible for violations. The bill would establish review procedures, including procedures for requesting a hearing before a hearing officer for the commissioner and for a petition for a writ of mandate. The bill would authorize the commissioner to adopt regulations to establish hearing procedures. The bill would subject an employer who willfully refuses to comply with a final order pursuant to the bill to prescribed civil penalties payable to the affected employee.
(3)Existing law prohibits an employer from discharging an employee or in any manner discriminating, retaliating, or taking any adverse action against any employee or applicant for employment because the employee or applicant has engaged in protected conduct, as specified. Existing law provides that an employee who made a bona fide complaint, and was consequently discharged or otherwise suffered an adverse action, is entitled to reinstatement and reimbursement for lost wages. Existing law makes it a misdemeanor for an employer to willfully refuse to reinstate or otherwise restore an employee who is determined by a specified procedure to be eligible for reinstatement. Existing law subjects a person who violates these provisions to a civil penalty of up to $10,000 per violation.
The bill would authorize an employee who is bringing a civil action under these provisions to also seek injunctive relief from the court. The bill would provide notice procedures and criteria for the court to evaluate in granting or denying the application for injunction. The bill would provide that injunctive relief granted under these provisions is not stayed pending appeal.
(1)Existing law prohibits a person from discharging or otherwise discriminating, retaliating, or taking any adverse action against any employee or applicant for employment because the employee or applicant engaged in specified protected conduct. Under existing law, an aggrieved employee or applicant is entitled to reinstatement or employment and reimbursement for lost wages and work benefits caused by acts of the employer in violation of this prohibition, and may file a complaint with the Division of Labor Standards Enforcement (division).
Existing law requires a discrimination complaint investigator to investigate, and submit a report on, each complaint to the Labor Commissioner; authorizes the commissioner to designate specified officers to review the report; and authorizes the commissioner to hold an investigative hearing on the report if, after reviewing the report, the commissioner determines that a hearing is necessary.
This bill would authorize the division to commence an investigation of an employer, with or without a complaint being filed, when specified retaliation or discrimination is suspected during the course of a wage claim or other specified investigation being conducted by the Labor Commissioner. The bill would also authorize the commissioner, upon finding reasonable cause to believe that any person has engaged in or is engaging in a violation, to petition a superior court for prescribed injunctive relief. The bill would require a court, if an employee has been discharged or faced adverse action for raising a claim of retaliation for asserting rights under any law under the jurisdiction of the commissioner, to order appropriate injunctive relief on a showing that reasonable cause exists to believe a violation has occurred.
The bill would provide that temporary injunctive relief under these provisions would not prohibit an employer from disciplining or terminating an employee for conduct that is unrelated to the claim of the retaliation.
(2)Existing law requires the commissioner, if the commissioner determines a violation has occurred, to direct the respondent to cease and desist from, and to remedy, the violation, as specified. Existing law authorizes the commissioner to bring a civil action against a respondent that does not comply with such an order. Existing law authorizes a complainant, if the commissioner does not promptly bring an action, to bring an action in court for a writ of mandate to compel the commissioner to bring an action, and requires the court to award the complainant court costs and reasonable attorneys fees if the complainant prevails in his or her action for a writ. action.
This bill would require the court, if the commissioner is the prevailing party in an enforcement action, to assess the costs and attorneys fees as a cost upon the employer. The bill would also provide that an employer who willfully refuses to comply with the terms of a court order would be subject to a specified civil penalty to be paid to the affected employee.The bill would also authorize the commissioner to issue citations directing specific relief to persons determined to be responsible for violations. The bill would establish review procedures, including procedures for requesting a hearing before a hearing officer for the commissioner and for a petition for a writ of mandate. The bill would authorize the commissioner to adopt regulations to establish hearing procedures. The bill would subject an employer who willfully refuses to comply with a final order pursuant to the bill to prescribed civil penalties payable to the affected employee.
(3)Existing law prohibits an employer from discharging an employee or in any manner discriminating, retaliating, or taking any adverse action against any employee or applicant for employment because the employee or applicant has engaged in protected conduct, as specified. Existing law provides that an employee who made a bona fide complaint, and was consequently discharged or otherwise suffered an adverse action, is entitled to reinstatement and reimbursement for lost wages. Existing law makes it a misdemeanor for an employer to willfully refuse to reinstate or otherwise restore an employee who is determined by a specified procedure to be eligible for reinstatement. Existing law subjects a person who violates these provisions to a civil penalty of up to $10,000 per violation.
The bill would authorize an employee who is bringing a civil action under these provisions to also seek injunctive relief from the court. The bill would provide notice procedures and criteria for the court to evaluate in granting or denying the application for injunction. The bill would provide that injunctive relief granted under these provisions is not stayed pending appeal.
(1)Existing law prohibits a person from discharging or otherwise discriminating, retaliating, or taking any adverse action against any employee or applicant for employment because the employee or applicant engaged in specified protected conduct. Under existing law, an aggrieved employee or applicant is entitled to reinstatement or employment and reimbursement for lost wages and work benefits caused by acts of the employer in violation of this prohibition, and may file a complaint with the Division of Labor Standards Enforcement. Enforcement (division).
Existing law requires a discrimination complaint investigator to investigate, and submit a report on, each complaint to the Labor Commissioner; authorizes the commissioner to designate specified officers to review the report; and authorizes the commissioner to hold an investigative hearing on the report if, after reviewing the report, the commissioner determines that a hearing is necessary.
This bill would authorize the division to commence an investigation of an employer, with or without a complaint being filed, when specified retaliation or discrimination is suspected during the course of a wage claim or other specified investigation being conducted by the Labor Commissioner. The bill would also authorize the commissioner, upon finding reasonable cause to believe that any person has engaged in or is engaging in a violation, to petition a superior court for prescribed injunctive relief. The bill would require a court, if an employee has been discharged or faced adverse action for raising a claim of retaliation for asserting rights under any law under the jurisdiction of the commissioner, to order appropriate injunctive relief on a showing that reasonable cause exists to believe a violation has occurred.
(2)Existing law requires the commissioner, if the commissioner determines a violation has occurred, to direct the respondent to cease and desist from, and to remedy, the violation, as specified. Existing law authorizes the commissioner to bring a civil action against a respondent that does not comply with such an order. Existing law authorizes a complainant, if the commissioner does not promptly bring an action, to bring an action in court for a writ of mandate to compel the commissioner to bring an action, and requires the court to award the complainant court costs and reasonable attorneys fees if the complainant prevails in his or her action for a writ.
This bill would require the court, if the commissioner successfully prosecutes is the prevailing party in an enforcement action, to assess the costs and attorneys fees as a cost upon the employer. The bill would also provide that an employer who willfully refuses to comply with the terms of a court order would be subject to a specified civil penalty to be paid to the affected employee.
The bill would also authorize the commissioner to issue citations directing specific relief to persons determined to be responsible for violations. The bill would establish review procedures, including procedures for requesting a hearing before a hearing officer for the commissioner and for a petition for a writ of mandate. The bill would authorize the commissioner to adopt regulations to establish hearing procedures. The bill would subject an employer who willfully refuses to comply with a final order pursuant to the bill to prescribed civil penalties payable to the affected employee.
(3)Existing law prohibits an employer from discharging an employee or in any manner discriminating, retaliating, or taking any adverse action against any employee or applicant for employment because the employee or applicant has engaged in protected conduct, as specified. Existing law provides that an employee who made a bona fide complaint, and was consequently discharged or otherwise suffered an adverse action, is entitled to reinstatement and reimbursement for lost wages. Existing law makes it a misdemeanor for an employer to willfully refuse to reinstate or otherwise restore an employee who is determined by a specified procedure to be eligible for reinstatement. Existing law subjects a person who violates these provisions to a civil penalty of up to $10,000 per violation.
The bill would authorize an employee who is bringing a civil action under these provisions to also seek injunctive relief from the court. The bill would provide notice procedures and criteria for the court to evaluate in granting or denying the application for injunction. The bill would provide that injunctive relief granted under these provisions is not stayed pending appeal.
(1)Existing law prohibits a person from discharging or otherwise discriminating, retaliating, or taking any adverse action against any employee or applicant for employment because the employee or applicant engaged in specified protected conduct. Under existing law, an aggrieved employee or applicant is entitled to reinstatement or employment and reimbursement for lost wages and work benefits caused by acts of the employer in violation of this prohibition, and may file a complaint with the Division of Labor Standards Enforcement.
Existing law requires a discrimination complaint investigator to investigate, and submit a report on, each complaint to the Labor Commissioner; authorizes the commissioner to designate specified officers to review the report; and authorizes the commissioner to hold an investigative hearing on the report if, after reviewing the report, the commissioner determines that a hearing is necessary.
This bill would authorize the commissioner, upon finding reasonable cause to believe that any person has engaged in or is engaging in a violation, to petition a superior court for prescribed injunctive relief. The bill would require a court, if an employee has been discharged or faced adverse action for raising a claim of retaliation for asserting rights under any law under the jurisdiction of the commissioner, to order appropriate injunctive relief on a showing that reasonable cause exists to believe a violation has occurred.
(2)Existing law requires the commissioner, if the commissioner determines a violation has occurred, to direct the respondent to cease and desist from, and to remedy, the violation, as specified. Existing law authorizes the commissioner to bring a civil action against a respondent that does not comply with such an order. Existing law authorizes a complainant, if the commissioner does not promptly bring an action, to bring an action in court for a writ of mandate to compel the commissioner to bring an action, and requires the court to award the complainant court costs and reasonable attorneys fees if the complainant prevails in his or her action for a writ.
This bill would require the court, if the commissioner successfully prosecutes an enforcement action, to assess the costs and attorneys fees as a cost upon the employer.
The bill would also authorize the commissioner to issue citations directing specific relief to persons determined to be responsible for violations. The bill would establish review procedures, including procedures for requesting a hearing before a hearing officer for the commissioner and for a petition for a writ of mandate. The bill would authorize the commissioner to adopt regulations to establish hearing procedures. The bill would subject an employer who willfully refuses to comply with a final order pursuant to the bill to prescribed civil penalties payable to the affected employee.
(3)Existing law prohibits an employer from discharging an employee or in any manner discriminating, retaliating, or taking any adverse action against any employee or applicant for employment because the employee or applicant has engaged in protected conduct, as specified. Existing law provides that an employee who made a bona fide complaint, and was consequently discharged or otherwise suffered an adverse action, is entitled to reinstatement and reimbursement for lost wages. Existing law makes it a misdemeanor for an employer to willfully refuse to reinstate or otherwise restore an employee who is determined by a specified procedure to be eligible for reinstatement. Existing law subjects a person who violates these provisions to a civil penalty of up to $10,000 per violation.
The bill would authorize an employee who is bringing a civil action under these provisions to also seek injunctive relief from the court. The bill would provide notice procedures and criteria for the court to evaluate in granting or denying the application for injunction. The bill would provide that injunctive relief granted under these provisions is not stayed pending appeal.
Existing law prohibits an employer from discharging an employee or in any manner discriminating, retaliating, or taking any adverse action against any employee or applicant for employment because the employee or applicant has engaged in protected conduct, as specified. Existing law provides that an employee who made a bona fide complaint, and was consequently discharged or otherwise suffered an adverse action, is entitled to reinstatement and reimbursement for lost wages. Existing law makes it a misdemeanor for an employer to willfully refuse to reinstate or otherwise restore an employee who is determined by a specified procedure to be eligible for reinstatement. Existing law subjects a person who violates these provisions to a civil penalty of up to $10,000 per violation. This bill would make technical, nonsubstantive changes to these provisions.Existing law prohibits an employer from discharging an employee or in any manner discriminating, retaliating, or taking any adverse action against any employee or applicant for employment because the employee or applicant has engaged in protected conduct, as specified. Existing law provides that an employee who made a bona fide complaint, and was consequently discharged or otherwise suffered an adverse action, is entitled to reinstatement and reimbursement for lost wages. Existing law makes it a misdemeanor for an employer to willfully refuse to reinstate or otherwise restore an employee who is determined by a specified procedure to be eligible for reinstatement. Existing law subjects a person who violates these provisions to a civil penalty of up to $10,000 per violation.
This bill would make technical, nonsubstantive changes to these provisions.
(a)(1)Any person who believes that he or she has been discharged or otherwise discriminated against in violation of any law under the jurisdiction of the Labor Commissioner may file a complaint with the division within six months after the occurrence of the violation. The six-month period may be extended for good cause. The complaint shall be investigated by a discrimination complaint investigator in accordance with this section. The Labor Commissioner shall establish procedures for the investigation of discrimination complaints, including, but not limited to, relief pursuant to paragraph (2) of subdivision (b). A summary of the procedures shall be provided to each complainant and respondent at the time of initial contact. The Labor Commissioner shall inform complainants charging a violation of Section 6310 or 6311, at the time of initial contact, of his or her right to file a separate, concurrent complaint with the United States Department of Labor within 30 days after the occurrence of the violation.
(2)The division may, with or without receiving a complaint, commence investigating an employer, in accordance with this section, that it suspects to have discharged or otherwise discriminated against an individual in violation of any law under the jurisdiction of the Labor Commissioner. The division may proceed without a complaint in those instances where suspected retaliation has occurred during the course of adjudicating a wage claim pursuant to Section 98, or during a field inspection pursuant to Section 90.5, in accordance with this section, or in instances of suspected immigration-related threats in violation of Section 244, 1019, or 1019.1.
(b)(1)Each complaint of unlawful discharge or discrimination shall be assigned to a discrimination complaint investigator who shall prepare and submit a report to the Labor Commissioner based on an investigation of the complaint. The Labor Commissioner or his or her designee shall receive and review the reports. The investigation shall include, where appropriate, interviews with the complainant, respondent, and any witnesses who may have information concerning the alleged violation, and a review of any documents that may be relevant to the disposition of the complaint. The identity of a witness shall remain confidential unless the identification of the witness becomes necessary to proceed with the investigation or to prosecute an action to enforce a determination. The investigation report submitted to the Labor Commissioner or designee shall include the statements and documents obtained in the investigation, and the findings of the investigator concerning whether a violation occurred. The Labor Commissioner may hold an investigative hearing whenever the Labor Commissioner determines that a hearing is necessary to fully establish the facts. In the hearing the complainant and respondent shall have the opportunity to present evidence. The Labor Commissioner shall issue, serve, and enforce any necessary subpoenas. If a complainant files an action in court against an employer based on the same or similar facts as a complaint made under this section, the Labor Commissioner may, at his or her discretion, close the investigation. If a complainant has already challenged his or her discipline or discharge through the State Personnel Board, or other internal governmental procedure, or through a collective bargaining agreement grievance procedure that incorporates antiretaliation provisions under this code, the Labor Commissioner may reject the complaint.
(2)(A)The Labor Commissioner, during the course of an investigation pursuant to this section, upon finding reasonable cause to believe that any person has engaged in or is engaging in a violation, may petition the superior court in any county in which the violation in question is alleged to have occurred or in which the person resides or transacts business, for appropriate temporary or preliminary injunctive relief, or both temporary and preliminary injunctive relief.
(B)Upon filing of a petition pursuant to this paragraph, the Labor Commissioner shall cause notice of the petition to be served on the person, and the court shall have jurisdiction to grant temporary injunctive relief as the court determines to be just and proper.
(C)In addition to any harm resulting directly to an individual from a violation of any law under the jurisdiction of the Labor Commissioner, the court shall consider the chilling effect on other employees asserting their rights under those laws in determining if temporary injunctive relief is just and proper.
(D)If an employee has been discharged or faced adverse action for raising a claim of retaliation for asserting rights under any law under the jurisdiction of the Labor Commissioner, a court shall order appropriate injunctive relief on a showing that reasonable cause exists to believe that an employee has been discharged or subjected to adverse action for raising a claim of retaliation or asserting rights under any law under the jurisdiction of the Labor Commissioner.
(E)The temporary injunctive relief shall remain in effect until the Labor Commissioner issues a determination or citations, or until the completion of review pursuant to subdivision (b) of Section 98.74, whichever period is longer, or at a time certain set by the court. Afterwards, the court may issue a preliminary or permanent injunction if it is shown to be just and proper. Any temporary injunctive relief shall not prohibit an employer from disciplining or terminating an employee for conduct that is unrelated to the claim of the retaliation.
(F)Notwithstanding Section 916 of the Code of Civil Procedure, injunctive relief granted pursuant to this section shall not be stayed pending appeal.
(c)(1)If the Labor Commissioner determines a violation has occurred, the Labor Commissioner may issue a determination in accordance with this section or issue a citation in accordance with Section 98.74. If the Labor Commissioner issues a determination, he or she shall notify the complainant and respondent and direct the respondent to cease and desist from any violation and take any action deemed necessary to remedy the violation, including, where appropriate, rehiring or reinstatement, reimbursement of lost wages and interest thereon, payment of penalties, payment of reasonable attorneys fees associated with any hearing held by the Labor Commissioner in investigating the complaint, and the posting of notices to employees. If the respondent does not comply with the order within 30 days following notification of the Labor Commissioners determination, the Labor Commissioner shall bring an action promptly in an appropriate court against the respondent. An action by the Labor Commissioner seeking injunctive relief, reimbursement of lost wages and interest thereon, payment of penalties, and any other appropriate relief, shall not accrue until a respondent fails to comply with the order for more than 30 days following notification of the commissioners determination. The Labor Commissioner shall commence an action within three years of its accrual, regardless of whether the commissioner seeks penalties in the action. If the Labor Commissioner fails to bring an action in court promptly, the complainant may bring an action against the Labor Commissioner in any appropriate court for a writ of mandate to compel the Labor Commissioner to bring an action in court against the respondent. If the complainant prevails in his or her action for a writ, the court shall award the complainant court costs and reasonable attorneys fees, notwithstanding any other law. Regardless of any delay in bringing an action in court, the Labor Commissioner shall not be divested of jurisdiction. In any action, the court may permit the claimant to intervene as a party plaintiff to the action and shall have jurisdiction, for cause shown, to restrain the violation and to order all appropriate relief. Appropriate relief includes, but is not limited to, rehiring or reinstatement of the complainant, reimbursement of lost wages and interest thereon, and any other compensation or equitable relief as is appropriate under the circumstances of the case. The Labor Commissioner shall petition the court for appropriate temporary relief or restraining order unless he or she determines good cause exists for not doing so.
(2)If the Labor Commissioner is a prevailing party in an enforcement action pursuant to this section, the court shall determine the reasonable attorneys fees incurred by the Labor Commissioner in prosecuting the enforcement action and assess that amount as a cost upon the employer.
(3)An employer who willfully refuses to comply with an order of a court pursuant to this section to hire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for such relief, or who refuses to comply with an order to post a notice to employees or otherwise cease and desist from the violation shall, in addition to any other penalties available, be subject to a penalty of one hundred dollars ($100) per day for each day the employer continues to be in noncompliance with the court order, up to a maximum of twenty thousand dollars ($20,000). Any penalty pursuant to this section shall be paid to the affected employee.
(d)(1)If the Labor Commissioner determines no violation has occurred, he or she shall notify the complainant and respondent and shall dismiss the complaint. The Labor Commissioner may direct the complainant to pay reasonable attorneys fees associated with any hearing held by the Labor Commissioner if the Labor Commissioner finds the complaint was frivolous, unreasonable, groundless, and was brought in bad faith. The complainant may, after notification of the Labor Commissioners determination to dismiss a complaint, bring an action in an appropriate court, which shall have jurisdiction to determine whether a violation occurred, and if so, to restrain the violation and order all appropriate relief to remedy the violation. Appropriate relief includes, but is not limited to, rehiring or reinstatement of the complainant, reimbursement of lost wages and interest thereon, and other compensation or equitable relief as is appropriate under the circumstances of the case. When dismissing a complaint, the Labor Commissioner shall advise the complainant of his or her right to bring an action in an appropriate court if he or she disagrees with the determination of the Labor Commissioner, and in the case of an alleged violation of Section 6310 or 6311, to file a complaint against the state program with the United States Department of Labor. Any time limitation for a complainant to bring an action in court shall be tolled from the time of filing the complaint with the division until the issuance of the Labor Commissioners determination.
(2)The filing of a timely complaint against the state program with the United States Department of Labor shall stay the Labor Commissioners dismissal of the division complaint until the United States Secretary of Labor makes a determination regarding the alleged violation. Within 15 days of receipt of that determination, the Labor Commissioner shall notify the parties whether he or she will reopen the complaint filed with the division or whether he or she will reaffirm the dismissal.
(e)The Labor Commissioner shall notify the complainant and respondent of his or her determination under subdivision (c) or paragraph (1) of subdivision (d), not later than one year after the filing of the complaint. Determinations by the Labor Commissioner under subdivision (c) or (d) shall be final and not subject to administrative appeal except for cases arising under Sections 6310 and 6311, which may be appealed by the complainant to the Director of Industrial Relations pursuant to an appeal process, including time limitations, that is consistent with the mandates of the United States Department of Labor. The appeal from a determination for cases arising under Sections 6310 and 6311 shall set forth specifically and in full detail the grounds upon which the complainant considers the Labor Commissioners determination to be unjust or unlawful, and every issue to be considered by the director. The director may consider any issue relating to the initial determination and may modify, affirm, or reverse the Labor Commissioners determination. The directors determination shall be the determination of the Labor Commissioner for cases arising under Sections 6310 and 6311 that are appealed to the director. The director shall notify the complainant and respondent of his or her determination within 10 days of receipt of the appeal.
(f)The rights and remedies provided by this section do not preclude an employee from pursuing any other rights and remedies under any other law.
(g)In the enforcement of this section, there is no requirement that an individual exhaust administrative remedies or procedures.
SEC. 2.Section 98.74 is added to the Labor Code, immediately following Section 98.7, to read:98.74.(a)If the Labor Commissioner determines, after an investigation of a retaliation or discrimination complaint filed in accordance with Section 98.7, that a violation has occurred and the Labor Commissioner proceeds with a citation, the Labor Commissioner shall issue, with reasonable promptness, a citation to the person who has been determined to be responsible for the violation. The citation shall be in writing, shall describe the nature of the violation and the amount of wages and penalties due, and shall include any and all appropriate relief. Appropriate relief includes directing the person cited to cease and desist from the violation and take any action necessary to remedy the violation, including, where appropriate, rehiring or reinstatement, reimbursement of lost wages and interest thereon, and posting notices to employees. Service of the citation shall be completed pursuant to Section 1013 of the Code of Civil Procedure by first-class and certified mail to the person cited. The citation shall advise the person cited of the procedure for obtaining review of the citation.
(b)A person issued a citation pursuant to this section may obtain review of the citation by transmitting a written request to the office of the Labor Commissioner at the address that appears on the citation within 30 days after service of the citation. If no hearing is requested within 30 days after service of the citation, the citation shall become final.
(c)Upon receipt of a timely request, a hearing shall be commenced within 90 days before a hearing officer for the Labor Commissioner. Within 90 days of the conclusion of the hearing, the hearing officer shall issue a written decision. The decision shall consist of a statement of findings, conclusions of law, and an order. This decision shall be served on all parties pursuant to Section 1013 of the Code of Civil Procedure by first-class mail at the last known address of the party on file with the Labor Commissioner. The Labor Commissioner shall adopt regulations setting forth procedures for hearings under this subdivision.
(d)(1)A person issued a citation pursuant to this section may obtain review of the decision of the Labor Commissioner by filing a petition for a writ of mandate to the appropriate superior court pursuant to Section 1094.5 of the Code of Civil Procedure within 45 days after service of the Labor Commissioners decision.
(2)As a condition to filing a petition for a writ of mandate, the petitioner seeking the writ shall first post a bond with the Labor Commissioner equal to the total amount of any minimum wages, liquidated damages, and overtime compensation that are due and owing as determined pursuant to subdivision (a). The bond amount shall not include amounts for penalties. The bond shall be issued by a surety duly authorized to do business in this state and shall be issued in favor of the employee or employees who suffered the violation or violations.
(3)If no petition for writ of mandate is filed within 45 days after service of the decision, the order shall become final. If it is claimed in a petition for writ of mandate that the findings are not supported by the evidence, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.
(e)An employer who willfully refuses to comply with a final order pursuant to this section to hire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for relief, or who refuses to comply with an order to post a notice to employees or otherwise cease and desist from the violation, in addition to any other penalties available, shall be subject to a penalty of one hundred dollars ($100) per day for each day the employer continues to be in noncompliance with the order, up to a maximum of twenty thousand dollars ($20,000). Any penalty pursuant to this section shall be paid to the affected employee.
SEC. 3.Section 1102.61 is added to the Labor Code, immediately following Section 1102.6, to read:1102.61.In any civil action or administrative proceeding brought pursuant to Section 1102.5, an employee may petition the superior court in any county wherein the violation in question is alleged to have occurred, or wherein the person resides or transacts business, for appropriate temporary or preliminary injunctive relief as set forth in Section 1102.62.
SEC. 4.Section 1102.62 is added to the Labor Code, immediately following Section 1102.61, to read:1102.62.(a)Upon the filing of the petition for injunctive relief, the petitioner shall cause notice thereof to be served upon the person, and thereupon the court shall have jurisdiction to grant such temporary injunctive relief as the court deems just and proper.
(b)In addition to any harm resulting directly from the violation of Section 1102.5, the court shall consider the chilling effect on other employees asserting their rights under that section in determining whether temporary injunctive relief is just and proper.
(c)Appropriate injunctive relief shall be issued on a showing that reasonable cause exists to believe a violation has occurred.
(d)The order authorizing temporary injunctive relief shall remain in effect until an administrative or judicial determination or citation has been issued or until the completion of a review pursuant to subdivision (b) of Section 98.74, whichever is longer, or at a time certain set by the court. Thereafter, a preliminary or permanent injunction may be issued if it is shown to be just and proper. Any temporary injunctive relief shall not prohibit an employer from disciplining or terminating an employee for conduct that is unrelated to the claim of the retaliation.
(e)Notwithstanding Section 916 of the Code of Civil Procedure, injunctive relief granted pursuant to this section shall not be stayed pending appeal.
(a)(1)Any person who believes that he or she has been discharged or otherwise discriminated against in violation of any law under the jurisdiction of the Labor Commissioner may file a complaint with the division within six months after the occurrence of the violation. The six-month period may be extended for good cause. The complaint shall be investigated by a discrimination complaint investigator in accordance with this section. The Labor Commissioner shall establish procedures for the investigation of discrimination complaints, including, but not limited to, relief pursuant to paragraph (2) of subdivision (b). A summary of the procedures shall be provided to each complainant and respondent at the time of initial contact. The Labor Commissioner shall inform complainants charging a violation of Section 6310 or 6311, at the time of initial contact, of his or her right to file a separate, concurrent complaint with the United States Department of Labor within 30 days after the occurrence of the violation.
(2)The division may, with or without receiving a complaint, commence investigating an employer, in accordance with this section, that it suspects to have discharged or otherwise discriminated against an individual in violation of any law under the jurisdiction of the Labor Commissioner. The division may proceed without a complaint in those instances where suspected retaliation has occurred during the course of adjudicating a wage claim pursuant to Section 98, or during a field inspection pursuant to Section 90.5, in accordance with this section, or in instances of suspected immigration-related threats in violation of Section 244, 1019, or 1019.1.
(b)(1)Each complaint of unlawful discharge or discrimination shall be assigned to a discrimination complaint investigator who shall prepare and submit a report to the Labor Commissioner based on an investigation of the complaint. The Labor Commissioner or his or her designee shall receive and review the reports. The investigation shall include, where appropriate, interviews with the complainant, respondent, and any witnesses who may have information concerning the alleged violation, and a review of any documents that may be relevant to the disposition of the complaint. The identity of a witness shall remain confidential unless the identification of the witness becomes necessary to proceed with the investigation or to prosecute an action to enforce a determination. The investigation report submitted to the Labor Commissioner or designee shall include the statements and documents obtained in the investigation, and the findings of the investigator concerning whether a violation occurred. The Labor Commissioner may hold an investigative hearing whenever the Labor Commissioner determines that a hearing is necessary to fully establish the facts. In the hearing the complainant and respondent shall have the opportunity to present evidence. The Labor Commissioner shall issue, serve, and enforce any necessary subpoenas. If a complainant files an action in court against an employer based on the same or similar facts as a complaint made under this section, the Labor Commissioner may, at his or her discretion, close the investigation. If a complainant has already challenged his or her discipline or discharge through the State Personnel Board, or other internal governmental procedure, or through a collective bargaining agreement grievance procedure that incorporates antiretaliation provisions under this code, the Labor Commissioner may reject the complaint.
(2)(A)The Labor Commissioner, during the course of an investigation pursuant to this section, upon finding reasonable cause to believe that any person has engaged in or is engaging in a violation, may petition the superior court in any county in which the violation in question is alleged to have occurred or in which the person resides or transacts business, for appropriate temporary or preliminary injunctive relief, or both temporary and preliminary injunctive relief.
(B)Upon filing of a petition pursuant to this paragraph, the Labor Commissioner shall cause notice of the petition to be served on the person, and the court shall have jurisdiction to grant temporary injunctive relief as the court determines to be just and proper.
(C)In addition to any harm resulting directly to an individual from a violation of any law under the jurisdiction of the Labor Commissioner, the court shall consider the chilling effect on other employees asserting their rights under those laws in determining if temporary injunctive relief is just and proper.
(D)If an employee has been discharged or faced adverse action for raising a claim of retaliation for asserting rights under any law under the jurisdiction of the Labor Commissioner, a court shall order appropriate injunctive relief on a showing that reasonable cause exists to believe that an employee has been discharged or subjected to adverse action for raising a claim of retaliation or asserting rights under any law under the jurisdiction of the Labor Commissioner.
(E)The temporary injunctive relief shall remain in effect until the Labor Commissioner issues a determination or citations, or until the completion of review pursuant to subdivision (b) of Section 98.74, whichever period is longer, or at a time certain set by the court. Afterwards, the court may issue a preliminary or permanent injunction if it is shown to be just and proper. Any temporary injunctive relief shall not prohibit an employer from disciplining or terminating an employee for conduct that is unrelated to the claim of the retaliation.
(F)Notwithstanding Section 916 of the Code of Civil Procedure, injunctive relief granted pursuant to this section shall not be stayed pending appeal.
(c)(1)If the Labor Commissioner determines a violation has occurred, the Labor Commissioner may issue a determination in accordance with this section or issue a citation in accordance with Section 98.74. If the Labor Commissioner issues a determination, he or she shall notify the complainant and respondent and direct the respondent to cease and desist from any violation and take any action deemed necessary to remedy the violation, including, where appropriate, rehiring or reinstatement, reimbursement of lost wages and interest thereon, payment of penalties, payment of reasonable attorneys fees associated with any hearing held by the Labor Commissioner in investigating the complaint, and the posting of notices to employees. If the respondent does not comply with the order within 30 days following notification of the Labor Commissioners determination, the Labor Commissioner shall bring an action promptly in an appropriate court against the respondent. An action by the Labor Commissioner seeking injunctive relief, reimbursement of lost wages and interest thereon, payment of penalties, and any other appropriate relief, shall not accrue until a respondent fails to comply with the order for more than 30 days following notification of the commissioners determination. The Labor Commissioner shall commence an action within three years of its accrual, regardless of whether the commissioner seeks penalties in the action. If the Labor Commissioner fails to bring an action in court promptly, the complainant may bring an action against the Labor Commissioner in any appropriate court for a writ of mandate to compel the Labor Commissioner to bring an action in court against the respondent. If the complainant prevails in his or her action for a writ, the court shall award the complainant court costs and reasonable attorneys fees, notwithstanding any other law. Regardless of any delay in bringing an action in court, the Labor Commissioner shall not be divested of jurisdiction. In any action, the court may permit the claimant to intervene as a party plaintiff to the action and shall have jurisdiction, for cause shown, to restrain the violation and to order all appropriate relief. Appropriate relief includes, but is not limited to, rehiring or reinstatement of the complainant, reimbursement of lost wages and interest thereon, and any other compensation or equitable relief as is appropriate under the circumstances of the case. The Labor Commissioner shall petition the court for appropriate temporary relief or restraining order unless he or she determines good cause exists for not doing so.
(2)If the Labor Commissioner is a prevailing party in an enforcement action pursuant to this section, the court shall determine the reasonable attorneys fees incurred by the Labor Commissioner in prosecuting the enforcement action and assess that amount as a cost upon the employer.
(3)An employer who willfully refuses to comply with an order of a court pursuant to this section to hire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for such relief, or who refuses to comply with an order to post a notice to employees or otherwise cease and desist from the violation shall, in addition to any other penalties available, be subject to a penalty of one hundred dollars ($100) per day for each day the employer continues to be in noncompliance with the court order, up to a maximum of twenty thousand dollars ($20,000). Any penalty pursuant to this section shall be paid to the affected employee.
(d)(1)If the Labor Commissioner determines no violation has occurred, he or she shall notify the complainant and respondent and shall dismiss the complaint. The Labor Commissioner may direct the complainant to pay reasonable attorneys fees associated with any hearing held by the Labor Commissioner if the Labor Commissioner finds the complaint was frivolous, unreasonable, groundless, and was brought in bad faith. The complainant may, after notification of the Labor Commissioners determination to dismiss a complaint, bring an action in an appropriate court, which shall have jurisdiction to determine whether a violation occurred, and if so, to restrain the violation and order all appropriate relief to remedy the violation. Appropriate relief includes, but is not limited to, rehiring or reinstatement of the complainant, reimbursement of lost wages and interest thereon, and other compensation or equitable relief as is appropriate under the circumstances of the case. When dismissing a complaint, the Labor Commissioner shall advise the complainant of his or her right to bring an action in an appropriate court if he or she disagrees with the determination of the Labor Commissioner, and in the case of an alleged violation of Section 6310 or 6311, to file a complaint against the state program with the United States Department of Labor. Any time limitation for a complainant to bring an action in court shall be tolled from the time of filing the complaint with the division until the issuance of the Labor Commissioners determination.
(2)The filing of a timely complaint against the state program with the United States Department of Labor shall stay the Labor Commissioners dismissal of the division complaint until the United States Secretary of Labor makes a determination regarding the alleged violation. Within 15 days of receipt of that determination, the Labor Commissioner shall notify the parties whether he or she will reopen the complaint filed with the division or whether he or she will reaffirm the dismissal.
(e)The Labor Commissioner shall notify the complainant and respondent of his or her determination under subdivision (c) or paragraph (1) of subdivision (d), not later than one year after the filing of the complaint. Determinations by the Labor Commissioner under subdivision (c) or (d) shall be final and not subject to administrative appeal except for cases arising under Sections 6310 and 6311, which may be appealed by the complainant to the Director of Industrial Relations pursuant to an appeal process, including time limitations, that is consistent with the mandates of the United States Department of Labor. The appeal from a determination for cases arising under Sections 6310 and 6311 shall set forth specifically and in full detail the grounds upon which the complainant considers the Labor Commissioners determination to be unjust or unlawful, and every issue to be considered by the director. The director may consider any issue relating to the initial determination and may modify, affirm, or reverse the Labor Commissioners determination. The directors determination shall be the determination of the Labor Commissioner for cases arising under Sections 6310 and 6311 that are appealed to the director. The director shall notify the complainant and respondent of his or her determination within 10 days of receipt of the appeal.
(f)The rights and remedies provided by this section do not preclude an employee from pursuing any other rights and remedies under any other law.
(g)In the enforcement of this section, there is no requirement that an individual exhaust administrative remedies or procedures.
SEC. 2.Section 98.74 is added to the Labor Code, immediately following Section 98.7, to read:98.74.(a)If the Labor Commissioner determines, after an investigation of a retaliation or discrimination complaint filed in accordance with Section 98.7, that a violation has occurred and the Labor Commissioner proceeds with a citation, the Labor Commissioner shall issue, with reasonable promptness, a citation to the person who has been determined to be responsible for the violation. The citation shall be in writing, shall describe the nature of the violation and the amount of wages and penalties due, and shall include any and all appropriate relief. Appropriate relief includes directing the person cited to cease and desist from the violation and take any action necessary to remedy the violation, including, where appropriate, rehiring or reinstatement, reimbursement of lost wages and interest thereon, and posting notices to employees. Service of the citation shall be completed pursuant to Section 1013 of the Code of Civil Procedure by first-class and certified mail to the person cited. The citation shall advise the person cited of the procedure for obtaining review of the citation.
(b)A person issued a citation pursuant to this section may obtain review of the citation by transmitting a written request to the office of the Labor Commissioner at the address that appears on the citation within 30 days after service of the citation. If no hearing is requested within 30 days after service of the citation, the citation shall become final.
(c)Upon receipt of a timely request, a hearing shall be commenced within 90 days before a hearing officer for the Labor Commissioner. Within 90 days of the conclusion of the hearing, the hearing officer shall issue a written decision. The decision shall consist of a statement of findings, conclusions of law, and an order. This decision shall be served on all parties pursuant to Section 1013 of the Code of Civil Procedure by first-class mail at the last known address of the party on file with the Labor Commissioner. The Labor Commissioner shall adopt regulations setting forth procedures for hearings under this subdivision.
(d)(1)A person issued a citation pursuant to this section may obtain review of the decision of the Labor Commissioner by filing a petition for a writ of mandate to the appropriate superior court pursuant to Section 1094.5 of the Code of Civil Procedure within 45 days after service of the Labor Commissioners decision.
(2)As a condition to filing a petition for a writ of mandate, the petitioner seeking the writ shall first post a bond with the Labor Commissioner equal to the total amount of any minimum wages, liquidated damages, and overtime compensation that are due and owing as determined pursuant to subdivision (a). The bond amount shall not include amounts for penalties. The bond shall be issued by a surety duly authorized to do business in this state and shall be issued in favor of the employee or employees who suffered the violation or violations.
(3)If no petition for writ of mandate is filed within 45 days after service of the decision, the order shall become final. If it is claimed in a petition for writ of mandate that the findings are not supported by the evidence, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.
(e)An employer who willfully refuses to comply with a final order pursuant to this section to hire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for relief, or who refuses to comply with an order to post a notice to employees or otherwise cease and desist from the violation, in addition to any other penalties available, shall be subject to a penalty of one hundred dollars ($100) per day for each day the employer continues to be in noncompliance with the order, up to a maximum of twenty thousand dollars ($20,000). Any penalty pursuant to this section shall be paid to the affected employee.
SEC. 3.Section 1102.61 is added to the Labor Code, immediately following Section 1102.6, to read:1102.61.In any civil action or administrative proceeding brought pursuant to Section 1102.5, an employee may petition the superior court in any county wherein the violation in question is alleged to have occurred, or wherein the person resides or transacts business, for appropriate temporary or preliminary injunctive relief as set forth in Section 1102.62.
SEC. 4.Section 1102.62 is added to the Labor Code, immediately following Section 1102.61, to read:1102.62.(a)Upon the filing of the petition for injunctive relief, the petitioner shall cause notice thereof to be served upon the person, and thereupon the court shall have jurisdiction to grant such temporary injunctive relief as the court deems just and proper.
(b)In addition to any harm resulting directly from the violation of Section 1102.5, the court shall consider the chilling effect on other employees asserting their rights under that section in determining whether temporary injunctive relief is just and proper.
(c)Appropriate injunctive relief shall be issued on a showing that reasonable cause exists to believe a violation has occurred.
(d)The order authorizing temporary injunctive relief shall remain in effect until an administrative or judicial determination or citation has been issued or until the completion of a review pursuant to subdivision (b) of Section 98.74, whichever is longer, or at a time certain set by the court. Thereafter, a preliminary or permanent injunction may be issued if it is shown to be just and proper. Any temporary injunctive relief shall not prohibit an employer from disciplining or terminating an employee for conduct that is unrelated to the claim of the retaliation.
(e)Notwithstanding Section 916 of the Code of Civil Procedure, injunctive relief granted pursuant to this section shall not be stayed pending appeal.
(a)(1)Any person who believes that he or she has been discharged or otherwise discriminated against in violation of any law under the jurisdiction of the Labor Commissioner may file a complaint with the division within six months after the occurrence of the violation. The six-month period may be extended for good cause. The complaint shall be investigated by a discrimination complaint investigator in accordance with this section. The Labor Commissioner shall establish procedures for the investigation of discrimination complaints. complaints, including, but not limited to, relief pursuant to paragraph (2) of subdivision (b). A summary of the procedures shall be provided to each complainant and respondent at the time of initial contact. The Labor Commissioner shall inform complainants charging a violation of Section 6310 or 6311, at the time of initial contact, of his or her right to file a separate, concurrent complaint with the United States Department of Labor within 30 days after the occurrence of the violation.
(2)The division may, with or without receiving a complaint, commence investigating an employer, in accordance with this section, that it suspects to have discharged or otherwise discriminated against an individual in violation of any law under the jurisdiction of the Labor Commissioner. The division may proceed without a complaint in those instances where suspected retaliation has occurred during the course of adjudicating a wage claim pursuant to Section 98, or during a field inspection pursuant to Section 90.5, in accordance with this section, or in instances of suspected immigration-related threats in violation of Section 244, 1019, or 1019.1.
(b)(1)Each complaint of unlawful discharge or discrimination shall be assigned to a discrimination complaint investigator who shall prepare and submit a report to the Labor Commissioner based on an investigation of the complaint. The Labor Commissioner or his or her designee shall receive and review the reports. The investigation shall include, where appropriate, interviews with the complainant, respondent, and any witnesses who may have information concerning the alleged violation, and a review of any documents that may be relevant to the disposition of the complaint. The identity of a witness shall remain confidential unless the identification of the witness becomes necessary to proceed with the investigation or to prosecute an action to enforce a determination. The investigation report submitted to the Labor Commissioner or designee shall include the statements and documents obtained in the investigation, and the findings of the investigator concerning whether a violation occurred. The Labor Commissioner may hold an investigative hearing whenever the Labor Commissioner determines that a hearing is necessary to fully establish the facts. In the hearing the complainant and respondent shall have the opportunity to present evidence. The Labor Commissioner shall issue, serve, and enforce any necessary subpoenas. If a complainant files an action in court against an employer based on the same or similar facts as a complaint made under this section, the Labor Commissioner may, at his or her discretion, close the investigation. If a complainant has already challenged his or her discipline or discharge through the State Personnel Board, or other internal governmental procedure, or through a collective bargaining agreement grievance procedure that incorporates antiretaliation provisions under this code, the Labor Commissioner may reject the complaint.
(2)(A)The Labor Commissioner, during the course of an investigation pursuant to this section, upon finding reasonable cause to believe that any person has engaged in or is engaging in a violation, may petition the superior court in any county in which the violation in question is alleged to have occurred or in which the person resides or transacts business, for appropriate temporary or preliminary injunctive relief, or both temporary and preliminary injunctive relief.
(B)Upon filing of a petition pursuant to this paragraph, the Labor Commissioner shall cause notice of the petition to be served on the person, and the court shall have jurisdiction to grant temporary injunctive relief as the court determines to be just and proper.
(C)In addition to any harm resulting directly to an individual from a violation of any law under the jurisdiction of the Labor Commissioner, the court shall consider the chilling effect on other employees asserting their rights under those laws in determining if temporary injunctive relief is just and proper.
(D)If an employee has been discharged or faced adverse action for raising a claim of retaliation for asserting rights under any law under the jurisdiction of the Labor Commissioner, a court shall order appropriate injunctive relief on a showing that reasonable cause exists to believe that an employee has been discharged or subjected to adverse action for raising a claim of retaliation or asserting rights under any law under the jurisdiction of the Labor Commissioner.
(E)The temporary injunctive relief shall remain in effect until the Labor Commissioner issues a determination or citations, or until the completion of review pursuant to subdivision (b) of Section 98.74, whichever period is longer, or at a time certain set by the court. Afterwards, the court may issue a preliminary or permanent injunction if it is shown to be just and proper. Any temporary injunctive relief shall not prohibit an employer from disciplining or terminating an employee for conduct that is unrelated to the claim of the retaliation.
(F)Notwithstanding Section 916 of the Code of Civil Procedure, injunctive relief granted pursuant to this section shall not be stayed pending appeal.
(c)(1)If the Labor Commissioner determines a violation has occurred, the Labor Commissioner may issue a determination in accordance with this section or issue a citation in accordance with Section 98.74. If the Labor Commissioner issues a determination, he or she shall notify the complainant and respondent and direct the respondent to cease and desist from any violation and take any action deemed necessary to remedy the violation, including, where appropriate, rehiring or reinstatement, reimbursement of lost wages and interest thereon, payment of penalties, payment of reasonable attorneys fees associated with any hearing held by the Labor Commissioner in investigating the complaint, and the posting of notices to employees. If the respondent does not comply with the order within 30 days following notification of the Labor Commissioners determination, the Labor Commissioner shall bring an action promptly in an appropriate court against the respondent. An action by the Labor Commissioner seeking injunctive relief, reimbursement of lost wages and interest thereon, payment of penalties, and any other appropriate relief, shall not accrue until a respondent fails to comply with the order for more than 30 days following notification of the commissioners determination. The Labor Commissioner shall commence an action within three years of its accrual, regardless of whether the commissioner seeks penalties in the action. If the Labor Commissioner fails to bring an action in court promptly, the complainant may bring an action against the Labor Commissioner in any appropriate court for a writ of mandate to compel the Labor Commissioner to bring an action in court against the respondent. If the complainant prevails in his or her action for a writ, the court shall award the complainant court costs and reasonable attorneys fees, notwithstanding any other law. Regardless of any delay in bringing an action in court, the Labor Commissioner shall not be divested of jurisdiction. In any action, the court may permit the claimant to intervene as a party plaintiff to the action and shall have jurisdiction, for cause shown, to restrain the violation and to order all appropriate relief. Appropriate relief includes, but is not limited to, rehiring or reinstatement of the complainant, reimbursement of lost wages and interest thereon, and any other compensation or equitable relief as is appropriate under the circumstances of the case. The Labor Commissioner shall petition the court for appropriate temporary relief or restraining order unless he or she determines good cause exists for not doing so. If
(2)If the Labor Commissioner is a prevailing party in an enforcement action pursuant to this section, the court shall determine the reasonable attorneys fees incurred by the Labor Commissioner in prosecuting the enforcement action and assess that amount as a cost upon the employer. An
(3)An employer who willfully refuses to comply with an order of a court pursuant to this section to hire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for such relief, or who refuses to comply with an order to post a notice to employees or otherwise cease and desist from the violation shall, in addition to any other penalties available, be subject to a penalty of one hundred dollars ($100) per day for each day the employer continues to be in noncompliance with the court order, up to a maximum of twenty thousand dollars ($20,000). Any penalty pursuant to this section shall be paid to the affected employee.
(d)(1)If the Labor Commissioner determines no violation has occurred, he or she shall notify the complainant and respondent and shall dismiss the complaint. The Labor Commissioner may direct the complainant to pay reasonable attorneys fees associated with any hearing held by the Labor Commissioner if the Labor Commissioner finds the complaint was frivolous, unreasonable, groundless, and was brought in bad faith. The complainant may, after notification of the Labor Commissioners determination to dismiss a complaint, bring an action in an appropriate court, which shall have jurisdiction to determine whether a violation occurred, and if so, to restrain the violation and order all appropriate relief to remedy the violation. Appropriate relief includes, but is not limited to, rehiring or reinstatement of the complainant, reimbursement of lost wages and interest thereon, and other compensation or equitable relief as is appropriate under the circumstances of the case. When dismissing a complaint, the Labor Commissioner shall advise the complainant of his or her right to bring an action in an appropriate court if he or she disagrees with the determination of the Labor Commissioner, and in the case of an alleged violation of Section 6310 or 6311, to file a complaint against the state program with the United States Department of Labor. Any time limitation for a complainant to bring an action in court shall be tolled from the time of filing the complaint with the division until the issuance of the Labor Commissioners determination.
(2)The filing of a timely complaint against the state program with the United States Department of Labor shall stay the Labor Commissioners dismissal of the division complaint until the United States Secretary of Labor makes a determination regarding the alleged violation. Within 15 days of receipt of that determination, the Labor Commissioner shall notify the parties whether he or she will reopen the complaint filed with the division or whether he or she will reaffirm the dismissal.
(e)The Labor Commissioner shall notify the complainant and respondent of his or her determination under subdivision (c) or paragraph (1) of subdivision (d), not later than one year after the filing of the complaint. Determinations by the Labor Commissioner under subdivision (c) or (d) shall be final and not subject to administrative appeal except for cases arising under Sections 6310 and 6311, which may be appealed by the complainant to the Director of Industrial Relations pursuant to an appeal process, including time limitations, that is consistent with the mandates of the United States Department of Labor. The appeal from a determination for cases arising under Sections 6310 and 6311 shall set forth specifically and in full detail the grounds upon which the complainant considers the Labor Commissioners determination to be unjust or unlawful, and every issue to be considered by the director. The director may consider any issue relating to the initial determination and may modify, affirm, or reverse the Labor Commissioners determination. The directors determination shall be the determination of the Labor Commissioner for cases arising under Sections 6310 and 6311 that are appealed to the director. The director shall notify the complainant and respondent of his or her determination within 10 days of receipt of the appeal.
(f)The rights and remedies provided by this section do not preclude an employee from pursuing any other rights and remedies under any other law.
(g)In the enforcement of this section, there is no requirement that an individual exhaust administrative remedies or procedures.
SEC. 2.Section 98.74 is added to the Labor Code, immediately following Section 98.7, to read:98.74.(a)If the Labor Commissioner determines, after an investigation of a retaliation or discrimination complaint filed in accordance with Section 98.7, that a violation has occurred and the Labor Commissioner proceeds with a citation, the Labor Commissioner shall issue, with reasonable promptness, a citation to the person who has been determined to be responsible for the violation. The citation shall be in writing, shall describe the nature of the violation and the amount of wages and penalties due, and shall include any and all appropriate relief. Appropriate relief includes directing the person cited to cease and desist from the violation and take any action necessary to remedy the violation, including, where appropriate, rehiring or reinstatement, reimbursement of lost wages and interest thereon, and posting notices to employees. Service of the citation shall be completed pursuant to Section 1013 of the Code of Civil Procedure by first-class and certified mail to the person cited. The citation shall advise the person cited of the procedure for obtaining review of the citation.
(b)A person issued a citation pursuant to this section may obtain review of the citation by transmitting a written request to the office of the Labor Commissioner at the address that appears on the citation within 30 days after service of the citation. If no hearing is requested within 30 days after service of the citation, the citation shall become final.
(c)Upon receipt of a timely request, a hearing shall be commenced within 90 days before a hearing officer for the Labor Commissioner. Within 90 days of the conclusion of the hearing, the hearing officer shall issue a written decision. The decision shall consist of a statement of findings, conclusions of law, and an order. This decision shall be served on all parties pursuant to Section 1013 of the Code of Civil Procedure by first-class mail at the last known address of the party on file with the Labor Commissioner. The Labor Commissioner shall adopt regulations setting forth procedures for hearings under this subdivision.
(d)(1)A person issued a citation pursuant to this section may obtain review of the decision of the Labor Commissioner by filing a petition for a writ of mandate to the appropriate superior court pursuant to Section 1094.5 of the Code of Civil Procedure within 45 days after service of the Labor Commissioners decision.
(2)As a condition to filing a petition for a writ of mandate, the petitioner seeking the writ shall first post a bond with the Labor Commissioner equal to the total amount of any minimum wages, liquidated damages, and overtime compensation that are due and owing as determined pursuant to subdivision (a). The bond amount shall not include amounts for penalties. The bond shall be issued by a surety duly authorized to do business in this state and shall be issued in favor of the employee or employees who suffered the violation or violations.
(3)If no petition for writ of mandate is filed within 45 days after service of the decision, the order shall become final. If it is claimed in a petition for writ of mandate that the findings are not supported by the evidence, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.
(e)An employer who willfully refuses to comply with a final order pursuant to this section to hire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for relief, or who refuses to comply with an order to post a notice to employees or otherwise cease and desist from the violation, in addition to any other penalties available, shall be subject to a penalty of one hundred dollars ($100) per day for each day the employer continues to be in noncompliance with the order, up to a maximum of twenty thousand dollars ($20,000). Any penalty pursuant to this section shall be paid to the affected employee.
SEC. 3.Section 1102.61 is added to the Labor Code, immediately following Section 1102.6, to read:1102.61.In any civil action or administrative proceeding brought pursuant to Section 1102.5, an employee may petition the superior court in any county wherein the violation in question is alleged to have occurred, or wherein the person resides or transacts business, for appropriate temporary or preliminary injunctive relief as set forth in Section 1102.62.
SEC. 4.Section 1102.62 is added to the Labor Code, immediately following Section 1102.61, to read:1102.62.(a)Upon the filing of the petition for injunctive relief, the petitioner shall cause notice thereof to be served upon the person, and thereupon the court shall have jurisdiction to grant such temporary injunctive relief as the court deems just and proper.
(b)In addition to any harm resulting directly from the violation of Section 1102.5, the court shall consider the chilling effect on other employees asserting their rights under that section in determining whether temporary injunctive relief is just and proper.
(c)Appropriate injunctive relief shall be issued on a showing that reasonable cause exists to believe a violation has occurred.
(d)The order authorizing temporary injunctive relief shall remain in effect until an administrative or judicial determination or citation has been issued or until the completion of a review pursuant to subdivision (b) of Section 98.74, whichever is longer, or at a time certain set by the court. Thereafter, a preliminary or permanent injunction may be issued if it is shown to be just and proper. Any temporary injunctive relief shall not prohibit an employer from disciplining or terminating an employee for conduct that is unrelated to the claim of the retaliation.
(e)Notwithstanding Section 916 of the Code of Civil Procedure, injunctive relief granted pursuant to this section shall not be stayed pending appeal.
(a)(1)Any person who believes that he or she has been discharged or otherwise discriminated against in violation of any law under the jurisdiction of the Labor Commissioner may file a complaint with the division within six months after the occurrence of the violation. The six-month period may be extended for good cause. The complaint shall be investigated by a discrimination complaint investigator in accordance with this section. The Labor Commissioner shall establish procedures for the investigation of discrimination complaints, including, but not limited to, relief pursuant to paragraph (2) of subdivision (b). A summary of the procedures shall be provided to each complainant and respondent at the time of initial contact. The Labor Commissioner shall inform complainants charging a violation of Section 6310 or 6311, at the time of initial contact, of his or her right to file a separate, concurrent complaint with the United States Department of Labor within 30 days after the occurrence of the violation.
(2)The division may, with or without receiving a complaint, commence investigating an employer, in accordance with this section, that it suspects to have discharged or otherwise discriminated against an individual in violation of any law under the jurisdiction of the Labor Commissioner. The division may proceed without a complaint in those instances where suspected retaliation has occurred during the course of adjudicating a wage claim pursuant to Section 98, or during a field inspection pursuant to Section 90.5, in accordance with this section, or in instances of suspected immigration-related threats in violation of Section 244, 1019, or 1019.1.
(b)(1) Each complaint of unlawful discharge or discrimination shall be assigned to a discrimination complaint investigator who shall prepare and submit a report to the Labor Commissioner based on an investigation of the complaint. The Labor Commissioner may designate the chief deputy or assistant Labor Commissioner or the chief counsel to receive and review the reports. The investigation shall include, where appropriate, interviews with the complainant, respondent, and any witnesses who may have information concerning the alleged violation, and a review of any documents that may be relevant to the disposition of the complaint. The identity of a witness shall remain confidential unless the identification of the witness becomes necessary to proceed with the investigation or to prosecute an action to enforce a determination. The investigation report submitted to the Labor Commissioner or designee shall include the statements and documents obtained in the investigation, and the findings of the investigator concerning whether a violation occurred. The Labor Commissioner may hold an investigative hearing whenever the Labor Commissioner determines, after review of the investigation report, that a hearing is necessary to fully establish the facts. In the hearing the investigation report shall be made a part of the record and the complainant and respondent shall have the opportunity to present further evidence. The Labor Commissioner shall issue, serve, and enforce any necessary subpoenas.
(2)(A)The Labor Commissioner, during the course of an investigation pursuant to this section, upon finding reasonable cause to believe that any person has engaged in or is engaging in a violation, may petition the superior court in any county in which the violation in question is alleged to have occurred or in which the person resides or transacts business, for appropriate temporary or preliminary injunctive relief, or both temporary and preliminary injunctive relief.
(B)Upon filing of a petition pursuant to this paragraph, the Labor Commissioner shall cause notice of the petition to be served on the person, and the court shall have jurisdiction to grant temporary injunctive relief as the court determines to be just and proper.
(C)In addition to any harm resulting directly to an individual from a violation of any law under the jurisdiction of the Labor Commissioner, the court shall consider the chilling effect on other employees asserting their rights under those laws in determining if temporary injunctive relief is just and proper.
(D)If an employee has been discharged or faced adverse action for raising a claim of retaliation for asserting rights under any law under the jurisdiction of the Labor Commissioner, a court shall order appropriate injunctive relief on a showing that reasonable cause exists to believe that an employee has been discharged or subjected to adverse action for raising a claim of retaliation or asserting rights under any law under the jurisdiction of the Labor Commissioner.
(E)The temporary injunctive relief shall remain in effect until the Labor Commissioner issues a determination or citations, or until the completion of review pursuant to subdivision (b) of Section 98.74, whichever period is longer, or at a time certain set by the court. Afterwards, the court may issue a preliminary or permanent injunction if it is shown to be just and proper.
(F)Notwithstanding Section 916 of the Code of Civil Procedure, injunctive relief granted pursuant to this section shall not be stayed pending appeal.
(c)(1)If the Labor Commissioner determines a violation has occurred, the Labor Commissioner may issue a determination in accordance with this section or issue a citation in accordance with Section 98.74. If the Labor Commissioner issues a determination, he or she shall notify the complainant and respondent and direct the respondent to cease and desist from the violation and take any action deemed necessary to remedy the violation, including, where appropriate, rehiring or reinstatement, reimbursement of lost wages and interest thereon, payment of penalties, payment of reasonable attorneys fees associated with any hearing held by the Labor Commissioner in investigating the complaint, and the posting of notices to employees. If the respondent does not comply with the order within 10 working days following notification of the Labor Commissioners determination, the Labor Commissioner shall bring an action promptly in an appropriate court against the respondent. If the Labor Commissioner fails to bring an action in court promptly, the complainant may bring an action against the Labor Commissioner in any appropriate court for a writ of mandate to compel the Labor Commissioner to bring an action in court against the respondent. If the complainant prevails in his or her action for a writ, the court shall award the complainant court costs and reasonable attorneys fees, notwithstanding any other law. Regardless of any delay in bringing an action in court, the Labor Commissioner shall not be divested of jurisdiction. In any action, the court may permit the claimant to intervene as a party plaintiff to the action and shall have jurisdiction, for cause shown, to restrain the violation and to order all appropriate relief. Appropriate relief includes, but is not limited to, rehiring or reinstatement of the complainant, reimbursement of lost wages and interest thereon, and any other compensation or equitable relief as is appropriate under the circumstances of the case. The Labor Commissioner shall petition the court for appropriate temporary relief or restraining order unless he or she determines good cause exists for not doing so. If the Labor Commissioner successfully prosecutes an enforcement action pursuant to this subdivision, the court shall determine the costs and reasonable attorneys fees incurred by the Labor Commissioner in prosecuting the enforcement action and assess that amount as a cost upon the employer. The Labor Commissioner is successful if the court awards the Labor Commissioner any relief sought in the enforcement action. It is not necessary that the Labor Commissioner recover a monetary award to be considered successful under this subdivision.
(2)If the Labor Commissioner is a prevailing party in an enforcement action brought pursuant to this section, the court shall determine the reasonable attorneys fees incurred by the Labor Commissioner in prosecuting the enforcement action and assess that amount as a cost upon the employer.
(3)An employer who willfully refuses to comply with an order of a court pursuant to this section to hire, promote, or otherwise restore an employee or former employee who has been deemed eligible for relief, or who refuses to comply with an order to post a notice to employees or otherwise cease and desist from the violation shall, in addition to any other penalties available, be subject to a penalty of one hundred dollars ($100) per day for each day that the employer is not in compliance with the court order, up to a maximum of twenty thousand dollars ($20,000). Any penalty collected pursuant to this section shall be paid to the affected employee.
(d)(1)If the Labor Commissioner determines no violation has occurred, he or she shall notify the complainant and respondent and shall dismiss the complaint. The Labor Commissioner may direct the complainant to pay reasonable attorneys fees associated with any hearing held by the Labor Commissioner if the Labor Commissioner finds the complaint was frivolous, unreasonable, groundless, and was brought in bad faith. The complainant may, after notification of the Labor Commissioners determination to dismiss a complaint, bring an action in an appropriate court, which shall have jurisdiction to determine whether a violation occurred, and if so, to restrain the violation and order all appropriate relief to remedy the violation. Appropriate relief includes, but is not limited to, rehiring or reinstatement of the complainant, reimbursement of lost wages and interest thereon, and other compensation or equitable relief as is appropriate under the circumstances of the case. When dismissing a complaint, the Labor Commissioner shall advise the complainant of his or her right to bring an action in an appropriate court if he or she disagrees with the determination of the Labor Commissioner, and in the case of an alleged violation of Section 6310 or 6311, to file a complaint against the state program with the United States Department of Labor.
(2)The filing of a timely complaint against the state program with the United States Department of Labor shall stay the Labor Commissioners dismissal of the division complaint until the United States Secretary of Labor makes a determination regarding the alleged violation. Within 15 days of receipt of that determination, the Labor Commissioner shall notify the parties whether he or she will reopen the complaint filed with the division or whether he or she will reaffirm the dismissal.
(e)The Labor Commissioner shall notify the complainant and respondent of his or her determination under subdivision (c) or paragraph (1) of subdivision (d), not later than 60 days after the filing of the complaint. Determinations by the Labor Commissioner under subdivision (c) or (d) may be appealed by the complainant or respondent to the Director of Industrial Relations within 10 days following notification of the Labor Commissioners determination. The appeal shall set forth specifically and in full detail the grounds upon which the appealing party considers the Labor Commissioners determination to be unjust or unlawful, and every issue to be considered by the director. The director may consider any issue relating to the initial determination and may modify, affirm, or reverse the Labor Commissioners determination. The directors determination shall be the determination of the Labor Commissioner. The director shall notify the complainant and respondent of his or her determination within 10 days of receipt of the appeal.
(f)The rights and remedies provided by this section do not preclude an employee from pursuing any other rights and remedies under any other law.
(g)In the enforcement of this section, there is no requirement that an individual exhaust administrative remedies or procedures.
SEC. 2.Section 98.74 is added to the Labor Code, immediately following Section 98.7, to read:98.74.(a)If the Labor Commissioner determines, after an investigation of a retaliation or discrimination complaint filed in accordance with Section 98.7, that a violation has occurred and the Labor Commissioner proceeds with a citation, the Labor Commissioner shall issue, with reasonable promptness, a citation to the person who has been determined to be responsible for the violation. The citation shall be in writing, shall describe the nature of the violation and the amount of wages and penalties due, and shall include any and all appropriate relief. Appropriate relief includes directing the person cited to cease and desist from the violation and take any action necessary to remedy the violation, including, where appropriate, rehiring or reinstatement, reimbursement of lost wages and interest thereon, and posting notices to employees. Service of the citation shall be completed pursuant to Section 1013 of the Code of Civil Procedure by first-class and certified mail to the person cited. The citation shall advise the person cited of the procedure for obtaining review of the citation.
(b)A person issued a citation pursuant to this section may obtain review of the citation by transmitting a written request to the office of the Labor Commissioner at the address that appears on the citation within 30 days after service of the citation. If no hearing is requested within 30 days after service of the citation, the citation shall become final.
(c)Upon receipt of a timely request, a hearing shall be commenced within 90 days before a hearing officer for the Labor Commissioner. Within 90 days of the conclusion of the hearing, the hearing officer shall issue a written decision. The decision shall consist of a statement of findings, conclusions of law, and an order. This decision shall be served on all parties pursuant to Section 1013 of the Code of Civil Procedure by first-class mail at the last known address of the party on file with the Labor Commissioner. The Labor Commissioner shall adopt regulations setting forth procedures for hearings under this subdivision.
(d)(1)A person issued a citation pursuant to this section may obtain review of the decision of the Labor Commissioner by filing a petition for a writ of mandate to the appropriate superior court pursuant to Section 1094.5 of the Code of Civil Procedure within 45 days after service of the Labor Commissioners decision.
(2)As a condition to filing a petition for a writ of mandate, the petitioner seeking the writ shall first post a bond with the Labor Commissioner equal to the total amount of any minimum wages, liquidated damages, and overtime compensation that are due and owing as determined pursuant to subdivision (a). The bond amount shall not include amounts for penalties. The bond shall be issued by a surety duly authorized to do business in this state and shall be issued in favor of the employee or employees who suffered the violation or violations.
(3)If no petition for writ of mandate is filed within 45 days after service of the decision, the order shall become final. If it is claimed in a petition for writ of mandate that the findings are not supported by the evidence, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.
(e)An employer who willfully refuses to comply with a final order pursuant to this section to hire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for relief, or who refuses to comply with an order to post a notice to employees or otherwise cease and desist from the violation, in addition to any other penalties available, shall be subject to a penalty of one hundred dollars ($100) per day for each day the employer continues to be in noncompliance with the order, up to a maximum of twenty thousand dollars ($20,000). Any penalty pursuant to this section shall be paid to the affected employee.
SEC. 3.Section 1102.61 is added to the Labor Code, immediately following Section 1102.6, to read:1102.61.In any civil action or administrative proceeding brought pursuant to Section 1102.5, an employee may petition the superior court in any county wherein the violation in question is alleged to have occurred, or wherein the person resides or transacts business, for appropriate temporary or preliminary injunctive relief as set forth in Section 1102.62.
SEC. 4.Section 1102.62 is added to the Labor Code, immediately following Section 1102.61, to read:1102.62.(a)Upon the filing of the petition for injunctive relief, the petitioner shall cause notice thereof to be served upon the person, and thereupon the court shall have jurisdiction to grant such temporary injunctive relief as the court deems just and proper.
(b)In addition to any harm resulting directly from the violation of Section 1102.5, the court shall consider the chilling effect on other employees asserting their rights under that section in determining whether temporary injunctive relief is just and proper.
(c)Appropriate injunctive relief shall be issued on a showing that reasonable cause exists to believe a violation has occurred.
(d)The order authorizing temporary injunctive relief shall remain in effect until an administrative or judicial determination or citation has been issued or until the completion of a review pursuant to subdivision (b) of Section 98.74, whichever is longer, or at a time certain set by the court. Thereafter, a preliminary or permanent injunction may be issued if it is shown to be just and proper.
(e)Notwithstanding Section 916 of the Code of Civil Procedure, injunctive relief granted pursuant to this section shall not be stayed pending appeal.
REVISIONS: HeadingLine 2.(a)Any person who believes that he or she has been discharged or otherwise discriminated against in violation of any law under the jurisdiction of the Labor Commissioner may file a complaint with the division within six months after the occurrence of the violation. The six-month period may be extended for good cause. The complaint shall be investigated by a discrimination complaint investigator in accordance with this section. The Labor Commissioner shall establish procedures for the investigation of discrimination complaints. complaints, including, but not limited to, relief pursuant to paragraph (2) of subdivision (b). A summary of the procedures shall be provided to each complainant and respondent at the time of initial contact. The Labor Commissioner shall inform complainants charging a violation of Section 6310 or 6311, at the time of initial contact, of his or her right to file a separate, concurrent complaint with the United States Department of Labor within 30 days after the occurrence of the violation.
(b)(1) Each complaint of unlawful discharge or discrimination shall be assigned to a discrimination complaint investigator who shall prepare and submit a report to the Labor Commissioner based on an investigation of the complaint. The Labor Commissioner may designate the chief deputy or assistant Labor Commissioner or the chief counsel to receive and review the reports. The investigation shall include, where appropriate, interviews with the complainant, respondent, and any witnesses who may have information concerning the alleged violation, and a review of any documents that may be relevant to the disposition of the complaint. The identity of a witness shall remain confidential unless the identification of the witness becomes necessary to proceed with the investigation or to prosecute an action to enforce a determination. The investigation report submitted to the Labor Commissioner or designee shall include the statements and documents obtained in the investigation, and the findings of the investigator concerning whether a violation occurred. The Labor Commissioner may hold an investigative hearing whenever the Labor Commissioner determines, after review of the investigation report, that a hearing is necessary to fully establish the facts. In the hearing the investigation report shall be made a part of the record and the complainant and respondent shall have the opportunity to present further evidence. The Labor Commissioner shall issue, serve, and enforce any necessary subpoenas.
(2)(A)The Labor Commissioner, during the course of an investigation pursuant to this section, upon finding reasonable cause to believe that any person has engaged in or is engaging in a violation, may petition the superior court in any county in which the violation in question is alleged to have occurred or in which the person resides or transacts business, for appropriate temporary or preliminary injunctive relief, or both temporary and preliminary injunctive relief.
(B)Upon filing of a petition pursuant to this paragraph, the Labor Commissioner shall cause notice of the petition to be served on the person, and the court shall have jurisdiction to grant temporary injunctive relief as the court determines to be just and proper.
(C)In addition to any harm resulting directly to an individual from a violation of any law under the jurisdiction of the Labor Commissioner, the court shall consider the chilling effect on other employees asserting their rights under those laws in determining if temporary injunctive relief is just and proper.
(D)If an employee has been discharged or faced adverse action for raising a claim of retaliation for asserting rights under any law under the jurisdiction of the Labor Commissioner, a court shall order appropriate injunctive relief on a showing that reasonable cause exists to believe that an employee has been discharged or subjected to adverse action for raising a claim of retaliation or asserting rights under any law under the jurisdiction of the Labor Commissioner.
(E)The temporary injunctive relief shall remain in effect until the Labor Commissioner issues a determination or citations, or until the completion of review pursuant to subdivision (b) of Section 98.74, whichever period is longer, or at a time certain set by the court. Afterwards, the court may issue a preliminary or permanent injunction if it is shown to be just and proper.
(F)Notwithstanding Section 916 of the Code of Civil Procedure, injunctive relief granted pursuant to this section shall not be stayed pending appeal.
(c)If the Labor Commissioner determines a violation has occurred, the Labor Commissioner may issue a determination in accordance with this section or issue a citation in accordance with Section 98.74. If the Labor Commissioner issues a determination, he or she shall notify the complainant and respondent and direct the respondent to cease and desist from the violation and take any action deemed necessary to remedy the violation, including, where appropriate, rehiring or reinstatement, reimbursement of lost wages and interest thereon, payment of penalties, payment of reasonable attorneys fees associated with any hearing held by the Labor Commissioner in investigating the complaint, and the posting of notices to employees. If the respondent does not comply with the order within 10 working days following notification of the Labor Commissioners determination, the Labor Commissioner shall bring an action promptly in an appropriate court against the respondent. If the Labor Commissioner fails to bring an action in court promptly, the complainant may bring an action against the Labor Commissioner in any appropriate court for a writ of mandate to compel the Labor Commissioner to bring an action in court against the respondent. If the complainant prevails in his or her action for a writ, the court shall award the complainant court costs and reasonable attorneys fees, notwithstanding any other law. Regardless of any delay in bringing an action in court, the Labor Commissioner shall not be divested of jurisdiction. In any action, the court may permit the claimant to intervene as a party plaintiff to the action and shall have jurisdiction, for cause shown, to restrain the violation and to order all appropriate relief. Appropriate relief includes, but is not limited to, rehiring or reinstatement of the complainant, reimbursement of lost wages and interest thereon, and any other compensation or equitable relief as is appropriate under the circumstances of the case. The Labor Commissioner shall petition the court for appropriate temporary relief or restraining order unless he or she determines good cause exists for not doing so. If the Labor Commissioner successfully prosecutes an enforcement action pursuant to this subdivision, the court shall determine the costs and reasonable attorneys fees incurred by the Labor Commissioner in prosecuting the enforcement action and assess that amount as a cost upon the employer. The Labor Commissioner is successful if the court awards the Labor Commissioner any relief sought in the enforcement action. It is not necessary that the Labor Commissioner recover a monetary award to be considered successful under this subdivision.
(d)(1)If the Labor Commissioner determines no violation has occurred, he or she shall notify the complainant and respondent and shall dismiss the complaint. The Labor Commissioner may direct the complainant to pay reasonable attorneys fees associated with any hearing held by the Labor Commissioner if the Labor Commissioner finds the complaint was frivolous, unreasonable, groundless, and was brought in bad faith. The complainant may, after notification of the Labor Commissioners determination to dismiss a complaint, bring an action in an appropriate court, which shall have jurisdiction to determine whether a violation occurred, and if so, to restrain the violation and order all appropriate relief to remedy the violation. Appropriate relief includes, but is not limited to, rehiring or reinstatement of the complainant, reimbursement of lost wages and interest thereon, and other compensation or equitable relief as is appropriate under the circumstances of the case. When dismissing a complaint, the Labor Commissioner shall advise the complainant of his or her right to bring an action in an appropriate court if he or she disagrees with the determination of the Labor Commissioner, and in the case of an alleged violation of Section 6310 or 6311, to file a complaint against the state program with the United States Department of Labor.
(2)The filing of a timely complaint against the state program with the United States Department of Labor shall stay the Labor Commissioners dismissal of the division complaint until the United States Secretary of Labor makes a determination regarding the alleged violation. Within 15 days of receipt of that determination, the Labor Commissioner shall notify the parties whether he or she will reopen the complaint filed with the division or whether he or she will reaffirm the dismissal.
(e)The Labor Commissioner shall notify the complainant and respondent of his or her determination under subdivision (c) or paragraph (1) of subdivision (d), not later than 60 days after the filing of the complaint. Determinations by the Labor Commissioner under subdivision (c) or (d) may be appealed by the complainant or respondent to the Director of Industrial Relations within 10 days following notification of the Labor Commissioners determination. The appeal shall set forth specifically and in full detail the grounds upon which the appealing party considers the Labor Commissioners determination to be unjust or unlawful, and every issue to be considered by the director. The director may consider any issue relating to the initial determination and may modify, affirm, or reverse the Labor Commissioners determination. The directors determination shall be the determination of the Labor Commissioner. The director shall notify the complainant and respondent of his or her determination within 10 days of receipt of the appeal.
(f)The rights and remedies provided by this section do not preclude an employee from pursuing any other rights and remedies under any other law.
(g)In the enforcement of this section, there is no requirement that an individual exhaust administrative remedies or procedures.
SEC. 2.Section 98.74 is added to the Labor Code, immediately following Section 98.7, to read:98.74.(a)If the Labor Commissioner determines, after an investigation of a retaliation or discrimination complaint filed in accordance with Section 98.7, that a violation has occurred and the Labor Commissioner proceeds with a citation, the Labor Commissioner shall issue, with reasonable promptness, a citation to the person who has been determined to be responsible for the violation. The citation shall be in writing, shall describe the nature of the violation and the amount of wages and penalties due, and shall include any and all appropriate relief. Appropriate relief includes directing the person cited to cease and desist from the violation and take any action necessary to remedy the violation, including, where appropriate, rehiring or reinstatement, reimbursement of lost wages and interest thereon, and posting notices to employees. Service of the citation shall be completed pursuant to Section 1013 of the Code of Civil Procedure by first-class and certified mail to the person cited. The citation shall advise the person cited of the procedure for obtaining review of the citation.
(b)A person issued a citation pursuant to this section may obtain review of the citation by transmitting a written request to the office of the Labor Commissioner at the address that appears on the citation within 30 days after service of the citation. If no hearing is requested within 30 days after service of the citation, the citation shall become final.
(c)Upon receipt of a timely request, a hearing shall be commenced within 90 days before a hearing officer for the Labor Commissioner. Within 90 days of the conclusion of the hearing, the hearing officer shall issue a written decision. The decision shall consist of a statement of findings, conclusions of law, and an order. This decision shall be served on all parties pursuant to Section 1013 of the Code of Civil Procedure by first-class mail at the last known address of the party on file with the Labor Commissioner. The Labor Commissioner shall adopt regulations setting forth procedures for hearings under this subdivision.
(d)(1)A person issued a citation pursuant to this section may obtain review of the decision of the Labor Commissioner by filing a petition for a writ of mandate to the appropriate superior court pursuant to Section 1094.5 of the Code of Civil Procedure within 45 days after service of the Labor Commissioners decision.
(2)As a condition to filing a petition for a writ of mandate, the petitioner seeking the writ shall first post a bond with the Labor Commissioner equal to the total amount of any minimum wages, liquidated damages, and overtime compensation that are due and owing as determined pursuant to subdivision (a). The bond amount shall not include amounts for penalties. The bond shall be issued by a surety duly authorized to do business in this state and shall be issued in favor of the employee or employees who suffered the violation or violations.
(3)If no petition for writ of mandate is filed within 45 days after service of the decision, the order shall become final. If it is claimed in a petition for writ of mandate that the findings are not supported by the evidence, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.
(e)An employer who willfully refuses to comply with a final order pursuant to this section to hire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for relief, or who refuses to comply with an order to post a notice to employees or otherwise cease and desist from the violation, in addition to any other penalties available, shall be subject to a penalty of one hundred dollars ($100) per day for each day the employer continues to be in noncompliance with the order, up to a maximum of twenty thousand dollars ($20,000). Any penalty pursuant to this section shall be paid to the affected employee.
SEC. 3.Section 1102.61 is added to the Labor Code, immediately following Section 1102.6, to read:1102.61.In any civil action or administrative proceeding brought pursuant to Section 1102.5, an employee may petition the superior court in any county wherein the violation in question is alleged to have occurred, or wherein the person resides or transacts business, for appropriate temporary or preliminary injunctive relief as set forth in Section 1102.62.
SEC. 4.Section 1102.62 is added to the Labor Code, immediately following Section 1102.61, to read:1102.62.(a)Upon the filing of the petition for injunctive relief, the petitioner shall cause notice thereof to be served upon the person, and thereupon the court shall have jurisdiction to grant such temporary injunctive relief as the court deems just and proper.
(b)In addition to any harm resulting directly from the violation of Section 1102.5, the court shall consider the chilling effect on other employees asserting their rights under that section in determining whether temporary injunctive relief is just and proper.
(c)Appropriate injunctive relief shall be issued on a showing that reasonable cause exists to believe a violation has occurred.
(d)The order authorizing temporary injunctive relief shall remain in effect until an administrative or judicial determination or citation has been issued or until the completion of a review pursuant to subdivision (b) of Section 98.74, whichever is longer, or at a time certain set by the court. Thereafter, a preliminary or permanent injunction may be issued if it is shown to be just and proper.
(e)Notwithstanding Section 916 of the Code of Civil Procedure, injunctive relief granted pursuant to this section shall not be stayed pending appeal.
SECTION 1.Section 98.6 of the Labor Code is amended to read:98.6.(a)A person shall not discharge an employee or in any manner discriminate, retaliate, or take any adverse action against an employee or applicant for employment because the employee or applicant engaged in any conduct delineated in this chapter, including the conduct described in subdivision (k) of Section 96, and Chapter 5 (commencing with Section 1101) of Part 3 of Division 2, or because the employee or applicant for employment has filed a bona fide complaint or claim or instituted or caused to be instituted any proceeding under or relating to his or her rights that are under the jurisdiction of the Labor Commissioner, made a written or oral complaint that he or she is owed unpaid wages, or because the employee has initiated any action or notice pursuant to Section 2699, or has testified or is about to testify in a proceeding pursuant to that section, or because of the exercise by the employee or applicant for employment on behalf of himself, herself, or others of any rights afforded him or her.(b)(1)An employee who is discharged, threatened with discharge, demoted, suspended, retaliated against, subjected to an adverse action, or in any other manner discriminated against in the terms and conditions of his or her employment because the employee engaged in any conduct delineated in this chapter, including the conduct described in subdivision (k) of Section 96, and Chapter 5 (commencing with Section 1101) of Part 3 of Division 2, or because the employee has made a bona fide complaint or claim to the division pursuant to this part, or because the employee has initiated any action or notice pursuant to Section 2699 shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by those acts of the employer.(2)An employer who willfully refuses to hire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for rehiring or promotion by a grievance procedure, arbitration, or hearing authorized by law, is guilty of a misdemeanor.(3)In addition to other remedies available, an employer who violates this section is liable for a civil penalty not exceeding ten thousand dollars ($10,000) per employee for each violation of this section, to be awarded to the employee or employees who suffered the violation.(c)(1)An applicant for employment who is refused employment, who is not selected for a training program leading to employment, or who in any other manner is discriminated against in the terms and conditions of any offer of employment because the applicant engaged in any conduct delineated in this chapter, including the conduct described in subdivision (k) of Section 96, and Chapter 5 (commencing with Section 1101) of Part 3 of Division 2, or because the applicant has made a bona fide complaint or claim to the division pursuant to this part, or because the employee has initiated any action or notice pursuant to Section 2699 shall be entitled to employment and reimbursement for lost wages and work benefits caused by the acts of the prospective employer.(2)This subdivision shall not be construed to invalidate any collective bargaining agreement that requires an applicant for a position that is subject to the collective bargaining agreement to sign a contract that protects either or both of the following as specified in subparagraphs (A) and (B), nor shall this subdivision be construed to invalidate any employer requirement of an applicant for a position that is not subject to a collective bargaining agreement to sign an employment contract that protects either or both of the following:(A)An employer against any conduct that is actually in direct conflict with the essential enterprise-related interests of the employer and where breach of that contract would actually constitute a material and substantial disruption of the employers operation.(B)A firefighter against any disease that is presumed to arise in the course and scope of employment, by limiting his or her consumption of tobacco products on and off the job.(d)The provisions of this section creating new actions or remedies that are effective on January 1, 2002, to employees or applicants for employment do not apply to any state or local law enforcement agency, any religious association or corporation specified in subdivision (d) of Section 12926 of the Government Code, except as provided in Section 12926.2 of the Government Code, or any person described in Section 1070 of the Evidence Code.(e)An employer, or a person acting on behalf of the employer, shall not retaliate against an employee because the employee is a family member of a person who has, or is perceived to have, engaged in any conduct delineated in this chapter.(f)For purposes of this section, employer or a person acting on behalf of the employer includes, but is not limited to, a client employer as defined in paragraph (1) of subdivision (a) of Section 2810.3 and an employer listed in subdivision (b) of Section 6400.(g)Subdivisions (e) and (f) shall not apply to claims arising under subdivision (k) of Section 96 unless the lawful conduct occurring during nonwork hours away from the employers premises involves the exercise of employee rights otherwise covered under subdivision (a).(a)A person shall not discharge an employee or in any manner discriminate, retaliate, or take any adverse action against any an employee or applicant for employment because the employee or applicant engaged in any conduct delineated in this chapter, including the conduct described in subdivision (k) of Section 96, and Chapter 5 (commencing with Section 1101) of Part 3 of Division 2, or because the employee or applicant for employment has filed a bona fide complaint or claim or instituted or caused to be instituted any proceeding under or relating to his or her rights that are under the jurisdiction of the Labor Commissioner, made a written or oral complaint that he or she is owed unpaid wages, or because the employee has initiated any action or notice pursuant to Section 2699, or has testified or is about to testify in a proceeding pursuant to that section, or because of the exercise by the employee or applicant for employment on behalf of himself, herself, or others of any rights afforded him or her.
(b)(1)Any An employee who is discharged, threatened with discharge, demoted, suspended, retaliated against, subjected to an adverse action, or in any other manner discriminated against in the terms and conditions of his or her employment because the employee engaged in any conduct delineated in this chapter, including the conduct described in subdivision (k) of Section 96, and Chapter 5 (commencing with Section 1101) of Part 3 of Division 2, or because the employee has made a bona fide complaint or claim to the division pursuant to this part, or because the employee has initiated any action or notice pursuant to Section 2699 shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by those acts of the employer.
(2)An employer who willfully refuses to hire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for rehiring or promotion by a grievance procedure, arbitration, or hearing authorized by law, is guilty of a misdemeanor.
(3)In addition to other remedies available, an employer who violates this section is liable for a civil penalty not exceeding ten thousand dollars ($10,000) per employee for each violation of this section, to be awarded to the employee or employees who suffered the violation.
(c)(1)Any An applicant for employment who is refused employment, who is not selected for a training program leading to employment, or who in any other manner is discriminated against in the terms and conditions of any offer of employment because the applicant engaged in any conduct delineated in this chapter, including the conduct described in subdivision (k) of Section 96, and Chapter 5 (commencing with Section 1101) of Part 3 of Division 2, or because the applicant has made a bona fide complaint or claim to the division pursuant to this part, or because the employee has initiated any action or notice pursuant to Section 2699 shall be entitled to employment and reimbursement for lost wages and work benefits caused by the acts of the prospective employer.
(2)This subdivision shall not be construed to invalidate any collective bargaining agreement that requires an applicant for a position that is subject to the collective bargaining agreement to sign a contract that protects either or both of the following as specified in subparagraphs (A) and (B), nor shall this subdivision be construed to invalidate any employer requirement of an applicant for a position that is not subject to a collective bargaining agreement to sign an employment contract that protects either or both of the following:
(A)An employer against any conduct that is actually in direct conflict with the essential enterprise-related interests of the employer and where breach of that contract would actually constitute a material and substantial disruption of the employers operation.
(B)A firefighter against any disease that is presumed to arise in the course and scope of employment, by limiting his or her consumption of tobacco products on and off the job.
(d)The provisions of this section creating new actions or remedies that are effective on January 1, 2002, to employees or applicants for employment do not apply to any state or local law enforcement agency, any religious association or corporation specified in subdivision (d) of Section 12926 of the Government Code, except as provided in Section 12926.2 of the Government Code, or any person described in Section 1070 of the Evidence Code.
(e)An employer, or a person acting on behalf of the employer, shall not retaliate against an employee because the employee is a family member of a person who has, or is perceived to have, engaged in any conduct delineated in this chapter.
(f)For purposes of this section, employer or a person acting on behalf of the employer includes, but is not limited to, a client employer as defined in paragraph (1) of subdivision (a) of Section 2810.3 and an employer listed in subdivision (b) of Section 6400.
(g)Subdivisions (e) and (f) shall not apply to claims arising under subdivision (k) of Section 96 unless the lawful conduct occurring during nonwork hours away from the employers premises involves the exercise of employee rights otherwise covered under subdivision (a).
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Status
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| Oct 3, 2017 | Chaptered by Secretary of State. Chapter 460, Statutes of 2017. |
| Oct 3, 2017 | Approved by the Governor. |
| Sep 19, 2017 | Enrolled and presented to the Governor at 4 p.m. |
| Sep 13, 2017 | Assembly amendments concurred in. (Ayes 25. Noes 14.) Ordered to engrossing and enrolling. |
| Sep 13, 2017 | In Senate. Concurrence in Assembly amendments pending. |
| Sep 12, 2017 | Read third time. Passed. Ordered to the Senate. |
| Sep 8, 2017 | Read third time and amended. |
| Sep 5, 2017 | Read second time. Ordered to third reading. |
| Sep 1, 2017 | Coauthors revised. |
| Aug 23, 2017 | August 23 set for first hearing. Placed on suspense file. |
| Jul 5, 2017 | From committee: Do pass and re-refer to Com. on APPR. (Ayes 5. Noes 2.) (July 5). Re-referred to Com. on APPR. |
| Jun 28, 2017 | From committee with author's amendments. Read second time and amended. Re-referred to Com. on L. & E. |
| Jun 20, 2017 | From committee: Do pass and re-refer to Com. on L. & E. (Ayes 8. Noes 2.) (June 20). Re-referred to Com. on L. & E. |
| Jun 12, 2017 | Referred to Coms. on JUD. and L. & E. |
| May 31, 2017 | In Assembly. Read first time. Held at Desk. |
| May 30, 2017 | Read third time. Passed. (Ayes 25. Noes 14. Page 1268.) Ordered to the Assembly. |
| May 26, 2017 | Read second time. Ordered to third reading. |
| May 25, 2017 | From committee: Do pass. (Ayes 5. Noes 2. Page 1181.) (May 25). |
| May 19, 2017 | Set for hearing May 25. |
| May 15, 2017 | May 15 hearing: Placed on APPR. suspense file. |
| May 4, 2017 | Set for hearing May 15. |
| May 3, 2017 | May 8 hearing postponed by committee. |
| May 1, 2017 | Set for hearing May 8. |
| Apr 26, 2017 | From committee: Do pass and re-refer to Com. on APPR. (Ayes 4. Noes 1. Page 854.) (April 26). Re-referred to Com. on APPR. |
| Apr 20, 2017 | Set for hearing April 26. |
| Apr 19, 2017 | From committee: Do pass and re-refer to Com. on L. & I.R. (Ayes 5. Noes 1. Page 746.) (April 18). Re-referred to Com. on L. & I.R. |
| Apr 7, 2017 | Set for hearing April 18. |
| Apr 6, 2017 | Re-referred to Coms. on JUD. and L. & I.R. |
| Apr 4, 2017 | From committee with author's amendments. Read second time and amended. Re-referred to Com. on RLS. |
| Feb 23, 2017 | Referred to Com. on RLS. |
| Feb 14, 2017 | From printer. May be acted upon on or after March 16. |
| Feb 13, 2017 | Introduced. Read first time. To Com. on RLS. for assignment. To print. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Sep 13, 2017 | Unfinished Business SB306 Hertzberg et al. Concurrence | Senate Floor |
Passed |
|
| Sep 12, 2017 | SB 306 Hertzberg Senate Third Reading By GONZALEZ FLETCHER | Assembly Floor |
Passed |
|
| Sep 1, 2017 | Do pass. | Assembly Standing Committee on Appropriations |
Passed |
|
| Jul 5, 2017 | Do pass and be re-referred to the Committee on [Appropriations] | Assembly Standing Committee on Labor and Employment |
Passed |
|
| Jun 20, 2017 | Do pass and be re-referred to the Committee on [Labor and Employment] | Assembly Standing Committee on Judiciary |
Passed |
|
| May 30, 2017 | Senate 3rd Reading SB306 Hertzberg | Senate Floor |
Passed |
|
| May 25, 2017 | Do pass | Senate Standing Committee on Appropriations |
Passed |
|
| May 15, 2017 | Placed on suspense file | Senate Standing Committee on Appropriations |
Passed |
|
| Apr 26, 2017 | Do pass, but first be re-referred to the Committee on [Appropriations] | Senate Standing Committee on Labor and Industrial Relations |
Passed |
|
| Apr 18, 2017 | Do pass, but first be re-referred to the Committee on [Labor and Industrial Relations] | Senate Standing Committee on Judiciary |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| Agricultural Council Of California | ** Against | Sep 13, 2017 |
| California Ambulance Association | ** Against | Sep 13, 2017 |
| California Apartment Association | ** Against | Sep 13, 2017 |
| California Bankers Association | ** Against | Sep 13, 2017 |
| California Chamber Of Commerce | ** Against | Sep 13, 2017 |
| California Employment Law Council | ** Against | Sep 13, 2017 |
| California Farm Bureau Association | ** Against | Sep 13, 2017 |
| California Federation Of Teachers | ** Support | Jun 30, 2017 |
| California Grocers Association | ** Against | Sep 13, 2017 |
| California Immigrant Policy Center | ** Support | Sep 13, 2017 |
| California Labor Federation | ** Support | Sep 13, 2017 |
| California League of Food Processors | ** Against | Sep 13, 2017 |
| California Manufacturers & Technology Association | ** Against | Sep 13, 2017 |
| California Nurses Association | ** Support | Sep 13, 2017 |
| California Professional Firefighters | ** Support | Jun 30, 2017 |
| California Retailers Association | ** Against | Sep 13, 2017 |
| California Trucking Association | ** Against | Sep 13, 2017 |
| Civil Justice Association Of California | ** Against | Sep 13, 2017 |
| Consumer Attorneys Of California | ** Support | Sep 13, 2017 |
| Family Business Association of California | ** Against | Sep 13, 2017 |
| National Nurses United | ** Support | Sep 13, 2017 |
| Riverside Sheriffs' Association | * Support | Jul 5, 2017 |
| SEIU California | ** Support | Sep 13, 2017 |
| State Building and Construction Trades Council of California | ** Support | Sep 13, 2017 |
| Western Growers Association | ** Against | Sep 13, 2017 |
| Wine Institute | ** Against | Sep 13, 2017 |
| Worksafe | * Support | Jul 5, 2017 |
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | SB |
UNFINISHED BUSINESS
Bill No: SB 306
:
SENATE JUDICIARY COMMITTEE: 5-1, 4/18/17
AYES: Jackson, Hertzberg, Monning, Stern, Wieckowski
NOES: Anderson
NO VOTE RECORDED: Moorlach
SENATE LABOR & IND. REL. COMMITTEE: 4-1, 4/26/17
AYES: Bradford, Atkins, Jackson, Mitchell
NOES: Stone
SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/25/17
AYES: Lara, Beall, Bradford, Hill, Wiener
NOES: Bates, Nielsen
SENATE FLOOR: 25-14, 5/30/17
AYES: Allen, Atkins, Beall, Bradford, De León, Dodd, Galgiani, Hernandez, Hertzberg, Hill, Hueso, Jackson, Lara, Leyva, McGuire, Mendoza, Mitchell, Monning, Newman, Pan, Portantino, Skinner, Stern, Wieckowski, Wiener
NOES: Anderson, Bates, Berryhill, Cannella, Fuller, Gaines, Glazer, Moorlach, Morrell, Nguyen, Nielsen, Stone, Vidak, Wilk
NO VOTE RECORDED: Roth
ASSEMBLY FLOOR: 45-29, 9/12/17 - See last page for vote
DIGEST:
This bill grants the Labor Commissioner authority to seek an immediate and temporary injunction when workers face retaliation for reporting violations of the law. This bill also gives the Labor Commissioner authority to issue citations and penalties directly to enforce retaliation claims, rather than exclusively through the courts. This bill authorizes an employee who is bringing a civil action for a retaliation claim to seek injunctive relief from the court.
Assembly Amendments (1) permit the Labor Commissioner to initiate an investigation of an employer even without receiving a complaint, if it suspects that retaliation has taken place in the course of adjudicating a wage claim, during a field inspection, or in instances of immigration-related threats; (2) add a provision for civil penalties against any employer who willfully refuses to comply with a court order issued pursuant to the terms of the bill; and (3) provide that injunctive relief protecting an employer who has alleged retaliation does not prevent an employer from disciplining or firing the employee for conduct unrelated to the claim of retaliation.
Existing law:
1) Provides that any person who believes he or she has been retaliated against in the workplace for exercising workplace rights under the laws enforced by the California Labor Commissioner, may file a complaint with the Labor Commissioner within six months after the occurrence. (Lab. Code Sec. 98.7(a).)
2) Establishes a procedure by which the Labor Commissioner must investigate the complaint regarding retaliation through interviews with witnesses, review of documents, and, if necessary, a hearing. (Lab. Code Sec. 98.7(a).)
3) Provides that if the Labor Commissioner determines that a violation took place, the Labor Comissioner shall notify the complainant and respondent and direct the respondent to cease and desist from the violation and take any action deemed necessary to remedy the violation, including, where appropriate, rehiring or reinstatement, reimbursement of lost wages and interest thereon, payment of reasonable attorney’s fees associated with a hearing, and posting of notices to employees. The responding employer has 10 days to comply with the Labor Commissioner’s directions. If the responding employer does not comply, the Labor Commissioner shall bring a lawsuit against the responding employer in the appropriate court. The court may order relief in the form of rehiring or reinstatement, reimbursement of lost wages and interest thereon, and any other compensation or equitable relief as is appropriate. (Lab. Code Sec. 98.7(c).)
This bill:
1) Specifies that, in addition to the relief stated above, the court must award the Labor Commissioner costs and attorney’s fees, if the Labor Commissioner successfully prosecutes an enforcement action for retaliation.
2) Authorizes the Labor Commissioner to initiate an investigation of an employer without receiving a complaint, if it suspects that retaliation has taken place in the course of adjudicating a wage claim, during a field inspection, or in instances of immigration-related threats.
3) Establishes procedures by which the Labor Commissioner could, during the course of investigating a retaliation complaint and upon finding reasonable cause to believe that the responding employer has engaged in or is engaging in unlawful retaliation, petition the superior court of jurisdiction for appropriate injunctive relief.
4) Directs the superior court to consider the chilling effect of the retaliation on other employees asserting their workplace rights in determining if injunctive relief is just and proper.
5) Specifies that, if injunctive relief is granted, it would remain in effect until the Labor Commissioner issues a determination or citation in the case. Provides that injunctive relief could not be stayed pending any appeal, but allows employers to discipline or fire employees protected by injunctive relief provided the employer does so for reasons not related to the claim of retaliation.
6) Provides that an employer who willfully refuses to comply with a court order pursuant to this bill shall be subject to civil penalties, payable to the affected employee.
7) Permits the Labor Commissioner to issue a citation to the respondent employer at the conclusion of its investigation of a retaliation complaint, if the Labor Commissioner determined that a violation occurred. The citation would be in writing, would describe the nature of the violation and the amount of wages and penalties due, and would include any and all appropriate relief, including rehiring or reinstatement, reimbursement of lost wages and interest thereon, and posting notices to employees.
8) Establishes a procedure through which an employer cited for retaliation would be able to seek review of the citation through the Labor Commissioner itself initially. Further review would be available from the superior court through petition for a writ of mandate, conditioned upon the posting of a bond in the total amount of any minimum wages, liquidated damages, and overtime compensation that are due and owing as determined by the Labor Commissioner’s citation.
The California Labor Code establishes a lengthy administrative procedure through which workers can seek redress if their employer retaliates against them for exercising certain workplace rights, such as the rights not to work in hazardous conditions and to demand payment of wages to which they are lawfully entitled. (Lab. Code Sec. 98.7.) If the employer refuses to comply with the Labor Commissioner’s instructions at the end of the process, the worker and the Labor Commissioner are stuck going to court to enforce their remedies. In the meantime, the worker is bearing the consequences of the retaliation: demotion, job loss, or assignment to unpleasant tasks, for instance. Even if the worker is fully compensated in the end, the prospect of enduring these consequences in the meantime can act as a deterrent, discouraging workers from asserting their lawful rights in the workplace.
This bill permits the Labor Commissioner and the employee to seek temporary injunctive relief addressing retaliation during the investigatory phase of the retaliation complaint process. In determining whether or not to grant this injunctive relief, this bill instructs the superior court making the decision to consider the chilling effect of the alleged retaliation on other employees asserting their workplace rights. In addition, this bill gives the Labor Commissioner the option of directly citing an employer at the conclusion of its investigation, rather than having to proceed to superior court. Finally, this bill permits the Labor Commissioner to obtain an award for attorney’s fees and costs when it successfully prosecutes a retaliation claim through the courts.
Comments
According to the author:
Retaliation against an employee in the workplace is a very serious problem that can go beyond the individual who is discharged or faces other adverse actions. That’s because safety and employee rights in the workplace depend on workers reporting health and safety hazards or other violations. Sometimes, the employer remedies the situation immediately. Unfortunately, some whistleblower employees are discharged or retaliated against in other ways for reporting such hazards.
Despite the fact that retaliation is prohibited, it remains disturbingly common across California. In 2014 alone, the state began investigations of 1,874 cases covering 3,045 violations. Complicating things further, the Labor Commissioner does not have direct penalty authority to enforce determinations made affirming the employee’s rights, meaning a separate court order – and even more time – is needed to hold recalcitrant employers accountable.
The deficiency in current law is that finalizing these complaints is extremely time-consuming, sometimes taking a year or more before a worker is given their job back or made whole. But by that time, the employee may have found other work and their co-workers only see that a person who reported violations is no longer there. The fear of retaliation results in a chilling effect, reducing the likelihood that workers will report workplace violations.
Labor Commissioner delay in processing retaliation complaints
Under existing law, the Labor Commissioner is supposed to make a determination on whether to order remedies or dismiss a complaint for workplace retaliation within 60 days of receiving the complaint. (Lab. Code Sec. 98.7(e).) In practice however, the Labor Commissioner retaliation investigation process generally takes much longer than this. In the Labor Commissioner’s 2016/2017 Budget Change Proposal seeking additional deputies to assist in the investigation of retaliation complaints, the Labor Commissioner wrote, based on 2014 statistics: “[i]t currently takes an average of 122 days from when a case is opened to the time it is assigned to a [Deputy Labor Commissioner], primarily due to the need to close out the backlog of cases…”[1] In other words, as recently as 2014, the Labor Commissioner did not even begin investigation of a retaliation complaint until four months after it was filed.
The Labor Commissioner continued:
…[d]elaying the investigation of new cases can have negative repercussions. It can decrease the likelihood of a settlement because the employer’s liability grows as long as the complainant remains unemployed therefore the resistance to settle is greater. Additionally, the complainant may simply give upon their case because they’ve found another job, thus, allowing the employer to avoid the consequences of engaging in retaliation.
Related/Prior Legislation
AB 2261 (Hernández, 2014) would have allowed the Labor Commissioner to commence investigation based on a suspicion that workplace retaliation may have taken place, with or without a complaint. AB 2261 died on the Senate Floor.
AB 2751 (Hernández, Chapter 79, Statutes of 2014), among other things, clarified that civil penalties against an employer who discriminates, retaliates, or takes adverse action against any employee or job applicant who has engaged in prescribed protected conduct are awarded to the employee or employees who suffered the violation.
FISCAL EFFECT: Appropriation: Fiscal Com.: Local:
According to the Assembly Appropriations Committee:
- Costs of $729,000 (Labor Enforcement Compliance Fund) to the Department of Industrial Relations in the first year and $700,000 annually ongoing for new workload resulting from this bill. These costs could be partially offset to the extent that a court awards reasonable attorney’s fees in cases that go to court.
- Unknown GF costs to the courts as a result of this bill.
American Federation of State, County and Municipal Employees, AFL-CIO
California Immigrant Policy Center
California Labor Federation
California Nurses Association/National Nurses United
Consumer Attorneys of California
SEIU California
State Building and Construction Trades Council of California
OPPOSITION: (Verified 9/12/17)
Agricultural Council of California
California Ambulance Association
California Apartment Association
California Bankers Association
California Chamber of Commerce
California Employment Law Council
California Farm Bureau Association
California Grocers Association
California League of Food Processors
California Manufacturers & Technology Association
California Retailers Association
California Trucking Association
Civil Justice Association of California
Family Business Association of California
Western Growers Association
Wine Institute
ARGUMENTS IN SUPPORT: In support, the California Labor Federation writes:
Despite many attempts to fix the problem, retaliation remains disturbingly common across California. A worker sees a life-threatening safety hazard, reports the violation to Cal/OSHA, and is fired. Someone notices they were not paid for all hours worked, tells their manager about it, and has their hours cut. Most employers do not do anything like this, but those that do create a world of negative consequences for affected workers.
Virtually no one who believes they would be fired for reporting health and safety violations, for example, would ever actually pick up the phone and make the call. Not only does that put the individual worker at risk, it jeopardizes the life of every co-worker and even the employer him- or herself.
Should workers fear retaliation for reporting wage theft, then the crime will continue harming all workers affected and honest employers will suffer a competitive disadvantage. The chilling effect of allowing such abuse to continue is immediate, harmful, and unconscionable…
Slight or even significant reductions in the amount of time needed to process claims will make a difference, but will not solve the problem. Unless the aggrieved employee is returned to work or made whole immediately, co-workers will stop reporting crime and the harm caused often cannot be undone…
ARGUMENTS IN OPPOSITION: In opposition to the bill, the California Chamber of Commerce and other listed organizations write:
…[SB 306] provides the Labor Commissioner with significant authority to obtain injunctive relief at any time during an investigation which will disrupt the workforce and expose employers to constant threats of civil proceedings and costs, as well as excessive penalties for simple posting violations.
Currently, the Labor Commissioner has the authority to seek any appropriate relief, including temporary or permanent injunctive relief, after it has investigated a claim of retaliation and made a determination that a violation exists. SB 306 proposes to allow the Labor Commissioner the authority to petition the court for temporary or permanent injunctive relief before it has completed an investigation and made a determination….
This authority is extremely broad and would completely disrupt the operations of a workplace solely on a “reasonable cause” that a violation has occurred, rather than actual evidence of any violation. Moreover, despite the requirement in Labor Code Section 98.7 that the Labor Commissioner must make a determination within 60 days after a complaint has been filed, these investigations can take as long as three years. See American Corporate Security Inc. v. Su, 220 Cal.App.4th 38 (2013) (Labor Commissioner did not issue determination of retaliation until over three years after filing of complaint). Under SB 306, during this three-year period, or even longer, every action or omission of an employer could be legally challenged. This would significantly interfere with an employer’s ability to manage its workforce as well as create a constant threat of civil proceedings and cost.
SB 306 also alters the common understanding of the “successful prosecution” of an enforcement action to mean whenever the Labor Commissioner is awarded any relief, no matter how minimal the award. Under such a definition, if an employer were ultimately required to pay a nominal amount such as $500, despite the request for a substantial award such as $500,000, the Labor Commissioner would still have “successfully prosecuted” the action. Under SB 306, this label would then force the employer to pay for the Labor Commissioner’s costs and attorney’s fees in pursuing the action. This manipulation of the definition is problematic as it incentivizes the pursuit of claims that may lack merit as well as leverages an employer into a settlement for a frivolous claim, as the threat of legal costs are simply too high no matter the outcome….
SB 306 also completely alters the procedure under which a retaliation determination is processed. Currently, the burden is on the Labor Commissioner to enforce the determination through a civil action. SB 306 provides the option for the Labor Commissioner to simply cite the employer for an alleged violation, and places the burden on the employer to challenge the citation through an administrative hearing and writ of mandate. Furthermore, SB 306 exposes employers to significant penalties of $100.00 per day up to a maximum of $20,000 for a posting violation, which is overly punitive.
ASSEMBLY FLOOR: 45-29, 9/12/17
AYES: Aguiar-Curry, Arambula, Berman, Bloom, Bocanegra, Bonta, Burke, Caballero, Calderon, Chau, Chiu, Chu, Cooper, Dababneh, Eggman, Friedman, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Holden, Irwin, Jones-Sawyer, Kalra, Levine, Limón, Low, McCarty, Medina, Mullin, Muratsuchi, Nazarian, Quirk, Reyes, Ridley-Thomas, Rodriguez, Rubio, Santiago, Mark Stone, Thurmond, Ting, Weber, Wood, Rendon
NOES: Acosta, Travis Allen, Baker, Bigelow, Brough, Chávez, Chen, Choi, Cooley, Cunningham, Dahle, Flora, Fong, Gallagher, Gray, Harper, Kiley, Lackey, Maienschein, Mathis, Mayes, Melendez, Obernolte, Patterson, Quirk-Silva, Salas, Steinorth, Voepel, Waldron
NO VOTE RECORDED: Cervantes, Daly, Frazier, Grayson, O'Donnell
Prepared by: Timothy Griffiths / JUD. / (916) 651-4113
9/13/17 10:35:04
**** END ****
2016/2017 Budget Change Proposal (Jan. 1, 2017) Division of Labor Standards Enforcement, p. 5 <http://web1a.esd.dof.ca.gov/Documents/bcp/1617/FY1617_ORG7350_BCP435.pdf> (as of Apr. 12, 2017). ↑
SENATE THIRD READING
STR Bill Id:SB 306
Author:(Hertzberg)
As Amended Ver:September 8, 2017
Majority vote
SENATE VOTE: 25-14
Committee | Votes | Ayes | Noes |
Judiciary | 8-2 | Mark Stone, Chau, Chiu, Cristina Garcia, Holden, Kalra, Reyes, Ting | Cunningham, Kiley |
Labor | 5-2 | Thurmond, Gonzalez Fletcher, Jones-Sawyer, Kalra, McCarty | Flora, Harper |
Appropriations | 11-5 | Gonzalez Fletcher, Bloom, Bocanegra, Bonta, Calderon, Chau, Eggman, Friedman, Eduardo Garcia, Jones-Sawyer, Reyes | Bigelow, Brough, Fong, Gallagher, Obernolte |
SUMMARY: Grants the Labor Commissioner additional power to respond to employee complaints of retaliation. Specifically, this bill:
- Allows the Division of Labor Standards Enforcement (DLSE) to commence an investigation of an employer, with or without a complaint being filed, when specified retaliation or discrimination is suspected during the course of a wage claim or other specified Labor Commissioner (commissioner) investigation, and authorizes the commissioner, upon finding reasonable cause to believe that an employer has unlawfully discharged or discriminated against an employee, to petition the relevant superior court for appropriate injunctive relief. Specifies that, in determining whether injunctive relief is just and proper, the court shall consider the chilling effect of the violation on other employees asserting their rights, in addition to any harm to the individual complainant.
- Specifies that if an employee has been discharged or faced adverse action for raising a claim of retaliation, or asserting rights under any law under the jurisdiction of the commissioner, a court shall order appropriate injunctive relief on a showing that reasonable cause exists to believe than an employee has been discharged or subject to adverse action for raising a claim of retaliation or asserting rights under any law under the jurisdiction of the commissioner.
- Authorizes the commissioner, upon determining that a violation occurred, to issue a determination, pursuant to existing law, or to issue a citation, as specified. Specifies that if the commissioner successfully prosecutes an enforcement action pursuant to this provision, the court shall determine the costs and reasonable attorney's fees incurred by the commissioner and assess that amount on the employer. Specifies that if the commissioner is a prevailing party in an enforcement action brought pursuant to this section, the court shall determine the reasonable attorney's fees incurred by the commissioner in prosecuting the enforcement action and assess that amount as a cost upon the employer.
- Subjects an employer who willfully refuses to comply with an order of a court pursuant to this section to hire, promote, or otherwise restore an employee or former employee who has been deemed eligible for relief, or who refuses to comply with an order to post a notice to employees or otherwise cease and desist from the violation shall to a penalty of $100 per day for each day that the employer is not in compliance with the court order, up to a maximum of $20,000. Any penalty collected pursuant to this section shall be paid to the affected employee.
- Provides that if the commissioner determines, after investigation, that a violation occurred and proceeds with a citation, the commissioner shall issue, with reasonable promptness, a written citation describing the nature of the violation, the amount of wages and penalty due, and any other appropriate relief, including directing the person cited to cease and desist from the violation and take any action necessary to remedy the violation. The citation shall be served upon the person cited and shall advise the person cited of the procedure for obtaining review of the citation. Specifies the procedures and timelines for requesting a hearing and obtaining review of the citation, and the penalties for refusing to comply with an order.
- Provides that in any civil action or administrative proceeding brought pursuant to an employee whistleblower protection statute (Labor Code Section 1102.5) an employee may petition the relevant superior court for appropriate temporary or preliminary injunctive relief. Specifies that the court shall have jurisdiction to grant such relief as it deems just and proper, and that in determining whether the relief is just and proper the court shall consider the chilling effect on other employees asserting their rights, in addition to any harm resulting to the petitioner. Specifies that injunctive relief shall be issued upon a showing that reasonable cause exists to believe that a violation has occurred.
- Clarifies that any temporary injunctive relief issued pursuant to the provisions of the bill does not prohibit an employer from disciplining or terminating an employee for conduct that is unrelated to the claim of the retaliation.
FISCAL EFFECT: According to the Assembly Appropriations Committee:
- Costs of $729,000 (Labor Enforcement Compliance Fund) to DIR in the first year and $700,000 annually ongoing for new workload resulting from this bill. These costs could be partially offset to the extent that a court awards reasonable attorney's fees in cases that go to court.
- Unknown General Fund costs to the courts as a result of this bill.
COMMENTS: Existing law prohibits an employer from retaliating against an employee for exercising an existing workplace right, including the right to report employer violations of the law. Retaliation can take the form of discharge, demotion, reassignment, or any other adverse action. Existing law also establishes a procedure by which an aggrieved employee may file a complaint with the Division of Labor Standards Enforcement (DLSE), and it empowers the Labor Commissioner (commissioner) to investigate the complaint and, if it determines that a violation occurred, to issue a cease and desist order to stop the retaliatory conduct and, if appropriate, order the employer to remedy the violation. Such remedies could include, for example, reinstating a discharged worker and paying back wages or benefits lost as a result of the violation. If an employer fails to comply with the order, the commissioner may bring an action in court to enforce its order.
Unfortunately, even where the commissioner has the resources to investigate violations and pursue remedies, the process can take a considerable amount of time. By the time of any resolution, the discharged worker may have found other employment or already suffered irreparable harm. In theory existing law allows this employee to be "made whole," but in reality, as supporters of this measure contend, the damage to worker rights has already occurred. Moreover, an adverse action against an individual employee may have broader consequences than the harm to that individual employee; if not quickly remedied, the author contends, retaliation is likely to have a chilling effect on the willingness of other employees to exercise their rights or come forward to report other employer violations of the law.
This bill, therefore, would authorize the commissioner to seek injunctive relief pending the outcome of any investigation – so long as the commissioner has "reasonable cause" to believe that a violation occurred. In addition, this measure would empower the commissioner to directly issue citations and impose penalties when it finds a violation, rather than having to go to court to enforce its orders. That is, under existing law, the commissioner has little independent power to enforce her orders without going to court. Under this bill, however, the commissioner could issue citations and order remedies directly. If the employer disputes the commissioner's determination, or the citation or penalties imposed, the employer would have the right to seek judicial review in superior court. In short, whereas existing law imposes the burden on the commissioner to bring a court action to enforce its orders, this bill would shift the burden by requiring the employer to bring an action if it disputes the commissioner's citation or other remedial orders.
This bill would additionally entitle the Labor Commission to recover legal costs and fees if it prevails in a prosecution; it would direct the superior court to consider the chilling effect of retaliation on other employees when determining if injunctive relief is just and proper; and it would permit an employee alleging retaliation to seek injunctive relief if the commissioner fails to do so within a given period of time. The author, sponsor, and supporters contend that these changes to existing law are necessary in order to bring about a more timely resolution. This timeliness will not only bring justice to the aggrieved worker, it will also counter the chilling effect that justice delayed has on other workers' willingness to exercise of their legal rights. Finally, recent amendments to the bill clarify that the injunctive relief provided by this bill does not apply to an adverse action that is unrelated to retaliation. In other words, an employer may discipline or terminate an employee as long as the conduct which is the basis for the discipline or termination is unrelated to the claim of the retaliation.
Analysis Prepared by: Thomas Clark and Alison Merrilees / JUD. / (916) 319-2334 FN: 0002162
SENATE THIRD READING
STR Bill Id:SB 306
Author:(Hertzberg)
As Amended Ver:June 28, 2017
Majority vote
SENATE VOTE: 25-14
Committee | Votes | Ayes | Noes |
Judiciary | 8-2 | Mark Stone, Chau, Chiu, Cristina Garcia, Holden, Kalra, Reyes, Ting | Cunningham, Kiley |
Labor | 5-2 | Thurmond, Gonzalez Fletcher, Jones-Sawyer, Kalra, McCarty | Flora, Harper |
Appropriations | 11-5 | Gonzalez Fletcher, Bloom, Bocanegra, Bonta, Calderon, Chau, Eggman, Friedman, Eduardo Garcia, Jones-Sawyer, Reyes | Bigelow, Brough, Fong, Gallagher, Obernolte |
SUMMARY: Grants the Labor Commissioner additional power to respond to employee complaints of retaliation. Specifically, this bill:
- Allows the Division of Labor Standards Enforcement (DLSE) to commence an investigation of an employer, with or without a complaint being filed, when specified retaliation or discrimination is suspected during the course of a wage claim or other specified Labor Commissioner (commissioner) investigation, and authorizes the commissioner, upon finding reasonable cause to believe that an employer has unlawfully discharged or discriminated against an employee, to petition the relevant superior court for appropriate injunctive relief. Specifies that, in determining whether injunctive relief is just and proper, the court shall consider the chilling effect of the violation on other employees asserting their rights, in addition to any harm to the individual complainant.
- Specifies that if an employee has been discharged or faced adverse action for raising a claim of retaliation, or asserting rights under any law under the jurisdiction of the commissioner, a court shall order appropriate injunctive relief on a showing that reasonable cause exists to believe than an employee has been discharged or subject to adverse action for raising a claim of retaliation or asserting rights under any law under the jurisdiction of the commissioner.
- Authorizes the commissioner, upon determining that a violation occurred, to issue a determination, pursuant to existing law, or to issue a citation, as specified. Specifies that if the commissioner successfully prosecutes an enforcement action pursuant to this provision, the court shall determine the costs and reasonable attorney's fees incurred by the commissioner and assess that amount on the employer. Specifies that if the commissioner is a prevailing party in an enforcement action brought pursuant to this section, the court shall determine the reasonable attorney's fees incurred by the commissioner in prosecuting the enforcement action and assess that amount as a cost upon the employer.
- Subjects an employer who willfully refuses to comply with an order of a court pursuant to this section to hire, promote, or otherwise restore an employee or former employee who has been deemed eligible for relief, or who refuses to comply with an order to post a notice to employees or otherwise cease and desist from the violation shall to a penalty of $100 per day for each day that the employer is not in compliance with the court order, up to a maximum of $20,000. Any penalty collected pursuant to this section shall be paid to the affected employee.
- Provides that if the commissioner determines, after investigation, that a violation occurred and proceeds with a citation, the commissioner shall issue, with reasonable promptness, a written citation describing the nature of the violation, the amount of wages and penalty due, and any other appropriate relief, including directing the person cited to cease and desist from the violation and take any action necessary to remedy the violation. The citation shall be served upon the person cited and shall advise the person cited of the procedure for obtaining review of the citation. Specifies the procedures and timelines for requesting a hearing and obtaining review of the citation, and the penalties for refusing to comply with an order.
- Provides that in any civil action or administrative proceeding brought pursuant to an employee whistleblower protection statute (Labor Code Section 1102.5) an employee may petition the relevant superior court for appropriate temporary or preliminary injunctive relief. Specifies that the court shall have jurisdiction to grant such relief as it deems just and proper, and that in determining whether the relief is just and proper the court shall consider the chilling effect on other employees asserting their rights, in addition to any harm resulting to the petitioner. Specifies that injunctive relief shall be issued upon a showing that reasonable cause exists to believe that a violation has occurred.
EXISTING LAW:
- Prohibits an employer from discharging or otherwise discriminating, retaliating, or taking any adverse action against any employee or applicant for employment because the employee or applicant engaged in certain protected conduct. Provides that an aggreived employee is entitled to reinstatement and reimbursement for lost wages or benefits caused by the employer's violaion. Requires the employee to file a complaint with the DLSE within six months after the violation. Requires that the complaint be investigated according to established procedures. (Labor Code Sections 98.6 and 98.7(a).)
- Requires each complaint that is filed pursuant to the provision above to be assigned to an investigator who shall prepare and submit a report on the investigation, with specified information, to the commissioner. Authorizes the commissioner to conduct a hearing on the complaint and investigation, and upon finding a violation, to notify the complainant and respondent and take appropriate action, as specified. (Labor Code Section 98.7(b)-(c).)
- If commissioner fails to bring an action, pursuant to 2) above, the complainant may bring an action for writ of mandate to compel the commissioner to bring an action against the respondent. If the commissioner determines that no violation has occurred, he or she shall notify the parties and dismiss the complaint. (Labor Code Section 98.7(c)-(d).)
- Specifies that any of the rights and remedies provided by the above provisions do not preclude an employee from pursuing any other rights or remedies under any other law. (Labor Code Section 98.7(f).)
- Prohibits an employer, or any person acting on behalf of the employer, from retaliating against an employee for disclosing information to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee's job duties. Specifies penalties for a violation of this provision. (Labor Code Section 1102.5.)
FISCAL EFFECT: According to the Assembly Appropriations Committee:
- Costs of $729,000 (Labor Enforcement Compliance Fund) to DIR in the first year and $700,000 annually ongoing for new workload resulting from this bill. These costs could be partially offset to the extent that a court awards reasonable attorney's fees in cases that go to court.
- Unknown General Fund costs to the courts as a result of this bill.
COMMENTS: Existing law prohibits an employer from retaliating against an employee for exercising an existing workplace right, including the right to report employer violations of the law. Retaliation can take the form of discharge, demotion, reassignment, or any other adverse action. Existing law also establishes a procedure by which an aggrieved employee may file a complaint with the Division of Labor Standards Enforcement (DLSE), and it empowers the Labor Commissioner (commissioner) to investigate the complaint and, if it determines that a violation occurred, to issue a cease and desist order to stop the retaliatory conduct and, if appropriate, order the employer to remedy the violation. Such remedies could include, for example, reinstating a discharged worker and paying back wages or benefits lost as a result of the violation. If an employer fails to comply with the order, the commissioner may bring an action in court to enforce its order.
Unfortunately, even where the commissioner has the resources to investigate violations and pursue remedies, the process can take a considerable amount of time. By the time of any resolution, the discharged worker may have found other employment or already suffered irreparable harm. In theory existing law allows this employee to be "made whole," but in reality, as supporters of this measure contend, the damage to worker rights has already occurred. Moreover, an adverse action against an individual employee may have broader consequences than the harm to that individual employee; if not quickly remedied, the author contends, retaliation is likely to have a chilling effect on the willingness of other employees to exercise their rights or come forward to report other employer violations of the law.
This bill, therefore, would authorize the commissioner to seek injunctive relief pending the outcome of any investigation – so long as the commissioner has "reasonable cause" to believe that a violation occurred. In addition, this measure would empower the commissioner to directly issue citations and impose penalties when it finds a violation, rather than having to go to court to enforce its orders. That is, under existing law, the commissioner has little independent power to enforce her orders without going to court. Under this bill, however, the commissioner could issue citations and order remedies directly. If the employer disputes the commissioner's determination, or the citation or penalties imposed, the employer would have the right to seek judicial review in superior court. In short, whereas existing law imposes the burden on the commissioner to bring a court action to enforce its orders, this bill would shift the burden by requiring the employer to bring an action if it disputes the commissioner's citation or other remedial orders.
This bill would additionally entitle the Labor Commission to recover legal costs and fees if it prevails in a prosecution; it would direct the superior court to consider the chilling effect of retaliation on other employees when determining if injunctive relief is just and proper; and it would permit an employee alleging retaliation to seek injunctive relief if the commissioner fails to do so within a given period of time. The author, sponsor, and supporters contend that these changes to existing law are necessary in order to bring about a more timely resolution. This timeliness will not only bring justice to the aggrieved worker, it will also counter the chilling effect that justice delayed has on other workers' willingness to exercise of their legal rights.
Analysis Prepared by: Thomas Clark / JUD. / (916) 319-2334 FN: 0001647
Date of Hearing: August 23, 2017
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Lorena Gonzalez Fletcher, Chair
SBPCA Bill Id:SB 306
Author:(Hertzberg) – As Amended Ver:June 28, 2017
Policy Committee: | Judiciary | Vote: | 8 - 2 |
Labor and Employment | 5 - 2 | ||
|
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Urgency: No State Mandated Local Program: No Reimbursable: No
SUMMARY:
This bill grants the Labor Commissioner (LC) within the Department of Industrial Relations (DIR), authority to seek an immediate and temporary injunction when workers face retaliation for reporting violations of the law. This bill also gives the LC authority to issue citations and penalties directly to enforce retaliation claims, rather than exclusively through the courts. In addition, this bill authorizes an employee who is bringing a civil action for a retaliation claim to seek injunctive relief from the court. The Division of Labor Standards Enforcement (DLSE), within DIR, is also authorized to commence an investigation of an employer, with or without a complaint being filed, when specified retaliation or discrimination is suspected during the course of a wage claim or other specified investigation being conducted by the LC
FISCAL EFFECT:
- Costs of $729,000 (Labor Enforcement Compliance Fund) to DIR in the first year and $700,000 annually ongoing for new workload resulting from this bill. These costs could be partially offset to the extent that a court awards reasonable attorney’s fees in cases that go to court.
- Unknown GF costs to the courts as a result of this bill.
COMMENTS:
- Background. Under existing law, an employer is prohibited from retaliating against an employee for exercising an existing workplace right, including the right to report employer violations of the law. Retaliation can take the form of discharge, demotion, reassignment, or other adverse actions. If an employee believes that they have been retaliated against for exercising their workplace rights, the aggrieved employee may file a complaint with DLSE. Once a complaint is assigned to an investigator and it is determined by the LC that a violation occurred, the LC may issue a cease-and-desist order to stop the retaliatory conduct and, if appropriate, order the employer to remedy the violation. Remedies may include reinstating a discharged worker and paying back wages or benefits lost as a result of the violation. If an employer fails to comply with the order, the LC may bring an action in court to enforce the order.
- Purpose. This bill strengthens the LC’s ability to enforce anti-retaliation laws by permitting the LC to issue citations for employers who retaliate against their employees. This bill permits the LC to conduct hearings on retaliation claims similar to the process for unpaid wage claims. If the employer disputes the LC’s determination, or the citation or penalties imposed, the employer has the right to seek judicial review in superior court. While existing law imposes the burden on the LC to bring a court action to enforce its orders, this bill shifts the burden by requiring the employer to bring a court action if it disputes the LC's citation or other remedial orders.
In creating this citation process, this measure allows the LC to investigate and enforce a retaliation claim through an existing hearing process in about 90 days, rather than through a more-lengthy lawsuit before the courts. This bill also provides that, if the LC is the prevailing party in a retaliation claim pursued through the traditional enforcement route of making a determination and filing a lawsuit, the court must award reasonable attorney’s fees to DLSE.
Analysis Prepared by: Jessica Peters / APPR. / (916) 319-2081
Date of Hearing: July 5, 2107
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Tony Thurmond, Chair
SBPCA Bill Id:SB 306
Author:(Hertzberg) – As Amended Ver:June 28, 2017
SENATE VOTE: 25-14
SUBJECT: Retaliation actions: complaints: administrative review
SUMMARY: Grants the Labor Commissioner (LC) authority to seek an immediate and temporary injunction when workers face retaliation for reporting violations of the law. Gives the LC authority to issue citations and penalties directly to enforce retaliation claims, rather than exclusively through the courts. Authorizes an employee who is bringing a civil action for a retaliation claim to seek injunctive relief from the court. Authorizes the Division of Labor Standards Enforcement (DSLE) to commence an investigation of an employer, with or without a complaint being filed, when specified retaliation or discrimination is suspected during the course of a wage claim or other specified investigation being conducted by the LC. Specifically, this bill:
- Authorizes DLSE to commence an investigation of an employer, with or without a complaint being filed, when retaliation or discrimination is suspected during the course of a wage claim, a field inspection or in instances of suspected immigration-related threats, as specified.
- Authorizes the LC, upon finding reasonable cause to believe that any person has engaged in or is engaging in a violation, to petition a superior court for prescribed injunctive relief.
- Requires a court, if an employee has been discharged or faced adverse action for raising a claim of retaliation for asserting rights under any law under the jurisdiction of the LC, to order appropriate injunctive relief on a showing that reasonable cause exists to believe a violation has occurred.
- Requires the court, if the LC is the prevailing party in an enforcement action, to assess the costs and attorney’s fees as a cost upon the employer.
- Authorizes the LC to issue citations directing specific relief to persons determined to be responsible for violations.
- Establishes review procedures, including procedures for requesting a hearing before a hearing officer for the LC and for a petition for a writ of mandate.
- Authorizes the LC to adopt regulations to establish hearing procedures.
- Subjects an employer who willfully refuses to comply with a final order pursuant to this legislation to prescribed civil penalties payable to the affected employee.
- Authorizes an employee who is bringing a civil action under these provisions to also seek injunctive relief from the court.
- Provides notice procedures and criteria for the court to evaluate in granting or denying the application for injunction.
- Provides that injunctive relief granted under these provisions is not stayed pending appeal.
EXISTING LAW:
- Prohibits a person from discharging or otherwise discriminating, retaliating, or taking any adverse action against any employee or applicant for employment because the employee or applicant engaged in specified protected conduct. States that an aggrieved employee or applicant is entitled to reinstatement or employment and reimbursement for lost wages and work benefits caused by acts of the employer in violation of this prohibition, and may file a complaint with the DLSE.
- Requires a discrimination complaint investigator to investigate, and submit a report on, each complaint to the LC; authorizes the LC to designate specified officers to review the report; and authorizes the LC to hold an investigative hearing on the report if, after reviewing the report, the LC determines that a hearing is necessary.
- Requires the LC, if the LC determines a violation has occurred, to direct the respondent to cease and desist from, and to remedy, the violation, as specified.
- Authorizes the LC to bring a civil action against a respondent that does not comply with such an order.
- Authorizes a complainant, if the LC does not promptly bring an action, to bring an action in court for a writ of mandate to compel the LC to bring an action, and requires the court to award the complainant court costs and reasonable attorney’s fees if the complainant prevails in his or her action for a writ.
- Prohibits an employer from discharging an employee or in any manner discriminating, retaliating, or taking any adverse action against any employee or applicant for employment because the employee or applicant has engaged in protected conduct, as specified.
- Provides that an employee who made a bona fide complaint, and was consequently discharged or otherwise suffered an adverse action, is entitled to reinstatement and reimbursement for lost wages.
- Makes it a misdemeanor for an employer to willfully refuse to reinstate or otherwise restore an employee who is determined by a specified procedure to be eligible for reinstatement.
- Subjects a person who violates these provisions to a civil penalty of up to $10,000 per violation.
FISCAL EFFECT: According to the Senate Appropriations Committee, the Department of Industrial Relations (DIR) indicates that it would incur first-year costs of $729,000, and $700,000 annually in the out-years to implement the provisions of the bill (special fund). Additionally, there is insufficient data to estimate the number additional petitions that would be filed in court as a result of the bill; consequently, the impact to the courts is unknown, but potentially significant.
COMMENTS: The author argues, “California state laws offer workers a variety of basic protections, from the right to a safe workplace to guarantees that hourly workers will earn at least the minimum wage.” The author continues, “The importance of these laws, and their role in improving Californians’ overall quality of life and standard of living, cannot be overstated.” This bill aims to strengthen the enforcement of those laws and in particular anti-retaliation protections by granting new enforcement powers to the LC and DLSE.
Under existing law an employer is prohibited from retaliating against an employee for exercising an existing workplace right, including the right to report employer violations of the law. Retaliation can take the form of discharge, demotion, reassignment, or other adverse actions. If an employee believes that they have been retaliated against for exercising their workplace rights, the aggrieved employee may file a complaint with DLSE. Once a complaint is assigned to an investigator and it is determined by the LC that a violation occurred, the LC may issue a cease and desist order to stop the retaliatory conduct and, if appropriate, order the employer to remedy the violation. Remedies may include reinstating a discharged worker and paying back wages or benefits lost as a result of the violation. If an employer fails to comply with the order, the LC may bring an action in court to enforce the order. Both the proponents and opponents assert that the existing enforcement process for retaliation claims is lengthy.
Enhanced Enforcement of Anti-Retaliation Provisions
This bill strengthens the LC ability to enforce anti-retaliation complaint by permitting the LC to issue citations for employers who retaliate against their employees. This would permit the LC to conduct hearings on retaliation claims similar to the process for unpaid wage claims. If the employer disputes the LC’s determination, or the citation or penalties imposed, the employer would have the right to seek judicial review in superior court. Whereas existing law imposes the burden on the LC to bring a court action to enforce its orders, this bill would shift the burden by requiring the employer to bring a court action if it disputes the LC's citation or other remedial orders.
In creating this citation process, this measure would allow the LC to investigate and enforce a retaliation claim through an existing hearing process in about 90 days, rather than through a more-lengthy lawsuit before the courts. This bill also provides that, if the LC is the prevailing party in a retaliation claim pursued through the traditional enforcement route of making a determination and filing a lawsuit, the court must award reasonable attorney’s fees to DLSE.
Injunctive Relief
This measure also authorizes the LC to seek injunctive relief pending the outcome of any investigation if there is "reasonable cause" to believe that a violation occurred. While maintaining judicial discretion to determine that injunctive relief is “just and proper” this change in the law will make it both faster and easier for an aggrieved employee to obtain a court order for job reinstatement or other appropriate relief to provide redress for workplace retaliation, so long as the employee can show that they have reasonable cause to believe they will prevail in the underlying retaliation claim.
Enhanced Investigation Powers
The most recent amendments to this bill grant the DLSE the authority to investigate an employer, with or without a complaint being filed, when retaliation or discrimination is suspected during the course of adjudicating a wage claim, during a field inspection, or in instances of suspected immigration-related threats in violation of the labor code.
Arguments in Support
According to the sponsor, the California Labor Federation (CLF), this bill "will protect a worker's right to report illegal activity without being fired or otherwise retaliated against." CLF contends that while existing law offers workers a variety of protections – including protection from retaliation for exercising workplace rights or reporting an employer's unlawful conduct – "what is written in the law and what is experienced at work are often two very different things." CLF claims that despite "many attempts to fix the problem, retaliation remains disturbingly common across California. A worker sees a life-threatening safety hazard, reports the violation and is fired." While CLF acknowledges that most employers do not do this, those that do "not only put the individual worker at risk," they jeopardize "the life of every co-worker and even the employer him or herself." Noting that investigations can take "a year or more," CLF claims that "once that much time has elapsed, the abused worker – and their co-workers' willingness to report illegal activity – are long gone."
In short, CLF believes, unless the employee returns "to work or made whole immediately, co-workers will stop reporting crime and the harm caused often cannot be undone." CLF maintains that this measure will help to fix this problem by granting the LC to seek a temporary injunction that will allow the employee to return to work while the retaliation claim is processed. "With this change," CLF concludes, "whistleblowers will have much less to fear when wondering whether or not to report violations." CLF also argues that allowing the LC to issue citations and penalties without going to court is "a common sense change that saves time and money while leaving law-abiding employers unaffected."
Several other labor organizations support this bill for substantially the same reasons as those articulated by CLF.
Arguments in Opposition
A coalition of several employer, trade, and business associations, led by the California Chamber of Commerce, oppose this measure because it will grant the LC new authority "that will (1) expose employers to increased legal costs; (2) force an employer to continue to employ an individual who has committed harassment, assaults, dangerous threats, or other egregious conduct; (3) place employees who allege retaliation in a better position than victims [of] stalking, or harassment; and (4) expose employers to constant threats of civil proceedings and costs, as well as excessive penalties for simple posting violations." The coalition contends that despite the requirement that the LC make a determination within 60 days after the filing of a complaint of retaliation, "these investigations can take as long as three years." Therefore, "during this three-year period, or even longer, an employer could be prevented from terminating an employee engaging in egregious conduct. Additionally, for three years or longer, this bill would give an employee and the LC authority to legally challenge every action or omission of an employer before a violation is proven. This would significantly interfere with an employer's ability to manage its workforce as well as create a constant threat of civil proceedings and cost."
The coalition also maintains that the "one-sided shift of attorney's fees" will encourage "frivolous claims." The coalition objects, in particular, to the provision of the bill that would require an employer to pay attorney's fees and cost whenever the LC "successfully" prosecutes an enforcement action. For example, obtaining an injunction but not a monetary award, or receiving only $500 on a $500,000 claim would be deemed a "successful prosecution" and require the employer to pay the LC's or the complainant's attorney's fees and costs. The coalition claims that this will encourage the pursuit of meritless claims and "leverages an employer into a settlement for a frivolous claim." Finally, the coalition argues that this bill "completely alters the procedure under which a retaliation determination is processed. Currently, the burden is on the LC to enforce the determination through a civil action. This measure provides the option for the LC to simply cite the employer for an alleged violation, and places the burden on the employer to challenge the citation through an administrative hearing and writ of mandate."
Related and Previous Legislation
AB 450 (Chiu) of 2017 would impose various requirements upon employers related to federal immigration worksite enforcement actions. AB 450 is pending in the Senate Judiciary Committee.
SB 96 (Committee on Budget and Fiscal Review), Chapter 28, Statutes of 2017 is a budget trailer bill that among other provisions strengthened Labor Standards Enforcement. Specifically, the bill: 1) Specifies that the statute of limitations on workers recovering unpaid wages and other penalties looks back from the date that an employer is notified of a Bureau of Field Enforcement investigation, to preserve the ability to recover unpaid wages and penalties that would have moved beyond the statute of limitations by the time a citation is issued.2) Allows certain workers in the car wash, farm labor, and garment manufacturing industries to recover unpaid wages and other damages from existing state special funds, and allow the DLSE to subsequently recover the unpaid wages and damages from employers to reimburse those special funds. Currently, workers in these industries may only be compensated from the special funds for amounts they are unable to recover from the employer.3) Extends the time the Retaliation Complaints Investigation unit at the Department of Industrial Relations has to investigate against for reporting a work-rated fatality, injury, or illness, or other activities protected by the federal Occupational Safety and Health Act.4) Authorizes the LC to close a retaliation investigation if the employee brings a separate civil action, or reject a complaint if the employee pursues a claim through the collective bargaining grievance procedure or the State Personnel Board. 5) Extends the period from 60 days to one year for the Labor Commissioner to investigate retaliation claims. 6) Provide for attorneys’ fees for the Labor Commissioner in prevailing in specified enforcement actions related to retaliation claims. 7) Prohibits (with certain exceptions) an employer from introducing as evidence in an administrative proceeding, certain records that were not provided pursuant to a request by the Labor Commissioner.
AB 2261 (Hernández) of 2016 would have authorized the DLSE to commence an investigation, with or without receiving a complaint from an employee, of an employer that it suspects to have discharged or otherwise discriminated against an individual in violation of any law under the jurisdiction of the LC. AB 2261 died on the Senate Floor.
AB 2751 (Hernández), Chapter 79, Statutes of 2014 clarified that civil penalties that the civil penalties of up to $10,000 against an employer who discriminates, retaliates, or takes any adverse action against an employee or applicant for employment, who exercises a right protected under local and state labor and employment laws, are to be awarded to the employee or employees who suffered the violation.
REGISTERED SUPPORT / OPPOSITION:
Support
AFSCME
California Federation of Teachers
California Immigrant Policy Center
California Labor Federation (co-sponsor)
California Nurses Association/National Nurses United
California Professional Firefighters
Consumer Attorneys of California
SEIU California (co-sponsor)
State Building and Construction Trades Council (co-sponsor)
Worksafe
Opposition
Agricultural Council of California
California Ambulance Association
California Apartment Association
California Chamber of Commerce
California Employment Law Council
California Farm Bureau Federation
California Grocers Association
California League of Food Processors
California Manufacturers & Technology Association
California Retailers Association
California Trucking Association
Civil Justice Association of California
Family Business Association of California
Western Growers Association
Wine Institute
Analysis Prepared by: Jennifer Richard / L. & E. /
Date of Hearing: June 20, 2017
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SBPCA Bill Id:SB 306
Author:(Hertzberg) – As Amended Ver:April 4, 2017
SENATE VOTE: 25-14
SUBJECT: Retaliation actions: complaints: administrative review
KEY ISSUES:
- should the labor commissioner have the power to protect worker rights by issuing injunctive relief during the investigatory phase of a claim for retaliation?
- should the labor commissioner have the power to issue a citation against an employer who engages in retaliation, or should the labor commissioner continue to be forced to go to court when an employer refuses to comply with the commissioner’s orders?
- should the labor commissioner be entitled to recover attorney's fees and costs when it successfully prosecutes a complaint for retaliation?
SYNOPSIS
Existing law prohibits an employer from retaliating against an employee for exercising certain rights, including the right to report employer violations of the Labor Code or other laws. Retaliation can take the form of discharge, demotion, reassignment, or any other adverse, job-related action. Existing law authorizes an employee who has suffered retaliation to file a complaint with the Labor Commission's Division of Labor Standards Enforcement, and it requires the Labor Commissioner to investigate the complaint. If the Labor Commissioner determines that a violation occurred, she may order the employer to cease and desist from the retaliatory conduct and, if appropriate, order the employer to remedy the violation. Remedies may include reinstating a discharged worker and paying back wages. If an employer fails to comply, the Labor Commissioner may bring an action in court to enforce its orders. Unfortunately, the process, even in the best of circumstances, takes a considerable amount of time. By the time of any resolution, the discharged worker may have found other employment or already suffered irreparable harm. While in theory existing law allows even this employee to be "made whole," in reality, as the author contends, the damage to worker rights has already occurred. Moreover, an adverse action against an individual employee may have broader consequences, including chilling the willingness of other employees to exercise their rights or to come forward and report other employer violations of the law.
This bill, therefore, would authorize the Labor Commissioner to seek injunctive relief during an investigation. It would also empower the Labor Commissioner to directly issue citations and impose penalties when it finds a violation, rather than having to go to court to enforce its orders. The employer who disputes the citation or penalties could seek judicial review in superior court. Additionally, this bill would (1) entitle the Labor Commission to recover legal costs and fees if it prevails in a prosecution; (2) direct the superior court, when determining if an injunction is justified, to consider the chilling effect of retaliation on other employees; and (3) permit an employee alleging retaliation to seek injunctive relief, if the Labor Commissioner fails to take action. The bill is sponsored by the California Federation of Labor and supported by other labor groups. The bill is opposed by a coalition of business groups, led by the California Chamber of Commerce, who contend, among other things, that the measure inappropriately expands the authority of the Labor Commissioner and will force employers to retain employees who engage in egregious conduct.
SUMMARY: Grants the Labor Commissioner additional power to respond to employee complaints of retaliation. Specifically, this bill:
- Allows the Labor Commissioner, during the course of an investigation, and upon finding reasonable cause to believe that an employer has unlawfully discharged or discriminated against an employee, to petition the relevant superior court for any injunctive relief which the court determines to be just and proper. Specifies that, in determining whether injunctive relief is just and proper, the court shall consider the chilling effect of the violation on other employees asserting their rights, in addition to any harm to the individual complainant.
- Specifies that if an employee has been discharged or faced adverse action for raising a claim of retaliation, or asserting rights under any law under the jurisdiction of the Labor Commissioner, a court shall order appropriate injunctive relief on a showing that reasonable cause exists to believe than an employee has been discharged or subject to adverse action for raising a claim of retaliation or asserting rights under any law under the jurisdiction of the Labor Commissioner.
- Authorizes the Labor Commissioner, upon determining that a violation occurred, to issue a determination, pursuant to existing law, or to issue a citation, as specified. Specifies that if the Labor Commissioner successfully prosecutes an enforcement action pursuant to this provision, the court shall determine the costs and reasonable attorney's fees incurred by the Labor Commissioner and assess that amount on the employer. Specifies that the Labor Commissioner "successfully prosecutes" the complaint if the court awards the Labor Commissioner any relief sought in the enforcement action. It is not necessary for the Labor Commissioner to recover a money award to be considered successful under this provision.
- Provides that if the Labor Commissioner determines, after investigation, that a violation occurred and proceeds with a citation, the Labor Commissioner shall issue, with reasonable promptness, a written citation describing the nature of the violation, the amount of wages and penalty due, and any other appropriate relief, including directing the person cited to cease and desist from the violation and take any action necessary to remedy the violation. The citation shall be served upon the person cited and shall advise the person cited of the procedure for obtaining review of the citation. Specifies the procedures and timelines for requesting a hearing and obtaining review of the citation, and the penalties for refusing to comply with an order.
- Provides that in any civil action or administrative proceeding brought pursuant to an employee whistleblower protection statute (Labor Code Section 1102.5) an employee may petition the relevant superior court for appropriate temporary or preliminary injunctive relief. Specifies that the court shall have jurisdiction to grant such relief as it deems just and proper, and that in determining whether the relief is just and proper the court shall consider the chilling effect on other employees asserting their rights, in addition to any harm resulting to the petitioner. Specifies that injunctive relief shall be issued upon a showing that reasonable cause exists to believe that a violation has occurred.
EXISTING LAW:
- Prohibits an employer from discharging or otherwise discriminating, retaliating, or taking any adverse action against any employee or applicant for employment because the employee or applicant engaged in certain protected conduct. Provides that an aggreived employee is entitled to reinstatement and reimbursement for lost wages or benefits caused by the employer's violaion. Requires the employee to file a complaint with the Division of Labor Standards Enforcement within six months after the violation. Requires that the complaint be investigated according to established procedures. (Labor Code Sections 98.6 and 98.7 (a).)
- Requires each complaint that is filed pursuant to the provision above to be assigned to an investigator who shall prepare and submit a report on the investigation, with specified information, to the Labor Commissioner. Authorizes the Labor Commissioner to conduct a hearing on the complaint and investigation, as provided. If the Labor Commissioner determines that a violation has occurred, he or she shall notify the complainant and respondent and direct the respondent to cease and desist from the violation and take any action deemed necessary to remedy the violation, including reinstatement, reimbursement of lost wages, and payment of reasonable attorney's fees. If the respondent does not comply with the order within 10 working days, the Labor Commissioner shall bring an action promptly in the appropriate court. (Labor Code Section 98.7 (b)-(c).)
- If the Labor Commissioner fails to bring an action, pursuant to 2) above, the complainant may bring an action for writ of mandate to compel the Labor Commissioner to bring an action against the respondent. If the Labor Commissioner determines that no violation has occurred, he or she shall notify the parties and dismiss the complaint. The Labor Commissioner may direct the complainant to pay reasonable attorney's fees if he or she finds that the complaint was frivolous, unreasonable, groundless, or brought in bad faith. Allows the complainant, if the Labor Commission dismisses the complaint, to bring a court action to determine if a violation occurred and seek appropriate relief. (Labor Code Section 98.7 (c)-(d).)
- Specifies that any of the rights and remedies provided by the above provisions do not preclude an employee from pursuing any other rights or remedies under any other law. (Labor Code Section 98.7 (f).)
- Prohibits an employer, or any person acting on behalf of the employer, from retaliating against an employee for disclosing information to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties. Specifies penalties for a violation of this provision. (Labor Code Section 1102.5.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: Existing law prohibits an employer from retaliating against an employee for exercising an existing workplace right, including the right to report employer violations of the law. Retaliation can take the form of discharge, demotion, reassignment, or any other adverse action. Existing law also establishes a procedure by which an aggrieved employee may file a complaint with the Division of Labor Standards Enforcement (DLSE), and it empowers the Labor Commissioner to investigate the complaint and, if it determines that a violation occurred, to issue a cease and desist order to stop the retaliatory conduct and, if appropriate, order the employer to remedy the violation. Such remedies could include, for example, reinstating a discharged worker and paying back wages or benefits lost as a result of the violation. If an employer fails to comply with the order, the Labor Commissioner may bring an action in court to enforce its order.
Unfortunately, even where the Labor Commissioner has the resources to investigate violations and pursue remedies, even in the best of circumstances the process can take a considerable amount of time. By the time of any resolution, the discharged worker may have found other employment or already suffered irreparable harm. In theory existing law allows even this employee to be "made whole," but in reality, as supporters of this measure contend, the damage to worker rights has already occurred. Moreover, an adverse action against an individual employee may have broader consequences than the harm to that individual employee; retaliation against one employee, if not quickly remedied, the author contends, is likely to have a chilling effect on the willingness of other employees to exercise their rights or come forward to report other employer violations of the law.
This bill, therefore, would authorize the Labor Commissioner to seek injunctive relief pending the outcome of any investigation – so long as the Labor Commissioner has "reasonable cause" to believe that a violation occurred. In addition, this measure would empower the Labor Commissioner to directly issue citations and impose penalties when it finds a violation, rather than having to go to court to enforce its orders. That is, under existing law, the Labor Commissioner has little independent power to enforce her orders without going to court. Under this bill, however, the Labor Commissioner could issue citations and order remedies directly. If the employer disputes the Labor Commissioner's determination, or the citation or penalties imposed, the employer would have the right to seek judicial review in superior court. In short, whereas existing law imposes the burden on the Labor Commissioner to bring a court action to enforce its orders, this bill would shift the burden by requiring the employer to bring an action if it disputes the Commissioner's citation or other remedial orders.
This bill would additionally entitle the Labor Commission to recover legal costs and fees if it prevails in a prosecution; it would direct the superior court to consider the chilling effect of retaliation on other employees when determining if injunctive relief is just and proper; and it would permit an employee alleging retaliation to seek injunctive relief if the Labor Commissioner fails to do so within a given period of time. The author, sponsor, and supporters contend that these changes to existing law are necessary in order to bring about a more timely resolution. This timeliness will not only bring justice to the aggrieved worker, it will also counter the chilling effect that justice delayed has on other workers' willingness to exercise of their legal rights.
Will the Labor Commissioner seek, and courts grant, injunctive relief based on "frivolous" complaints? The opposition claims that it is inappropriate to provide injunctive relief before Labor Commission investigators have determined that a violation has occurred. This could require an employer, the opposition contends, to retain an employee who was fired for proper reasons, even if the employee's retaliation claim was "frivolous." Significantly, in making this argument the opposition concedes one of the main points raised by the author and supporters: that significant time will pass before aggrieved workers are restored to their jobs or otherwise made whole. Indeed, while supporters of the bill contend that the investigation can take "a year or more," the opposition claims that investigations "can take as long as three years." For the author and supporters, a long investigation means justice delayed for the employee. By the opponent's reckoning, on the other hand, an employer could be prevented from firing an employer who deserved to be fired for a period of up to three years, significantly interfering with the employer's ability to manage the workforce. According to the opponents, therefore, a fired employee – perhaps even a "stalker" who posed a danger to other workers – could stay on the job simply by making a frivolous, unsubstantiated allegation that the firing was retaliatory.
However, the opponents arguably overstate the danger created by allowing the Labor Commissioner to seek an injunction before a final determination. First, there is ample precedent for issuing a temporary or preliminary injunction before judgement or before a final determination has been reached. (See e.g. Code of Civil Procedure Sections 526 through 534.) Second, while it is true that the Labor Commissioner may seek an injunction "during the course of the investigation," it may do so only "upon finding reasonable cause" that a violation has occurred. In short, the Labor Commissioner is not required, and is not likely, to seek an injunction just because a complaint alleging retaliation has been filed. If the complaint is truly "frivolous," then the Labor Commissioner will not likely find "reasonable cause." Third, even if the Labor Commissioner finds "reasonable cause" and files a petition for an injunction, the language of the bill makes it clear that a court is only required to grant injunctive relief "as the court determines to be just and proper." That the court retains discretion in whether or not to grant the injunction is demonstrated by the provision of the bill stating that the court shall "consider" the chilling effect of the adverse action on the willingness of other employees to exercise their rights. This bill, after all, only allows the Labor Commissioner to "seek" an injunction if there is "reasonable cause" to believe that an employer has committed a violation; the court, however, will only issue an injunction where it finds that injunctive relief is "just and proper."
Who should bear the burden of lengthy investigations? As noted above, both supporters and opponents base their arguments, in part, on the fact that investigations by the Labor Commissioner can take a long time – up to three years according to the opponents. To be sure, requiring an employer to retain an employee who deserves to be terminated and who was not a victim of retaliation would be unfair to the employer. But it would also be unfair to make an employee who was wrongfully terminated wait three years for a remedy, not to mention the chilling impact of this delay on co-workers who see a fellow employee terminated, seemingly permanently, for exercising his or her rights. Until the Labor Commissioner is adequately staffed and funded to handle matters more promptly, lengthy investigations will likely be a burden for everyone. The policy question, therefore, becomes, "who is better situated to suffer the effects of a lengthy investigation period: the worker that has lost his or her livelihood or the employer that must retain a worker that he or she would otherwise terminate?" In answering this question, one must consider the purpose of the statutes at hand: these statutes prohibit retaliation against employees who exercise their rights because the Legislature has already made a determination that the state, as a matter of public policy, wants to encourage employees to come forward and report employer violations of the Labor Code. Allowing an employee to suffer the consequences of an adverse job action for a lengthy investigatory period not only harms the aggrieved employee; it also has a chilling effect on fellow employees who might otherwise come forward to report violations, which appears directly contrary to the purpose of the law.
ARGUMENTS IN SUPPORT: According to the sponsor, the California Labor Federation (CLF), SB 306 "will protect a worker's right to report illegal activity without being fired or otherwise retaliated against." CLF contends that while existing law offers workers a variety of protections – including protection from retaliation for exercising workplace rights or reporting an employer's unlawful conduct – "what is written in the law and what is experienced at work are often two very different things." CLF claims that despite "many attempts to fix the problem, retaliation remains disturbingly common across California. A worker sees a life-threatening safety hazard, reports the violation . . . and is fired." While CLF acknowledges that most employers do not do this, those that do "not only put the individual worker at risk," they jeopardize "the life of every co-worker and even the employer him- or herself." Noting that investigations can take "a year or more," CLF claims that "once that much time has elapsed, the abused worker – and their co-workers' willingness to report illegal activity – are long gone."
In short, CLF believes, unless the employee returns "to work or made whole immediately, co-workers will stop reporting crime and the harm caused often cannot be undone." CLF maintains that SB 306 will help to fix this problem by granting the Labor Commission to seek a temporary injunction that will allow the employee to return to work while the retaliation claim is processed. "With this change," CLF concludes, "whistleblowers will have much less to fear when wondering whether or not to report violations." CLF also argues that allowing the Labor Commission to issue citations and penalties without going to court is "a common sense change that saves time and money while leaving law-abiding employers unaffected."
Several other labor organizations support SB 306 for substantially the same reasons as those articulated by CLF.
ARGUMENTS IN OPPOSITION: A coalition of several employer, trade, and business associations, led by the California Chamber of Commerce, oppose SB 306 because it will grant the Labor Commissioner new authority "that will (1) expose employers to increased legal costs; (2) force an employer to continue to employ an individual who has committed harassment, assaults, dangerous threats, or other egregious conduct; (3) place employees who allege retaliation in a better position than victims [of] stalking, or harassment; and (4) expose employers to constant threats of civil proceedings and costs, as well as excessive penalties for simple posting violations." The coalition contends that despite the requirement that the Labor Commissioner make a determination within 60 days after the filing of a complaint of retaliation, "these investigations can take as long as three years." Therefore, "during this three-year period, or even longer, an employer could be prevented from terminating an employee engaging in egregious conduct. Additionally, for three years or longer, SB 306 would give an employee and the Labor Commissioner authority to legally challenge every action or omission of an employer before a violation is proven. This would significantly interfere with an employer's ability to manage its workforce as well as create a constant threat of civil proceedings and cost."
The coalition also maintains that the "one-sided shift of Attorney's fees" will encourage "frivolous claims." The coalition objects, in particular, to the provision of the bill that would require an employer to pay attorney's fees and cost whenever the Labor Commissioner "successfully" prosecutes an enforcement action. For example, obtaining an injunction but not a monetary award, or receiving only $500 on a $500,000 claim would be deemed a "successful prosecution" and require the employer to pay the Commission's or the complainant's attorney's fees and costs. The coalition claims that this will encourage the pursuit of meritless claims and "leverages an employer into a settlement for a frivolous claim." Finally, the coalition complains that SB 306 "completely alters the procedure under which a retaliation determination is processed. Currently, the burden is on the Labor Commissioner to enforce the determination through a civil action. SB 306 provides the option for the Labor Commissioner to simply cite the employer for an alleged violation, and places the burden on the employer to challenge the citation through an administrative hearing and writ of mandate."
REGISTERED SUPPORT / OPPOSITION:
Support
California Labor Federation (sponsor)
AFSCME
California Federation of Teachers
California Nurses Association
California Professional Firefighters
State Building and Construction Trades Council
Opposition
Agricultural Council of California
California Ambulance Association
California Apartment Association
California Chamber of Commerce
California Employment Law Council
California Grocers Association
California League of Food Processors
California Manufacturers & Technology Association
California Retailers Association
California Trucking Association
Civil Justice Association of California
Family Business Association of California
Western Growers Association
Wine Institute
Analysis Prepared by: Thomas Clark / JUD. / (916) 319-2334
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | SB |
THIRD READING
Bill No: SB 306
:
SENATE JUDICIARY COMMITTEE: 5-1, 4/18/17
AYES: Jackson, Hertzberg, Monning, Stern, Wieckowski
NOES: Anderson
NO VOTE RECORDED: Moorlach
SENATE LABOR & IND. REL. COMMITTEE: 4-1, 4/26/17
AYES: Bradford, Atkins, Jackson, Mitchell
NOES: Stone
SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/25/17
AYES: Lara, Beall, Bradford, Hill, Wiener
NOES: Bates, Nielsen
DIGEST:
This bill grants the Labor Commissioner authority to seek an immediate and temporary injunction when workers face retaliation for reporting violations of the law. This bill also gives the Labor Commissioner authority to issue citations and penalties directly to enforce retaliation claims, rather than exclusively through the courts. This bill authorizes an employee who is bringing a civil action for a retaliation claim to seek injunctive relief from the court.
Existing law:
1) Provides that any person who believes he or she has been retaliated against in the workplace for exercising workplace rights under the laws enforced by the California Labor Commissioner, may file a complaint with the Labor Commissioner within six months after the occurrence. (Lab. Code Sec. 98.7(a).)
2) Establishes a procedure by which the Labor Commissioner must investigate the complaint regarding retaliation through interviews with witnesses, review of documents, and, if necessary, a hearing. (Lab. Code Sec. 98.7(a).)
3) Provides that if the Labor Commissioner determines that a violation took place, the Labor Comissioner shall notify the complainant and respondent and direct the respondent to cease and desist from the violation and take any action deemed necessary to remedy the violation, including, where appropriate, rehiring or reinstatement, reimbursement of lost wages and interest thereon, payment of reasonable attorney’s fees associated with a hearing, and posting of notices to employees. The responding employer has 10 days to comply with the Labor Commissioner’s directions. If the responding employer does not comply, the Labor Commissioner shall bring a lawsuit against the responding employer in the appropriate court. The court may order relief in the form of rehiring or reinstatement, reimbursement of lost wages and interest thereon, and any other compensation or equitable relief as is appropriate. (Lab. Code Sec. 98.7(c).)
This bill:
1) Specifies that, in addition to the relief stated above, the court must award the Labor Commissioner costs and attorney’s fees, if the Labor Commissioner successfully prosecutes an enforcement action for retaliation. (Lab. Code Sec. 98.7(c).)
2) Establishes procedures by which the Labor Commissioner could, during the course of investigating a retaliation complaint and upon finding reasonable cause to believe that the responding employer has engaged in or is engaging in unlawful retaliation, petition the superior court of jurisdiction for appropriate injunctive relief.
3) Permits an employee complaining of retaliation to seek injunctive relief in the superior court of jurisdiction, either during the administrative proceeding before the Labor Commissioner or as part of a civil lawsuit.
4) Directs the superior court to consider the chilling effect of the retaliation on other employees asserting their workplace rights in determining if injunctive relief is just and proper.
5) Specifies that, if injunctive relief is granted, it would remain in effect until the Labor Commissioner issues a determination or citation in the case. The injunctive relief could not be stayed pending any appeal.
6) Permits the Labor Commissioner to issue a citation to the respondent employer at the conclusion of its investigation of a retaliation complaint, if the Labor Commissioner determined that a violation occurred. The citation would be in writing, would describe the nature of the violation and the amount of wages and penalties due, and would include any and all appropriate relief, including rehiring or reinstatement, reimbursement of lost wages and interest thereon, and posting notices to employees.
7) Establishes a procedure through which an employer cited for retaliation would be able to seek review of the citation through the Labor Commissioner itself initially. Further review would be available from the superior court through petition for a writ of mandate, conditioned upon the posting of a bond in the total amount of any minimum wages, liquidated damages, and overtime compensation that are due and owing as determined by the Labor Commissioner’s citation.
The California Labor Code establishes a lengthy administrative procedure through which workers can seek redress if their employer retaliates against them for exercising certain workplace rights, such as the rights not to work in hazardous conditions and to demand payment of wages to which they are lawfully entitled. (Lab. Code Sec. 98.7.) If the employer refuses to comply with the Labor Commissioner’s instructions at the end of the process, the worker and the Labor Commissioner are stuck going to court to enforce their remedies. In the meantime, the worker is bearing the consequences of the retaliation: demotion, job loss, or assignment to unpleasant tasks, for instance. Even if the worker is fully compensated in the end, the prospect of enduring these consequences in the meantime can act as a deterrent, discouraging workers from asserting their lawful rights in the workplace.
This bill permits the Labor Commissioner and the employee to seek temporary injunctive relief addressing retaliation during the investigatory phase of the retaliation complaint process. In determining whether or not to grant this injunctive relief, this bill instructs the superior court making the decision to consider the chilling effect of the alleged retaliation on other employees asserting their workplace rights. In addition, this bill gives the Labor Commissioner the option of directly citing an employer at the conclusion of its investigation, rather than having to proceed to superior court. Finally, this bill permits the Labor Commissioner to obtain an award for attorney’s fees and costs when it successfully prosecutes a retaliation claim through the courts.
Comments
According to the author:
Retaliation against an employee in the workplace is a very serious problem that can go beyond the individual who is discharged or faces other adverse actions. That’s because safety and employee rights in the workplace depend on workers reporting health and safety hazards or other violations. Sometimes, the employer remedies the situation immediately. Unfortunately, some whistleblower employees are discharged or retaliated against in other ways for reporting such hazards.
Despite the fact that retaliation is prohibited, it remains disturbingly common across California. In 2014 alone, the state began investigations of 1,874 cases covering 3,045 violations. Complicating things further, the Labor Commissioner does not have direct penalty authority to enforce determinations made affirming the employee’s rights, meaning a separate court order – and even more time – is needed to hold recalcitrant employers accountable.
The deficiency in current law is that finalizing these complaints is extremely time-consuming, sometimes taking a year or more before a worker is given their job back or made whole. But by that time, the employee may have found other work and their co-workers only see that a person who reported violations is no longer there. The fear of retaliation results in a chilling effect, reducing the likelihood that workers will report workplace violations.
Labor Commissioner delay in processing retaliation complaints
Under existing law, the Labor Commissioner is supposed to make a determination on whether to order remedies or dismiss a complaint for workplace retaliation within 60 days of receiving the complaint. (Lab. Code Sec. 98.7(e).) In practice however, the Labor Commissioner retaliation investigation process generally takes much longer than this. In the Labor Commissioner’s 2016/2017 Budget Change Proposal seeking additional deputies to assist in the investigation of retaliation complaints, the Labor Commissioner wrote, based on 2014 statistics: “[i]t currently takes an average of 122 days from when a case is opened to the time it is assigned to a [Deputy Labor Commissioner], primarily due to the need to close out the backlog of cases…”[1] In other words, as recently as 2014, the Labor Commissioner did not even begin investigation of a retaliation complaint until four months after it was filed.
The Labor Commissioner continued:
…[d]elaying the investigation of new cases can have negative repercussions. It can decrease the likelihood of a settlement because the employer’s liability grows as long as the complainant remains unemployed therefore the resistance to settle is greater. Additionally, the complainant may simply give upon their case because they’ve found another job, thus, allowing the employer to avoid the consequences of engaging in retaliation.
Related/Prior Legislation
AB 2261 (Hernández, 2014) would have allowed the Labor Commissioner to commence investigation based on a suspicion that workplace retaliation may have taken place, with or without a complaint. AB 2261 died on the Senate Floor.
AB 2751 (Hernández, Chapter 79, Statutes of 2014), among other things, clarified that civil penalties against an employer who discriminates, retaliates, or takes adverse action against any employee or job applicant who has engaged in prescribed protected conduct are awarded to the employee or employees who suffered the violation.
FISCAL EFFECT: Appropriation: Fiscal Com.: Local:
According to the Senate Appropriations Committee, the Department of Industrial Relations indicates that it would incur first-year costs of $729,000, and $700,000 annually in the out-years to implement the provisions of the bill (special fund). Additionally, there is insufficient data to estimate the number additional petitions that would be filed in court as a result of the bill; consequently, the impact to the courts is unknown, but potentially significant.
American Federation of State, County and Municipal Employees, AFL-CIO
California Immigrant Policy Center
California Labor Federation
California Nurses Association/National Nurses United
Consumer Attorneys of California
SEIU California
State Building and Construction Trades Council of California
OPPOSITION: (Verified 5/25/17)
Agricultural Council of California
California Chamber of Commerce
California Employment Law Council
California League of Food Processors
California Manufacturers & Technology Association
California Retailers Association
Civil Justice Association of California
Family Business Association of California
Western Growers Association
ARGUMENTS IN SUPPORT: In support, the California Labor Federation writes:
Despite many attempts to fix the problem, retaliation remains disturbingly common across California. A worker sees a life-threatening safety hazard, reports the violation to Cal/OSHA, and is fired. Someone notices they were not paid for all hours worked, tells their manager about it, and has their hours cut. Most employers do not do anything like this, but those that do create a world of negative consequences for affected workers.
Virtually no one who believes they would be fired for reporting health and safety violations, for example, would ever actually pick up the phone and make the call. Not only does that put the individual worker at risk, it jeopardizes the life of every co-worker and even the employer him- or herself.
Should workers fear retaliation for reporting wage theft, then the crime will continue harming all workers affected and honest employers will suffer a competitive disadvantage. The chilling effect of allowing such abuse to continue is immediate, harmful, and unconscionable…
Slight or even significant reductions in the amount of time needed to process claims will make a difference, but will not solve the problem. Unless the aggrieved employee is returned to work or made whole immediately, co-workers will stop reporting crime and the harm caused often cannot be undone…
ARGUMENTS IN OPPOSITION: In opposition to the bill, the California Chamber of Commerce and other listed organizations write:
…[SB 306] provides the Labor Commissioner with significant authority to obtain injunctive relief at any time during an investigation which will disrupt the workforce and expose employers to constant threats of civil proceedings and costs, as well as excessive penalties for simple posting violations.
Currently, the Labor Commissioner has the authority to seek any appropriate relief, including temporary or permanent injunctive relief, after it has investigated a claim of retaliation and made a determination that a violation exists. SB 306 proposes to allow the Labor Commissioner the authority to petition the court for temporary or permanent injunctive relief before it has completed an investigation and made a determination….
This authority is extremely broad and would completely disrupt the operations of a workplace solely on a “reasonable cause” that a violation has occurred, rather than actual evidence of any violation. Moreover, despite the requirement in Labor Code Section 98.7 that the Labor Commissioner must make a determination within 60 days after a complaint has been filed, these investigations can take as long as three years. See American Corporate Security Inc. v. Su, 220 Cal.App.4th 38 (2013) (Labor Commissioner did not issue determination of retaliation until over three years after filing of complaint). Under SB 306, during this three-year period, or even longer, every action or omission of an employer could be legally challenged. This would significantly interfere with an employer’s ability to manage its workforce as well as create a constant threat of civil proceedings and cost.
SB 306 also alters the common understanding of the “successful prosecution” of an enforcement action to mean whenever the Labor Commissioner is awarded any relief, no matter how minimal the award. Under such a definition, if an employer were ultimately required to pay a nominal amount such as $500, despite the request for a substantial award such as $500,000, the Labor Commissioner would still have “successfully prosecuted” the action. Under SB 306, this label would then force the employer to pay for the Labor Commissioner’s costs and attorney’s fees in pursuing the action. This manipulation of the definition is problematic as it incentivizes the pursuit of claims that may lack merit as well as leverages an employer into a settlement for a frivolous claim, as the threat of legal costs are simply too high no matter the outcome….
SB 306 also completely alters the procedure under which a retaliation determination is processed. Currently, the burden is on the Labor Commissioner to enforce the determination through a civil action. SB 306 provides the option for the Labor Commissioner to simply cite the employer for an alleged violation, and places the burden on the employer to challenge the citation through an administrative hearing and writ of mandate. Furthermore, SB 306 exposes employers to significant penalties of $100.00 per day up to a maximum of $20,000 for a posting violation, which is overly punitive.
5/27/17 22:34:48
**** END ****
2016/2017 Budget Change Proposal (Jan. 1, 2017) Division of Labor Standards Enforcement, p. 5 <http://web1a.esd.dof.ca.gov/Documents/bcp/1617/FY1617_ORG7350_BCP435.pdf> (as of Apr. 12, 2017). ↑
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2017 - 2018 Regular Session
SB 306 (Hertzberg) - Retaliation actions: complaints: administrative review
Version: April 4, 2017 | Policy Vote: JUD. 5 - 1, L. & I.R. 4 - 1 |
Urgency: No | Mandate: No |
Hearing Date: May 15, 2017 | Consultant: Robert Ingenito |
This bill meets the criteria for referral to the Suspense File.
Bill Summary:
SB 306 would grant the Labor Commissioner the authority to (1) seek an immediate and temporary injunction when workers face retaliation for reporting violations of the law, and (2) issue citations and penalties directly to enforce retaliation claims, rather than exclusively through the courts. Additionally, the bill would authorize an employee who is bringing a civil action for a retaliation claim to seek injunctive relief from the court.
Fiscal Impact:
The Department of Industrial Relations (DIR) indicates that it would incur first-year costs of $729,000, and $700,000 annually in the out-years to implement the provisions of the bill (special fund). Additionally, there is insufficient data to estimate the number additional petitions that would be filed in court as a result of the bill; consequently, the impact to the courts is unknown, but potentially significant.
Background:
Under current law, an employer is prohibited from retaliating against employees who avail themselves of their labor rights, such as the rights not to work in hazardous conditions and filing an overtime claim. Specifically, any person who believes he or she has been retaliated against in the workplace for exercising workplace rights under the laws enforced by the California Labor Commissioner may file a complaint with the Commissioner, generally within six months after the occurrence. The Commissioner, upon determining that a violation took place, shall notify the complainant and respondent and direct the respondent (1) to cease and desist from the violation, and (2) take any action deemed necessary to remedy the violation, including, where appropriate, rehiring or reinstatement, reimbursement of lost wages and interest thereon, payment of reasonable attorney’s fees associated with a hearing, and posting of notices to employees. The responding employer has 10 days to comply with the Labor Commissioner’s directions. If the employer refuses to comply with the Labor Commissioner’s instructions at the end of the process, the worker and the Commissioner must go to court to enforce their remedies.
The existing retaliation enforcement process can be lengthy. Current law requires the Labor Commissioner to make a determination on a retaliation claim within 60 days. According to 2016-17 budget documents, however, it currently takes an average of 122 days from when a case is opened to when a case is assigned to staff from DIR’s Division of Labor Standards Enforcement (DLSE). Thus, workers need to wait roughly four months before a determination is reached, which then may mark the beginning of the process of determining if a retaliation claim is meritorious or not.
Proposed Law:
This bill would, among other things do the following:
- Specify that, in addition to the relief stated above, the court must award the Labor Commissioner costs and attorney’s fees, if the Labor Commissioner successfully prosecutes an enforcement action for retaliation.
- Establish procedures by which the Labor Commissioner could, during the course of investigating a retaliation complaint and upon finding reasonable cause to believe that the responding employer has engaged in or is engaging in unlawful retaliation, petition the superior court of jurisdiction for appropriate injunctive relief.
- Permit an employee complaining of retaliation to seek injunctive relief in the superior court of jurisdiction, either during the administrative proceeding before the Labor Commissioner or as part of a civil lawsuit.
- Direct the superior court to consider the chilling effect of the retaliation on other employees asserting their workplace rights in determining if injunctive relief is just and proper.
- Specify that, if injunctive relief is granted, it would remain in effect until the Labor Commissioner issues a determination or citation in the case. The injunctive relief could not be stayed pending any appeal.
- Permit the Labor Commissioner to issue a citation to the respondent employer at the conclusion of its investigation of a retaliation complaint, if the Labor Commissioner determined that a violation occurred. The citation would be in writing, would describe the nature of the violation and the amount of wages and penalties due, and would include any and all appropriate relief, including rehiring or reinstatement, reimbursement of lost wages and interest thereon, and posting notices to employees.
- Establish a procedure through which an employer cited for retaliation would be able to seek review of the citation through the Labor Commissioner itself initially. Further review would be available from the superior court through petition for a writ of mandate, conditioned upon the posting of a bond in the total amount of any minimum wages, liquidated damages, and overtime compensation that are due and owing as determined by the Labor Commissioner’s citation.
Related Legislation:
AB 2261 (Hernández, 2014) would have allowed the Labor Commissioner to commence investigation based on a suspicion that workplace retaliation may have taken place, with or without a complaint. AB 2261 died on the Senate Floor.
Staff Comments:
This bill would modify existing retaliation enforcement by permitting the Labor Commissioner to issue citations for employers who retaliate against their employees. This would permit the Labor Commissioner to conduct hearings on retaliation claims similar to the process for unpaid wage claims, including a potential appeal process to an appropriate superior court. In creating this citation process, the bill would allow the Labor Commission to investigate and enforce a retaliation claim through an existing hearing process in about 90 days, rather than through a lawsuit before the courts. DIR notes that the additional citation procedures will require an additional $729,000 initially, and $700,000 ongoing to provide for additional staffing needs for accommodating the anticipated workload related to increased claims and appeals.
Additionally, the bill provides that, if the Labor Commissioner successfully pursues a retaliation claim (as defined) through the traditional enforcement route of making a determination and filing a lawsuit, the court must determine reasonable attorney’s fees incurred by the Labor Commissioner and assess that amount as a cost on the employer. Though the magnitude is unknown, to the extent that the Labor Commissioner is successful in pursing retaliation claims through the courts, costs of the bill to DIR would be somewhat offset.
In 2014, the Labor Commissioner's Retaliation Complaints Investigation (RCI) unit accepted complaints alleging violations of 23 of the 45 laws relating to retaliation. Of the 3,800 complaints received that year, the unit accepted 1,874 for investigation. The others were rejected because they were deemed to be outside of the jurisdiction of the Labor Commissioner. Cases accepted by the RCI unit have increased by 48 percent from 2011 to 2014.
-- END --
SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS
Senator Steven Bradford, Chair
2017 - 2018 Regular
Bill No: SB 306 Hearing Date: January 26, 2017
Author: | Hertzberg | ||
Version: | April 4, 2017 | ||
Urgency: | No | Fiscal: | Yes |
Consultant: | Gideon Baum | ||
Subject: Retaliation actions: complaints: administrative review
KEY ISSUE
Should the Legislature grant the Labor Commissioner the authority to seek an immediate and temporary injunction when workers face retaliation for reporting violations of the law?
Should the Legislature grant the Labor Commissioner the authority to issue citations and penalties to enforce retaliation claims, rather than through lawsuits before the courts?
ANALYSIS
Existing law:
- Provides that any person who believes he or she has been retaliated against in the workplace for exercising workplace rights under the laws enforced by the California Labor Commissioner may file a complaint with the Labor Commissioner within six months after the occurrence. (Labor Code §98.7(a))
- Establishes a procedure by which the Labor Commissioner must investigate the complaint regarding retaliation through interviews with witnesses, review of documents, and, if necessary, a hearing. (Labor Code §98.7(a))
- Provides that if the Labor Commissioner determines that a violation took place, the Labor Commissioner shall notify the complainant and respondent and direct the respondent to cease and desist from the violation and take any action deemed necessary to remedy the violation, including, where appropriate, rehiring or reinstatement, reimbursement of lost wages and interest thereon, payment of reasonable attorney’s fees associated with a hearing, and posting of notices to employees. The responding employer has 10 days to comply with the Labor Commissioner’s directions. If the responding employer does not comply, the Labor Commissioner shall bring a lawsuit against the responding employer in the appropriate court. The court may order relief in the form of rehiring or reinstatement, reimbursement of lost wages and interest thereon, and any other compensation or equitable relief as is appropriate. (Labor Code §98.7(c))
- Prohibits retaliation by an employer against an employee who testified or reported or is believed to have testified or reported on a violation of state or federal statutes.
(Labor Code §1102.5)
This bill:
- Specifies that, in addition to the relief stated above, the court must award the Labor Commissioner costs and attorney’s fees, if the Labor Commissioner successfully prosecutes an enforcement action for retaliation. (Lab. Code Sec. 98.7(c).)
- Establishes procedures by which the Labor Commissioner could, during the course of investigating a retaliation complaint and upon finding reasonable cause to believe that the responding employer has engaged in or is engaging in unlawful retaliation, petition the superior court of jurisdiction for appropriate injunctive relief.
- Permits an employee complaining of retaliation to seek injunctive relief in the superior court of jurisdiction, either during the administrative proceeding before the Labor Commissioner or as part of a civil lawsuit.
- Directs the superior court to consider the chilling effect of the retaliation on other employees asserting their workplace rights in determining if injunctive relief is just and proper.
- Specifies that, if injunctive relief is granted, it would remain in effect until the Labor Commissioner issues a determination or citation in the case. The injunctive relief could not be stayed pending any appeal.
- Permits the Labor Commissioner to issue a citation to the respondent employer at the conclusion of its investigation of a retaliation complaint, if the Labor Commissioner determined that a violation occurred. The citation would be in writing, would describe the nature of the violation and the amount of wages and penalties due, and would include any and all appropriate relief, including rehiring or reinstatement, reimbursement of lost wages and interest thereon, and posting notices to employees.
- Establishes a procedure through which an employer cited for retaliation would be able to seek review of the citation through the Labor Commissioner itself initially. Further review would be available from the superior court through petition for a writ of mandate, conditioned upon the posting of a bond in the total amount of any minimum wages, liquidated damages, and overtime compensation that are due and owing as determined by the Labor Commissioner’s citation.
COMMENTS
1. SB 306 and Enforcing Anti-Retaliation Provisions:
Under existing law, an employer is prohibited from retaliating against an employee due to the employee availing himself or herself of his or her labor rights. This could include adverse action or termination due to reporting a Division of Occupational Safety and Health (DOSH) complaint, filing an overtime claim or minimum wage claim, or a family member taking such an action. Without these protections against retaliation, the enforcement of many employment laws would only be as strong as someone’s willingness to lose his or her job.
However, unlike a wage claim, the Labor Commissioner cannot directly enforce a retaliation claim. Rather, the Labor Commissioner must bring a lawsuit and look to the courts to enforce these laws. As such, a lawsuit would only be filed after the alleged adverse action had occurred and the employer had refused to reverse the action, some stakeholders have argued that existing retaliation protections are not sufficient to protect workers from retaliation or to prevent retaliation in the first place.
Moreover, the existing retaliation enforcement process takes a fair amount of time. As discussed above, existing law requires the Labor Commissioner to make a determination on a retaliation claim within 60 days. According to the Labor Commissioner’s 2016/2017 Budget Change Proposal (BCP), which requests additional staff positions, it currently takes an average of 122 days from when a case is opened to when a case is assigned to staff from the Division of Labor Standards Enforcement. While this is an average based on 2014 data, these figures may suggest that impacted workers need to wait at least 4 months before a determination is reached, which then may mark the beginning of the process of determining if a retaliation claim is meritorious or not.
SB 306 seeks to address stakeholder concerns regarding existing retaliation enforcement by, first, permitting the Labor Commissioner to issue citations for employers who retaliate against their employees. This would permit the Labor Commissioner to conduct hearings on retaliation claims similar to the process for unpaid wage claims, including a potential appeal process to an appropriate superior court. In creating this citation process, SB 306 would allow the Labor Commission to investigate and enforce a retaliation claim through an existing hearing process in about 90 days, rather than through a lawsuit before the courts.
Second, SB 306 provides that, if the Labor Commissioner successfully pursues a retaliation claim through the traditional enforcement route of making a determination and filing a lawsuit, the court must determine reasonable attorney’s fees incurred by the Labor Commissioner and assess that amount as a cost on the employer. SB 306 provides that the Labor Commissioner is successful if any relief sought by the Labor Commissioner is awarded by the court, including an award without monetary damages.
2. SB 306 and Injunctive Relief:
Additionally, SB 306 allows both the Labor Commissioner and an aggrieved employee to go to the courts and seek temporary injunctive relief. In this context, injunctive relief would be a court order to require that an employer cease their retaliatory actions. For example, if an employee was terminated or moved to an early shift, injunctive relief would be a court order that would reinstate the employee or move the employee back to his or her former shift.
SB 306 requires that the court issue injunctive relief on a showing that reasonable cause exists that a violation occurred, and it also requires that the court consider the chilling effect on other employees in asserting their rights when determining if injunctive relief is just and proper.
The Senate Judiciary Committee analysis states the following on these provisions:
“[W]hen a government entity seeks an injunction pursuant to a statute that expressly allows for injunctive relief, the government entity only needs to show that it is reasonably probable that it will prevail on the merits. The very existence of the statute creates a rebuttable presumption that irreparable harm will take place, since the Legislature has already decided that the activity prohibited by the statute is contrary to the public interest. (IT Corp. v. County of Imperial (1983) 35 C.3d 63, 72.)
…
This bill would set the same standard for injunctive relief sought by an individual employee in a civil action for retaliation as well: the court shall issue an injunction on a showing of reasonable cause to believe unlawful retaliation occurred.
In sum, this bill would make it both faster and easier for an employee to obtain a court order for job reinstatement or other appropriate relief to provide redress for workplace retaliation, so long as the employee can show that she has reasonable cause to believe she will prevail in the underlying retaliation lawsuit.”
3. Proponent Arguments:
The California Labor Federation, which is the sponsor of SB 306, argues that the reality of workplace is that some employers will engage in retaliatory behavior when workers seek to avail themselves of laws provided for their sustenance and protection. When such retaliatory actions occur, the California Labor Federation argues that it creates a situation where workers are silent in the face of illegally unsafe employment conditions which may threaten the lives and livelihood of themselves, their coworkers, or even their family members. Noting the serious impacts of retaliation in the workplace, the California Labor Federation argues that SB 306 is an important step forward, granting common-sense powers to the Labor Commission such as issuing citations without pursuing a lawsuit and issuing temporary injunctions to protect workers until an investigation has concluded.
4. Opponent Arguments:
Opponents of the bill, which includes the California Chamber of Commerce, note that under the current law the Labor Commissioner could only pursue injunctive relief after an investigation and determination that a violation had occurred. Opponents argue that, by allowing for the filing of injunctive relief prior to the completion of an investigation or citation, SB 306 has the potential to interrupt the operations of a workplace for years as the Labor Commissioner investigates claims of retaliation. Opponents also argue that SB 306 shifts the burden of enforcement from the Labor Commissioner to the employer, as instead of the Labor Commissioner pursuing a lawsuit to enforce retaliation claims, SB 306 would allow the Labor Commissioner to cite an employer. Additionally, opponents argue that SB 306 may incentivize the Labor Commissioner to pursue claims that lack merit in order to seek attorney’s fees.
5. Double referral from the Senate Judiciary Committee
SB 306 was double referred to the Senate Judiciary Committee and the Senate Labor Committee. Senate Judiciary Committee passed SB 306 on April 18, 2017 by a 5-1 vote.
6. Prior Legislation:
AB 2261 (Hernández) of 2014 would have allowed the Labor Commissioner to commence investigation based on a suspicion that workplace retaliation may have taken place, with or without a complaint. AB 2261 died on the Senate Floor.
SUPPORT
California Labor Federation (Co-Sponsor)
State Building and Construction Trades Council (Co-Sponsor)
American Federation of State, County and Municipal Employees, AFL-CIO
California Nurses Association
California Professional Firefighters
Consumer Attorneys of California
National Nurses United
Worksafe
OPPOSITION
Agricultural Council of California
California Ambulance Association
California Apartment Association
California Chamber of Commerce
California Employment Law Council
California Farm Bureau Federation
California League of Food Processors
California Manufacturers & Technology Association
California Retailers Association
Civil Justice Association of California
Family Business Association of California
Western Growers Association
-- END --
Senator Hannah-Beth Jackson, Chair
2017-2018 Regular Session
Bill No: SB 306 (Author:Hertzberg)
Version: April 4, 2017
Hearing Date: April 18, 2017
Fiscal: Yes
Urgency: No
Consultant: TSG
SUBJECT
Retaliation actions: complaints: administrative review
DESCRIPTION
This bill would grant the Labor Commissioner authority to seek an immediate and temporary injunction when workers face retaliation for reporting violations of the law. The bill also gives the Labor Commissioner authority to issue citations and penalties directly to enforce retaliation claims, rather than exclusively through the courts. Finally, the bill authorizes an employee who is bringing a civil action for a retaliation claim to seek injunctive relief from the court.
BACKGROUND
The California Labor Code establishes a lengthy administrative procedure through which workers can seek redress if their employer retaliates against them for exercising certain workplace rights, such as the rights not to work in hazardous conditions and to demand payment of wages to which they are lawfully entitled. (Lab. Code Sec. 98.7.) If the employer refuses to comply with the Labor Commissioner’s instructions at the end of the process, the worker and the Labor Commissioner are stuck going to court to enforce their remedies. In the meantime, the worker is bearing the consequences of the retaliation: demotion, job loss, or assignment to unpleasant tasks, for instance. Even if the worker is fully compensated in the end, the prospect of enduring these consequences in the meantime can act as a deterrent, discouraging workers from asserting their lawful rights in the workplace.
This bill would permit the Labor Commissioner and the employee to seek temporary injunctive relief addressing retaliation during the investigatory phase of the retaliation complaint process. In determining whether or not to grant this injunctive relief, this bill would instruct the superior court making the decision to consider the chilling effect of the alleged retaliation on other employees asserting their workplace rights. In addition, this bill would give the Labor Commissioner the option of directly citing an employer at the conclusion of its investigation, rather than having to proceed to superior court. Finally, this bill would permit the Labor Commissioner to obtain an award for attorney’s fees and costs when it successfully prosecutes a retaliation claim through the courts.
CHANGES TO EXISTING LAW
Existing law provides that any person who believes he or she has been retaliated against in the workplace for exercising workplace rights under the laws enforced by the California Labor Commissioner, may file a complaint with the Labor Commissioner within six months after the occurrence. (Lab. Code Sec. 98.7(a).)
Existing law establishes a procedure by which the Labor Commissioner must investigate the complaint regarding retaliation through interviews with witnesses, review of documents, and, if necessary, a hearing. (Lab. Code Sec. 98.7(a).)
Existing law provides that if the Labor Commissioner determines that a violation took place, the Labor Comissioner shall notify the complainant and respondent and direct the respondent to cease and desist from the violation and take any action deemed necessary to remedy the violation, including, where appropriate, rehiring or reinstatement, reimbursement of lost wages and interest thereon, payment of reasonable attorney’s fees associated with a hearing, and posting of notices to employees. The responding employer has 10 days to comply with the Labor Commissioner’s directions. If the responding employer does not comply, the Labor Commissioner shall bring a lawsuit against the responding employer in the appropriate court. The court may order relief in the form of rehiring or reinstatement, reimbursement of lost wages and interest thereon, and any other compensation or equitable relief as is appropriate. (Lab. Code Sec. 98.7(c).)
This bill would specify that, in addition to the relief stated above, the court must award the Labor Commissioner costs and attorney’s fees, if the Labor Commissioner successfully prosecutes an enforcement action for retaliation. (Lab. Code Sec. 98.7(c).)
This bill would establish procedures by which the Labor Commissioner could, during the course of investigating a retaliation complaint and upon finding reasonable cause to believe that the responding employer has engaged in or is engaging in unlawful retaliation, petition the superior court of jurisdiction for appropriate injunctive relief.
This bill would also permit an employee complaining of retaliation to seek injunctive relief in the superior court of jurisdiction, either during the administrative proceeding before the Labor Commissioner or as part of a civil lawsuit.
This bill would direct the superior court to consider the chilling effect of the retaliation on other employees asserting their workplace rights in determining if injunctive relief is just and proper.
This bill would specify that, if injunctive relief is granted, it would remain in effect until the Labor Commissioner issues a determination or citation in the case. The injunctive relief could not be stayed pending any appeal.
This bill would permit the Labor Commissioner to issue a citation to the respondent employer at the conclusion of its investigation of a retaliation complaint, if the Labor Commissioner determined that a violation occurred. The citation would be in writing, would describe the nature of the violation and the amount of wages and penalties due, and would include any and all appropriate relief, including rehiring or reinstatement, reimbursement of lost wages and interest thereon, and posting notices to employees.
This bill would establish a procedure through which an employer cited for retaliation would be able to seek review of the citation through the Labor Commissioner itself initially. Further review would be available from the superior court through petition for a writ of mandate, conditioned upon the posting of a bond in the total amount of any minimum wages, liquidated damages, and overtime compensation that are due and owing as determined by the Labor Commissioner’s citation.
COMMENT
1. Stated need for the bill
According to the author:
Retaliation against an employee in the workplace is a very serious problem that can go beyond the individual who is discharged or faces other adverse actions. That’s because safety and employee rights in the workplace depend on workers reporting health and safety hazards or other violations. Sometimes, the employer remedies the situation immediately. Unfortunately, some whistleblower employees are discharged or retaliated against in other ways for reporting such hazards.
Despite the fact that retaliation is prohibited, it remains disturbingly common across California. In 2014 alone, the state began investigations of 1,874 cases covering 3,045 violations. Complicating things further, the Labor Commissioner does not have direct penalty authority to enforce determinations made affirming the employee’s rights, meaning a separate court order – and even more time – is needed to hold recalcitrant employers accountable.
The deficiency in current law is that finalizing these complaints is extremely time-consuming, sometimes taking a year or more before a worker is given their job back or made whole. But by that time, the employee may have found other work and their co-workers only see that a person who reported violations is no longer there. The fear of retaliation results in a chilling effect, reducing the likelihood that workers will report workplace violations.
In support, the California Labor Federation writes:
California state laws offer workers a variety of basic worker protections, from the right to a safe workplace to guarantees that hourly workers will earn at least the mimium wage. The importance of these laws, and their role in improving Californians’ overall quality of life and standard of living, cannot be overstated.
Nevertheless, what is written in the law and what is experienced at work are often two very different things. These rights are only as good as their timely enforcement, and despite fantastic work from state agency enforcement officials, the reality is that workers frequently face retaliation when reporting violations of the law.
Despite many attempts to fix the problem, retaliation remains disturbingly common across California. A worker sees a life-threatening safety hazard, reports the violation to Cal/OSHA, and is fired. Someone notices they were not paid for all hours worked, tells their manager about it, and has their hours cut. Most employers do not do anything like this, but those that do create a world of negative consequences for affected workers.
Virtually no one who believes they would be fired for reporting health and safety violations, for example, would ever actually pick up the phone and make the call. Not only does that put the individual worker at risk, it jeopardizes the life of every co-worker and even the employer him- or herself.
Should workers fear retaliation for reporting wage theft, then the crime will continue harming all workers affected and honest employers will suffer a competitive disadvantage. The chilling effect of allowing such abuse to continue is immediate, harmful, and unconscionable…
[The Labor Commissioner] works hard to process claims as fast as possible, but often a year or more will pass before a worker is given their job back or otherwise made whole. Once that much time has elapsed, the abused worker—and their co-workers’ willingness to report illegal activity—are long gone.
Part of the problem is its overwhelming scale. In 2015 alone, 4,800 violations were reported to the [Labor Commissioner’s] Retaliation Complaint Investigation (RCI) unit, and the entire unit only employs 27 people, including several office technicians… Furthermore, the frequency of retaliation is growing, with the number of cases accepted rising by 16 percent every year…
Slight or even significant reductions in the amount of time needed to process claims will make a difference, but will not solve the problem. Unless the aggrieved employee is returned to work or made whole immediately, co-workers will stop reporting crime and the harm caused often cannot be undone…
The bill also allows the Labor Commissioner to cite convicted violators without going to court, a common sense change that saves time and money while leaving law-abiding employers unaffected.
2. Expressed concerns about the bill
In opposition to the bill, the California Chamber of Commerce and other listed organizations write:
…[SB 306] provides the Labor Commissioner with significant authority to obtain injunctive relief at any time during an investigation which will disrupt the workforce and expose employers to constant threats of civil proceedings and costs, as well as excessive penalties for simple posting violations.
Currently, the Labor Commissioner has the authority to seek any appropriate relief, including temporary or permanent injunctive relief, after it has investigated a claim of retaliation and made a determination that a violation exists. SB 306 proposes to allow the Labor Commissioner the authority to petition the court for temporary or permanent injunctive relief before it has completed an investigation and made a determination. Specifically, SB 306 allows the Labor Commissioner at any time during an investigation for retaliation to seek injunctive relief if the Labor Commissioner believes reasonable cause exists that a violation has occurred. The injunction would remain in effect until the Labor Commissioner issues a citation or determination as to whether a violation actually occurred.
This authority is extremely broad and would completely disrupt the operations of a workplace solely on a “reasonable cause” that a violation has occurred, rather than actual evidence of any violation. Moreover, despite the requirement in Labor Code Section 98.7 that the Labor Commissioner must make a determination within 60 days after a complaint has been filed, these investigations can take as long as three years. See American Corporate Security Inc. v. Su, 220 Cal.App.4th 38 (2013) (Labor Commissioner did not issue determination of retaliation until over three years after filing of complaint). Under SB 306, during this three-year period, or even longer, every action or omission of an employer could be legally challenged. This would significantly interfere with an employer’s ability to manage its workforce as well as create a constant threat of civil proceedings and cost.
SB 306 also alters the common understanding of the “successful prosecution” of an enforcement action to mean whenever the Labor Commissioner is awarded any relief, no matter how minimal the award. Under such a definition, if an employer were ultimately required to pay a nominal amount such as $500, despite the request for a substantial award such as $500,000, the Labor Commissioner would still have “successfully prosecuted” the action. Under SB 306, this label would then force the employer to pay for the Labor Commissioner’s costs and attorney’s fees in pursuing the action. This manipulation of the definition is problematic as it incentivizes the pursuit of claims that may lack merit as well as leverages an employer into a settlement for a frivolous claim, as the threat of legal costs are simply too high no matter the outcome.
Moreover, payment of attorney’s fees in this scenario is even more problematic given the fact that the Labor Commissioner’s office is completely funded by employer assessments and, therefore, employers will essentially be paying twice for the Labor Commissioner to pursue a claim that may lack merit.
SB 306 also completely alters the procedure under which a retaliation determination is processed. Currently, the burden is on the Labor Commissioner to enforce the determination through a civil action. SB 306 provides the option for the Labor Commissioner to simply cite the employer for an alleged violation, and places the burden on the employer to challenge the citation through an administrative hearing and writ of mandate. Furthermore, SB 306 exposes employers to significant penalties of $100.00 per day up to a maximum of $20,000 for a posting violation, which is overly punitive.
3. Labor Commissioner delay in processing retaliation complaints
Under existing law, the Labor Commissioner is supposed to make a determination on whether to order remedies or dismiss a complaint for workplace retaliation within 60 days of receiving the complaint. (Lab. Code Sec. 98.7(e).) In practice however, the Labor Commissioner retaliation investigation process generally takes much longer than this. In the Labor Commissioner’s 2016/2017 Budget Change Proposal seeking additional deputies to assist in the investigation of retaliation complaints, the Labor Commissioner wrote, based on 2014 statistics: “[i]t currently takes an average of 122 days from when a case is opened to the time it is assigned to a [Deputy Labor Commissioner], primarily due to the need to close out the backlog of cases…”[1] In other words, as recently as 2014, the Labor Commissioner did not even begin investigation of a retaliation complaint until four months after it was filed.
The Labor Commissioner continued:
…[d]elaying the investigation of new cases can have negative repercussions. It can decrease the likelihood of a settlement because the employer’s liability grows as long as the complainant remains unemployed therefore the resistance to settle is greater. Additionally, the complainant may simply give upon their case because they’ve found another job, thus, allowing the employer to avoid the consequences of engaging in retaliation.
4. Role and standard for injunctive relief
Injunctive relief refers to court orders requiring the litigants to take some action (or not to do something.) The forms of injunctive relief enabled by this bill are temporary or preliminary injunctions that would address the retaliation that provoked the complaint. So, for example, if an employee refused to work in hazardous conditions and was fired for it, the corresponding injunctive relief would be job reinstatement. Similarly, if a company put a worker onto the night shift as punishment for demanding overtime pay to which the worker was entitled, the injunctive relief would be to order the worker restored to her prior shift.
Ordinarily, when someone seeks a temporary or preliminary injunction from a court, the person seeking the injunction must make a series of showings to the court. Among other things, the person seeking the injunction needs to show: that she does not have an adequate remedy at law (in other words, receiving money later cannot make up adequately for what is happening now); that she faces the possibility of irreparable harm if the injunction is not granted; that she will probably win the case in the end; and that the balance of equities favors granting the injunction. (Code Civ. Proc. Sec. 526(a). See also Continuing Education of the Bar, California Civil Procedure Before Trial Sec. 32.29.)
However, when a government entity seeks an injunction pursuant to a statute that expressly allows for injunctive relief, the government entity only needs to show that it is reasonably probable that it will prevail on the merits. The very existence of the statute creates a rebuttable presumption that irreparable harm will take place, since the Legislature has already decided that the activity prohibited by the statute is contrary to the public interest. (IT Corp. v. County of Imperial (1983) 35 C.3d 63, 72.)
Since this bill would expressly permit injunctive relief and the Labor Commissioner is a government entity, the Labor Commissioner would only have to show a reasonable probability of winning the retaliation suit in order to obtain injunctive relief to remedy retaliatory action. This bill would set the same standard for injunctive relief sought by an individual employee in a civil action for retaliation as well: the court shall issue an injunction on a showing of reasonable cause to believe unlawful retaliation occurred.
In sum, this bill would make it both faster and easier for an employee to obtain a court order for job reinstatement or other appropriate relief to provide redress for workplace retaliation, so long as the employee can show that she has reasonable cause to believe she will prevail in the underlying retaliation lawsuit.
5. Due process considerations
The purpose of this bill seems to be to create new mechanisms by which the Labor Commissioner or an aggrieved employee can speed up the process for obtaining redress in workplace retaliation cases. One major component of the bill allows the Labor Commissioner or the employee to seek preliminary injunctive relief to address the retaliation while the case is being investigated or litigated, rather than having to wait for a court decision. Another major aspect of the bill allows the Labor Commissioner to cite employers for retaliation directly when a violation is found, rather than having to go to court.
Anytime a bill introduces new penalties or restructures the procedures through which penalties can be imposed, due process considerations are implicated. The Fifth Amendment to the U.S. Constitution states: “[n]o person shall be… deprived of life, liberty, or property, without due process of law…” The Fourteenth Amendment imposes the same requirement upon the states. The U.S. Supreme Court has not given any hard and fast meaning to “due process of law.” According to the Court: “due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place, and circumstances. Due process is flexible and calls for such procedural protections as the particular situation demands.” At a minimum, however, due process of law always entails “certain basic safeguards such as notice of the charges or issue, the opportunity for a meaningful hearing, and an impartial decision maker.”[2]
In the case of this bill, the additional avenue for injunctive relief must be accessed through the superior court having jurisdiction. The new citation process comes with an investigation that includes interviewing the respondent, at a minimum, and the authority to issue the citation is in the hands of the Labor Commissioner, a neutral third party. Moreover, the bill provides for multiple levels of review of the citation, first within the Department of Industrial Relations and later, judicial review.
Support: American Federation of State, County and Municipal Employees, AFL-CIO; California Immigrant Policy Center; California Labor Federation; California Nurses Association/National Nurses United; Consumer Attorneys of California; SEIU California; State Building and Construction Trades Council of California
Opposition: Agricultural Council of California; California Chamber of Commerce; California Employment Law Council; California League of Food Processors; California Manufacturers & Technology Association; California Retailers Association; Civil Justice Association of California; Family Business Association of California; Western Growers Association
HISTORY
Source: California Labor Federation
Related Pending Legislation: None known
Prior Legislation:
AB 2261 (Hernández, 2014) would have allowed the Labor Commissioner to commence investigation based on a suspicion that workplace retaliation may have taken place, with or without a complaint. AB 2261 died on the Senate Floor.
AB 2751 (Hernández, Chapter 79, Statutes of 2014), among other things, clarified that civil penalties against an employer who discriminates, retaliates, or takes adverse action against any employee or job applicant who has engaged in prescribed protected conduct are awarded to the employee or employees who suffered the violation.
SB 666 (Steinberg, Chapter 577, Statutes of 2013), among other things, made it unlawful for an employer to retaliate or take any adverse action against an employee who makes a written or oral complaint that he or she is owed unpaid wages and prohibited any person acting on behalf of the employer from retaliating against an employee for disclosing information to a government or law enforcement agency.
AB 263 (Hernández, Chapter 732, Statutes of 2013), among other things, prohibited an employer or any other person or entity from engaging in unfair immigration-related practices, as defined, for the purpose of retaliation against any person who exercises any rights under the Labor Code. AB 263 also clarified that an employer is prohibited from discriminating, retaliating, or taking adverse action against an employee or job applicant who has engaged in prescribed protected conduct relating to the enforcement of the employee’s or applicant’s rights, provided up to a $10,000 penalty for violations thereof, and specified that an employee is not required to exhaust administrative remedies or procedures to enforce this prohibition.
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Discussed in Hearing
5MIN
Senate Floor
3MIN
Assembly Floor
37SEC
Assembly Floor
1H
Assembly Standing Committee on Appropriations
29MIN
Assembly Standing Committee on Labor and Employment
27MIN
Assembly Standing Committee on Judiciary
6MIN
Senate Floor
48MIN
Senate Standing Committee on Appropriations
Bill Author
Bill Co-Author(s):
