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SB-306 Retaliation actions: complaints: administrative review.(2017-2018)

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Date Published: 04/05/2017 04:00 AM
SB306:v98#DOCUMENT

Amended  IN  Senate  April 04, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 306


Introduced by Senator Hertzberg

February 13, 2017


An act to amend Section 98.6 of the Labor Code, relating to employment. An act to amend Section 98.7 of, and to add Sections 98.74, 1102.61, and 1102.62 to, the Labor Code, relating to employment.


LEGISLATIVE COUNSEL'S DIGEST


SB 306, as amended, Hertzberg. Employee protected conduct. Retaliation actions: complaints: administrative review.
(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 attorney’s 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 attorney’s 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.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 98.7 of the Labor Code is amended to read:

98.7.
 (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 attorney’s 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 Commissioner’s 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 attorney’s 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 attorney’s 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 attorney’s 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 Commissioner’s 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 Commissioner’s 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 Commissioner’s determination. The appeal shall set forth specifically and in full detail the grounds upon which the appealing party considers the Labor Commissioner’s 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 Commissioner’s determination. The director’s 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 Commissioner’s 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 employer’s 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 employer’s premises involves the exercise of employee rights otherwise covered under subdivision (a).