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AB-2261 Division of Labor Standards Enforcement: duties.(2015-2016)

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AB2261:v98#DOCUMENT

Amended  IN  Senate  June 14, 2016

CALIFORNIA LEGISLATURE— 2015–2016 REGULAR SESSION

Assembly Bill No. 2261


Introduced by Assembly Member Roger Hernández

February 18, 2016


An act to add Section 98.74 to amend Section 98.7 of the Labor Code, relating to employment.


LEGISLATIVE COUNSEL'S DIGEST


AB 2261, as amended, Roger Hernández. Division of Labor Standards Enforcement: duties.
Existing law authorizes 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 to file a complaint, as specified, with the Division of Labor Standards Enforcement, which is within the Department of Industrial Relations, and requires the commissioner to establish procedures for the investigation of discrimination complaints.
This bill would authorize the division to, with or without receiving a complaint from an employee, commence an investigation, issue a citation, or bring an action against investigation of an employer who discharges or otherwise discriminates that it suspects to have discharged or otherwise discriminated against an individual in violation of any law under the jurisdiction of the Labor Commissioner.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   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) (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. 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. Each complaint of unlawful discharge or discrimination shall be assigned to a discrimination complaint investigator who shall prepare and submit an investigation report to the Labor Commissioner based on an investigation of the complaint.
(2) The division may, with or without receiving a complaint, commence an investigation 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 Labor Commissioner in accordance with this section. The assigned investigator shall prepare and submit an investigation report to the Labor Commissioner based upon the investigation.
(b) 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 deputy, the assistant Labor Commissioner Commissioner, or the chief counsel to receive and review the investigation reports. The investigation An investigation shall include, where if appropriate, interviews with the complainant, respondent, if there is one, the employer, and any witnesses who may have information concerning the alleged a possible violation, and a review of any documents that may be relevant to the disposition of the complaint. investigation. 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 if 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 record, and the complainant and respondent complainant, if there is one, and the employer shall have the opportunity to present further evidence. The Labor Commissioner shall issue, serve, and enforce any necessary subpoenas.
(c) If the Labor Commissioner determines a violation has occurred, he or she shall notify the complainant and respondent complainant, if there is one, and the employer and direct the respondent employer to cease and desist from the violation and take any action deemed necessary to remedy the violation, including, where if appropriate, rehiring or reinstatement, reimbursement of lost wages and interest thereon, payment of reasonable attorney’s fees associated with any hearing held by the Labor Commissioner in investigating the complaint, related to the investigation, and the posting of notices to employees. If the respondent employer 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. employer. If the Labor Commissioner fails to bring an action in court promptly, the a 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.
(d) (1) If the Labor Commissioner determines no violation has occurred, he or she shall notify the complainant and respondent complainant, if there is one, and the employer and shall dismiss the complaint. complaint or close the investigation. The Labor Commissioner may direct the a complainant to pay reasonable attorney’s fees associated with any hearing held by the Labor Commissioner if the Labor Commissioner finds the that a complaint was frivolous, unreasonable, groundless, and was brought in bad faith. The A complainant may, after notification of the Labor Commissioner’s determination to dismiss a complaint, bring an action in an appropriate court, which court that shall have jurisdiction to determine whether a violation occurred, and 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 If the Labor Commission dismisses a complaint, the Labor Commissioner shall advise the a 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 complainant, if there is one, and the employer 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. complaint, or commencing the investigation pursuant to paragraph (2) of subdivision (a). Determinations by the Labor Commissioner under subdivision (c) or (d) may be appealed by the a complainant or respondent employer 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 complainant, if there is one, and respondent employer 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.

SECTION 1.Section 98.74 is added to the Labor Code, immediately following Section 98.7, to read:
98.74.

In addition to receiving employee complaints pursuant to Section 98.7, the division may, with or without receiving a complaint from an employee, commence an investigation, issue a citation, or bring an action against an employer who discharges or otherwise discriminates against an individual in violation of any law under the jurisdiction of the Labor Commissioner.