Amended in Senate April 1, 2013

Senate BillNo. 666


Introduced by Senator Steinberg

February 22, 2013


An act tobegin delete amend Section 53 of the Laborend deletebegin insert add Sections 494.6 and 6103.7 to the Business and Professionsend insert Code,begin insert and to amend Section 98.6 and 1105.5 of, and to add Section 244 to, the Labor Code,end insert relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

SB 666, as amended, Steinberg. begin deleteEmployment. end deletebegin insertEmployment: retaliation.end insert

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Existing law establishes grounds for suspension or revocation of certain business and professional licenses.

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This bill would subject those business licenses to suspension or revocation if a current, former, or prospective employee of the licensee attempts to exercise a right related to his or her employment or any terms, conditions, or benefits of that employment protected by state law and, in reaction, the licensee threatens to retaliate or retaliates based on the employee’s citizenship or immigration status.

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The State Bar Act establishes specific causes for the disbarment or suspension of a member of the State Bar.

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This bill would make it a cause for suspension, disbarment, or other discipline for any member of the State Bar to report immigration status or threaten to report immigration status of a witness or party to a civil or administrative action or his or her family member, as defined, to a federal, state, or local agency because the witness or party exercises or has exercised a right related to his or her employment.

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Existing law establishes various rights and protections relating to employment and civil rights that may be enforced by civil action.

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This bill would provide that it is not necessary to exhaust administrative remedies or procedures in order to bring a civil action enforcing designated rights. Under the bill, reporting or threatening to report an employee’s, former employee’s, or prospective employee’s citizenship or immigration status, or the citizenship or immigration status of the employee’s or former employee’s family member, as defined, to a federal, state, or local agency because the employee or former employee exercises a designated right would constitute an adverse employment action for purposes of establishing a violation of the designated right. Because a violation of certain of those designated rights is a misdemeanor, this bill would impose a state-mandated local program by changing the definition of a crime.

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Existing law prohibits an employer from discharging an employee or in any manner discriminating against any employee or applicant for employment because the employee or applicant has engaged in prescribed protected conduct relating to the enforcement of the employee’s or applicant’s rights. Existing law makes it a misdemeanor for an employer to take adverse employment action against employees who file bona fide complaints.

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This bill would also prohibit an employer from retaliating or taking adverse action against any employee or applicant for employment because the employee or applicant has engaged in protected conduct. The bill would expand the protected conduct to include a written or oral complaint by an employee that he or she is owed unpaid wages. The bill would subject an employer that is a corporation or limited liability company to a civil penalty of up to $10,000 per violation of these provisions.

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Existing law prohibits an employer from making, adopting, or enforcing any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation. Existing law further prohibits an employer from retaliating against an employee for such a disclosure. Under existing law, a violation of these provisions by an employer is a crime.

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This bill would additionally prohibit any person acting on behalf of the employer from making, adopting, or enforcing any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, as provided, and would extend those prohibitions to preventing an employee from, or retaliating against an employee for, providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry. Because a violation of these provisions by an employer would be a crime, this bill would impose a state-mandated local program.

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The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

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This bill would provide that no reimbursement is required by this act for a specified reason.

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Existing law defines the phrase “head of the department” to refer to the Director of Industrial Relations in specified circumstances.

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This bill would make technical, nonsubstantive changes to that provision.

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Vote: majority. Appropriation: no. Fiscal committee: begin deleteno end deletebegin insertyesend insert. State-mandated local program: begin deleteno end deletebegin insertyesend insert.

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

P3    1begin insert

begin insertSECTION 1.end insert  

end insert

begin insertSection 494.6 is added to the end insertbegin insertBusiness and
2Professions Code
end insert
begin insert, to read:end insert

begin insert
3

begin insert494.6.end insert  

A business license regulated by this code is subject to
4suspension or revocation if a current, former, or prospective
5employee of the licensee attempts to exercise a right related to his
6or her employment or any terms, conditions, or benefits of that
7employment protected by state law and, in reaction, the licensee
8threatens to retaliate or retaliates based on the employee’s
9citizenship or immigration status.

end insert
10begin insert

begin insertSEC. 2.end insert  

end insert

begin insertSection 6103.7 is added to the end insertbegin insertBusiness and Professions
11Code
end insert
begin insert, to read:end insert

begin insert
12

begin insert6103.7.end insert  

It is cause for suspension, disbarment, or other
13discipline for any member of the State Bar to report immigration
14status or threaten to report immigration status of a witness or
15party to a civil or administrative action or his or her family member
16to a federal, state, or local agency because the witness or party
17exercises or has exercised a right related to his or her employment,
18broadly interpreted. As used in this section, “family member”
P4    1means a spouse, parent, sibling, child, uncle, aunt, niece, nephew,
2cousin, grandparent, or grandchild related by blood, adoption,
3marriage, or domestic partnership.

end insert
4begin insert

begin insertSEC. 3.end insert  

end insert

begin insertSection 98.6 of the end insertbegin insertLabor Codeend insertbegin insert is amended to read:end insert

5

98.6.  

(a) No person shall discharge an employee or in any
6manner discriminatebegin insert, retaliate, or take adverse actionend insert against any
7employee or applicant for employment because the employee or
8applicant engaged in any conduct delineated in this chapter,
9including the conduct described in subdivision (k) of Section 96,
10and Chapter 5 (commencing with Section 1101) of Part 3 of
11Division 2, or because the employee or applicant for employment
12has filed a bona fide complaint or claim or instituted or caused to
13be instituted any proceeding under or relating to his or her rights,
14which are under the jurisdiction of the Labor Commissioner, begin insertmade
15 a written or oral complaint that he or she is owed unpaid wages, end insert

16or because the employee has initiated any action or notice pursuant
17to Section 2699, or has testified or is about to testify in any such
18proceeding or because of the exercise by the employee or applicant
19for employment on behalf of himself, herself, or others of any
20rights afforded him or her.

21(b) begin insert(1)end insertbegin insertend insertAny employee who is discharged, threatened with
22discharge, demoted, suspended, or in any other manner
23discriminated against in the terms and conditions of his or her
24employment because the employee engaged in any conduct
25delineated in this chapter, including the conduct described in
26subdivision (k) of Section 96, and Chapter 5 (commencing with
27Section 1101) of Part 3 of Division 2, or because the employee
28has made a bona fide complaint or claim to the division pursuant
29to this part, or because the employee has initiated any action or
30notice pursuant to Section 2699 shall be entitled to reinstatement
31and reimbursement for lost wages and work benefits caused by
32those acts of the employer.begin delete Any employer who willfully refuses
33to hire, promote, or otherwise restore an employee or former
34employee who has been determined to be eligible for rehiring or
35promotion by a grievance procedure, arbitration, or hearing
36authorized by law, is guilty of a misdemeanor.end delete

begin insert

37(2) Any employer who willfully refuses to hire, promote, or
38otherwise restore an employee or former employee who has been
39determined to be eligible for rehiring or promotion by a grievance
P5    1procedure, arbitration, or hearing authorized by law, is guilty of
2a misdemeanor.

end insert
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3(3) In addition to any other remedies available, an employer
4that is a corporation or limited liability company is liable for a
5civil penalty not exceeding ten thousand dollars ($10,000) per
6employee for each violation to this section.

end insert

7(c) (1) Any applicant for employment who is refused
8employment, who is not selected for a training program leading
9to employment, or who in any other manner is discriminated
10against in the terms and conditions of any offer of employment
11because the applicant engaged in any conduct delineated in this
12chapter, including the conduct described in subdivision (k) of
13Section 96, and Chapter 5 (commencing with Section 1101) of
14Part 3 of Division 2, or because the applicant has made a bona fide
15complaint or claim to the division pursuant to this part, or because
16the employee has initiated any action or notice pursuant to Section
172699 shall be entitled to employment and reimbursement for lost
18wages and work benefits caused by the acts of the prospective
19employer.

20(2) This subdivision shall not be construed to invalidate any
21collective bargaining agreement that requires an applicant for a
22position that is subject to the collective bargaining agreement to
23sign a contract that protects either or both of the following as
24specified in subparagraphs (A) and (B), nor shall this subdivision
25be construed to invalidate any employer requirement of an
26applicant for a position that is not subject to a collective bargaining
27agreement to sign an employment contract that protects either or
28both of the following:

29(A) An employer against any conduct that is actually in direct
30conflict with the essential enterprise-related interests of the
31employer and where breach of that contract would actually
32constitute a material and substantial disruption of the employer’s
33operation.

34(B) A firefighter against any disease that is presumed to arise
35in the course and scope of employment, by limiting his or her
36consumption of tobacco products on and off the job.

37(d) The provisions of this section creating new actions or
38remedies that are effective on January 1, 2002, to employees or
39applicants for employment do not apply to any state or local law
40enforcement agency, any religious association or corporation
P6    1specified in subdivision (d) of Section 12926 of the Government
2Code, except as provided in Section 12926.2 of the Government
3Code, or any person described in Section 1070 of the Evidence
4Code.

5begin insert

begin insertSEC. 4.end insert  

end insert

begin insertSection 244 is added to the end insertbegin insertLabor Codeend insertbegin insert, to read:end insert

begin insert
6

begin insert244.end insert  

(a) An individual is not required to exhaust administrative
7remedies or procedures in order to bring a civil action under any
8provision of this code, unless that section under which the action
9is brought expressly requires exhaustion of an administrative
10remedy.

11(b) Reporting or threatening to report an employee’s, former
12employee’s, or prospective employee’s citizenship or immigration
13status, or the citizenship or immigration status of a family member
14of the employee, former employee, or prospective employee, to a
15federal, state, or local agency because the employee, former
16employee, or prospective employee exercises a right under the
17provisions of this code, the Government Code, or the Civil Code
18constitutes an adverse employment action for purposes of
19establishing a violation of an employee or former employee’s
20rights. As used in this subdivision, “family member” means a
21spouse, parent, sibling, child, uncle, aunt, niece, nephew, cousin,
22grandparent, or grandchild related by blood, adoption, marriage,
23or domestic partnership.

end insert
24begin insert

begin insertSEC. 5.end insert  

end insert

begin insertSection 1102.5 of the end insertbegin insertLabor Codeend insertbegin insert is amended to read:end insert

25

1102.5.  

(a) Anbegin delete employer mayend deletebegin insert employer, or any person acting
26on behalf of the employer, shallend insert
not make, adopt, or enforce any
27rule, regulation, or policy preventing an employee from disclosing
28information to a government or law enforcement agency,begin insert or for
29providing information to, or testifying before, any public body
30conducting an investigation, hearing, or inquiry,end insert
where the
31employee has reasonable cause to believe that the information
32discloses a violation of state or federal statute, or a violation or
33noncompliance with a state or federal rule or regulation.

34(b) Anbegin delete employer mayend deletebegin insert employer, or any person acting on behalf
35of the employer, shallend insert
not retaliate against an employee for
36disclosing information to a government or law enforcement agency,
37begin insert or for providing information to, or testifying before, any public
38body conducting an investigation, hearing, or inquiry,end insert
where the
39employee has reasonable cause to believe that the information
P7    1discloses a violation of state or federal statute, or a violation or
2noncompliance with a state or federal rule or regulation.

3(c) Anbegin delete employer mayend deletebegin insert employer, or any person acting on behalf
4of the employer, shallend insert
not retaliate against an employee for refusing
5to participate in an activity that would result in a violation of state
6or federal statute, or a violation or noncompliance with a state or
7federal rule or regulation.

8(d) Anbegin delete employer mayend deletebegin insert employer, or any person acting on behalf
9of the employer, shallend insert
not retaliate against an employee for having
10exercised his or her rights under subdivision (a), (b), or (c) in any
11former employment.

12(e) A report made by an employee of a government agency to
13his or her employer is a disclosure of information to a government
14or law enforcement agency pursuant to subdivisions (a) and (b).

15(f) In addition to other penalties, an employer that is a
16corporation or limited liability company is liable for a civil penalty
17not exceeding ten thousand dollars ($10,000) for each violation
18of this section.

19(g) This section does not apply to rules, regulations, or policies
20begin delete whichend deletebegin insert thatend insert implement, or to actions by employers against
21employees who violate, the confidentiality of the lawyer-client
22privilege of Article 3 (commencing with Section 950)begin insert ofend insert,begin insert orend insert the
23physician-patient privilege of Article 6 (commencing with Section
24990) ofbegin insert,end insert Chapter 4 of Division 8 of the Evidence Code, or trade
25secret information.

26begin insert

begin insertSEC. 6.end insert  

end insert
begin insert

The provisions of this act are severable. If any
27provision of this act or its application is held invalid, that invalidity
28shall not affect other provisions or applications that can be given
29effect without the invalid provision or application.

end insert
30begin insert

begin insertSEC. 7.end insert  

end insert
begin insert

No reimbursement is required by this act pursuant to
31Section 6 of Article XIII B of the California Constitution because
32the only costs that may be incurred by a local agency or school
33district will be incurred because this act creates a new crime or
34infraction, eliminates a crime or infraction, or changes the penalty
35for a crime or infraction, within the meaning of Section 17556 of
36the Government Code, or changes the definition of a crime within
37the meaning of Section 6 of Article XIII B of the California
38Constitution.

end insert
begin delete
39

SECTION 1.  

Section 53 of the Labor Code is amended to read:

P8    1

53.  

Whenever in Section 1001 of or in Part 1 (commencing
2with Section 11000) of Division 3 of Title 2 of, the Government
3Code “head of the department” or similar designation occurs, the
4phrase shall mean, for the purposes of this code, the director, except
5that in respect to matters which by the express provisions of this
6code are committed to or retained under the jurisdiction of the
7Division of Workers’ Compensation, the State Compensation
8Insurance Fund, the Occupational Safety and Health Standards
9Board, the Occupational Safety and Health Appeals Board, or the
10Industrial Welfare Commission the designation shall mean the
11Division of Workers’ Compensation, the Administrative Director
12of the Division of Workers’ Compensation, the Workers’
13Compensation Appeals Board, the State Compensation Insurance
14Fund, the Occupational Safety and Health Standards Board, the
15Occupational Safety and Health Appeals Board, or the Industrial
16Welfare Commission, as the case may be.

end delete


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