Amended in Senate April 11, 2013

Amended in Senate April 1, 2013

Senate BillNo. 666


Introduced by Senator Steinberg

February 22, 2013


An act to add Sections 494.6 and 6103.7 to the Business and Professions Code, and to amendbegin delete Sectionend deletebegin insert Sections end insert98.6 andbegin delete 1105.5end deletebegin insert 1102.5end insert of, and to add Section 244 to, the Labor Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

SB 666, as amended, Steinberg. Employment: retaliation.

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

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.

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

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.

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

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 adversebegin delete employmentend delete 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.

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.

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.

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.

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.

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.

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

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

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

P3    1

SECTION 1.  

Section 494.6 is added to the Business and
2Professions Code
, to read:

3

494.6.  

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.

10

SEC. 2.  

Section 6103.7 is added to the Business and Professions
11Code
, to read:

12

6103.7.  

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 party
15to a civil or administrative action or his or her family member to
16a 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”
19means a spouse, parent, sibling, child, uncle, aunt, niece, nephew,
20cousin, grandparent, or grandchild related by blood, adoption,
21marriage, or domestic partnership.

22

SEC. 3.  

Section 98.6 of the Labor Code is amended to read:

P4    1

98.6.  

(a) No person shall discharge an employee or in any
2manner discriminate, retaliate, or take adverse action against any
3employee or applicant for employment because the employee or
4applicant engaged in any conduct delineated in this chapter,
5including the conduct described in subdivision (k) of Section 96,
6and Chapter 5 (commencing with Section 1101) of Part 3 of
7Division 2, or because the employee or applicant for employment
8has filed a bona fide complaint or claim or instituted or caused to
9be instituted any proceeding under or relating to his or herbegin delete rights,
10whichend delete
begin insert rights thatend insert are under the jurisdiction of the Labor
11Commissioner, made a written or oral complaint that he or she is
12owed unpaid wages, or because the employee has initiated any
13action or notice pursuant to Section 2699, or has testified or is
14about to testify in any such proceeding or because of the exercise
15by the employee or applicant for employment on behalf of himself,
16herself, or others of any rights afforded him or her.

17(b) (1) Any employee who is discharged, threatened with
18discharge, demoted, suspended, or in any other manner
19discriminated against in the terms and conditions of his or her
20employment because the employee engaged in any conduct
21delineated in this chapter, including the conduct described in
22subdivision (k) of Section 96, and Chapter 5 (commencing with
23Section 1101) of Part 3 of Division 2, or because the employee
24has made a bona fide complaint or claim to the division pursuant
25to this part, or because the employee has initiated any action or
26notice pursuant to Section 2699 shall be entitled to reinstatement
27and reimbursement for lost wages and work benefits caused by
28those acts of the employer.

29(2) Any employer who willfully refuses to hire, promote, or
30otherwise restore an employee or former employee who has been
31determined to be eligible for rehiring or promotion by a grievance
32procedure, arbitration, or hearing authorized by law, is guilty of a
33misdemeanor.

34(3) In addition to any other remedies available, an employer
35that is a corporation or limited liability company is liable for a
36civil penalty not exceeding ten thousand dollars ($10,000) per
37employee for each violation to this section.

38(c) (1) Any applicant for employment who is refused
39employment, who is not selected for a training program leading
40to employment, or who in any other manner is discriminated
P5    1against in the terms and conditions of any offer of employment
2because the applicant engaged in any conduct delineated in this
3chapter, including the conduct described in subdivision (k) of
4Section 96, and Chapter 5 (commencing with Section 1101) of
5Part 3 of Division 2, or because the applicant has made a bona fide
6complaint or claim to the division pursuant to this part, or because
7the employee has initiated any action or notice pursuant to Section
82699 shall be entitled to employment and reimbursement for lost
9wages and work benefits caused by the acts of the prospective
10employer.

11(2) This subdivision shall not be construed to invalidate any
12collective bargaining agreement that requires an applicant for a
13position that is subject to the collective bargaining agreement to
14sign a contract that protects either or both of the following as
15specified in subparagraphs (A) and (B), nor shall this subdivision
16be construed to invalidate any employer requirement of an
17applicant for a position that is not subject to a collective bargaining
18agreement to sign an employment contract that protects either or
19both of the following:

20(A) An employer against any conduct that is actually in direct
21conflict with the essential enterprise-related interests of the
22employer and where breach of that contract would actually
23constitute a material and substantial disruption of the employer’s
24operation.

25(B) A firefighter against any disease that is presumed to arise
26in the course and scope of employment, by limiting his or her
27consumption of tobacco products on and off the job.

28(d) The provisions of this section creating new actions or
29remedies that are effective on January 1, 2002, to employees or
30applicants for employment do not apply to any state or local law
31enforcement agency, any religious association or corporation
32specified in subdivision (d) of Section 12926 of the Government
33Code, except as provided in Section 12926.2 of the Government
34Code, or any person described in Section 1070 of the Evidence
35Code.

36

SEC. 4.  

Section 244 is added to the Labor Code, to read:

37

244.  

(a) An individual is not required to exhaust administrative
38remedies or procedures in order to bring a civil action under any
39provision of this code, unless that section under which the action
P6    1is brought expressly requires exhaustion of an administrative
2remedy.

3(b) Reporting or threatening to report an employee’s, former
4employee’s, or prospective employee’s citizenship or immigration
5status, or the citizenship or immigration status of a family member
6of the employee, former employee, or prospective employee, to a
7federal, state, or local agency because the employee, former
8employee, or prospective employee exercises a right under the
9provisions of this code, the Government Code, or the Civil Code
10constitutes an adversebegin delete employmentend delete action for purposes of
11establishing a violation of anbegin delete employee orend deletebegin insert employee’s,end insert former
12employee’sbegin insert, or prospective employee’s end insert rights. As used in this
13subdivision, “family member” means a spouse, parent, sibling,
14child, uncle, aunt, niece, nephew, cousin, grandparent, or
15grandchild related by blood, adoption, marriage, or domestic
16partnership.

17

SEC. 5.  

Section 1102.5 of the Labor Code is amended to read:

18

1102.5.  

(a) An employer, or any person acting on behalf of
19the employer, shall not make, adopt, or enforce any rule, regulation,
20or policy preventing an employee from disclosing information to
21a government or law enforcement agency, or for providing
22information to, or testifying before, any public body conducting
23an investigation, hearing, or inquiry, where the employee has
24reasonable cause to believe that the information discloses a
25violation of state or federal statute, or a violation or noncompliance
26with a state or federal rule or regulation.

27(b) An employer, or any person acting on behalf of the employer,
28shall not retaliate against an employee for disclosing information
29to a government or law enforcement agency, or for providing
30information to, or testifying before, any public body conducting
31an investigation, hearing, or inquiry, where the employee has
32reasonable cause to believe that the information discloses a
33violation of state or federal statute, or a violation or noncompliance
34with a state or federal rule or regulation.

35(c) An employer, or any person acting on behalf of the employer,
36shall not retaliate against an employee for refusing to participate
37in an activity that would result in a violation of state or federal
38statute, or a violation or noncompliance with a state or federal rule
39or regulation.

P7    1(d) An employer, or any person acting on behalf of the employer,
2shall not retaliate against an employee for having exercised his or
3her rights under subdivision (a), (b), or (c) in any former
4employment.

5(e) A report made by an employee of a government agency to
6his or her employer is a disclosure of information to a government
7or law enforcement agency pursuant to subdivisions (a) and (b).

8(f) In addition to other penalties, an employer that is a
9corporation or limited liability company is liable for a civil penalty
10not exceeding ten thousand dollars ($10,000) for each violation
11of this section.

12(g) This section does not apply to rules, regulations, or policies
13that implement, or to actions by employers against employees who
14violate, the confidentiality of the lawyer-client privilege of Article
153 (commencing with Section 950) of, or the physician-patient
16 privilege of Article 6 (commencing with Section 990) of, Chapter
174 of Division 8 of the Evidence Code, or trade secret information.

18

SEC. 6.  

The provisions of this act are severable. If any
19provision of this act or its application is held invalid, that invalidity
20shall not affect other provisions or applications that can be given
21effect without the invalid provision or application.

22

SEC. 7.  

No reimbursement is required by this act pursuant to
23Section 6 of Article XIII B of the California Constitution because
24the only costs that may be incurred by a local agency or school
25district will be incurred because this act creates a new crime or
26infraction, eliminates a crime or infraction, or changes the penalty
27for a crime or infraction, within the meaning of Section 17556 of
28the Government Code, or changes the definition of a crime within
29the meaning of Section 6 of Article XIII B of the California
30Constitution.



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