Amended in Senate May 7, 2013

Amended in Senate April 11, 2013

Amended in Senate April 1, 2013

Senate BillNo. 666


Introduced by Senator Steinberg

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(Coauthors: Senators Beall, Evans, Hueso, Jackson, Monning, and Padilla)

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February 22, 2013


An act to add Sections 494.6 and 6103.7 to the Business and Professions Code, and to amend Sections 98.6 and 1102.5 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 revocationbegin insert, with a specified exception,end insert 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 thebegin delete employee orend deletebegin insert employee,end insert former employeebegin insert, or prospective employeeend insert exercises a designated right would constitute an adverse 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.  

begin insert(a)end insertbegin insertend insertA business license regulated by this code is subject
4to suspension 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.

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10(b) An employer shall not be subject to suspension or revocation
11under this section for requiring a prospective or current employee
12to submit, within three business days of the first day of work for
13pay, an I-9 Employment Eligibility Verification form.

end insert
14

SEC. 2.  

Section 6103.7 is added to the Business and Professions
15Code
, to read:

16

6103.7.  

It is cause for suspension, disbarment, or other
17discipline for any member of the State Bar to report immigration
18status or threaten to report immigration status of a witness or party
19to a civil or administrative action or his or her family member to
P4    1a federal, state, or local agency because the witness or party
2exercises or has exercised a right related to his or her employment,
3broadly interpreted. As used in this section, “family member”
4means a spouse, parent, sibling, child, uncle, aunt, niece, nephew,
5cousin, grandparent, or grandchild related by blood, adoption,
6marriage, or domestic partnership.

7

SEC. 3.  

Section 98.6 of the Labor Code is amended to read:

8

98.6.  

(a) No person shall discharge an employee or in any
9manner discriminate, retaliate, or take adverse action against any
10employee or applicant for employment because the employee or
11applicant engaged in any conduct delineated in this chapter,
12including the conduct described in subdivision (k) of Section 96,
13and Chapter 5 (commencing with Section 1101) of Part 3 of
14Division 2, or because the employee or applicant for employment
15has filed a bona fide complaint or claim or instituted or caused to
16be instituted any proceeding under or relating to his or her rights
17that are under the jurisdiction of the Labor Commissioner, made
18a written or oral complaint that he or she is owed unpaid wages,
19or because the employee has initiated any action or notice pursuant
20to Section 2699, or has testified or is about to testify in any such
21proceeding or because of the exercise by the employee or applicant
22for employment on behalf of himself, herself, or others of any
23rights afforded him or her.

24(b) (1) Any employee who is discharged, threatened with
25discharge, demoted, suspended, or in any other manner
26discriminated against in the terms and conditions of his or her
27employment because the employee engaged in any conduct
28delineated in this chapter, including the conduct described in
29subdivision (k) of Section 96, and Chapter 5 (commencing with
30Section 1101) of Part 3 of Division 2, or because the employee
31has made a bona fide complaint or claim to the division pursuant
32to this part, or because the employee has initiated any action or
33notice pursuant to Section 2699 shall be entitled to reinstatement
34and reimbursement for lost wages and work benefits caused by
35those acts of the employer.

36(2) Any employer who willfully refuses to hire, promote, or
37otherwise restore an employee or former employee who has been
38determined to be eligible for rehiring or promotion by a grievance
39procedure, arbitration, or hearing authorized by law, is guilty of a
40misdemeanor.

P5    1(3) In addition to any other remedies available, an employer
2that is a corporation or limited liability company is liable for a
3civil penalty not exceeding ten thousand dollars ($10,000) per
4employee for each violation to this section.

5(c) (1) Any applicant for employment who is refused
6employment, who is not selected for a training program leading
7to employment, or who in any other manner is discriminated
8against in the terms and conditions of any offer of employment
9because the applicant engaged in any conduct delineated in this
10chapter, including the conduct described in subdivision (k) of
11Section 96, and Chapter 5 (commencing with Section 1101) of
12Part 3 of Division 2, or because the applicant has made a bona fide
13complaint or claim to the division pursuant to this part, or because
14the employee has initiated any action or notice pursuant to Section
152699 shall be entitled to employment and reimbursement for lost
16wages and work benefits caused by the acts of the prospective
17employer.

18(2) This subdivision shall not be construed to invalidate any
19collective bargaining agreement that requires an applicant for a
20position that is subject to the collective bargaining agreement to
21sign a contract that protects either or both of the following as
22specified in subparagraphs (A) and (B), nor shall this subdivision
23be construed to invalidate any employer requirement of an
24applicant for a position that is not subject to a collective bargaining
25agreement to sign an employment contract that protects either or
26both of the following:

27(A) An employer against any conduct that is actually in direct
28conflict with the essential enterprise-related interests of the
29employer and where breach of that contract would actually
30constitute a material and substantial disruption of the employer’s
31operation.

32(B) A firefighter against any disease that is presumed to arise
33in the course and scope of employment, by limiting his or her
34consumption of tobacco products on and off the job.

35(d) The provisions of this section creating new actions or
36remedies that are effective on January 1, 2002, to employees or
37applicants for employment do not apply to any state or local law
38enforcement agency, any religious association or corporation
39specified in subdivision (d) of Section 12926 of the Government
40Code, except as provided in Section 12926.2 of the Government
P6    1Code, or any person described in Section 1070 of the Evidence
2Code.

3

SEC. 4.  

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

4

244.  

(a) An individual is not required to exhaust administrative
5remedies or procedures in order to bring a civil action under any
6provision of this code, unless that section under which the action
7is brought expressly requires exhaustion of an administrative
8remedy.

9(b) Reporting or threatening to report an employee’s, former
10employee’s, or prospective employee’s citizenship or immigration
11status, or the citizenship or immigration status of a family member
12of the employee, former employee, or prospective employee, to a
13federal, state, or local agency because the employee, former
14employee, or prospective employee exercises a right under the
15provisions of this code, the Government Code, or the Civil Code
16constitutes an adverse action for purposes of establishing a
17violation of an employee’s, former employee’s, or prospective
18employee’s rights. As used in this subdivision, “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. 5.  

Section 1102.5 of the Labor Code is amended to read:

23

1102.5.  

(a) An employer, or any person acting on behalf of
24the employer, shall not make, adopt, or enforce any rule, regulation,
25or policy preventing an employee from disclosing information to
26a government or law enforcement agency, or for providing
27information to, or testifying before, any public body conducting
28an investigation, hearing, or inquiry, where the employee has
29reasonable cause to believe that the information discloses a
30violation of state or federal statute, or a violation or noncompliance
31with a state or federal rule or regulation.

32(b) An employer, or any person acting on behalf of the employer,
33shall not retaliate against an employee for disclosing information
34to a government or law enforcement agency, or for providing
35information to, or testifying before, any public body conducting
36an investigation, hearing, or inquiry, where the employee has
37reasonable cause to believe that the information discloses a
38violation of state or federal statute, or a violation or noncompliance
39with a state or federal rule or regulation.

P7    1(c) An employer, or any person acting on behalf of the employer,
2shall not retaliate against an employee for refusing to participate
3in an activity that would result in a violation of state or federal
4statute, or a violation or noncompliance with a state or federal rule
5or regulation.

6(d) An employer, or any person acting on behalf of the employer,
7shall not retaliate against an employee for having exercised his or
8her rights under subdivision (a), (b), or (c) in any former
9employment.

10(e) A report made by an employee of a government agency to
11his or her employer is a disclosure of information to a government
12or law enforcement agency pursuant to subdivisions (a) and (b).

13(f) In addition to other penalties, an employer that is a
14corporation or limited liability company is liable for a civil penalty
15not exceeding ten thousand dollars ($10,000) for each violation
16of this section.

17(g) This section does not apply to rules, regulations, or policies
18that implement, or to actions by employers against employees who
19violate, the confidentiality of the lawyer-client privilege of Article
203 (commencing with Section 950) of, or the physician-patient
21 privilege of Article 6 (commencing with Section 990) of, Chapter
224 of Division 8 of the Evidence Code, or trade secret information.

23

SEC. 6.  

The provisions of this act are severable. If any
24provision of this act or its application is held invalid, that invalidity
25shall not affect other provisions or applications that can be given
26effect without the invalid provision or application.

27

SEC. 7.  

No reimbursement is required by this act pursuant to
28Section 6 of Article XIII B of the California Constitution because
29the only costs that may be incurred by a local agency or school
30district will be incurred because this act creates a new crime or
31infraction, eliminates a crime or infraction, or changes the penalty
32for a crime or infraction, within the meaning of Section 17556 of
33the Government Code, or changes the definition of a crime within
34the meaning of Section 6 of Article XIII B of the California
35Constitution.



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