Amended in Assembly August 22, 2013

Amended in Assembly August 5, 2013

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

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

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 revocation, with a specified exception, 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, former employee, or prospective employee 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 any 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 to a civil penalty of up to $10,000 per violation of these provisions.

Existing law entitles an employee to reinstatement and reimbursement for lost wages and benefits if the employee has been discharged, demoted, suspended, or in any way discriminated against because the employee engaged in protected conduct or because the employee made a bona fide complaint or claim or initiated any action or notice, as prescribed.

This bill would similarly grant these entitlements to an employee who is retaliated against or subjected to an adversebegin delete action, and would specify that enforcement of these provisions does not require exhaustion of administrative remedies.end deletebegin insert action.end insert

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) A 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
P4    1threatens to retaliate or retaliates based on the employee’s
2citizenship or immigration status.

3(b) An employer shall not be subject to suspension or revocation
4under this section for requiring a prospective or current employee
5to submit, within three business days of the first day of work for
6pay, an I-9 Employment Eligibility Verification form.

7

SEC. 2.  

Section 6103.7 is added to the Business and Professions
8Code
, to read:

9

6103.7.  

It is cause for suspension, disbarment, or other
10discipline for any member of the State Bar to report immigration
11status or threaten to report immigration status of a witness or party
12to a civil or administrative action or his or her family member to
13a federal, state, or local agency because the witness or party
14exercises or has exercised a right related to his or her employment,
15broadly interpreted. As used in this section, “family member”
16means a spouse, parent, sibling, child, uncle, aunt, niece, nephew,
17cousin, grandparent, or grandchild related by blood, adoption,
18marriage, or domestic partnership.

19

SEC. 3.  

Section 98.6 of the Labor Code is amended to read:

20

98.6.  

(a) A personbegin delete mayend deletebegin insert shallend insert not discharge an employee or in
21any manner discriminate, retaliate, or take any adverse action
22against any employee or applicant for employment because the
23employee or applicant engaged in any conduct delineated in this
24chapter, including the conduct described in subdivision (k) of
25Section 96, and Chapter 5 (commencing with Section 1101) of
26Part 3 of Division 2, or because the employee or applicant for
27employment has filed a bona fide complaint or claim or instituted
28or caused to be instituted any proceeding under or relating to his
29or herbegin delete rights, whichend deletebegin insert rights thatend insert are under the jurisdiction of the
30Labor Commissioner, made a written or oral complaint that he or
31she is owed unpaid wages, or because the employee has initiated
32any action or notice pursuant to Section 2699, or has testified or
33is about to testify in a proceeding pursuant to that section, or
34because of the exercise by the employee or applicant for
35employment on behalf of himself, herself, or others of any rights
36afforded him or her.

37(b) (1) Any employee who is discharged, threatened with
38discharge, demoted, suspended, retaliated against, subjected to an
39adverse action, or in any other manner discriminated against in
40the terms and conditions of his or her employment because the
P5    1employee engaged in any conduct delineated in this chapter,
2including the conduct described in subdivision (k) of Section 96,
3and Chapter 5 (commencing with Section 1101) of Part 3 of
4Division 2, or because the employee has made a bona fide
5complaint or claim to the division pursuant to this part, or because
6the employee has initiated any action or notice pursuant to Section
72699 shall be entitled to reinstatement and reimbursement for lost
8wages and work benefits caused by those acts of the employer.

9(2) Any employer who willfully refuses to hire, promote, or
10otherwise restore an employee or former employee who has been
11determined to be eligible for rehiring or promotion by a grievance
12procedure, arbitration, or hearing authorized by law, is guilty of a
13misdemeanor.

14(3) In addition to any other remedies available, an employer
15who violates this section is liable for a civil penalty not exceeding
16ten thousand dollars ($10,000) per employee for each violationbegin delete toend delete
17begin insert ofend insert this section.

begin delete

18(4) In the enforcement of this section, there is no requirement
19that an individual exhaust administrative remedies or procedures.

end delete

20(c) (1) Any applicant for employment who is refused
21employment, who is not selected for a training program leading
22to employment, or who in any other manner is discriminated
23against in the terms and conditions of any offer of employment
24because the applicant engaged in any conduct delineated in this
25chapter, including the conduct described in subdivision (k) of
26Section 96, and Chapter 5 (commencing with Section 1101) of
27Part 3 of Division 2, or because the applicant has made a bona fide
28complaint or claim to the division pursuant to this part, or because
29the employee has initiated any action or notice pursuant to Section
302699 shall be entitled to employment and reimbursement for lost
31wages and work benefits caused by the acts of the prospective
32employer.

33(2) This subdivision shall not be construed to invalidate any
34collective bargaining agreement that requires an applicant for a
35position that is subject to the collective bargaining agreement to
36sign a contract that protects either or both of the following as
37specified in subparagraphs (A) and (B), nor shall this subdivision
38be construed to invalidate any employer requirement of an
39applicant for a position that is not subject to a collective bargaining
P6    1agreement to sign an employment contract that protects either or
2both of the following:

3(A) An employer against any conduct that is actually in direct
4conflict with the essential enterprise-related interests of the
5employer and where breach of that contract would actually
6constitute a material and substantial disruption of the employer’s
7operation.

8(B) A firefighter against any disease that is presumed to arise
9in the course and scope of employment, by limiting his or her
10consumption of tobacco products on and off the job.

11(d) The provisions of this section creating new actions or
12remedies that are effective on January 1, 2002, to employees or
13applicants for employment do not apply to any state or local law
14enforcement agency, any religious association or corporation
15specified in subdivision (d) of Section 12926 of the Government
16Code, except as provided in Section 12926.2 of the Government
17Code, or any person described in Section 1070 of the Evidence
18Code.

19

SEC. 4.  

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

20

244.  

(a) An individual is not required to exhaust administrative
21remedies or procedures in order to bring a civil action under any
22provision of this code, unless that section under which the action
23is brought expressly requires exhaustion of an administrative
24remedy.begin insert This subdivision shall not be construed to affect the
25requirements of Section 2699.3.end insert

26(b) Reporting or threatening to report an employee’s, former
27employee’s, or prospective employee’s citizenship or immigration
28status, or the citizenship or immigration status of a family member
29of the employee, former employee, or prospective employee, to a
30federal, state, or local agency because the employee, former
31employee, or prospective employee exercises a right under the
32provisions of this code, the Government Code, or the Civil Code
33constitutes an adverse action for purposes of establishing a
34violation of an employee’s, former employee’s, or prospective
35employee’s rights. As used in this subdivision, “family member”
36means a spouse, parent, sibling, child, uncle, aunt, niece, nephew,
37cousin, grandparent, or grandchild related by blood, adoption,
38marriage, or domestic partnership.

39

SEC. 5.  

Section 1102.5 of the Labor Code is amended to read:

P7    1

1102.5.  

(a) An employer, or any person acting on behalf of
2the employer, shall not make, adopt, or enforce any rule, regulation,
3or policy preventing an employee from disclosing information to
4a government or law enforcement agency, orbegin delete forend deletebegin insert fromend insert providing
5information to, or testifying before, any public body conducting
6an investigation, hearing, or inquiry, where the employee has
7reasonable cause to believe that the information discloses a
8violation of state or federal statute, or a violationbegin insert ofend insert or
9noncompliance with a state or federal rule or regulation.

10(b) An employer, or any person acting on behalf of the employer,
11shall not retaliate against an employee for disclosing information
12to a government or law enforcement agency, or for providing
13information to, or testifying before, any public body conducting
14an investigation, hearing, or inquiry, where the employee has
15reasonable cause to believe that the information discloses a
16violation of state or federal statute, or a violationbegin insert ofend insert or
17noncompliance with a state or federal rule or regulation.

18(c) An employer, or any person acting on behalf of the employer,
19shall not retaliate against an employee for refusing to participate
20in an activity that would result in a violation of state or federal
21statute, or a violationbegin insert ofend insert or noncompliance with a state or federal
22rule or regulation.

23(d) An employer, or any person acting on behalf of the employer,
24shall not retaliate against an employee for having exercised his or
25her rights under subdivision (a), (b), or (c) in any former
26employment.

27(e) A report made by an employee of a government agency to
28his or her employer is a disclosure of information to a government
29or law enforcement agency pursuant to subdivisions (a) and (b).

30(f) In addition to other penalties, an employer that is a
31corporation or limited liability company is liable for a civil penalty
32not exceeding ten thousand dollars ($10,000) for each violation
33of this section.

34(g) This section does not apply to rules, regulations, or policies
35that implement, or to actions by employers against employees who
36violate, the confidentiality of the lawyer-client privilege of Article
373 (commencing with Section 950) of, or the physician-patient
38 privilege of Article 6 (commencing with Section 990) of, Chapter
394 of Division 8 of the Evidence Code, or trade secret information.

P8    1

SEC. 6.  

The provisions of this act are severable. If any
2provision of this act or its application is held invalid, that invalidity
3shall not affect other provisions or applications that can be given
4effect without the invalid provision or application.

5

SEC. 7.  

No reimbursement is required by this act pursuant to
6Section 6 of Article XIII B of the California Constitution because
7the only costs that may be incurred by a local agency or school
8district will be incurred because this act creates a new crime or
9infraction, eliminates a crime or infraction, or changes the penalty
10for a crime or infraction, within the meaning of Section 17556 of
11the Government Code, or changes the definition of a crime within
12the meaning of Section 6 of Article XIII B of the California
13Constitution.



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