Amended in Assembly September 4, 2013

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, ifbegin delete 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.end deletebegin insert the licensee has been determined by the Labor Commissioner or the court to have violated specified law and the court or Labor Commissioner has taken into consideration any harm such suspension or revocation would cause to employees of the licensee, as well as the good faith efforts of the licensee to resolve any alleged violations after receiving notice. The bill would subject a licensee of an agency within the Department of Consumer Affairs who has been found by the Labor Commissioner or the court to have violated specified law to disciplinary action by his or her respective licensing agency.end insert

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 reportbegin insert suspectedend insert immigration status or threaten to reportbegin insert suspectedend insert 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’sbegin insert suspectedend insert citizenship or immigration status, or thebegin insert suspectedend insert 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 adverse action.

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.

begin insert

This bill would incorporate additional changes to Section 1102.5 of the Labor Code proposed by SB 496 that would become operative if this bill and SB 496 are enacted and this bill is enacted last.

end insert

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:

begin delete
P4    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
8threatens to retaliate or retaliates based on the employee’s
9citizenship or immigration status.

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 delete
14begin insert

begin insertSECTION 1. end insert  

end insert

begin insertSection 494.6 is added to the end insertbegin insertBusiness and
15Professions Code
end insert
begin insert, to read:end insert

begin insert
16

begin insert494.6.end insert  

(a) A business license regulated by this code may be
17subject to suspension or revocation if the licensee has been
18determined by the Labor Commissioner or the court to have
19violated subdivision (b) of Section 244 of the Labor Code and the
20court or Labor Commissioner has taken into consideration any
21harm such suspension or revocation would cause to employees of
22the licensee, as well as the good faith efforts of the licensee to
23resolve any alleged violations after receiving notice.

24(b) Notwithstanding subdivision (a), a licensee of an agency
25within the Department of Consumer Affairs who has been found
26by the Labor Commissioner or the court to have violated
27subdivision (b) of Section 244 of the Labor Code may be subject
28to disciplinary action by his or her respective licensing agency.

29(c) An employer shall not be subject to suspension or revocation
30under this section for requiring a prospective or current employee
31to submit, within three business days of the first day of work for
32pay, an I-9 Employment Eligibility Verification form.

end insert
P5    1

SEC. 2.  

Section 6103.7 is added to the Business and Professions
2Code
, to read:

3

6103.7.  

It is cause for suspension, disbarment, or other
4discipline for any member of the State Bar to reportbegin insert suspectedend insert
5 immigration status or threaten to reportbegin insert suspectedend insert immigration
6status of a witness or party to a civil or administrative action or
7his or her family member to a federal, state, or local agency because
8the witness or party exercises or has exercised a right related to
9his or her employment, broadly interpreted. As used in this section,
10“family member” means a spouse, parent, sibling, child, uncle,
11aunt, niece, nephew, cousin, grandparent, or grandchild related by
12blood, adoption, marriage, or domestic partnership.

13

SEC. 3.  

Section 98.6 of the Labor Code is amended to read:

14

98.6.  

(a) A person shall not discharge an employee or in any
15manner discriminate, retaliate, or take any adverse action against
16any employee or applicant for employment because the employee
17or applicant engaged in any conduct delineated in this chapter,
18including the conduct described in subdivision (k) of Section 96,
19and Chapter 5 (commencing with Section 1101) of Part 3 of
20Division 2, or because the employee or applicant for employment
21has filed a bona fide complaint or claim or instituted or caused to
22be instituted any proceeding under or relating to his or her rights
23that are under the jurisdiction of the Labor Commissioner, made
24a written or oral complaint that he or she is owed unpaid wages,
25or because the employee has initiated any action or notice pursuant
26to Section 2699, or has testified or is about to testify in a
27proceeding pursuant to that section, or because of the exercise by
28the employee or applicant for employment on behalf of himself,
29herself, or others of any rights afforded him or her.

30(b) (1) Any employee who is discharged, threatened with
31discharge, demoted, suspended, retaliated against, subjected to an
32adverse action, or in any other manner discriminated against in
33the terms and conditions of his or her employment because the
34employee engaged in any conduct delineated in this chapter,
35including the conduct described in subdivision (k) of Section 96,
36and Chapter 5 (commencing with Section 1101) of Part 3 of
37Division 2, or because the employee has made a bona fide
38complaint or claim to the division pursuant to this part, or because
39the employee has initiated any action or notice pursuant to Section
P6    12699 shall be entitled to reinstatement and reimbursement for lost
2wages and work benefits caused by those acts of the employer.

3(2) Any employer who willfully refuses to hire, promote, or
4otherwise restore an employee or former employee who has been
5determined to be eligible for rehiring or promotion by a grievance
6procedure, arbitration, or hearing authorized by law, is guilty of a
7misdemeanor.

8(3) In addition to any other remedies available, an employer
9who violates this section is liable for a civil penalty not exceeding
10ten thousand dollars ($10,000) per employee for each violation of
11this section.

12(c) (1) Any applicant for employment who is refused
13employment, who is not selected for a training program leading
14to employment, or who in any other manner is discriminated
15against in the terms and conditions of any offer of employment
16because the applicant engaged in any conduct delineated in this
17chapter, including the conduct described in subdivision (k) of
18Section 96, and Chapter 5 (commencing with Section 1101) of
19Part 3 of Division 2, or because the applicant has made a bona fide
20complaint or claim to the division pursuant to this part, or because
21the employee has initiated any action or notice pursuant to Section
222699 shall be entitled to employment and reimbursement for lost
23wages and work benefits caused by the acts of the prospective
24employer.

25(2) This subdivision shall not be construed to invalidate any
26collective bargaining agreement that requires an applicant for a
27position that is subject to the collective bargaining agreement to
28sign a contract that protects either or both of the following as
29specified in subparagraphs (A) and (B), nor shall this subdivision
30be construed to invalidate any employer requirement of an
31applicant for a position that is not subject to a collective bargaining
32agreement to sign an employment contract that protects either or
33both of the following:

34(A) An employer against any conduct that is actually in direct
35conflict with the essential enterprise-related interests of the
36employer and where breach of that contract would actually
37constitute a material and substantial disruption of the employer’s
38operation.

P7    1(B) A firefighter against any disease that is presumed to arise
2in the course and scope of employment, by limiting his or her
3consumption of tobacco products on and off the job.

4(d) The provisions of this section creating new actions or
5remedies that are effective on January 1, 2002, to employees or
6applicants for employment do not apply to any state or local law
7enforcement agency, any religious association or corporation
8specified in subdivision (d) of Section 12926 of the Government
9Code, except as provided in Section 12926.2 of the Government
10Code, or any person described in Section 1070 of the Evidence
11Code.

12

SEC. 4.  

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

13

244.  

(a) An individual is not required to exhaust administrative
14remedies or procedures in order to bring a civil action under any
15provision of this code, unless that section under which the action
16is brought expressly requires exhaustion of an administrative
17remedy. This subdivision shall not be construed to affect the
18requirements of Section 2699.3.

19(b) Reporting or threatening to report an employee’s, former
20employee’s, or prospective employee’sbegin insert suspectedend insert citizenship or
21immigration status, or thebegin insert suspectedend insert citizenship or immigration
22status of a family member of the employee, former employee, or
23prospective employee, to a federal, state, or local agency because
24the employee, former employee, or prospective employee exercises
25a right under the provisions of this code, the Government Code,
26or the Civil Code constitutes an adverse action for purposes of
27establishing a violation of an employee’s, former employee’s, or
28prospective employee’s rights. As used in this subdivision, “family
29member” means a spouse, parent, sibling, child, uncle, aunt, niece,
30nephew, cousin, grandparent, or grandchild related by blood,
31adoption, marriage, or domestic partnership.

32

SEC. 5.  

Section 1102.5 of the Labor Code is amended to read:

33

1102.5.  

(a) An employer, or any person acting on behalf of
34the employer, shall not make, adopt, or enforce any rule, regulation,
35or policy preventing an employee from disclosing information to
36a government or law enforcement agency, or from providing
37information to, or testifying before, any public body conducting
38an investigation, hearing, or inquiry, where the employee has
39reasonable cause to believe that the information discloses a
P8    1violation of state or federal statute, or a violation of or
2noncompliance with a state or federal rule or regulation.

3(b) An employer, or any person acting on behalf of the employer,
4shall not retaliate against an employee for disclosing information
5to a government or law enforcement agency, or for providing
6information to, or testifying before, any public body conducting
7an investigation, hearing, or inquiry, where the employee has
8reasonable cause to believe that the information discloses a
9violation of state or federal statute, or a violation of or
10noncompliance with a state or federal rule or regulation.

11(c) An employer, or any person acting on behalf of the employer,
12shall not retaliate against an employee for refusing to participate
13in an activity that would result in a violation of state or federal
14statute, or a violation of or noncompliance with a state or federal
15rule or regulation.

16(d) An employer, or any person acting on behalf of the employer,
17shall not retaliate against an employee for having exercised his or
18her rights under subdivision (a), (b), or (c) in any former
19employment.

20(e) A report made by an employee of a government agency to
21his or her employer is a disclosure of information to a government
22or law enforcement agency pursuant to subdivisions (a) and (b).

23(f) In addition to other penalties, an employer that is a
24corporation or limited liability company is liable for a civil penalty
25not exceeding ten thousand dollars ($10,000) for each violation
26of this section.

27(g) This section does not apply to rules, regulations, or policies
28that implement, or to actions by employers against employees who
29violate, the confidentiality of the lawyer-client privilege of Article
303 (commencing with Section 950) of, or the physician-patient
31 privilege of Article 6 (commencing with Section 990) of, Chapter
324 of Division 8 of the Evidence Code, or trade secret information.

33begin insert

begin insertSEC. 5.5.end insert  

end insert

begin insertSection 1102.5 of the end insertbegin insertLabor Codeend insertbegin insert is amended to
34read:end insert

35

1102.5.  

(a) Anbegin delete employer mayend deletebegin insert employer, or any person acting
36on behalf of the employer, shallend insert
not make, adopt, or enforce any
37rule, regulation, or policy preventing an employee from disclosing
38information to a government or law enforcement agency,begin delete whereend delete
39begin insert or to a person with authority over the employee or to another
40employee who has authority to investigate, discover, or correct
P9    1the violation or noncompliance, or from providing information to,
2 or testifying before, any public body conducting an investigation,
3hearing, or inquiry, ifend insert
the employee has reasonable cause to believe
4that the information discloses a violation of state or federal statute,
5or a violationbegin insert ofend insert or noncompliance with abegin delete stateend deletebegin insert local, state,end insert or
6federal rule orbegin delete regulation.end deletebegin insert regulation, regardless of whether
7disclosing the information is part of the employee’s job duties.end insert

8(b) Anbegin delete employer mayend deletebegin insert employer, or any person acting on behalf
9of the employer, shallend insert
not retaliate against an employee for
10disclosingbegin delete informationend deletebegin insert information, or because the employer
11believes that the employee disclosed or may disclose information,end insert

12 to a government or law enforcement agency,begin delete whereend deletebegin insert or to a person
13with authority over the employee or another employee who has
14the authority to investigate, discover, or correct the violation or
15noncompliance, or for providing information to, or testifying
16before, any public body conducting an investigation, hearing, or
17inquiry, ifend insert
the employee has reasonable cause to believe that the
18information discloses a violation of state or federal statute, or a
19violationbegin insert ofend insert or noncompliance with abegin delete stateend deletebegin insert local, state,end insert or federal
20rule orbegin delete regulation.end deletebegin insert regulation, regardless of whether disclosing the
21information is part of the employee’s job duties. end insert

22(c) Anbegin delete employer mayend deletebegin insert employer, or any person acting on behalf
23of the employer, shallend insert
not retaliate against an employee for refusing
24to participate in an activity that would result in a violation of state
25or federal statute, or a violationbegin insert ofend insert or noncompliance with abegin delete stateend delete
26begin insert local, state,end insert or federal rule or regulation.

27(d) Anbegin delete employer mayend deletebegin insert employer, or any person acting on behalf
28of the employer, shallend insert
not retaliate against an employee for having
29exercised his or her rights under subdivision (a), (b), or (c) in any
30former employment.

31(e) A report made by an employee of a government agency to
32his or her employer is a disclosure of information to a government
33or law enforcement agency pursuant to subdivisions (a) and (b).

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

38(g) This section does not apply to rules, regulations, or policies
39begin delete whichend deletebegin insert thatend insert implement, or to actions by employers against
40employees who violate, the confidentiality of the lawyer-client
P10   1privilege of Article 3 (commencing with Sectionbegin delete 950),end deletebegin insert 950) of,end insert the
2physician-patient privilege of Article 6 (commencing with Section
3990)begin delete ofend deletebegin insert of,end insert Chapter 4 of Division 8 of the Evidence Code, or trade
4secret information.

5

SEC. 6.  

The provisions of this act are severable. If any
6provision of this act or its application is held invalid, that invalidity
7shall not affect other provisions or applications that can be given
8effect without the invalid provision or application.

9begin insert

begin insertSEC. 7.end insert  

end insert
begin insert

Section 5.5 of this bill incorporates amendments to
10Section 1102.5 of the Labor Code proposed by both this bill and
11Senate Bill 496. It shall only become operative if (1) both bills are
12enacted and become effective on or before January 1, 2014, (2)
13each bill amends Section 1102.5 of the Labor Code, and (3) this
14bill is enacted after Senate Bill 496, in which case Section 5 of this
15bill shall not become operative.

end insert
16

begin deleteSEC. 7.end delete
17begin insertSEC. 8.end insert  

No reimbursement is required by this act pursuant to
18Section 6 of Article XIII B of the California Constitution because
19the only costs that may be incurred by a local agency or school
20district will be incurred because this act creates a new crime or
21infraction, eliminates a crime or infraction, or changes the penalty
22for a crime or infraction, within the meaning of Section 17556 of
23the Government Code, or changes the definition of a crime within
24the meaning of Section 6 of Article XIII B of the California
25Constitution.



O

    93