Amended in Assembly March 26, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 1509


Introduced bybegin delete Committee on Labor and Employment (Assembly Members Roger Hernández (Chair), Chu, Low, McCarty, and Thurmond)end deletebegin insert Assembly Member Rogerend insertbegin insert Hernándezend insert

March 4, 2015


An act to amendbegin delete Section 6310end deletebegin insert Sections 98.6, 1102.5, and 6310end insert of the Labor Code, relating tobegin delete occupational safety and healthend deletebegin insert employmentend insert.

LEGISLATIVE COUNSEL’S DIGEST

AB 1509, as amended, begin deleteCommittee on Labor and Employmentend delete begin insertRoger  Hernándezend insert. begin deleteOccupational safety and health: end deletebegin insertEmployees: protected disclosures and end insertcomplaints: retaliation.

begin insert

Existing law prohibits an employer from discharging an employee or in any manner discriminating, retaliating, or taking any adverse action against any employee or applicant for employment because the employee or applicant has engaged in protected conduct, as specified. Existing law provides that an employee who made a bona fide complaint, and was consequently discharged or otherwise suffered an adverse action, is entitled to reinstatement and reimbursement for lost wages. Existing law makes it a misdemeanor for an employer to willfully refuse to reinstate or otherwise restore an employee who is determined by a specified procedure to be eligible for reinstatement. Existing law subjects a person who violates these provisions to a civil penalty of up to $10,000 per violation.

end insert
begin insert

This bill would extend the protections of these provisions to an employee who is a family member of a person who engaged in, or was preceived to engage in, the protected conduct or make a complaint protected by these provisions. This bill would define terms for the purpose of these provisions.

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Under existing law, it is unlawful to discharge or discriminate against an employee for making a complaint regarding employee safety or health, instituting or testifying in a proceeding under his or her rights, participating in an occupational health and safety committee, or refusing to perform work in violation of any occupational safety or health standard or safety order. Existing law further requires the reinstatement and reimbursement, as specified, of an employee who was discharged or discriminated against in the terms or conditions of his or her employment, in violation of these provisions. Existing law makes it a misdemeanor for an employer to willfully refuse to rehire, promote, or otherwise restore an employee who has been determined to be eligible for rehiring or promotion, as specified.

end delete
begin delete

This bill would make technical, nonsubstantive changes to these provisions.

end delete

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

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

P2    1begin insert

begin insertSECTION 1.end insert  

end insert

begin insertSection 98.6 of the end insertbegin insertLabor Codeend insertbegin insert is amended to
2read:end insert

3

98.6.  

(a) A person shall not discharge an employee or in any
4manner discriminate, retaliate, or take any adverse action against
5any employee or applicant for employment because the employee
6or applicant engaged in any conduct delineated in this chapter,
7including the conduct described in subdivision (k) of Section 96,
8and Chapter 5 (commencing with Section 1101) of Part 3 of
9Division 2, or because the employee or applicant for employment
10has filed a bona fide complaint or claim or instituted or caused to
11be instituted any proceeding under or relating to his or her rights
12that are under the jurisdiction of the Labor Commissioner, made
13a written or oral complaint that he or she is owed unpaid wages,
14or because the employee has initiated any action or notice pursuant
15to Section 2699, or has testified or is about to testify in a
16 proceeding pursuant to that section, or because of the exercise by
17the employee or applicant for employment on behalf of himself,
18herself, or others of any rights afforded him or her.

P3    1(b) (1) Any employee who is discharged, threatened with
2discharge, demoted, suspended, retaliated against, subjected to an
3adverse action, or in any other manner discriminated against in
4the terms and conditions of his or her employment because the
5employee engaged in any conduct delineated in this chapter,
6including the conduct described in subdivision (k) of Section 96,
7and Chapter 5 (commencing with Section 1101) of Part 3 of
8Division 2, or because the employee has made a bona fide
9complaint or claim to the division pursuant to this part, or because
10the employee has initiated any action or notice pursuant to Section
112699 shall be entitled to reinstatement and reimbursement for lost
12wages and work benefits caused by those acts of the employer.

13(2) An employer who willfully refuses to hire, promote, or
14otherwise restore an employee or former employee who has been
15determined to be eligible for rehiring or promotion by a grievance
16procedure, arbitration, or hearing authorized by law, is guilty of a
17misdemeanor.

18(3) In addition to other remedies available, an employer who
19violates this section is liable for a civil penalty not exceeding ten
20thousand dollars ($10,000) per employee for each violation of this
21section, to be awarded to the employee or employees who suffered
22the violation.

23(c) (1) Any applicant for employment who is refused
24employment, who is not selected for a training program leading
25to employment, or who in any other manner is discriminated
26against in the terms and conditions of any offer of employment
27because the applicant engaged in any conduct delineated in this
28chapter, including the conduct described in subdivision (k) of
29Section 96, and Chapter 5 (commencing with Section 1101) of
30Part 3 of Division 2, or because the applicant has made a bona fide
31complaint or claim to the division pursuant to this part, or because
32the employee has initiated any action or notice pursuant to Section
332699 shall be entitled to employment and reimbursement for lost
34wages and work benefits caused by the acts of the prospective
35employer.

36(2) This subdivision shall not be construed to invalidate any
37collective bargaining agreement that requires an applicant for a
38position that is subject to the collective bargaining agreement to
39sign a contract that protects either or both of the following as
40specified in subparagraphs (A) and (B), nor shall this subdivision
P4    1be construed to invalidate any employer requirement of an
2applicant for a position that is not subject to a collective bargaining
3agreement to sign an employment contract that protects either or
4both of the following:

5(A) An employer against any conduct that is actually in direct
6conflict with the essential enterprise-related interests of the
7employer and where breach of that contract would actually
8constitute a material and substantial disruption of the employer’s
9operation.

10(B) A firefighter against any disease that is presumed to arise
11in the course and scope of employment, by limiting his or her
12consumption of tobacco products on and off the job.

13(d) The provisions of this section creating new actions or
14remedies that are effective on January 1, 2002, to employees or
15applicants for employment do not apply to any state or local law
16enforcement agency, any religious association or corporation
17specified in subdivision (d) of Section 12926 of the Government
18Code, except as provided in Section 12926.2 of the Government
19Code, or any person described in Section 1070 of the Evidence
20Code.

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21(e) An employer, or a person acting on behalf of the employer,
22shall not retaliate against an employee because the employee is a
23family member of a person who has, or is perceived to have,
24engaged in any conduct delineated in this chapter.

end insert
begin insert

25(f) For purposes of this section, “employer” or “a person acting
26on behalf of the employer” includes, but is not limited to, a client
27employer as defined in paragraph (1) of subdivision (a) of Section
282810.3 and an employer listed in subdivision (b) of Section 6400.

end insert
29begin insert

begin insertSEC. 2.end insert  

end insert

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

30

1102.5.  

(a) An employer, or any person acting on behalf of
31the employer, shall not make, adopt, or enforce any rule, regulation,
32or policy preventing an employee from disclosing information to
33a government or law enforcement agency, to a person with
34authority over the employee, or to another employee who has
35authority to investigate, discover, or correct the violation or
36noncompliance, or from providing information to, or testifying
37before, any public body conducting an investigation, hearing, or
38inquiry, if the employee has reasonable cause to believe that the
39information discloses a violation of state or federal statute, or a
40violation of or noncompliance with a local, state, or federal rule
P5    1or regulation, regardless of whether disclosing the information is
2part of the employee’s job duties.

3(b) An employer, or any person acting on behalf of the employer,
4shall not retaliate against an employee for disclosing information,
5or because the employer believes that the employee disclosed or
6may disclose information, to a government or law enforcement
7agency, to a person with authority over the employee or another
8employee who has the authority to investigate, discover, or correct
9the violation or noncompliance, or for providing information to,
10or testifying before, any public body conducting an investigation,
11hearing, or inquiry, if the employee has reasonable cause to believe
12that the information discloses a violation of state or federal statute,
13or a violation of or noncompliance with a local, state, or federal
14rule or regulation, regardless of whether disclosing the information
15is part of the employee’s job duties.

16(c) An employer, or any person acting on behalf of the employer,
17shall not retaliate against an employee for refusing to participate
18in an activity that would result in a violation of state or federal
19statute, or a violation of or noncompliance with a local, state, or
20federal rule or regulation.

21(d) An employer, or any person acting on behalf of the employer,
22shall not retaliate against an employee for having exercised his or
23her rights under subdivision (a), (b), or (c) in any former
24employment.

25(e) A report made by an employee of a government agency to
26his or her employer is a disclosure of information to a government
27or law enforcement agency pursuant to subdivisions (a) and (b).

28(f) In addition to other penalties, an employer that is a
29corporation or limited liability company is liable for a civil penalty
30not exceeding ten thousand dollars ($10,000) for each violation
31of this section.

32(g) This section does not apply to rules, regulations, or policies
33that implement, or to actions by employers against employees who
34violate, the confidentiality of the lawyer-client privilege of Article
353 (commencing with Section 950) of, or the physician-patient
36privilege of Article 6 (commencing with Section 990) of, Chapter
374 of Division 8 of the Evidence Code, or trade secret information.

begin insert

38(h) An employer, or a person acting on behalf of the employer,
39shall not retaliate against an employee because the employee is a
P6    1family member of a person who has, or is perceived to have,
2engaged in any acts protected by this section.

end insert
begin insert

3(i) For purposes of this section, “employer” or “a person acting
4on behalf of the employer” includes, but is not limited to, a client
5employer as defined in paragraph (1) of subdivision (a) of Section
62810.3 and an employer listed in subdivision (b) of Section 6400.

end insert
7begin insert

begin insertSEC. 3.end insert  

end insert

begin insertSection 6310 of the end insertbegin insertLabor Codeend insertbegin insert is amended to read:end insert

8

6310.  

(a) No person shall discharge or in any manner
9discriminate against any employee because the employee has done
10any of the following:

11(1) Made any oral or written complaint to the division, other
12governmental agencies having statutory responsibility for or
13assisting the division with reference to employee safety or health,
14his or her employer, or his or her representative.

15(2) Instituted or caused to be instituted any proceeding under
16or relating to his or her rights or has testified or is about to testify
17in the proceeding or because of the exercise by the employee on
18behalf of himself, herself, or others of any rights afforded him or
19her.

20(3) Participated in an occupational health and safety committee
21established pursuant to Section 6401.7.

22(b) Any employee who is discharged, threatened with discharge,
23demoted, suspended, or in any other manner discriminated against
24in the terms and conditions of employment by his or her employer
25because the employee has made a bona fide oral or written
26complaint to the division, other governmental agencies having
27statutory responsibility for or assisting the division with reference
28to employee safety or health, his or her employer, or his or her
29representative, of unsafe working conditions, or work practices,
30in his or her employment or place of employment, or has
31participated in an employer-employee occupational health and
32safety committee, shall be entitled to reinstatement and
33reimbursement for lost wages and work benefits caused by the acts
34of the employer. Any employer who willfully refuses to rehire,
35promote, or otherwise restore an employee or former employee
36who has been determined to be eligible for rehiring or promotion
37by a grievance procedure, arbitration, or hearing authorized by
38law, is guilty of a misdemeanor.

begin insert

39(c) An employer, or a person acting on behalf of the employer,
40shall not retaliate against an employee because the employee is a
P7    1family member of a person who has, or is perceived to have,
2engaged in any acts protected by this section.

end insert
begin insert

3(d) For purposes of this section, “employer” or “a person acting
4on behalf of the employer” includes, but is not limited to, a client
5 employer as defined in paragraph (1) of subdivision (a) of Section
62810.3 and an employer listed in subdivision (b) of Section 6400.

end insert
begin delete
7

SECTION 1.  

Section 6310 of the Labor Code is amended to
8read:

9

6310.  

(a) A person shall not discharge or in any manner
10discriminate against any employee because the employee has done
11any of the following:

12(1) Made an oral or written complaint to the division, other
13governmental agencies having statutory responsibility for or
14assisting the division with reference to employee safety or health,
15his or her employer, or his or her representative.

16(2) Instituted or caused to be instituted a proceeding under or
17relating to his or her rights or has testified or is about to testify in
18the proceeding or because of the exercise by the employee on
19behalf of himself, herself, or others of any rights afforded him or
20her.

21(3) Participated in an occupational health and safety committee
22established pursuant to Section 6401.7.

23(b) An employee who is discharged, threatened with discharge,
24demoted, suspended, or in any other manner discriminated against
25in the terms and conditions of employment by his or her employer
26because the employee has made a bona fide oral or written
27complaint to the division, other governmental agencies having
28statutory responsibility for or assisting the division with reference
29to employee safety or health, his or her employer, or his or her
30representative, of unsafe working conditions, or work practices,
31in his or her employment or place of employment, or has
32participated in an employer-employee occupational health and
33safety committee, shall be entitled to reinstatement and
34reimbursement for lost wages and work benefits caused by the acts
35of the employer. An employer who willfully refuses to rehire,
36promote, or otherwise restore an employee or former employee
37who has been determined to be eligible for rehiring or promotion
38by a grievance procedure, arbitration, or hearing authorized by
39law, is guilty of a misdemeanor.

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