Amended in Assembly April 27, 2015

Amended in Assembly March 26, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 1509

Introduced by Assembly Member Roger Hernández

March 4, 2015

An act to amend Sections 98.6, 1102.5, and 6310 of the Labor Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

AB 1509, as amended, Roger Hernández. Employees: protected disclosures and complaints: retaliation.

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.

This bill would extend the protections of these begin delete provisions end delete begin insert provisions, as specified, end insert to an employee who is a family member of a person who engaged in, or was begin delete preceived end delete begin insert perceived end insert 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.

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

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

SECTION 1.  

Section 98.6 of the Labor Code is amended to
read:

98.6.  

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

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

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

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

(c) (1) Any applicant for employment who is refused
employment, who is not selected for a training program leading
to employment, or who in any other manner is discriminated
against in the terms and conditions of any offer of employment
because the applicant engaged in any conduct delineated in this
chapter, including the conduct described in subdivision (k) of
Section 96, and Chapter 5 (commencing with Section 1101) of
Part 3 of Division 2, or because the applicant has made a bona fide
complaint or claim to the division pursuant to this part, or because
the employee has initiated any action or notice pursuant to Section
2699 shall be entitled to employment and reimbursement for lost
wages and work benefits caused by the acts of the prospective
employer.

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

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

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

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

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

(f) For purposes of this section, “employer” or “a person acting
on behalf of the employer” includes, but is not limited to, a client
employer as defined in paragraph (1) of subdivision (a) of Section
2810.3 and an employer listed in subdivision (b) of Section 6400.

begin insert

(g) Subdivisions (e) and (f) shall not apply to claims arising
under subdivision (k) of Section 96 unless the lawful conduct
occurring during nonwork hours away from the employer’s
premises involves the exercise of employee rights otherwise covered
under subdivision (a).

end insert

SEC. 2.  

Section 1102.5 of the Labor Code is amended to read:

1102.5.  

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

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

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

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

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

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

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

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

(i) For purposes of this section, “employer” or “a person acting
on behalf of the employer” includes, but is not limited to, a client
employer as defined in paragraph (1) of subdivision (a) of Section
2810.3 and an employer listed in subdivision (b) of Section 6400.

SEC. 3.  

Section 6310 of the Labor Code is amended to read:

6310.  

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

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

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

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

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

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

(d) For purposes of this section, “employer” or “a person acting
on behalf of the employer” includes, but is not limited to, a client
employer as defined in paragraph (1) of subdivision (a) of Section
2810.3 and an employer listed in subdivision (b) of Section 6400.