Amended in Senate August 31, 2015

Amended in Assembly April 27, 2015

Amended in Assembly March 26, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 1509


Introduced by Assembly Member Roger Hernández

March 4, 2015


An act to amend Sections 98.6, 1102.5,begin insert 2810.3,end insert and 6310 of the Labor Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

AB 1509, as amended, Roger Hernández. begin deleteEmployees: protected disclosures and complaints: retaliation. end deletebegin insertEmployer liability.end insert

begin delete

Existing

end delete

begin insert(1)end insertbegin insertend insertbegin insertExistingend insert 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 provisions, as specified, to an employee who is a family member of a person who engaged in, or was perceived 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.

begin insert

(2) Existing law requires a client employer to share with a labor contractor all civil legal responsibility and civil liability for all workers supplied by that labor contractor for the payment of wages and the failure to obtain valid workers’ compensation coverage. Existing law also prohibits a client employer from shifting to the labor contractor legal duties or liabilities under workplace safety provisions with respect to workers provided by the labor contractor. Existing law defines terms for these purposes and authorizes the Labor Commissioner to adopt regulations and rules of practice and procedure necessary to administer and enforce these provisions. Existing law excludes certain types of employers from these provisions, including, but not limited to, a client employer that is not a motor carrier of property based solely on the employer’s use of a third-party motor carrier of property with interstate or intrastate operating authority to ship or receive freight, and a client employer that is a motor carrier of property subcontracting with, or otherwise engaging, another motor carrier of property to provide transportation services using its own employees and commercial motor vehicles.

end insert
begin insert

The Household Goods Carriers Act subjects household goods carriers to the jurisdiction and control of the Public Utilities Commission. The act prohibits a household goods carrier from engaging, or attempting to engage, in the business of the transportation of used household goods and personal effects by motor vehicle over any public highway in the state without a permit issued by the commission authorizing transportation entirely within the state or a valid operating authority issued by the Federal Motor Carrier Safety Administration, for interstate transportation.

end insert
begin insert

This bill would expand the types of employers excluded from those labor contracting provisions to include a client employer that is not a household goods carrier based solely on the employer’s use of a third-party household goods carrier permitted by the commission to move household goods, and a client employer that is a permitted household goods carrier subcontracting with, or otherwise engaging, another permitted household goods carrier to provide transportation of household goods using its own employees and motor vehicles.

end insert

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

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

P3    1

SECTION 1.  

Section 98.6 of the Labor Code is amended to
2read:

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.

19(b) (1) Any employee who is discharged, threatened with
20discharge, demoted, suspended, retaliated against, subjected to an
21adverse action, or in any other manner discriminated against in
22the terms and conditions of his or her employment because the
23employee engaged in any conduct delineated in this chapter,
24including the conduct described in subdivision (k) of Section 96,
25and Chapter 5 (commencing with Section 1101) of Part 3 of
26Division 2, or because the employee has made a bona fide
27complaint or claim to the division pursuant to this part, or because
28the employee has initiated any action or notice pursuant to Section
292699 shall be entitled to reinstatement and reimbursement for lost
30wages and work benefits caused by those acts of the employer.

31(2) An employer who willfully refuses to hire, promote, or
32otherwise restore an employee or former employee who has been
33determined to be eligible for rehiring or promotion by a grievance
34procedure, arbitration, or hearing authorized by law, is guilty of a
35misdemeanor.

36(3) In addition to other remedies available, an employer who
37violates this section is liable for a civil penalty not exceeding ten
38thousand dollars ($10,000) per employee for each violation of this
P4    1section, to be awarded to the employee or employees who suffered
2the violation.

3(c) (1) Any applicant for employment who is refused
4employment, who is not selected for a training program leading
5to employment, or who in any other manner is discriminated
6against in the terms and conditions of any offer of employment
7because the applicant engaged in any conduct delineated in this
8chapter, including the conduct described in subdivision (k) of
9Section 96, and Chapter 5 (commencing with Section 1101) of
10Part 3 of Division 2, or because the applicant has made a bona fide
11complaint or claim to the division pursuant to this part, or because
12the employee has initiated any action or notice pursuant to Section
132699 shall be entitled to employment and reimbursement for lost
14wages and work benefits caused by the acts of the prospective
15employer.

16(2) This subdivision shall not be construed to invalidate any
17collective bargaining agreement that requires an applicant for a
18position that is subject to the collective bargaining agreement to
19sign a contract that protects either or both of the following as
20specified in subparagraphs (A) and (B), nor shall this subdivision
21be construed to invalidate any employer requirement of an
22applicant for a position that is not subject to a collective bargaining
23agreement to sign an employment contract that protects either or
24both of the following:

25(A) An employer against any conduct that is actually in direct
26conflict with the essential enterprise-related interests of the
27employer and where breach of that contract would actually
28constitute a material and substantial disruption of the employer’s
29operation.

30(B) A firefighter against any disease that is presumed to arise
31in the course and scope of employment, by limiting his or her
32consumption of tobacco products on and off the job.

33(d) The provisions of this section creating new actions or
34remedies that are effective on January 1, 2002, to employees or
35applicants for employment do not apply to any state or local law
36enforcement agency, any religious association or corporation
37specified in subdivision (d) of Section 12926 of the Government
38Code, except as provided in Section 12926.2 of the Government
39Code, or any person described in Section 1070 of the Evidence
40Code.

P5    1(e) An employer, or a person acting on behalf of the employer,
2shall not retaliate against an employee because the employee is a
3family member of a person who has, or is perceived to have,
4engaged in any conduct delineated in this chapter.

5(f) For purposes of this section, “employer” or “a person acting
6on behalf of the employer” includes, but is not limited to, a client
7employer as defined in paragraph (1) of subdivision (a) of Section
82810.3 and an employer listed in subdivision (b) of Section 6400.

9(g) Subdivisions (e) and (f) shall not apply to claims arising
10under subdivision (k) of Section 96 unless the lawful conduct
11occurring during nonwork hours away from the employer’s
12premises involves the exercise of employee rights otherwise
13covered under subdivision (a).

14

SEC. 2.  

Section 1102.5 of the Labor Code is amended to read:

15

1102.5.  

(a) An employer, or any person acting on behalf of
16the employer, shall not make, adopt, or enforce any rule, regulation,
17or policy preventing an employee from disclosing information to
18a government or law enforcement agency, to a person with
19authority over the employee, or to another employee who has
20authority to investigate, discover, or correct the violation or
21noncompliance, or from providing information to, or testifying
22before, any public body conducting an investigation, hearing, or
23inquiry, if the employee has reasonable cause to believe that the
24information discloses a violation of state or federal statute, or a
25violation of or noncompliance with a local, state, or federal rule
26or regulation, regardless of whether disclosing the information is
27part of the employee’s job duties.

28(b) An employer, or any person acting on behalf of the employer,
29shall not retaliate against an employee for disclosing information,
30or because the employer believes that the employee disclosed or
31may disclose information, to a government or law enforcement
32agency, to a person with authority over the employee or another
33employee who has the authority to investigate, discover, or correct
34the violation or noncompliance, or for providing information to,
35or testifying before, any public body conducting an investigation,
36hearing, or inquiry, if the employee has reasonable cause to believe
37that the information discloses a violation of state or federal statute,
38or a violation of or noncompliance with a local, state, or federal
39rule or regulation, regardless of whether disclosing the information
40is part of the employee’s job duties.

P6    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 of or noncompliance with a local, state, or
5federal rule or 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
21privilege of Article 6 (commencing with Section 990) of, Chapter
224 of Division 8 of the Evidence Code, or trade secret information.

23(h) An employer, or a person acting on behalf of the employer,
24shall not retaliate against an employee because the employee is a
25family member of a person who has, or is perceived to have,
26engaged in any acts protected by this section.

27(i) For purposes of this section, “employer” or “a person acting
28on behalf of the employer” includes, but is not limited to, a client
29employer as defined in paragraph (1) of subdivision (a) of Section
302810.3 and an employer listed in subdivision (b) of Section 6400.

31begin insert

begin insertSEC. 3.end insert  

end insert

begin insertSection 2810.3 of the end insertbegin insertLabor Codeend insertbegin insert is amended to read:end insert

32

2810.3.  

(a) As used in this section:

33(1) (A) “Client employer” means a business entity, regardless
34of its form, that obtains or is provided workers to perform labor
35within its usual course of business from a labor contractor.

36(B) “Client employer” does not include any of the following:

37(i) A business entity with a workforce ofbegin delete lessend deletebegin insert fewerend insert than 25
38workers, including those hired directly by the client employer and
39those obtained from, or provided by, any labor contractor.

P7    1(ii) A business entity with five or fewer workers supplied by a
2labor contractor or labor contractors to the client employer at any
3given time.

4(iii) The state or any political subdivision of the state, including
5any city, county, city and county, or special district.

6(2) “Labor” has the same meaning provided by Section 200.

7(3) “Labor contractor” means an individual or entity that
8supplies, either with or without a contract, a client employer with
9workers to perform labor within the client employer’s usual course
10of business. “Labor contractor” does not include any of the
11following:

12(A) A bona fide nonprofit, community-based organization that
13provides services to workers.

14(B) A bona fide labor organization or apprenticeship program
15or hiring hall operated pursuant to a collective bargaining
16agreement.

17(C) A motion picture payroll services company as defined in
18subparagraph (A) of paragraph (4) of subdivision (f) of Section
19679 of the Unemployment Insurance Code.

20(D) A third party who is a party to an employee leasing
21arrangement, as defined by Rule 4 of Section V of the California
22Workers’ Compensation Experience Rating Plan-1995 (Section
232353.1 of Title 10 of the California Code of Regulations), as it
24read on January 1, 2014, except those arrangements described in
25subrule d of Rule 4 of Section V, if the employee leasing
26arrangement contractually obligates the client employer to assume
27all civil legal responsibility and civil liability under this act.

28(4) “Wages” has the same meaning provided by Section 200
29and all sums payable to an employee or the state based upon any
30failure to pay wages, as provided by law.

31(5) “Worker” does not include an employee who is exempt from
32the payment of an overtime rate of compensation for executive,
33administrative, and professional employees pursuant to wage orders
34by the Industrial Welfare Commission described in Section 515.

35(6) “Usual course of business” means the regular and customary
36work of a business, performed within or upon the premises or
37worksite of the client employer.

38(b) A client employer shall share with a labor contractor all civil
39legal responsibility and civil liability for all workers supplied by
40that labor contractor for both of the following:

P8    1(1) The payment of wages.

2(2) Failure to secure valid workers’ compensation coverage as
3required by Section 3700.

4(c) A client employer shall not shift to the labor contractor any
5legal duties or liabilities underbegin delete the provisions ofend delete Division 5
6(commencing with Section 6300) with respect to workers supplied
7by the labor contractor.

8(d) At least 30 days prior to filing a civil action against a client
9employer for violations covered by this section, a worker or his
10or her representative shall notify the client employer of violations
11under subdivision (b).

12(e) Neither the client employer nor the labor contractor may
13take any adverse action against any worker for providing
14notification of violations or filing a claim or civil action.

15(f) The provisions of subdivisions (b) and (c) are in addition to,
16and shall be supplemental of, any other theories of liability or
17requirement established by statute or common law.

18(g) This section does not prohibit a client employer from
19establishing, exercising, or enforcing by contract any otherwise
20lawful remedies against a labor contractor for liability created by
21acts of a labor contractor.

22(h) This section does not prohibit a labor contractor from
23establishing, exercising, or enforcing by contract any otherwise
24lawful remedies against a client employer for liability created by
25acts of a client employer.

26(i) Upon request by a state enforcement agency or department,
27a client employer or a labor contractor shall provide to the agency
28or department any information within its possession, custody, or
29control required to verify compliance with applicable state laws.
30Upon request, these records shall be made available promptly for
31inspection, and the state agency or department shall be permitted
32to copy them. This subdivision does not require the disclosure of
33information that is not otherwise required to be disclosed by
34employers upon request by a state enforcement agency or
35department.

36(j) The Labor Commissioner may adopt regulations and rules
37of practice and procedure necessary to administer and enforce the
38provisions of subdivisions (b) and (i) that are under his or her
39jurisdiction.

P9    1(k) The Division of Occupational Safety and Health may adopt
2regulations and rules of practice and procedure necessary to
3 administer and enforce the provisions of subdivisions (c) and (i)
4that are under its jurisdiction.

5(l) The Employment Development Department may adopt
6regulations and rules of practice and procedure necessary to
7administer and enforce the provisions of subdivisions (b) and (i)
8that are under its jurisdiction.

9(m) A waiver of this section is contrary to public policy, and is
10void and unenforceable.

11(n) This section shall not be interpreted to impose individual
12liability on a homeowner for labor or services received at the home
13or the owner of a home-based business for labor or services
14received at the home.

15(o) This section shall not be interpreted to impose liability on
16a client employer for the use of an independent contractor other
17than a labor contractor or to change the definition of independent
18contractor.

19(p) This section shall not be interpreted to impose liability on
20the following:

21(1) A client employer that is not a motor carrier of property
22based solely on the employer’s use of a third-party motor carrier
23of property with interstate or intrastate operating authority to ship
24or receive freight.

25(2) A client employer that is a motor carrier of property
26subcontracting with, or otherwise engaging, another motor carrier
27of property to provide transportation services using its own
28employees and commercial motor vehicles, as defined in Section
2934601 of the Vehicle Code.

begin insert

30(3) A client employer that is not a household goods carrier
31based solely on the employer’s use of a third-party household
32goods carrier permitted by the Public Utilities Commission
33pursuant to Chapter 7 (commencing with Section 5101) of Division
342 of the Public Utilities Code to move household goods.

end insert
begin delete

35(3)

end delete
begin insert

36(4) A client employer that is a household goods carrier permitted
37by the Public Utilities Commission pursuant to Chapter 7
38(commencing with Section 5101) of Division 2 of the Public
39Utilities Code subcontracting with, or otherwise engaging, another
40permitted household goods carrier to provide transportation of
P10   1household goods using its own employees and motor vehicles, as
2defined in Section 5108 of the Public Utilities Code.

end insert

3begin insert(5)end insert A client employer that is a cable operator as defined by
4Section 5830 of the Public Utilities Code, a direct-to-home satellite
5service provider, or a telephone corporation as defined by Section
6234 of the Public Utilities Code, based upon its contracting with
7a company to build, install, maintain, or perform repair work
8utilizing the employees and vehicles of the contractor if the name
9of the contractor is visible on employee uniforms and vehicles.

begin delete

10(4)

end delete

11begin insert(6)end insert A motor club holding a certificate of authority issued
12pursuant to Chapter 2 (commencing with Section 12160) of Part
135 of Division 2 of the Insurance Code when it contracts with third
14parties to provide motor club services utilizing the employees and
15vehicles of the third-party contractor if the name of the contractor
16is visible on the contractor’s vehicles.

17

begin deleteSEC. 3.end delete
18begin insertSEC. 4.end insert  

Section 6310 of the Labor Code is amended to read:

19

6310.  

(a) No person shall discharge or in any manner
20discriminate against any employee because the employee has done
21any of the following:

22(1) Made any oral or written complaint to the division, other
23governmental agencies having statutory responsibility for or
24assisting the division with reference to employee safety or health,
25his or her employer, or his or her representative.

26(2) Instituted or caused to be instituted any proceeding under
27or relating to his or her rights or has testified or is about to testify
28in the proceeding or because of the exercise by the employee on
29behalf of himself, herself, or others of any rights afforded him or
30her.

31(3) Participated in an occupational health and safety committee
32established pursuant to Section 6401.7.

33(b) Any employee who is discharged, threatened with discharge,
34demoted, suspended, or in any other manner discriminated against
35in the terms and conditions of employment by his or her employer
36because the employee has made a bona fide oral or written
37complaint to the division, other governmental agencies having
38statutory responsibility for or assisting the division with reference
39to employee safety or health, his or her employer, or his or her
40representative, of unsafe working conditions, or work practices,
P11   1in his or her employment or place of employment, or has
2participated in an employer-employee occupational health and
3safety committee, shall be entitled to reinstatement and
4reimbursement for lost wages and work benefits caused by the acts
5of the employer. Any employer who willfully refuses to rehire,
6promote, or otherwise restore an employee or former employee
7who has been determined to be eligible for rehiring or promotion
8by a grievance procedure, arbitration, or hearing authorized by
9law, is guilty of a misdemeanor.

10(c) An employer, or a person acting on behalf of the employer,
11shall not retaliate against an employee because the employee is a
12family member of a person who has, or is perceived to have,
13engaged in any acts protected by this section.

14(d) For purposes of this section, “employer” or “a person acting
15on behalf of the employer” includes, but is not limited to, a client
16employer as defined in paragraph (1) of subdivision (a) of Section
172810.3 and an employer listed in subdivision (b) of Section 6400.



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