BILL ANALYSIS                                                                                                                                                                                                    ”






                                                                    AB 1509


                                                                     Page A


          Date of Hearing:  April 22, 2015


                     ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT


                               Roger HernŠndez, Chair


          AB 1509  
          (Roger HernŠndez) - As Amended March 26, 2015


          SUBJECT:  Employees:  protected disclosures and complaints:   
          retaliation


          SUMMARY:  Revises various provisions of law related to  
          employment retaliation. Specifically, this bill:  


          1)Provides that an employer, or a person acting on behalf of an  
            employer, shall not retaliate against an employee because the  
            employee is a family member of a person who has engaged in  
            protected activity under existing law.


          2)Provides that "employer" for purposes of these employment  
            retaliation provisions includes a "client employer" or a  
            "controlling employer," as specified.


          FISCAL EFFECT:  Unknown


          COMMENTS:  Although certain provisions of law contain their own  
          anti-retaliation provisions, two specific provisions of the  
          California Labor Code provide general protection against  
          retaliation for engaging in certain protected activity.











                                                                    AB 1509


                                                                     Page B




          Existing Labor Code Section 98.6 prohibits an employer from  
          discharging, retaliating, or taking other adverse employment  
          action against an employee because the employee has engaged in  
          protected conduct, as specified, such as filing a complaint or  
          claim with the Labor Commissioner.


          The Labor Code also contains a "whistleblower" statute (Labor  
          Code Section 1102.5) which prohibits an employer from  
          retaliating against an employee for disclosing information to a  
          government or law enforcement agency, or to others, or for  
          participating in an investigation or hearing, if the employee  
          has reasonable cause to believe that the information discloses a  
          violation of or noncompliance with existing law.


          In addition to these general provisions, California law also has  
          specific anti-retaliation provisions related to occupational  
          safety and health.  For example, Labor Code Section 6310  
          prohibits retaliation against an employee because he or she has  
          made a health and safety complaint or instituted or testified in  
          any proceeding.


          In the health and safety context, California law codifies a  
          "controlling employer" concept related to multi-employer  
          worksites.  Specifically, Labor Code Section 6400 provides, in  
          relevant part, as follows:



            "(b) On multiemployer worksites, both construction and  
            nonconstruction, citations may be issued only to the following  
            categories of employers when the division has evidence that an  
            employee was exposed to a hazard in violation of any  
            requirement enforceable by the division:












                                                                    AB 1509


                                                                     Page C



            (1) The employer whose employees were exposed to the hazard  
          (the exposing employer).


            (2) The employer who actually created the hazard (the creating  
          employer).


            (3) The employer who was responsible, by contract or through  
            actual practice, for safety and health conditions on the  
            worksite, which is the employer who had the authority for  
            ensuring that the hazardous condition is corrected (the  
            controlling employer).


            (4) The employer who had the responsibility for actually  
            correcting the hazard (the correcting employer).


            The employers listed in paragraphs (2) to (4), inclusive, of  
            this subdivision may be cited regardless of whether their own  
            employees were exposed to the hazard."

          Therefore, under existing law, an employer may be cited for a  
          workplace safety and health violations if they were the employer  
          who was responsible for safety and health conditions, even if  
          they had no employees who were exposed to the hazard. 


          In addition, AB 1897 (Roger HernŠndez) from 2014 established  
          client employer liability for certain violations for workers  
          provided by a labor contractor.  AB 1897 defined a "client  
          employer" to mean a business entity that obtains or is provided  
          workers to perform labor within its usual course of business  
          from a labor contractor.


          STATED NEED FOR THE BILL











                                                                    AB 1509


                                                                     Page D




          According to the author, California law contains a strong public  
          policy to protect employees from retaliation for exercising  
          their rights.  This is an acknowledgement of the fact that  
          substantive labor and employment laws are meaningless if workers  
          are reluctant to exercise their rights for fear of employer  
          retaliation.


          Despite this strong public policy and several existing statutes  
          that prohibit such retaliation, employer retaliation runs  
          rampant.  In 2013, the Labor Commissioner received 3,514  
          complaints of employer retaliation.  According to the author, in  
          reality, this figure represents only a fraction of the true  
          picture because it only represents those brave workers who were  
          courageous enough to come forward a file a claim with the Labor  
          Commissioner.


          Immigrant workers are particularly vulnerable to employer  
          retaliation and abuse.  A 2013 report<1> by the National  
          Employment Law Project (NELP) stated, "Silencing or intimidating  
          a large percentage of workers in any industry means that workers  
          are hobbled in their efforts to protect and improve their jobs.  
          As long as unscrupulous employers can exploit some low-wage  
          workers with impunity, all low-wage workers suffer compromised  
          employment protections and economic security. Law-abiding  
          employers are forced to compete with illegal practices,  
          perpetuating low-wages in a whole host of industries."


          According to the author, recent cases and examples highlight  
          several major gaps in existing California statutes that prohibit  
          retaliation against employees for engaging in protected  
          ---------------------------


          <1>  
          http://www.nelp.org/page/-/Justice/2013/Workers-Rights-on-ICE-Ret 
          aliation-Report-California.pdf?nocdn=1









                                                                    AB 1509


                                                                     Page E


          activity.  This bill will close those gaps in order to protect  
          California workers.








          "Associational" Retaliation Against Family Members


          According to the author, one such gap exists in the situation  
          where an employer employs several individuals who happen to be  
          family members.  Situations have arisen in which one employee  
          will engage in protected activity, but the employer will  
          retaliate against the employee's family member (such as  
          terminating the family member in retaliation for the others  
          employee's protected activity).


          Current law is unclear about whether such conduct is unlawful.   
          In at least one recent case (Su v. Siemens) the Court held that  
          current law did not extend protection in such a situation.  In  
          that case, a construction foreman made several safety-related  
          complaints, and the employer terminated the employer's son, who  
          also happened to be employed by the same employer.  However, the  
          Court concluded that California law does not give a cause of  
          action on the theory that the employer fired one employee to  
          retaliate against a family member fellow employee's protected  
          activity.


          Therefore, this bill will provide that an employer shall not  
          retaliate against an employee because the employee is a family  
          member of a person who has engaged in protected activity.













                                                                    AB 1509


                                                                     Page F


          Retaliation by "Controlling Employers" or "Client Employers"


          According to the author, another gap in existing law exists with  
          respect to the category of employer that may be cited for  
          unlawful retaliation.


          In the same case cited above (Su v. Siemens), an employee  
          foreman made safety-related claims both to a subcontractor (his  
          direct employer) and the general contractor that had overall  
          responsibility for the worksite.  When the employee was  
          terminated, he alleged retaliation against both the  
          subcontractor and the general contractor.


          However, the Court held that the OSHA retaliation statute  
          applied only to "direct employers" of the complaining employee,  
          and dismissed the claims against the general contractor.  This  
          is despite the fact that existing California law already  
          recognizes the general contractor as a "controlling employer"  
          that may be cited for workplace safety violations.


          Another example of this gap in existing retaliation law arose in  
          the context of legislation enacted last year (AB 1897) related  
          to "client employer" liability for workers provided by a labor  
          contractor.


          During legislative testimony on that bill, a hotel worker from  
          Southern California testified that she had been hired by a labor  
          contractor to perform work cleaning rooms at a hotel.  When she  
          complained to the manager of the hotel that she was not  
          receiving breaks as required under existing law, she alleged  
          that the hotel manager called the labor contractor and  
          instructed them not to send the employee to work at their hotel  
          any longer, in retaliation for the complaint she had made about  
          unlawful working conditions.











                                                                    AB 1509


                                                                     Page G




          According to the author, both of these examples highlight a gap  
          in existing law in which the employer who has primary control  
          over the worksite can engage in retaliatory conduct against an  
          employee, but hide behind another entity to "shield" them self  
          from liability.  Current law provides little or no protection to  
          such an employee who suffers the same retaliation that  
          California's laws are designed to prevent.





          Therefore, this bill will provide that existing prohibitions  
          against retaliation apply to a "client employer" or a  
          "controlling employer."


          ARGUMENTS IN SUPPORT





          Supporters state that this bill will fill in the gaps in the law  
          of retaliation by clarifying that existing prohibitions against  
          retaliation apply to a "client employer" or a "controlling  
          employer." In addition, it will clarify that an employer cannot  
          retaliate against a worker because that worker is related to  
          another worker who engaged in protected activity.





          They note that today's temporary and contract workforce is  
          concentrated in blue-collar jobs and manual labor.  Third party  
          labor suppliers are being used to provide low cost "perma-temps"  











                                                                    AB 1509


                                                                     Page H


          to do strenuous and often dangerous work for years on end.   In  
          light of these trends, retaliation has become harder to address.  
           Temporary workers by definition have no guarantee of work so a  
          worker can easily be punished for speaking out.  Employers use  
          the threat of terminating the contract with the staffing agency  
          or contractor if workers exercise protected labor rights. These  
          types of retaliation are hard to prove and hard to remedy.  They  
          argue that this highlights a gap in existing law in which the  
          employer who has primary control over the worksite can engage in  
          retaliatory conduct against an employee, but hide behind another  
          entity as a "shield" from liability. 

          In addition, supporters contend that family retaliation is an  
          especially common practice employed against immigrant workers,  
          who frequently find work alongside family members in the fields,  
          warehouses, and hotels of California.  Immigrant workers also  
          make up the majority of workers in the subcontracted economy.   
          Such retaliation must clearly be prohibited to ensure that  
          workers can speak out about unlawful practices without fear of  
          reprisals against family members.


          REGISTERED SUPPORT / OPPOSITION:




          Support


          California Labor Federation, AFL-CIO (sponsor)


          California Employment Lawyers Association


          California Rural Legal Assistance Foundation













                                                                    AB 1509


                                                                     Page I


          American Federation of State, County and Municipal Employees




          Opposition


          None on file.




          Analysis Prepared by:Ben Ebbink / L. & E. / (916) 319-2091