BILL ANALYSIS Ó
AB 1509
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Date of Hearing: April 22, 2015
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hernández, Chair
AB 1509
(Roger Hernández) - 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.
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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:
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(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 Hernández) 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
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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
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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.
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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.
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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"
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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
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American Federation of State, County and Municipal Employees
Opposition
None on file.
Analysis Prepared by:Ben Ebbink / L. & E. / (916) 319-2091