BILL ANALYSIS Ó
SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS
Senator Tony Mendoza, Chair
2015 - 2016 Regular
Bill No: AB 1509 Hearing Date: June 10,
2015
-----------------------------------------------------------------
|Author: |Roger Hernández |
|-----------+-----------------------------------------------------|
|Version: |April 27, 2015 |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Urgency: |No |Fiscal: |Yes |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Consultant:|Alma Perez-Schwab |
| | |
-----------------------------------------------------------------
Subject: Employees: protected disclosures and complaints:
retaliation
KEY ISSUES
Should the Legislature extend employment retaliation protections
available in current law to an employee who is a family member
of a person who engaged in, or is perceived to have engaged in,
legally protected conduct?
Should the Legislature specify that existing employment
retaliation prohibitions apply not only to direct employers but
also to "client employers" or "controlling employers" as defined
in law?
ANALYSIS
Existing state and federal law contains provisions that define
unlawful discrimination and lawful employment practices by
employers and employment agencies to protect both current and
prospective employees against employment discrimination.
Existing law, among other things, provides the following:
(Labor Code Sections §98.6, 1102.5, 6310)
AB 1509 (Roger Hernández) Page 2
of ?
Prohibits an employer from discharging, or in any manner
discriminate, retaliate, or take any adverse action
against, any employee or applicant for employment because
he/she has engaged in prescribed protected conduct relating
to the enforcement of the employee's or applicant's rights.
Such protected conduct includes, among others, making an
oral or written complaint that he/she is owed unpaid wages
or claims regarding the employee's safety or health.
Any employee that is discharged, threatened with
discharge, demoted, suspended, retaliated against,
subjected to an adverse action, or in any other manner
discriminated against because he/she engaged in any
protected conduct - such as making a bona fide complaint or
claim to the Division of Labor Standards Enforcement - is
entitled to reinstatement and reimbursement for lost wages
and benefits.
Any employer, who willfully refuses to hire, promote, or
otherwise restore a current or former employee found to be
eligible for rehiring or promotion by a grievance
procedure, arbitration, or hearing authorized by law, is
guilty of a misdemeanor.
In addition to other remedies available, an employer who
violates these provisions is liable for a civil penalty not
exceeding ten thousand dollars ($10,000) per employee for
each violation, to be awarded to the employee(s) who
suffered the violation.
This Bill would revise various provisions of law related to
employment retaliation to extend these protections to an
employee who is a family member of a person who engaged in, or
is perceived to have engaged in, the protected conduct, as
specified.
Specifically, this bill would:
1. Prohibit an employer, or a person acting on behalf of
the employer, from retaliating against an employee because
he/she is a family member of a person who has, or is
AB 1509 (Roger Hernández) Page 3
of ?
perceived to have, engaged in any protected activity under
existing law.
2. Provide that "employer" or "person acting on behalf of
the employer" for purposes of these employment retaliation
provisions includes a "client employer" or a "controlling
employer," as currently defined in law.
3. Specify that these provisions do not apply to claims
that are a result of demotion, suspension, or discharge
from employment for lawful conduct occurring during
nonworking hours away from the employer's premises, unless
the lawful conduct involves the exercise of employee rights
otherwise covered in law.
COMMENTS
1. Need for this bill?
According to proponents and the author, employer retaliation
still runs rampant even tough current provisions of law
contain anti-retaliation protections for employees. In 2013,
the Labor Commissioner received 3,514 complaints of employer
retaliation, a number that represents only a fraction of the
true picture because it only represents those workers who were
courageous enough to come forward and file a claim. Immigrant
workers are particularly vulnerable to employer retaliation
and abuse. A 2013 report 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."
(Workers' Rights on ICE: How Immigration Reform Can Stop
Retaliation and Advance Labor Rights)
Recent cases and examples highlight several major gaps in
existing California statutes that prohibit retaliation against
employees for engaging in protected activity. For example,
current law does not address retaliation protections in cases
AB 1509 (Roger Hernández) Page 4
of ?
where multiple family members work for the same employer.
According to the author, 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.
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 occupational safety and health 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 (AB 1897 from 2014).
This bill is needed to strengthen current employment
retaliation provisions to address both of these gaps in
existing law. This bill would, 1) 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; and 2) provide that prohibitions against retaliation
apply to a "client employer" or a "controlling employer."
2. Proponent Arguments :
According to proponents, although California law contains a
strong public policy to protect employees from retaliation for
exercising their rights recent cases and examples highlight
several major gaps in existing law that prohibit retaliation
against employees for engaging in protected activity.
According to proponents, today's temporary and contract
AB 1509 (Roger Hernández) Page 5
of ?
workforce is concentrated in blue-collar jobs and manual
labor. Third party labor suppliers are being used to provide
low cost "perma-temps" to do strenuous and often dangerous
work for years on end. They argue that 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. Proponents argue that such retaliation
must clearly be prohibited to ensure that workers can speak
out about unlawful practices without fear of reprisals against
family members.
The author and proponents believe 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.
3. Opponent Arguments :
None received.
4. Double Referral :
This bill has been double referred to this Committee and the
Senate Judiciary Committee. Should the bill be approved
today, it will be sent to Senate Judiciary for a hearing.
5. Prior Legislation :
AB 1509 (Roger Hernández) Page 6
of ?
AB 1897 (Hernandez) of 2014: Chaptered
AB 1897 establishes specified liability for client employers
that obtain workers from third-party labor contractors.
AB 263 (Hernandez) of 2013: Chaptered
AB 263 prohibits an employer or any other person or entity to
engage in, or to direct another person or entity to engage in,
unfair immigration-related practices against any person for
the purpose of, or with the intent of, retaliating against
him/her for exercising any right protected under the Labor
Code.
AB 666 (Steinberg) of 2013: Chaptered
AB 666 prohibits retaliation against employees and others on
the basis of citizenship and immigration status. It also
strengthened Labor Code anti-retaliation laws by protecting an
employee who provides information to, or testifies before, any
public body conducting an investigation, hearing, or inquiry
into improper employer conduct, as specified.
SUPPORT
California Labor Federation, AFL-CIO (Sponsor)
American Federation of State, County and Municipal Employees
California Employment Lawyers Association
California Professional Firefighters
California Rural Legal Assistance Foundation
Consumer Attorneys of California
OPPOSITION
None received
-- END --