BILL ANALYSIS                                                                                                                                                                                                    Ó

                             Senator Tony Mendoza, Chair
                                2015 - 2016  Regular 

          Bill No:               AB 1509      Hearing Date:    June 10,  
          |Author:    |Roger Hernández                                      |
          |Version:   |April 27, 2015                                       |
          |Urgency:   |No                     |Fiscal:    |Yes              |
          |Consultant:|Alma Perez-Schwab                                    |
          |           |                                                     |
            Subject:  Employees:  protected disclosures and complaints:   

          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? 

           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  

          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. 

          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  

          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  

            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.

          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 

          None received 

                                      -- END --