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 --