BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 1509 (Roger Hernández)
Version: April 27, 2015
Hearing Date: June 23, 2015
Fiscal: Yes
Urgency: No
TMW
SUBJECT
Employees: protected disclosures and complaints: retaliation
DESCRIPTION
This bill would prohibit an employer from discharging an
employee or in any manner discriminating, retaliating, or taking
any adverse action against any employee because the employee is
a family member of a person who has, or is perceived to have,
filed a claim with or instituted a proceeding before the Labor
Commissioner, testified or is going to testify in a proceeding
before the Labor Commissioner, disclosed information to a
government or law enforcement agency, as specified, participated
in an occupational health and safety committee, as specified, or
exercised rights afforded to employees by the Labor Code. This
bill would also prohibit an employer from making, adopting, or
enforcing any rule, regulation, or policy preventing an employee
from disclosing information to a government or law enforcement
agency, as specified. This bill would also expand these
prohibitions to include a person acting on behalf of the
employer, including, but not limited to, a client employer, as
specified.
BACKGROUND
California's labor laws are some of the most stringent in the
country and afford employees broad protection against wage and
hours violations and unlawful discrimination. Current law also
prohibits retaliation against employees for exercising their
rights under the Labor Code and the Fair Housing and Employment
Act. Despite these statutory protections, employees,
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particularly low-wage workers, may hesitate to pursue claims
even where their rights have been violated. This bill seeks to
clarify California's prohibition of retaliation against
employees who exercise their labor rights by specifically
extending the statutory protections to an employee's family
members and applying the prohibitions to a person acting on
behalf of the employer, as specified.
This bill is similar to SB 1244 (Alquist, 2008), which would
have prohibited the discharge of an employee or discrimination
against any employee or applicant for employment because the
employee, applicant, coworker, or immediate family member of the
employee who filed a claim with or instituted a proceeding
before the Labor Commissioner, testified or was going to testify
in a proceeding before the Labor Commissioner, or exercised his
or her rights afforded under the Labor Code. SB 1244 was held
under submission in the Senate Appropriations Committee.
This bill was heard by the Senate Labor and Industrial Relations
Committee on June 10, 2015, and was approved by a vote of 3-1.
CHANGES TO EXISTING LAW
Existing law provides that no person may discharge or in any
manner discriminate against any employee or applicant for
employment because the employee or applicant engaged in certain
protected activities, including:
filing a claim with the Labor Commissioner for loss of wages
as the result of demotion, suspension, or discharge from
employment for lawful conduct occurring during nonworking
hours away from the employer's premises (Lab. Code Sec.
96(k));
filing a bona fide complaint or claim or instituting or
causing to be instituted any proceeding under or relating to
his or her rights under the jurisdiction of the Labor
Commissioner (Lab. Code Sec. 98.6);
filing a civil action on behalf of himself, herself, or others
as an alternative to filing a complaint with the Labor and
Workforces Development Agency or any sub-unit of that agency
(Lab. Code Sec. 2699);
testifying or preparing to testify in any of the above
proceedings. (Lab. Code Sec. 98.6); or
exercising - on behalf of himself, herself, or others rights
afforded to him or her. (Lab. Code Sec. 98.6.)
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Existing law , commonly known as the Whistleblower Protection
Statute (WPS), prohibits an employer, or any person acting on
behalf of the employer, from making, adopting, or enforcing any
rule, regulation, or policy preventing an employee from
disclosing information to a government or law enforcement
agency, to a person with authority over the employee, or to
another employee who has authority to investigate, discover, or
correct the violation or noncompliance, or from providing
information to, or testifying before, any public body conducting
an investigation, hearing, or inquiry, if the employee has
reasonable cause to believe that the information discloses a
violation of state or federal statute, or a violation of or
noncompliance with a local, state, or federal rule or
regulation, regardless of whether disclosing the information is
part of the employee's job duties. (Lab. Code Sec. 1102.5(a).)
Existing law prohibits an employer, or any person acting on
behalf of the employer, from preventing an employee from
disclosing information, or retaliating against an employee who
discloses information, to a government or law enforcement agency
where the employee has reasonable cause to believe that the
information discloses a violation of state or federal statute,
or a violation or noncompliance with a state or federal rule or
regulation. (Lab. Code Sec. 1102.5(b).)
Existing law also prohibits retaliation against an employee for
refusing to participate in an activity that would result in a
violation of state or federal statute, or a violation of or
noncompliance with a local, state, or federal rule or
regulation, for exercising his or her rights to disclose
information, testify, or refuse to participate in an unlawful
activity in any former employment, or for making a report to the
employee's government agency. (Lab. Code Sec. 1102.5(c)-(e).)
Existing law prohibits a person from discharging or in any
manner discriminating against any employee because the employee
has: (1) made any oral or written complaint to the Division of
Labor Standards Enforcement (DLSE), other governmental agencies
having statutory responsibility for or assisting the DLSE with
reference to employee safety or health, his or her employer, or
his or her representative; (2) instituted or caused to be
instituted any proceeding under or relating to his or her rights
or has testified or is about to testify in the proceeding or
because of the exercise by the employee on behalf of himself,
herself, or others of any rights afforded to him or her; or (3)
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participated in an occupational health and safety committee, as
specified. (Lab. Code Sec. 6310.)
Existing law defines "client employer" to mean a business
entity, regardless of its form, that obtains or is provided
workers to perform labor within its usual course of business
from a labor contractor. (Lab. Code Sec. 2810.3.)
Existing law lists categories of employers that may be issued a
citation on multiemployer worksites when the DLSE has evidence
that an employee was unlawfully exposed to a hazard as follows:
(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); and (4) the employer who
had the responsibility for actually correcting the hazard (the
correcting employer). (Lab. Code Sec. 6400(b).)
This bill would extend the above discrimination and retaliation
protections to employees of family members who have taken
actions protected under the above provisions.
This bill would include, but not be limited to, in the
definition of "employer" or "a person acting on behalf of the
employer" a client employer that obtains or is provided workers
to perform labor within its usual course of business from a
labor contractor, and incorporate the categories of employers
that may be cited on multiemployer worksites for unlawfully
exposing employees to hazards.
This bill would not apply to claims for loss of wages as the
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 occurring during
nonwork hours away from the employer's premises involves the
exercise of employee rights otherwise protected, as specified.
COMMENT
1. Stated need for the bill
The author writes: "Recent cases and examples highlight several
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major gaps in existing California statutes that prohibit
retaliation against employees for engaging in protected
activity. AB 1509 will close those gaps in order to protect
California workers."
2. Protecting employees from retaliation for employee's family
member's conduct
This bill would provide discrimination and retaliation
protections under the Labor Code for employees when a family
member, employed by the same employer, takes various actions,
such as filing a complaint with the Labor Commissioner, against
the employer. Existing law provides various protections against
discrimination and retaliation when an employee takes an action
to uphold his or her rights under the Labor Code.
The California Labor Federation, AFL-CIO (CLF), sponsor, points
to a recent case in which the court had to determine whether
existing California law protected an employee from association
retaliation. In Su v. Siemens Industry, Inc. (2014) 2014 U.S.
Dist. LEXIS 100240, p. 3, an employee made multiple complaints
about safety concerns to the employer, who subsequently fired
the employee and his son, who worked for the same employer. The
court held that Labor Code Section 6310 only gives a cause of
action to any employee who is discriminated against because the
employee has engaged in protected activity. (Id. at p. 11.)
Accordingly, the son's association retaliation claim failed
because he was not the employee who had engaged in protected
activity. (Id.)
CLF argues that "[f]amily 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." Further, the California Rural Legal
Assistance Foundation (CRLAF), in support, states that "[i]n
CRLAF's more than thirty years' history in representing farm
workers and other low-wage workers in rural California,
retaliation against family members (and other work associates)
is a significant feature of unscrupulous employers' efforts to
chill workers in the exercise of their labor and housing rights.
Indeed, in our experience it is very common for workers NOT to
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pursue claims against their employer because they fear
retaliation against family members also employed by that
employer." Accordingly, this bill seeks to address retaliation
against employees who are discriminated or retaliated against
for the actions taken by their family members in support of
their rights under the Labor Code. Arguably, this protection
may encourage employees to speak up and report safety and hazard
violations, as well as seek redress to protect their employment
rights, without worrying about whether their family members
employed by the same employer will be retaliated against.
3. Prohibiting conduct by persons acting on behalf of the
employer
This bill would provide that the terms "employer" or "a person
acting on behalf of the employer" includes, but is not limited
to, a client employer, which refers to a business entity,
regardless of its form, that obtains or is provided workers to
perform labor within its usual course of business from a labor
contractor. This bill would also expand the definition of
"employer" to include the categories of employers that may be
issued a citation on multiemployer worksites when the DLSE has
evidence that an employee was unlawfully exposed to a hazard as
follows: (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); and (4) the
employer who had the responsibility for actually correcting the
hazard (the correcting employer).
CLF states that:
In recent years, we have seen a dramatic rise in
subcontracting through our economy. Rather than hire
directly, companies rely on third party labor suppliers to
provide temporary and contract workers to do the ongoing work
of the business with no strings attached.
Under this employment model, retaliation has become hard 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
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staffing agency or contractor if workers exercise protected
labor rights. These types of retaliation are hard to prove
and hard to remedy.
This is particularly alarming when it comes to retaliation
related to worker health and safety. A recent report by
ProPublica found that in California, temporary workers face a
50 [percent] greater risk of getting injured on the job than
permanent employees. That disparity was even greater for
serious accidents. When two recycling workers lost fingers in
similar machine accidents in 2009, Soex West Textile Recycling
told [the Division of Occupational Safety and Health
(Cal/OSHA)] it could not be held responsible as it had no
employees. The workers injured on their property by their
equipment were employed by another entity, who denied any role
in supervision or control. This example underscores the
challenge for state agencies in preventing workplace accidents
in these subcontracted settings.
CLF also notes that the court in Su v. Siemens Industry, Inc.
(2014) 2014 U.S. Dist. LEXIS 65184 is illustrative of the
problem. In ruling on the defendant's motion for summary
judgment and the plaintiff's summary judgment motion, the court
held that the complaints made by the father and son employees to
the general contractor of a job site could not be considered
"complaints" to their "employer" as required under Labor Code
Section 6310 because, although Code of Regulations provided a
broad scope of the term "employer" to include four categories of
employer who may be cited for occupational safety and health
violations, which includes "controlling employer" (see 8 Cal.
Code Reg. Sec. 336.10(c)), Labor Code Section 6310 applies a
more limited scope of the term "employer." (Id. at pp. 21-23.)
The court further held that although the complaints made by the
employees to the general contractor were conveyed to the
subcontractor employer, "applying an indirect complaint theory
of liability to Section 6310 would undermine its requirement
that an employee make an 'oral or written complaint to . . . his
or her employer.' . . . As the statute is written, an 'indirect'
complaint cannot establish liability under Section 6310." (Id.
at pp. 23-24.)
CLF argues that, although the Su court held that the OSHA
retaliation statute applied only to "direct employers" and
dismissed the claims against the general contractor, California
law recognizes the general contractor as a "controlling
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employer" that may be cited for workplace safety violations.
CLF states that "[d]uring legislative testimony in 2014, a hotel
worker from Southern California testified that she was hired by
a labor contractor to clean hotel rooms. After she complained
to the hotel manager that she was not permitted to take breaks,
the hotel manager called the contractor and instructed them not
to send her back to their hotel, in retaliation for the
complaint she made about unlawful working conditions. After
several workers participated in legislative hearings to
highlight these injustices, the hotel responded by canceling its
contract with the labor contractor, further punishing the
workers. 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 hid
behind another entity as a 'shield' from liability." This bill
seeks to close the gap of liability between a contracting entity
and the employer by applying the existing prohibitions on
discrimination and retaliation to controlling employers and the
categories of employers who are considered subject to safety
violations when employees are exposed to hazards. In this way,
this bill would help employees, who attempt to bring safety
hazards and other unlawful conduct to the attention of
contracting entities, which, arguably, better protects all
employees, as well as the interests of the general contractors
and subcontractors.
Support : American Federation of State, County and Municipal
Employees, AFL-CIO; California Employment Lawyers Association;
California Professional Firefighters; California Rural Legal
Assistance Foundation; California School Employees Association,
AFL-CIO; Consumer Attorneys of California
Opposition : None Known
HISTORY
Source : California Labor Federation, AFL-CIO
Related Pending Legislation : None Known
Prior Legislation :
AB 2751 (Hernández, Chapter 79, Statutes of 2014), among other
things, clarified that civil penalties against an employer who
discriminates, retaliates, or takes adverse action against any
employee or job applicant who has engaged in prescribed
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protected conduct are awarded to the employee or employees who
suffered the violation.
SB 666 (Steinberg, Chapter 577, Statutes of 2013), among other
things, made it unlawful for an employer to retaliate or take
any adverse action against an employee who makes a written oral
complaint that he or she is owed unpaid wages and prohibited any
person acting on behalf of the employer from retaliating against
an employee for disclosing information to a government or law
enforcement agency.
SB 496 (Wright, Chapter 781, Statutes of 2013), among other
things, provided that an employer is prohibited from making,
adopting, or enforcing any rule, regulation, or policy
preventing an employee from disclosing information to a person
with authority over the employee or to another employee who has
authority to investigate, discover, or correct the violation or
noncompliance, regardless of whether disclosing the information
is part of the employee's job duties.
AB 263 (Hernández, Chapter 732, Statutes of 2013), among other
things, prohibited an employer or any other person or entity
from engaging in unfair immigration-related practices, as
defined, for the purpose of retaliation against any person who
exercises any rights under the Labor Code. AB 263 also
clarified that an employer is prohibited from discriminating,
retaliating, or taking adverse action against an employee or job
applicant who has engaged in prescribed protected conduct
relating to the enforcement of the employee's or applicant's
rights, provided up to a $10,000 penalty for violations thereof,
and specified that an employee is not required to exhaust
administrative remedies or procedures to enforce this
prohibition.
SB 1244 (Alquist, 2008) See Background.
Prior Vote :
Senate Labor and Industrial Relations Committee (Ayes 3, Noes 1)
Assembly Floor (Ayes 54, Noes 26)
Assembly Appropriations Committee (Ayes 12, Noes 5)
Assembly Labor and Employment Committee (Ayes 5, Noes 2)
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