BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                       AB 1509|
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                                   THIRD READING 


          Bill No:  AB 1509
          Author:   Roger Hernández (D)
          Amended:  4/27/15 in Assembly
          Vote:     21  

           SENATE LABOR & IND. REL. COMMITTEE:  3-1, 6/10/15
           AYES:  Mendoza, Leno, Mitchell
           NOES:  Stone
           NO VOTE RECORDED:  Jackson

           SENATE JUDICIARY COMMITTEE:  5-2, 6/23/15
           AYES:  Jackson, Hertzberg, Leno, Monning, Wieckowski
           NOES:  Moorlach, Anderson

           SENATE APPROPRIATIONS COMMITTEE:  5-2, 7/13/15
           AYES:  Lara, Beall, Hill, Leyva, Mendoza
           NOES:  Bates, Nielsen

           ASSEMBLY FLOOR:  54-26, 5/14/15 - See last page for vote

           SUBJECT:   Employees: protected disclosures and complaints:  
                     retaliation


          SOURCE:    California Labor Federation, AFL-CIO

          DIGEST:   This bill extends current employment retaliation  
          protections to an employee who is a family member of a person  
          who engaged in, or is perceived to have engaged in, legally  
          protected conduct.

          ANALYSIS: 
          








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          Existing law: 

          1)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.

          2)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.  

          3)States that 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. 

          4)Provides that 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. 

          5)Provides that 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.

          6)Provides that in addition to other remedies available, an  
            employer who violates these provisions is liable for a civil  
            penalty not exceeding $10,000 per employee for each violation,  
            to be awarded to the employee(s) who suffered the violation. 

          This bill:

          1)Prohibits 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 perceived to  
            have, engaged in any protected activity under existing law. 

          2)Provides that "employer" or "person acting on behalf of the  







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            employer" for purposes of these employment retaliation  
            provisions includes a "client employer" or a "controlling  
            employer," as currently defined in law.

          3)Specifies 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.

          Background
          
          In 2013, the Labor Commissioner received 3,514 complaints of  
          employer retaliation, a number that is likely understated  
          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 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,  
          existing law does not address retaliation protections in cases  
          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).  Existing law is unclear about  
          whether such conduct is unlawful.  In at least one recent case  
          (Su v. Siemens) the Court held that existing 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  







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          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,  
          Hernandez, Chapter 728, Statutes of 2014).  

          This bill strengthens current employment retaliation provisions  
          to address both of these gaps in existing law by, 1) providing  
          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) providing that prohibitions against  
          retaliation apply to a "client employer" or a "controlling  
          employer."

          Prior/Related Legislation
          
          AB 1897 (Hernandez, Chapter 728, Statutes of 2014) establishes  
          specified liability for client employers that obtain workers  
          from third-party labor contractors. 

          AB 263 (Hernandez, Chapter 732, Statutes of 2013) prohibits an  
          employer or any other person or entity to engage in, or to  
          direct another 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  
          lawfully protected right.

          AB 666 (Steinberg, Chapter 577, Statutes of 2013) prohibits  
          retaliation against employees and others on the basis of  
          citizenship and immigration status. It also strengthens  
          anti-retaliation laws by protecting an employee who provides  
          information to, or testifies before, any public body conducting  







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          an investigation, hearing, or inquiry into improper employer  
          conduct, as specified.

          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   No


          According to the Senate Appropriations Committee, the Department  
          of Industrial Relations indicates that it would incur  
          administrative costs (special funds) of $120,000 in the first  
          year, and $112,000 ongoing to implement the provisions of the  
          bill.




          SUPPORT:   (Verified7/14/15)


          California Labor Federation, AFL-CIO (source)
          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:  (Verified  7/14/15)

          None received


          ARGUMENTS IN SUPPORT:     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. In the temporary employment setting, for  
          example, 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.  








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          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.  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.


          ASSEMBLY FLOOR:  54-26, 5/14/15
          AYES:  Alejo, Bloom, Bonilla, Bonta, Brown, Burke, Calderon,  
            Campos, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd,  
            Eggman, Frazier, Cristina Garcia, Eduardo Garcia, Gatto,  
            Gipson, Gomez, Gonzalez, Gordon, Gray, Hadley, Roger  
            Hernández, Holden, Irwin, Jones-Sawyer, Lackey, Levine, Lopez,  
            Low, McCarty, Medina, Mullin, Nazarian, O'Donnell, Perea,  
            Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark  
            Stone, Thurmond, Ting, Weber, Williams, Wood, Atkins
          NOES:  Achadjian, Travis Allen, Baker, Bigelow, Brough, Chang,  
            Chávez, Dahle, Beth Gaines, Gallagher, Grove, Harper, Jones,  
            Kim, Linder, Maienschein, Mathis, Mayes, Melendez, Obernolte,  
            Olsen, Patterson, Steinorth, Wagner, Waldron, Wilk

          Prepared by:Alma Perez / L. & I.R. / (916) 651-1556
          7/15/15 17:48:03


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