BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1509|
|Office of Senate Floor Analyses | |
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THIRD READING
Bill No: AB 1509
Author: Roger Hernández (D)
Amended: 8/31/15 in Senate
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: Employer liability
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. This bill also exempts household goods
carriers from the client employer and labor contractor liability
provisions in law.
Senate Floor Amendments of 8/31/15 add an exemption for
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Page 2
household goods carriers from the client employer and labor
contractor liability provisions enacted last year.
ANALYSIS:
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.
7)Requires a client employer to share with a labor contractor
all civil legal responsibility and civil liability for all
workers supplied by that labor contractor for both a) the
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Page 3
payment of wages, and b) failure to secure valid workers'
compensation coverage.
8)Prohibits a client employer from shifting to the labor
contractor any legal duties or liabilities, as defined.
However, existing law, specifies that these provisions shall
not be interpreted to impose liability on (among others) a
client employer that is a motor carrier of property
subcontracting with, or otherwise engaging, another motor
carrier to provide transportation services using its own
employees and commercial motor vehicles.
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
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.
4)Exempts from liability a client employer that is not a
household goods carrier based solely on the employer's use of
a third-party household goods carrier permitted by the Public
Utilities Commission, pursuant to specified code sections, to
move household goods.
5)Exempts from liability a client employer that is a household
goods carrier permitted by the Public Utilities Commission,
pursuant to specified code sections, subcontracting with, or
otherwise engaging, another permitted household goods carrier
to provide transportation of household goods using its own
employees and motor vehicles, as defined.
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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
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
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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."
Recent amendments address an issue having to do with the client
employer and labor contractor relationship as established by AB
1897. AB 1897 defined a "client employer" to mean a business
entity that obtains or is provided workers to perform labor
within its usual course of business from a labor contractor.
Under these provisions, a client employer is required to share
with a labor contractor all civil legal responsibility and civil
liability for all workers supplied by that labor contractor for
both 1) the payment of wages, and 2) failure to secure valid
workers' compensation coverage. However, existing law exempts
certain employers from these provisions including a motor
carrier of property subcontracting with, or otherwise engaging,
another motor carrier to provide transportation services using
its own employees and commercial motor vehicles.
The recent amendments to this bill further exempt from liability
household goods carriers. According to the author, these
amendments attempt to clarify the provisions enacted last year
which had a limited exemption for certain subcontracting work
performed by "motor carriers." The author intended to exempt
household goods movers (moving companies) and had assumed the
provisions enacted last year covered them; however, they are
regulated by the Public Utilities Commission under a different
code section so the motor carrier provision did not technically
cover them. The author wishes to further clarify in Labor Code
that these companies are included under the exemption by
replicating the motor carrier exemption but makes the
appropriate reference to "household goods carriers."
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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
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 this
bill.
SUPPORT: (Verified8/31/15)
California Labor Federation, AFL-CIO (source)
American Federation of State, County and Municipal Employees
California Employment Lawyers Association
California Moving and Storage Association
California Professional Firefighters
California Rural Legal Assistance Foundation
Consumer Attorneys of California
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OPPOSITION: (Verified8/31/15)
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.
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.
Additionally, recent amendments to the bill address a technical
correction in provisions enacted last year which the California
Moving and Storage Association support. Specifically, they state
that the limited exemption for certain subcontracting work in
the transportation industry was supposed to include the moving
and storage industry; unfortunately, due to an unintended
omission, the specific provisions in the Public Utilities Code
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governing the regulation of the moving and storage industry by
the Public Utilities Commission were not included in the
language. This technical amendment correctly references this
industry and they support this bill.
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
9/1/15 21:20:05
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