Amended in Senate June 14, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 2261

Introduced by Assembly Member Roger Hernández

February 18, 2016

An act to begin delete add Section 98.74 to end delete begin insert amend Section 98.7 of end insert the Labor Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

AB 2261, as amended, Roger Hernández. Division of Labor Standards Enforcement: duties.

Existing law authorizes any person who believes that he or she has been discharged or otherwise discriminated against in violation of any law under the jurisdiction of the Labor Commissioner to file a complaint, as specified, with the Division of Labor Standards Enforcement, which is within the Department of Industrial Relations, and requires the commissioner to establish procedures for the investigation of discrimination complaints.

This bill would authorize the division to, with or without receiving a complaint from an employee, commence an begin delete investigation, issue a citation, or bring an action against end delete begin insert investigation of end insert an employer begin delete who discharges or otherwise discriminates end delete begin insert that it suspects to have discharged or otherwise discriminated end insert against an individual in violation of any law under the jurisdiction of the Labor Commissioner.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 98.7 of the end insert begin insert Labor Code end insert begin insert is amended to
read: end insert

98.7.  

(a)  begin insert (1) end insert begin insert   end insert Any person who believes that he or she has been
discharged or otherwise discriminated against in violation of any
law under the jurisdiction of the Labor Commissioner may file a
complaint with the division within six months after the occurrence
of the violation. The six-month period may be extended for good
cause. The complaint shall be investigated by a discrimination
complaint investigator in accordance with this section. The Labor
Commissioner shall establish procedures for the investigation of
discrimination complaints. A summary of the procedures shall be
provided to each complainant and respondent at the time of initial
contact. The Labor Commissioner shall inform complainants
charging a violation of Section 6310 or 6311, at the time of initial
contact, of his or her right to file a separate, concurrent complaint
with the United States Department of Labor within 30 days after
the occurrence of the violation. begin insert Each complaint of unlawful
discharge or discrimination shall be assigned to a discrimination
complaint investigator who shall prepare and submit an
investigation report to the Labor Commissioner based on an
investigation of the complaint. end insert

begin insert

(2) The division may, with or without receiving a complaint,
commence an investigation of an employer that it suspects to have
discharged or otherwise discriminated against an individual in
violation of any law under the jurisdiction of the Labor
Commissioner in accordance with this section. The assigned
investigator shall prepare and submit an investigation report to
the Labor Commissioner based upon the investigation.

end insert

(b)  begin delete Each complaint of unlawful discharge or discrimination
shall be assigned to a discrimination complaint investigator who
shall prepare and submit a report to the Labor Commissioner based
on an investigation of the complaint. end delete The Labor Commissioner
may designate the chief begin delete deputy or end delete begin insert deputy, the end insert assistant Labor
begin delete Commissioner end delete begin insert Commissioner, end insert or the chief counsel to receive and
review begin delete the end delete begin insert investigation end insert reports. begin delete The investigation end delete begin insert An investigation end insert
shall include, begin delete where end delete begin insert if end insert appropriate, interviews with the complainant,
begin delete respondent, end delete begin insert if there is one, the employer, end insert and any witnesses who
may have information concerning begin delete the alleged end delete begin insert a possible end insert violation,
and a review of any documents that may be relevant to the
begin delete disposition of the complaint. end delete begin insert investigation. end insert The identity of a witness
shall remain confidential unless the identification of the witness
becomes necessary to proceed with the investigation or to prosecute
an action to enforce a determination. The investigation report
submitted to the Labor Commissioner or designee shall include
the statements and documents obtained in the investigation, and
the findings of the investigator concerning whether a violation
occurred. The Labor Commissioner may hold an investigative
hearing begin delete whenever end delete begin insert if end insert the Labor Commissioner determines, after
review of the investigation report, that a hearing is necessary to
fully establish the facts. In the hearing the investigation report
shall be made a part of the begin delete record end delete begin insert record, end insert and the begin delete complainant and
respondent end delete begin insert complainant, if there is one, and the employer end insert shall
have the opportunity to present further evidence. The Labor
Commissioner shall issue, serve, and enforce any necessary
subpoenas.

(c) If the Labor Commissioner determines a violation has
occurred, he or she shall notify the begin delete complainant and respondent end delete
begin insert complainant, if there is one, and the employer end insert and direct the
begin delete respondent end delete begin insert employer end insert to cease and desist from the violation and
take any action deemed necessary to remedy the violation,
including, begin delete where end delete begin insert if end insert appropriate, rehiring or reinstatement,
reimbursement of lost wages and interest thereon, payment of
reasonable attorney’s fees associated with any hearing held by the
Labor Commissioner begin delete in investigating the complaint, end delete begin insert related to the
investigation, end insert and the posting of notices to employees. If the
begin delete respondent end delete begin insert employer end insert does not comply with the order within 10
working days following notification of the Labor Commissioner’s
determination, the Labor Commissioner shall bring an action
promptly in an appropriate court against the begin delete respondent. end delete begin insert employer. end insert
If the Labor Commissioner fails to bring an action in court
promptly, begin delete the end delete begin insert a end insert complainant may bring an action against the Labor
Commissioner in any appropriate court for a writ of mandate to
compel the Labor Commissioner to bring an action in court against
the respondent. If the complainant prevails in his or her action for
a writ, the court shall award the complainant court costs and
reasonable attorney’s fees, notwithstanding any other law.
Regardless of any delay in bringing an action in court, the Labor
Commissioner shall not be divested of jurisdiction. In any action,
the court may permit the claimant to intervene as a party plaintiff
to the action and shall have jurisdiction, for cause shown, to restrain
the violation and to order all appropriate relief. Appropriate relief
includes, but is not limited to, rehiring or reinstatement of the
complainant, reimbursement of lost wages and interest thereon,
and any other compensation or equitable relief as is appropriate
under the circumstances of the case. The Labor Commissioner
shall petition the court for appropriate temporary relief or
restraining order unless he or she determines good cause exists for
not doing so.

(d) (1) If the Labor Commissioner determines no violation has
occurred, he or she shall notify the begin delete complainant and respondent end delete
begin insert complainant, if there is one, and the employer end insert and shall dismiss
the begin delete complaint. end delete begin insert complaint or close the investigation. end insert The Labor
Commissioner may direct begin delete the end delete begin insert a end insert complainant to pay reasonable
attorney’s fees associated with any hearing held by the Labor
Commissioner if the Labor Commissioner finds begin delete the end delete begin insert that a end insert
complaint was frivolous, unreasonable, groundless, and was
brought in bad faith. begin delete The end delete begin insert A end insert complainant may, after notification of
the Labor Commissioner’s determination to dismiss a complaint,
bring an action in an appropriate begin delete court, which end delete begin insert court that end insert shall have
jurisdiction to determine whether a violation begin delete occurred, and end delete
begin insert occurred and, end insert if so, to restrain the violation and order all
appropriate relief to remedy the violation. Appropriate relief
includes, but is not limited to, rehiring or reinstatement of the
complainant, reimbursement of lost wages and interest thereon,
and other compensation or equitable relief as is appropriate under
the circumstances of the case. begin delete When dismissing end delete begin insert If the Labor
Commission dismisses end insert a complaint, the Labor Commissioner shall
advise begin delete the end delete begin insert a end insert complainant of his or her right to bring an action in
an appropriate court if he or she disagrees with the determination
of the Labor Commissioner, and in the case of an alleged violation
of Section 6310 or 6311, to file a complaint against the state
program with the United States Department of Labor.

(2) The filing of a timely complaint against the state program
with the United States Department of Labor shall stay the Labor
Commissioner’s dismissal of the division complaint until the
United States Secretary of Labor makes a determination regarding
the alleged violation. Within 15 days of receipt of that
determination, the Labor Commissioner shall notify the parties
whether he or she will reopen the complaint filed with the division
or whether he or she will reaffirm the dismissal.

(e) The Labor Commissioner shall notify the begin delete complainant and
respondent end delete begin insert complainant, if there is one, and the employer end insert of his
or her determination under subdivision (c) or paragraph (1) of
subdivision (d), not later than 60 days after the filing of the
begin delete complaint. end delete begin insert complaint, or commencing the investigation pursuant
to paragraph (2) of subdivision (a). end insert Determinations by the Labor
Commissioner under subdivision (c) or (d) may be appealed by
begin delete the end delete begin insert a end insert complainant or begin delete respondent end delete begin insert employer end insert to the Director of
Industrial Relations within 10 days following notification of the
Labor Commissioner’s determination. The appeal shall set forth
specifically and in full detail the grounds upon which the appealing
party considers the Labor Commissioner’s determination to be
unjust or unlawful, and every issue to be considered by the director.
The director may consider any issue relating to the initial
determination and may modify, affirm, or reverse the Labor
Commissioner’s determination. The director’s determination shall
be the determination of the Labor Commissioner. The director
shall notify the begin delete complainant end delete begin insert complainant, if there is one, end insert and
begin delete respondent end delete begin insert employer end insert of his or her determination within 10 days
of receipt of the appeal.

(f) The rights and remedies provided by this section do not
preclude an employee from pursuing any other rights and remedies
under any other law.

(g) In the enforcement of this section, there is no requirement
that an individual exhaust administrative remedies or procedures.

begin delete

SECTION 1.  

Section 98.74 is added to the Labor Code, immediately following Section 98.7, to read:

98.74.  

In addition to receiving employee complaints pursuant
to Section 98.7, the division may, with or without receiving a
complaint from an employee, commence an investigation, issue a
citation, or bring an action against an employer who discharges or
otherwise discriminates against an individual in violation of any
law under the jurisdiction of the Labor Commissioner.

end delete