BILL ANALYSIS Ó
AB 2261
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Date of Hearing: April 20, 2016
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hernández, Chair
AB 2261
(Roger Hernández) - As Introduced February 18, 2016
SUBJECT: Division of Labor Standards Enforcement: duties
SUMMARY: Authorizes the Division of Labor Standards Enforcement
(DLSE), in addition to receiving employee complaints for
retaliation, to, 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 (LC).
EXISTING LAW:
1)Prohibits an employer from discharging, discriminating or
retaliating against an employee for engaging in specified
protected activity, or for filing a claim related to his or
her rights that are under the jurisdiction of the LC. (Labor
Code Section 98.6).
2)Authorizes any person who believes that he or she has been
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discharged or otherwise discriminated against in violation of
any law under the jurisdiction of the LC to file a complaint,
as specified, with the DLSE.
3)Provides that in the enforcement of these provisions, there is
no requirement that an individual exhaust administrative
remedies or procedures.
FISCAL EFFECT: Unknown
COMMENTS: Although certain provisions of law contain their own
anti-retaliation provisions, two specific provisions of the
California Labor Code provide general protection against
retaliation for engaging in certain protected activity.
Existing Labor Code Section 98.6 prohibits an employer from
discharging, retaliating, or taking other adverse employment
action against an employee because the employee has engaged in
protected conduct, as specified, such as filing a complaint or
claim with the Labor Commissioner.
The Labor Code also contains a "whistleblower" statute (Labor
Code Section 1102.5) which prohibits an employer from
retaliating against an employee for disclosing information to a
government or law enforcement agency, or to others, or for
participating in an investigation or hearing, if the employee
has reasonable cause to believe that the information discloses a
violation of or noncompliance with existing law.
Claims alleging retaliation may be pursued via a civil action or
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by filing and administrative claim with the Labor Commissioner.
The LC currently lacks the authority to file an independent
citation alleging that an employer has unlawfully retaliated
against an employee or employees.
Retaliation - An Ongoing Concern
California law contains a strong public policy to protect
employees from retaliation for exercising their rights. This is
an acknowledgement of the fact that substantive labor and
employment laws are meaningless if workers are reluctant to
exercise their rights for fear of employer retaliation.
Despite this strong public policy and several existing statutes
that prohibit such retaliation, employer retaliation continues
to be of concern. In 2014, the LC received 3,800 complaints of
employer retaliation. Retaliation claims filed with the LC have
increased by 48 percent from 2011 to 2014, an increase of 16
percent per year.
In reality, this figure likely represents only a fraction of the
true picture because it only represents those brave workers who
were courageous enough to come forward a file a claim with the
Labor Commissioner.
In acknowledgement of the increase in retaliation claims and the
importance of this issue, the Governor's current budget proposal
requests 19.5 additional positions for the Labor Commissioner's
Retaliation Complaints Investigation (RCI) unit.
Immigrant workers are particularly vulnerable to employer
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retaliation and abuse. A 2013 report<1> 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."
Stated Need for the Bill
According to the author, under existing law, in order to pursue
an administrative claim for retaliation, an employee must come
forward and file a claim with the LC. The LC currently does not
have the authority to independently cite an employer for
retaliation, even if the LC, for example, comes across evidence
of retaliation during an investigation by the Bureau of Field
Enforcement (BOFE).
This can be a particular barrier in retaliation cases, since the
employee complaint model forces an employee who has already been
retaliated against to come forward and individually complain,
often risking further retaliation by the employer.
According to the author, this bill will simply provide the LC
with the authority to independently cite an employer for
unlawful retaliation.
---------------------------
<1>
http://www.nelp.org/page/-/Justice/2013/Workers-Rights-on-ICE-Ret
aliation-Report-California.pdf?nocdn=1
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Arguments in Support
This bill is sponsored by the California Labor Federation,
AFL-CIO, who argues that workers who speak out against common
workplace abuses face reduced hours, harassment, and termination
as a means of intimidating other workers from coming forward.
Just as important, many workers never make complaints in the
first place, often because they fear retaliation by their
employer. A NELP study of immigrant hotel workers, Workers'
Rights on ICE, found that only 20% of those who had experienced
work-related pain had filed workers' compensation claims for
fear of getting "in trouble" or being fired.
The sponsor argues that, as long as unscrupulous employers can
retaliate against workers by disciplining, demoting, or firing
them for voicing concerns about wages and workplace safety
issues with impunity, labor laws will go unenforced and all
workers will suffer. Furthermore, good employers are forced to
compete against bad actors that perpetuate low-wages and illegal
practices.
Over the last few years, California has implemented new laws to
increase worker protections against retaliation. None of these
reforms are meaningful if workers cannot enforce them. Most
low-wage workers rely on the LC's office. Currently, the LC
does not have all the tools she needs to ensure that she can
protect workers from retaliation when investigating other wage
and hour violations.
The sponsor states that this bill will strengthen the ability of
the LC to enforce retaliation laws in the most efficient way.
This increases protection for the most vulnerable in
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California's workforce and helps to level the playing field for
employers who follow the rules.
Arguments in Opposition
Opponents, including the California Chamber of Commerce, express
the following concerns with the bill:
"Currently, Labor Code Section 98.7 sets forth a detailed
process regarding how employee complaints for alleged
retaliation are handled by the LC. These procedures have
safeguards for all parties involved to ensure that there is
adequate opportunity to present evidence in a timely and
efficient manner and pursue an appeal or litigation if
necessary. We are concerned with the language proposed in
[this bill] as it appears to eliminate the procedures and time
limitations set forth in Labor Code Section 98.7 and subject
employers to a constant threat of citation, investigation or
litigation for alleged discrimination and retaliation.
We appreciate the author's intent to protect employees from
retaliation in the workplace as well as his willingness to
work with the employer community on this issue. We are
hopeful that, through further discussions, we may develop
amendments that create a balance between employers' concerns
and employee protections."
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REGISTERED SUPPORT / OPPOSITION:
Support
California Immigrant Policy Center
California Labor Federation, AFL-CIO (sponsor)
California Professional Firefighters
California Rural Legal Assistance Foundation
Opposition
Acclamation Insurance Management Services
African American Farmers of California
Allied Managed Care
Associated Builders and Contractors of California
Associated General Contractors
California Association of Winegrape Growers
California Chamber of Commerce
California Chapter American Fence Association
California Citrus Mutual
California Farm Bureau Federation
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California Fence Contractors Association
California Fresh Fruit Association
California Grocers Association
California League of Food Processors
California Newspaper Publishers Association
California Pool and Spa Association
California Restaurant Association
California Retailers Association
California Trucking Association
Coalition of Small and Disabled Veteran Business
CSAC Excess Insurance Authority
Family Business Association
Flasher Barricade Association
League of California Cities
Nisei Farmers League
Western Carwash Association
Western Plant Health Association
Wine Institute
Analysis Prepared by:Ben Ebbink / L. & E. / (916) 319-2091