BILL ANALYSIS                                                                                                                                                                                                    ”

                                                                    AB 2261

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          2261 (Roger HernŠndez)

          As Introduced  February 18, 2016

          Majority vote

          |Committee       |Votes|Ayes                  |Noes                |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |Labor           |5-2  |Roger HernŠndez, Chu, |Patterson, Linder   |
          |                |     |McCarty, O'Donnell,   |                    |
          |                |     |Thurmond              |                    |
          |                |     |                      |                    |
          |Appropriations  |14-6 |Gonzalez, Bloom,      |Bigelow, Patterson, |
          |                |     |Bonilla, Bonta,       |Gallagher, Jones,   |
          |                |     |Calderon, Daly,       |Obernolte, Wagner   |
          |                |     |Eggman, Eduardo       |                    |
          |                |     |Garcia, Roger         |                    |
          |                |     |HernŠndez, Holden,    |                    |
          |                |     |Quirk, Santiago,      |                    |
          |                |     |Weber, Wood           |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |

          SUBJECT:  Division of Labor Standards Enforcement:  duties


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          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  
            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:  According to the Assembly Appropriations  
          Committee, minor/absorbable costs to the Department of  
          Industrial Relations.

          COMMENTS:  Although certain provisions of law contain their own  
          anti-retaliation provisions, two specific provisions of the  
          California Labor Code provide general protection against  


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          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  
          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.

          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.


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          According to the author, this bill will simply provide the LC  
          with the authority to independently cite an employer for  
          unlawful retaliation.

          This bill is sponsored by the California Labor Federation, the  
          American Federation of Labor and Congress of Industrial  
          Organizations (AFL-CIO), who argues that 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 California's workforce and helps to level the  
          playing field for employers who follow the rules.

          Opponents, including the California Chamber of Commerce, state  
          that 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.  They 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.  


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          Analysis Prepared by:                                             
                          Ben Ebbink / L. & E. / (916) 319-2091  FN: