BILL ANALYSIS Ó
AB 2261
Page 1
ASSEMBLY THIRD READING
AB
2261 (Roger Hernández)
As Introduced February 18, 2016
Majority vote
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|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Labor |5-2 |Roger Hernández, 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 | |
| | |Hernández, Holden, | |
| | |Quirk, Santiago, | |
| | |Weber, Wood | |
| | | | |
| | | | |
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SUBJECT: Division of Labor Standards Enforcement: duties
AB 2261
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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
AB 2261
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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.
AB 2261
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Analysis Prepared by:
Ben Ebbink / L. & E. / (916) 319-2091 FN:
0002921