BILL ANALYSIS Ó
SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS
Senator Tony Mendoza, Chair
2015 - 2016 Regular
Bill No: AB 2261 Hearing Date: June 22,
2016
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|Author: |Roger Hernández |
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|Version: |June 14, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Alma Perez-Schwab |
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Subject: Division of Labor Standards Enforcement: duties
KEY ISSUES
Should the Legislature authorize the Division of Labor Standards
Enforcement to commence an investigation, with or without
receiving an employee complaint, of an employer that it suspects
to have discharged or otherwise discriminated against an
individual in violation of labor law?
Should these DLSE initiated investigations follow the same
process and timeline required under employee initiated
complaints?
ANALYSIS
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
Labor Commissioner (LC).
(Labor Code § 98.6)
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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 Labor
Commissioner to file a complaint within six months of the
occurrence, as specified, with the Division of Labor
Standards Enforcement (DLSE). (Labor Code §98.7)
3) Entitles employees discharged as a result of such
protected activity to reinstatement and reimbursement for
lost wages and interest thereon, as well as the payment of
reasonable attorney's fees associated with any hearing held
in investigating the complaint.
4) Establishes timelines for the submittal of such claims
to the division, as well as processes to be followed by the
Labor Commissioner in investigating these claims, including
that of notifying the respondent and employer of the
pending investigation within a specified timeframe.
5) Provides that in the enforcement of these provisions,
there is no requirement that an individual exhaust
administrative remedies or procedures before pursuing any
other rights and remedies under any other law.
This Bill would authorize the Division of Labor Standards
Enforcement to, 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.
This Bill would require the assigned investigator to prepare and
submit an investigation report to the Labor Commissioner based
on its findings.
This Bill would require the DLSE in investigating employers
under this provision, to follow the existing processes and
requirements for employee initiated cases of unlawful discharge
or discrimination.
COMMENTS
1. Need for this bill?
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California law contains several provisions emphasizing a
strong public policy to protect employees against 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. 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. Labor Code §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 §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 an administrative claim with the Labor
Commissioner. However, according to the author, despite these
laws providing protection and encouraging the reporting of
abuse, the reality is that many workers do not report employer
abuse out of fear of losing their jobs. And the Labor
Commissioner currently lacks the authority to take action or
file an independent citation alleging that an employer has
unlawfully retaliated against an employee or employees. The
author believes this bill is necessary to give the Division of
Labor Standards Enforcement the authority to investigate
employers, with or without receiving an employee complaint, it
suspects may have unlawfully discharged or discriminated
against an employee in violation of the law.
2. Similar Rights under Existing Law :
It is important to note that the right to initiate an
investigation into a labor law violation by a state entity is
not a new concept as existing law already affords other
enforcement rights to the Labor Commissioner (LC).
Under Labor Code §90.5, the Labor Commissioner must establish
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the Bureau of Field Enforcement, which is administratively and
physically separate from the offices of the Division of Labor
Standards Enforcement which accepts and investigates
individual employee complaints. BOFE is responsible for, among
others, the investigation and enforcement of statutes covering
workers' compensation insurance coverage, unlicensed
contractors, and wage orders. Under BOFE, the LC has the
authority to investigate employers for these labor law
violations, even without an employee initiated complaint.
Also under the jurisdiction of the Labor Commissioner, Labor
Code §558 provides that if, upon inspection or investigation,
the LC determines that a person has violated overtime
requirements, regulations regarding hours and days of work, or
any applicable local overtime law, the Labor Commissioner may
issue a citation.
3. Proponent Arguments :
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 Labor
Commissioner. 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. This, the
author argues, 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 investigate
an employer for unlawful retaliation.
According to the author, in 2014, the Labor Commissioner
received 3,800 complaints of employer retaliation. Retaliation
claims filed with the Labor Commissioner have increased by 48
percent from 2011 to 2014, an increase of 16 percent per year.
In reality this figure represents only a fraction of the true
picture because it only represents those brave workers who
were courageous enough to come forward and file a claim.
Proponents argue that as long as unscrupulous employer 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
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workers will suffer. Furthermore, they argue that good
employers are forced to compete against bad actors that
perpetuate low-wages and illegal practices.
4. Opponent Arguments :
Opponents argue that this bill expands the authority of the
Division of Labor Standards Enforcement (DLSE) to investigate
and cite an employer for alleged retaliation, even without an
employee complaint. Opponents argue that current procedures
for employee initiated complaints handled by the Labor
Commissioner 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 argue that while recent
amendments to the bill appear to incorporate time restrictions
regarding events that may be considered for purposes of
retaliation, the bill still allows the Labor Commissioner to
unilaterally initiate an investigation of an employer, even
when no employee has submitted a complaint.
Opponents are concerned with the potential harassment,
disruption, and strain that these Labor Commissioner initiated
investigations will impose on employers to be constantly
subjected to random investigations for alleged retaliation.
Moreover, they argue that the Labor Code already provides
numerous anti-retaliation provisions that specifically protect
an employee against any adverse employment action for
exercising their rights under the Labor Code. Opponents argue
that it is unnecessary to expose employers to ongoing threats
of investigation and litigation under this bill, when these
existing protections already exist.
5. Double Referral :
This bill has been double-referred and, if approved by this
committee, it will be sent to the Senate Judiciary Committee
for a hearing.
SUPPORT
California Labor Federation (Sponsor)
California Faculty Association
California Immigrant Policy Center
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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 Chapters of the National Electrical Contractors
Association
California Citrus Mutual
California Farm Bureau Federation
California Fence Contractors Association
California Fresh Fruit Association
California Grocers Association
California League of Food Processors
California Legislative Council of the Plumbing, Heating and
Piping Industry
California New Car Dealers Association
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
United Contractors
Western Carwash Association
Western Plant Health Association
Wine Institute
-- END --
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