BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 2261 (Roger Hernández)
Version: June 14, 2016
Hearing Date: June 28, 2016
Fiscal: Yes
Urgency: No
ME
SUBJECT
Division of Labor Standards Enforcement: duties
DESCRIPTION
This bill would authorize the Division of Labor Standards
Enforcement (DLSE) to, with or without receiving a complaint
from an employee, 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. Moreover, 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.
BACKGROUND
California has a strong public policy to protect workers against
discrimination, discharge, retaliation or any other adverse
action by their employer if the employee is attempting to
exercise their employment rights. For example, an employer
cannot retaliate or take any adverse action against an employee
if that employee made a complaint that he or she was owed unpaid
wages. A person who believes that he or she has been terminated
or otherwise discriminated against in violation of any law under
the jurisdiction of the Labor Commissioner can file a complaint
with the Division of Labor Standards and Enforcement and have
that complaint investigated.
One population that is hesitant to file complaints against
employers is undocumented Californians. In California, there
are approximately 2.6 million undocumented individuals. (Cho
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and Smith, Workers' Rights on ICE: How Immigration Reform Can
Stop Retaliation and Advance Labor Rights, National Employment
Law Project (Feb. 2013)
[as of June 18, 2016],
p. 2.) "Most undocumented immigrants work in traditionally
low-wage occupations such as agriculture, construction,
manufacturing, and service industries, where workers face the
greatest risk for exploitation. Undocumented workers are far
more likely to experience violations of wage and hour laws."
(Id.) Many undocumented workers do not file claims against
their employers out of fear of "'getting in trouble' or being
fired." (Id.) Undocumented workers also do not bring claims
against employers out of fear of having their status being
reported to immigration or law enforcement. (Id. at pp. 2-3.)
Accordingly, this bill would authorize the Division of Labor
Standards Enforcement to, with or without receiving a complaint
from an employee, 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.
CHANGES TO EXISTING LAW
Existing law provides that a person shall not discharge an
employee, or in any manner discriminate, retaliate, or take any
adverse action against any employee or applicant for employment
because:
the employee or applicant engaged in protected conduct, as
specified;
the employee or applicant for employment filed a bona fide
complaint or claim or instituted or caused to be instituted
any proceeding under or relating to his or her rights that are
under the jurisdiction of the Labor Commissioner;
made a written or oral complaint that he or she is owed unpaid
wages;
the employee has initiated any action or notice pursuant to
the Labor Code Section 2699, or has testified or is about to
testify in a proceeding pursuant to that section;
the employee or applicant for employment exercised on behalf
of himself, herself, or others any rights afforded him or her.
(Lab. Code Sec. 98.6(a).)
Existing law authorizes, in addition to any other remedies
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available, a civil penalty, not to exceed $10,000 per employee
for each violation, to be imposed against the employer. (Lab.
Code Sec. 98.6(b)(3).)
Existing law prohibits employers from withholding an employee's
wages and prohibits discrimination, retaliation, and adverse
actions by an employer against an employee or job applicant who
exercises his or her rights under the law. (Lab. Code Sec. 200
et seq.)
Exiting law provides that 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, as
specified. The complaint shall be investigated, as specified.
(Lab. Code Sec. 98.7(a)(1).)
This bill would authorize the Division of Labor Standards
Enforcement to, with or without receiving a complaint from an
employee, 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.
COMMENT
1. 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 Labor Commissioner. The Labor
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Commissioner currently lacks the authority to
independently cite an employer for retaliation. 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, risking further retaliation by the
employer.
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 runs rampant. 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 with
the Labor Commissioner.
Immigrant workers are particularly vulnerable to employer
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."
------------------------
<1> (Cho and Smith, Workers' Rights on ICE: How Immigration
Reform Can Stop Retaliation and Advance Labor Rights, National
Employment Law Project (Feb. 2013)
[as of June 18, 2016])
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Currently, in order to pursue an administrative claim for
retaliation, a worker must come forward and file a claim
with the Labor Commissioner. The Labor Commissioner does
not have the authority to independently cite an employer
for retaliation, even if the Labor Commissioner, for
example, comes across evidence of retaliation during an
investigation of the Bureau of Field Enforcement (BOFE).
AB 2261 will simply provide the Labor Commissioner with
the authority to independently cite an employer for
unlawful retaliation.
2. Opposition Concerns
Writing in opposition, the California Chamber of Commerce and a
number of organizations write:
Currently, Labor Code Section 98.7 sets forth a detailed
process regarding how employee complaints for alleged
retaliation are handled by the Labor Commissioner. 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. While recent
amendments to AB 2261, 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. We are concerned with the potential
harassment, disruption, and strain this will impose on
employers to be constantly subjected to random
investigations for alleged retaliation.
Moreover, 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.
3. Holding all employers accountable to comply with state laws
regardless of who they employ
It is in the interest of all California businesses for
California's labor laws to be enforced. Millions of
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Californians are living without lawful status because Congress
has failed to pass comprehensive immigration reform. Fear of
deportation stops some undocumented Californians from filing
complaints with the Department of Labor Standards Enforcement
(DLSE) against employers that violate their labor rights.
Writing in support, the California Labor Federation, sponsor of
this bill writes:
When workers complain about working conditions or try to
organize a union, employers often respond by retaliating
against them. Workers who speak out against these 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.
. . .
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 Labor Commissioner's office.
Currently the Labor Commissioner does not have all the
tools she needs to ensure that she can protect workers
from retaliation when investigating other wage and hour
violations.
AB 2261 will allow the Labor Commissioner to investigate
and directly cite employers for retaliation with or
without a worker complaint. The Labor Commissioner,
CalOSHA and the Division of Workers' Compensation already
have similar authority for various meal and rest period
violation, wage theft violations, overtime violations,
health and safety violations, or workers compensation
violations.
When nefarious employers steal the wages of undocumented workers
or retaliate against workers who speak out against workplace
abuses, the employers' businesses are subsidized by reduced cost
labor. Employers that operate in compliance with state labor
laws and do not engage in wage theft or retaliation are
disadvantaged when they have to compete with businesses that
take advantage of fearful workers. Accordingly, in an effort to
hold employers accountable when employees are unwilling to file
complaints with the DLSE, this bill would authorize the DLSE to,
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with or without receiving a complaint from an employee, 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.
Support : California Immigrant Policy Center; California
Professional Firefighters; California Rural Legal Assistance
Foundation; California Teamsters Public Affairs Council
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 (NECA); 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 (CLC); 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
HISTORY
Source : California Labor Federation, AFL-CIO (sponsor)
Related Pending Legislation : None Known
Prior Legislation :
AB 2751 (Hernández, Chapter 79, Statutes of 2014), among other
things, clarified that civil penalties against an employer who
discriminates, retaliates, or takes adverse action against any
employee or job applicant who has engaged in prescribed
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protected conduct are awarded to the employee or employees who
suffered the violation.
SB 666 (Steinberg, Chapter 577, Statutes of 2013), among other
things, made it unlawful for an employer to retaliate or take
any adverse action against an employee who makes a written oral
complaint that he or she is owed unpaid wages and prohibited any
person acting on behalf of the employer from retaliating against
an employee for disclosing information to a government or law
enforcement agency.
AB 263 (Hernández, Chapter 732, Statutes of 2013), among other
things, prohibited an employer or any other person or entity
from engaging in unfair immigration-related practices, as
defined, for the purpose of retaliation against any person who
exercises any rights under the Labor Code. AB 263 also
clarified that an employer is prohibited from discriminating,
retaliating, or taking adverse action against an employee or job
applicant who has engaged in prescribed protected conduct
relating to the enforcement of the employee's or applicant's
rights, provided up to a $10,000 penalty for violations thereof,
and specified that an employee is not required to exhaust
administrative remedies or procedures to enforce this
prohibition.
Prior Vote :
Assembly Floor (Ayes 49, Noes 31)
Assembly Appropriations Committee (Ayes 14, Noes 6)
Assembly Labor and Employment Committee (Ayes 5, Noes 2)
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