BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 2261|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
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THIRD READING
Bill No: AB 2261
Author: Roger Hernández (D)
Amended: 6/14/16 in Senate
Vote: 21
SENATE LABOR & IND. REL. COMMITTEE: 4-1, 6/22/16
AYES: Mendoza, Jackson, Leno, Mitchell
NOES: Stone
SENATE JUDICIARY COMMITTEE: 5-2, 6/28/16
AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski
NOES: Moorlach, Anderson
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
ASSEMBLY FLOOR: 49-31, 6/1/16 - See last page for vote
SUBJECT: Division of Labor Standards Enforcement: duties
SOURCE: California Labor Federation
DIGEST: This bill authorizes the Division of Labor Standards
Enforcement to commence an investigation, with or without
receiving a complaint from an employee, 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.
ANALYSIS:
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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)
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
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 LC 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:
1)Authorizes the DLSE 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 LC.
2)Requires the assigned investigator to prepare and submit an
investigation report to the LC based on its findings.
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3)Requires 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 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 LC. 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 LC. 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 LC 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 DLSE 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.
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FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
SUPPORT: (Verified8/2/16)
California Labor Federation (source)
California Faculty Association
California Immigrant Policy Center
California Professional Firefighters
California Rural Legal Assistance Foundation
OPPOSITION: (Verified8/2/16)
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 Joint Powers Authority
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
Family Business Association
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Flasher Barricade Association
League of California Cities
Nisei Farmers League
United Contractors
Western Carwash Association
Western Plant Health Association
Wine Institute
ARGUMENTS IN SUPPORT: 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. 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 LC received 3,800
complaints of employer retaliation. 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 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, they argue that good employers are forced to
compete against bad actors that perpetuate low-wages and illegal
practices.
ARGUMENTS IN OPPOSITION: Opponents argue that this bill
expands the authority of the 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 LC have safeguards for all
parties involved to ensure that there is adequate opportunity to
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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 LC 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 LC initiated investigations
will impose on employers to be constantly subjected to random
investigations for alleged retaliation. Moreover, they argue
that this bill is unnecessary because 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.
ASSEMBLY FLOOR: 49-31, 6/1/16
AYES: Alejo, Atkins, Bloom, Bonilla, Bonta, Brown, Burke,
Calderon, Campos, Chau, Chiu, Chu, Cooley, Cooper, Dababneh,
Daly, Dodd, Eggman, Frazier, Cristina Garcia, Eduardo Garcia,
Gatto, Gipson, Gomez, Gonzalez, Gordon, Roger Hernández,
Holden, Irwin, Jones-Sawyer, Levine, Lopez, McCarty, Medina,
Mullin, Nazarian, O'Donnell, Quirk, Ridley-Thomas, Rodriguez,
Salas, Santiago, Mark Stone, Thurmond, Ting, Weber, Williams,
Wood, Rendon
NOES: Achadjian, Travis Allen, Arambula, Baker, Bigelow,
Brough, Chang, Chávez, Dahle, Beth Gaines, Gallagher, Gray,
Grove, Hadley, Harper, Jones, Kim, Lackey, Linder, Low,
Maienschein, Mathis, Mayes, Melendez, Obernolte, Olsen,
Patterson, Steinorth, Wagner, Waldron, Wilk
Prepared by:Alma Perez-Schwab / L. & I.R. / (916) 651-1556
8/3/16 19:00:46
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