BILL NUMBER: SB 705	AMENDED
	BILL TEXT

	AMENDED IN SENATE  MAY 19, 2009
	AMENDED IN SENATE  MARCH 31, 2009

INTRODUCED BY   Senator Lowenthal

                        FEBRUARY 27, 2009

   An act to add Section 1172 to the Labor Code, relating to
employment.



	LEGISLATIVE COUNSEL'S DIGEST


   SB 705, as amended, Lowenthal. Employee rights: exhaustion of
administrative remedies.
   Under existing law, where a statute provides an employment right
and sets forth administrative procedures that must be followed to
redress a violation of that right, an employee must first exhaust
those administrative procedures before seeking redress from the
courts in a civil action. Additionally, decisional law has required
employees to exhaust an employer's administrative remedies to redress
violations of statutory law even where the statute creating the
right does not require the exhaustion as a prerequisite to the filing
of a civil action.
   This bill would provide that exhaustion of an employer's internal
administrative remedies or judicial review of a decision of an
administrative agency is not a precondition  , and does not need
to be judicially reviewed by a petition for a writ of mandate, 
for  the filing of  a civil action alleging a violation of a
right that the Legislature determines to be based on a fundamental
public policy of the state  , unless the Legislature
expressly requires the exhaustion of the employer's internal
administrative remedies or judicial review of an administrative
decision in the statute that establishes the cause of action. This
bill would further provide that the results of an administrative
adjudication by an employer regarding an allegation of a violation of
an employee right that the Legislature determines to be based on a
fundamental public policy of the state are admissible as evidence in
a civil action involving the same rights and parties  .
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 1172 is added to the Labor Code, to read:
   1172.  (a) Exhaustion of an employer's internal administrative
remedies, such as a grievance procedure, or judicial review of a
decision of an administrative agency, is not a precondition for a
civil action alleging a violation of a right that the Legislature
determines to be based on a fundamental public policy of the state
, unless the Legislature expressly requires the exhaustion of
the employer's internal administrative remedies or judicial review
of an administrative decision in the statute that establishes the
cause of action . 
   (b) The results of an administrative adjudication by an employer
regarding an allegation of a violation of an employee right that the
Legislature determines to be based on a fundamental public policy of
the state are admissible as evidence in a subsequent civil action
involving substantially the same rights and substantially the same
parties, unless otherwise expressly excluded by the Legislature or in
an applicable collective bargaining agreement.  
   (b) A determination resulting from an employer internal process or
an administrative hearing pursuant to subdivision (a) of Section
1094.5 of the Code of Civil Procedure regarding an allegation of a
violation of an employee right that the Legislature determines to be
based on a fundamental public policy of the state need not be
judicially reviewed by way of a petition for writ of mandate as a
condition to the filing of a civil action, unless the Legislature has
expressly so required. However, the final determination resulting
from an employer internal process or an administrative hearing under
this subdivision may be admissible as evidence in a subsequent
lawsuit involving the same, or substantially the same, rights and the
same, or substantially the same parties, at the trial court's
discretion and subject to the rules of evidence, unless specifically
excluded by the Legislature.  
   (c) "A fundamental public policy of the state" as used in this
section means a policy that affects society at large rather than an
individual, is fundamental and substantial, and is tethered to a
constitutional or statutory provision.