Bill Text: CA AB263 | 2013-2014 | Regular Session | Chaptered
Bill Title: Employment: retaliation: immigration-related practices.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2013-10-11 - Chaptered by Secretary of State - Chapter 732, Statutes of 2013. [AB263 Detail]
Download: California-2013-AB263-Chaptered.html
BILL NUMBER: AB 263 CHAPTERED
BILL TEXT
CHAPTER 732
FILED WITH SECRETARY OF STATE OCTOBER 11, 2013
APPROVED BY GOVERNOR OCTOBER 11, 2013
PASSED THE SENATE SEPTEMBER 9, 2013
PASSED THE ASSEMBLY SEPTEMBER 10, 2013
AMENDED IN SENATE SEPTEMBER 3, 2013
AMENDED IN SENATE AUGUST 12, 2013
AMENDED IN SENATE JULY 8, 2013
AMENDED IN ASSEMBLY MAY 24, 2013
AMENDED IN ASSEMBLY APRIL 11, 2013
INTRODUCED BY Assembly Member Roger Hernández
FEBRUARY 7, 2013
An act to amend Sections 98.6, 98.7, 1102.5, and 1103 of, to add
Section 1024.6 to, and to add Chapter 3.1 (commencing with Section
1019) to Part 3 of Division 2 of, the Labor Code, relating to
employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 263, Roger Hernández. Employment: retaliation:
immigration-related practices.
Existing law prohibits an employer from discharging an employee or
in any manner discriminating against any employee or applicant for
employment because the employee or applicant has engaged in
prescribed protected conduct relating to the enforcement of the
employee's or applicant's rights. Existing law provides that an
employee who made a bona fide complaint, and was consequently
discharged or otherwise suffered an adverse action, is entitled to
reinstatement and reimbursement for lost wages. Existing law makes it
a misdemeanor for an employer to willfully refuse to reinstate or
otherwise restore an employee who is determined by a specified
procedure to be eligible for reinstatement.
This bill would also prohibit an employer from retaliating or
taking adverse action against any employee or applicant for
employment because the employee or applicant has engaged in protected
conduct. The bill would expand the protected conduct to include a
written or oral complaint by an employee that he or she is owed
unpaid wages. The bill would provide that an employee who was
retaliated against or otherwise was subjected to an adverse action is
entitled to reinstatement and reimbursement for lost wages. The bill
would subject a person who violates these provisions to a civil
penalty of up to $10,000 per violation. The bill would also provide
that it is not necessary to exhaust administrative remedies or
procedures in the enforcement of specified provisions. Because the
willful refusal by an employer to reinstate or reimburse an employee
who suffered a retaliatory action under these provisions would be a
misdemeanor, the bill would expand the scope of a crime and impose a
state-mandated local program.
Existing law declares that an individual who has applied for
employment, or who is or has been employed in this state, is entitled
to the protections, rights, and remedies available under state law,
regardless of his or her immigration status. Existing law declares
that an inquiry into a person's immigration status for purposes of
enforcing state labor and employment laws shall not be permitted,
unless a showing is made, by clear and convincing evidence, that the
inquiry is necessary in order to comply with federal immigration law.
This bill would make it unlawful for an employer or any other
person to engage in, or direct another person to engage in, an unfair
immigration-related practice, as defined, against a person for the
purpose of, or with the intent of, retaliating against any person for
exercising a right protected under state labor and employment laws
or under a local ordinance applicable to employees, as specified. The
bill would also create a rebuttable presumption that an adverse
action taken within 90 days of the exercising of a protected right is
committed for the purpose of, or with the intent of, retaliation.
The bill would authorize a civil action by an employee or other
person who is the subject of an unfair immigration-related practice.
The bill would authorize a court to order the appropriate government
agencies to suspend certain business licenses held by the violating
party for prescribed periods based on the number of violations. The
bill would require the court to consider prescribed circumstances in
determining whether a suspension of all licenses is appropriate.
Existing law prohibits an employer from making, adopting, or
enforcing any rule, regulation, or policy preventing an employee from
disclosing information to a government or law enforcement agency,
where the employee has reasonable cause to believe that the
information discloses a violation of state or federal statute, or a
violation or noncompliance with a state or federal rule or
regulation. Existing law further prohibits an employer from
retaliating against an employee for that disclosure. Under existing
law, a violation of these provisions by the employer is a
misdemeanor. Existing law additionally subjects an employer that is a
corporation or a limited liability company to a civil penalty not
exceeding $10,000 for each violation of these provisions.
This bill would additionally prohibit any person acting on behalf
of the employer from making, adopting, or enforcing any rule,
regulation, or policy preventing an employee from disclosing
information to a government or law enforcement agency, as provided,
and from retaliating against an employee for such a disclosure. The
bill would also expand the prohibited actions to include preventing
an employee from, or retaliating against an employee for, providing
information to, or testifying before, any public body conducting an
investigation, hearing, or inquiry. The bill would provide that any
person or entity that violates these provisions is guilty of a
misdemeanor, and would further subject an entity that violates these
provisions that is a corporation or limited liability company to a
civil penalty not exceeding $10,000 for each violation of these
provisions. By expanding the scope of a crime, this bill would impose
a state-mandated local program.
Existing law prohibits an employer or prospective employer, with
the exception of certain financial institutions, from obtaining a
consumer credit report, as defined, for employment purposes unless it
is for a specified position, including, among others, a position in
the state Department of Justice, a managerial position, as defined,
or a position that involves regular access to $10,000 or more of
cash, as specified.
This bill would prohibit an employer from discharging an employee
or in any manner discriminating, retaliating, or taking any adverse
action against an employee because the employee updates or attempts
to update his or her personal information, unless the changes are
directly related to the skill set, qualifications, or knowledge
required for the job.
This bill would incorporate additional changes to Section 1102.5
of the Labor Code proposed by SB 496 that would become operative if
this bill and SB 496 are enacted and this bill is enacted last.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) Wage theft is a serious and widespread problem that causes
severe hardship to low-wage workers, their families, and their
communities.
(b) When a worker is denied wages or forced to work "off the
clock," there is an immediate and irreparable harm to the worker and
his or her family.
(c) Low-wage, often immigrant, workers are the most frequent
victims of wage theft and are also exposed to the greatest hazards at
work.
(d) Immigrant workers have the greatest number of work-related
injuries and fatalities.
(e) Far too often, when workers come forward to expose unfair,
unsafe, or illegal conditions, they face retaliation from the
employer.
(f) Where there are immigrant workers involved, employer
retaliation often involves threats to contact law enforcement
agencies, including immigration enforcement agencies, if a worker
engages in protected conduct.
(g) No employee should have to fear adverse action, whether it
involves threats to cut hours, move a worker to night shift, or
contact law enforcement agencies, simply for engaging in rights the
State of California has deemed so important that they are protected
by law.
(h) It is in the public policy interest of the State of California
that workers be able to report concerns to their employers without
fear of retaliation or discrimination.
(i) It is in the public policy interest of the State of California
for workers to be willing to come forward to expose hazardous,
unsafe, and unfair conditions at their worksites so that local,
state, and federal agencies can effectively enforce the laws.
(j) It is essential to the enforcement of this state's labor laws
that we have broad, clear, and effective protections for workers
engaging in conduct protected by law from all forms of employer
retaliation, including prohibiting immigration-related threats.
SEC. 2. Section 98.6 of the Labor Code is amended to read:
98.6. (a) 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 any conduct delineated in this chapter,
including the conduct described in subdivision (k) of Section 96, and
Chapter 5 (commencing with Section 1101) of Part 3 of Division 2, or
because the employee or applicant for employment has 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, or because the
employee has initiated any action or notice pursuant to Section 2699,
or has testified or is about to testify in a proceeding pursuant to
that section, or because of the exercise by the employee or applicant
for employment on behalf of himself, herself, or others of any
rights afforded him or her.
(b) (1) Any employee who is discharged, threatened with discharge,
demoted, suspended, retaliated against, subjected to an adverse
action, or in any other manner discriminated against in the terms and
conditions of his or her employment because the employee engaged in
any conduct delineated in this chapter, including the conduct
described in subdivision (k) of Section 96, and Chapter 5 (commencing
with Section 1101) of Part 3 of Division 2, or because the employee
has made a bona fide complaint or claim to the division pursuant to
this part, or because the employee has initiated any action or notice
pursuant to Section 2699 shall be entitled to reinstatement and
reimbursement for lost wages and work benefits caused by those acts
of the employer.
(2) An employer who willfully refuses to hire, promote, or
otherwise restore an employee or former employee who has been
determined to be eligible for rehiring or promotion by a grievance
procedure, arbitration, or hearing authorized by law, is guilty of a
misdemeanor.
(3) In addition to other remedies available, an employer who
violates this section is liable for a civil penalty not exceeding ten
thousand dollars ($10,000) per employee for each violation of this
section.
(c) (1) Any applicant for employment who is refused employment,
who is not selected for a training program leading to employment, or
who in any other manner is discriminated against in the terms and
conditions of any offer of employment because the applicant engaged
in any conduct delineated in this chapter, including the conduct
described in subdivision (k) of Section 96, and Chapter 5 (commencing
with Section 1101) of Part 3 of Division 2, or because the applicant
has made a bona fide complaint or claim to the division pursuant to
this part, or because the employee has initiated any action or notice
pursuant to Section 2699 shall be entitled to employment and
reimbursement for lost wages and work benefits caused by the acts of
the prospective employer.
(2) This subdivision shall not be construed to invalidate any
collective bargaining agreement that requires an applicant for a
position that is subject to the collective bargaining agreement to
sign a contract that protects either or both of the following as
specified in subparagraphs (A) and (B), nor shall this subdivision be
construed to invalidate any employer requirement of an applicant for
a position that is not subject to a collective bargaining agreement
to sign an employment contract that protects either or both of the
following:
(A) An employer against any conduct that is actually in direct
conflict with the essential enterprise-related interests of the
employer and where breach of that contract would actually constitute
a material and substantial disruption of the employer's operation.
(B) A firefighter against any disease that is presumed to arise in
the course and scope of employment, by limiting his or her
consumption of tobacco products on and off the job.
(d) The provisions of this section creating new actions or
remedies that are effective on January 1, 2002, to employees or
applicants for employment do not apply to any state or local law
enforcement agency, any religious association or corporation
specified in subdivision (d) of Section 12926 of the Government Code,
except as provided in Section 12926.2 of the Government Code, or any
person described in Section 1070 of the Evidence Code.
SEC. 3. Section 98.7 of the Labor Code is amended to read:
98.7. (a) 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 within six months after the occurrence of
the violation. The six-month period may be extended for good cause.
The complaint shall be investigated by a discrimination complaint
investigator in accordance with this section. The Labor Commissioner
shall establish procedures for the investigation of discrimination
complaints. A summary of the procedures shall be provided to each
complainant and respondent at the time of initial contact. The Labor
Commissioner shall inform complainants charging a violation of
Section 6310 or 6311, at the time of initial contact, of his or her
right to file a separate, concurrent complaint with the United States
Department of Labor within 30 days after the occurrence of the
violation.
(b) Each complaint of unlawful discharge or discrimination shall
be assigned to a discrimination complaint investigator who shall
prepare and submit a report to the Labor Commissioner based on an
investigation of the complaint. The Labor Commissioner may designate
the chief deputy or assistant Labor Commissioner or the chief counsel
to receive and review the reports. The investigation shall include,
where appropriate, interviews with the complainant, respondent, and
any witnesses who may have information concerning the alleged
violation, and a review of any documents that may be relevant to the
disposition of the complaint. The identity of a witness shall remain
confidential unless the identification of the witness becomes
necessary to proceed with the investigation or to prosecute an action
to enforce a determination. The investigation report submitted to
the Labor Commissioner or designee shall include the statements and
documents obtained in the investigation, and the findings of the
investigator concerning whether a violation occurred. The Labor
Commissioner may hold an investigative hearing whenever the Labor
Commissioner determines, after review of the investigation report,
that a hearing is necessary to fully establish the facts. In the
hearing the investigation report shall be made a part of the record
and the complainant and respondent shall have the opportunity to
present further evidence. The Labor Commissioner shall issue, serve,
and enforce any necessary subpoenas.
(c) If the Labor Commissioner determines a violation has occurred,
he or she shall notify the complainant and respondent and direct the
respondent to cease and desist from the violation and take any
action deemed necessary to remedy the violation, including, where
appropriate, rehiring or reinstatement, reimbursement of lost wages
and interest thereon, payment of reasonable attorney's fees
associated with any hearing held by the Labor Commissioner in
investigating the complaint, and the posting of notices to employees.
If the respondent does not comply with the order within 10 working
days following notification of the Labor Commissioner's
determination, the Labor Commissioner shall bring an action promptly
in an appropriate court against the respondent. If the Labor
Commissioner fails to bring an action in court promptly, the
complainant may bring an action against the Labor Commissioner in any
appropriate court for a writ of mandate to compel the Labor
Commissioner to bring an action in court against the respondent. If
the complainant prevails in his or her action for a writ, the court
shall award the complainant court costs and reasonable attorney's
fees, notwithstanding any other law. Regardless of any delay in
bringing an action in court, the Labor Commissioner shall not be
divested of jurisdiction. In any action, the court may permit the
claimant to intervene as a party plaintiff to the action and shall
have jurisdiction, for cause shown, to restrain the violation and to
order all appropriate relief. Appropriate relief includes, but is not
limited to, rehiring or reinstatement of the complainant,
reimbursement of lost wages and interest thereon, and any other
compensation or equitable relief as is appropriate under the
circumstances of the case. The Labor Commissioner shall petition the
court for appropriate temporary relief or restraining order unless he
or she determines good cause exists for not doing so.
(d) (1) If the Labor Commissioner determines no violation has
occurred, he or she shall notify the complainant and respondent and
shall dismiss the complaint. The Labor Commissioner may direct the
complainant to pay reasonable attorney's fees associated with any
hearing held by the Labor Commissioner if the Labor Commissioner
finds the complaint was frivolous, unreasonable, groundless, and was
brought in bad faith. The complainant may, after notification of the
Labor Commissioner's determination to dismiss a complaint, bring an
action in an appropriate court, which shall have jurisdiction to
determine whether a violation occurred, and if so, to restrain the
violation and order all appropriate relief to remedy the violation.
Appropriate relief includes, but is not limited to, rehiring or
reinstatement of the complainant, reimbursement of lost wages and
interest thereon, and other compensation or equitable relief as is
appropriate under the circumstances of the case. When dismissing a
complaint, the Labor Commissioner shall advise the complainant of his
or her right to bring an action in an appropriate court if he or she
disagrees with the determination of the Labor Commissioner, and in
the case of an alleged violation of Section 6310 or 6311, to file a
complaint against the state program with the United States Department
of Labor.
(2) The filing of a timely complaint against the state program
with the United States Department of Labor shall stay the Labor
Commissioner's dismissal of the division complaint until the United
States Secretary of Labor makes a determination regarding the alleged
violation. Within 15 days of receipt of that determination, the
Labor Commissioner shall notify the parties whether he or she will
reopen the complaint filed with the division or whether he or she
will reaffirm the dismissal.
(e) The Labor Commissioner shall notify the complainant and
respondent of his or her determination under subdivision (c) or
paragraph (1) of subdivision (d), not later than 60 days after the
filing of the complaint. Determinations by the Labor Commissioner
under subdivision (c) or (d) may be appealed by the complainant or
respondent to the Director of Industrial Relations within 10 days
following notification of the Labor Commissioner's determination. The
appeal shall set forth specifically and in full detail the grounds
upon which the appealing party considers the Labor Commissioner's
determination to be unjust or unlawful, and every issue to be
considered by the director. The director may consider any issue
relating to the initial determination and may modify, affirm, or
reverse the Labor Commissioner's determination. The director's
determination shall be the determination of the Labor Commissioner.
The director shall notify the complainant and respondent of his or
her determination within 10 days of receipt of the appeal.
(f) The rights and remedies provided by this section do not
preclude an employee from pursuing any other rights and remedies
under any other law.
(g) In the enforcement of this section, there is no requirement
that an individual exhaust administrative remedies or procedures.
SEC. 4. Chapter 3.1 (commencing with Section 1019) is added to
Part 3 of Division 2 of the Labor Code, to read:
CHAPTER 3.1. UNFAIR IMMIGRATION-RELATED PRACTICES
1019. (a) It shall be unlawful for an employer or any other
person or entity to engage in, or to direct another person or entity
to engage in, unfair immigration-related practices against any person
for the purpose of, or with the intent of, retaliating against any
person for exercising any right protected under this code or by any
local ordinance applicable to employees. Exercising a right protected
by this code or local ordinance includes, but is not limited to, the
following:
(1) Filing a complaint or informing any person of an employer's or
other party's alleged violation of this code or local ordinance, so
long as the complaint or disclosure is made in good faith.
(2) Seeking information regarding whether an employer or other
party is in compliance with this code or local ordinance.
(3) Informing a person of his or her potential rights and remedies
under this code or local ordinance, and assisting him or her in
asserting those rights.
(b) (1) As used in this chapter, "unfair immigration-related
practice" means any of the following practices, when undertaken for
the retaliatory purposes prohibited by subdivision (a):
(A) Requesting more or different documents than are required under
Section 1324a(b) of Title 8 of the United States Code, or a refusal
to honor documents tendered pursuant to that section that on their
face reasonably appear to be genuine.
(B) Using the federal E-Verify system to check the employment
authorization status of a person at a time or in a manner not
required under Section 1324a(b) of Title 8 of the United States Code,
or not authorized under any memorandum of understanding governing
the use of the federal E-Verify system.
(C) Threatening to file or the filing of a false police report.
(D) Threatening to contact or contacting immigration authorities.
(2) "Unfair immigration-related practice" does not include conduct
undertaken at the express and specific direction or request of the
federal government.
(c) Engaging in an unfair immigration-related practice against a
person within 90 days of the person's exercise of rights protected
under this code or local ordinance applicable to employees shall
raise a rebuttable presumption of having done so in retaliation for
the exercise of those rights.
(d) (1) An employee or other person who is the subject of an
unfair immigration-related practice prohibited by this section, or a
representative of that employee or person, may bring a civil action
for equitable relief and any damages or penalties, in accordance with
this section.
(2) Upon a finding by a court of applicable jurisdiction of a
violation this section:
(A) For a first violation, the court in its discretion, may order
the appropriate government agencies to suspend all licenses subject
to this chapter that are held by the violating party for a period of
up to 14 days. For the purposes of this paragraph, the licenses that
are subject to suspension are all licenses held by the violating
party specific to the business location or locations where the unfair
immigration-related practice occurred. In determining whether a
suspension of all licenses is appropriate, the court shall consider
whether the employer knowingly committed an unfair immigration
practice, the good faith efforts of the employer to resolve any
alleged unfair immigration related practice after receiving notice of
the violations, as well as the harm other employees of the employer,
or employees of other employers on a multiemployer jobsite, will
suffer as a result of the suspension of all licenses. On receipt of
the court's order and notwithstanding any other law, the appropriate
agencies shall suspend the licenses according to the court's order.
(B) For a second violation, the court, in its discretion, may
order the appropriate government agencies to suspend all licenses
that are held by the violating party specific to the business
location or locations where the unfair immigration-related practice
occurred, for a period of up to 30 days. In determining whether a
suspension of all licenses is appropriate, the court shall consider
whether the employer knowingly committed an unfair immigration
practice, the good faith efforts of the employer to resolve any
alleged unfair immigration related practice after receiving notice of
the violations, as well as the harm other employees of the employer,
or employees of other employers on a multiemployer jobsite, will
suffer as a result of the suspension of all licenses. On receipt of
the court's order and notwithstanding any other law, the appropriate
agencies shall immediately suspend the licenses.
(C) For a third violation, or any violation thereafter, the court,
in its discretion, may order the appropriate government agencies to
suspend for a period of up to 90 days all licenses that are held by
the violating party specific to the business location or locations
where the unfair immigration-related practice occurred. In
determining whether a suspension of all licenses is appropriate, the
court shall consider whether the employer knowingly committed an
unfair immigration practice, the good faith efforts of the employer
to resolve any alleged unfair immigration related practice after
receiving notice of the violations, as well as the harm other
employees of the employer, or employees of other employers on a
multiemployer jobsite, will suffer as a result of the suspension of
all licenses. On receipt of the court's order and notwithstanding any
other law, the appropriate agencies shall immediately suspend the
licenses.
(3) An employee or other person who is the subject of an unfair
immigration-document practice prohibited by this section, and who
prevails in an action authorized by this section, shall recover its
reasonable attorney's fees and costs, including any expert witness
costs.
(e) As used in this chapter:
(1) "License" means any agency permit, certificate, approval,
registration, or charter that is required by law and that is issued
by any agency for the purposes of operating a business in this state.
"License" does not include a professional license.
(2) "Violation" means each incident when an unfair immigration
practice was committed, without reference to the number of employees
involved in the incident.
SEC. 5. Section 1024.6 is added to the Labor Code, to read:
1024.6. An employer may not discharge an employee or in any
manner discriminate, retaliate, or take any adverse action against an
employee because the employee updates or attempts to update his or
her personal information, unless the changes are directly related to
the skill set, qualifications, or knowledge required for the job.
SEC. 6. Section 1102.5 of the Labor Code is amended to read:
1102.5. (a) An employer, or any person acting on behalf of the
employer, shall not make, adopt, or enforce any rule, regulation, or
policy preventing an employee from disclosing information to a
government or law enforcement agency, or from providing information
to, or testifying before, any public body conducting an
investigation, hearing, or inquiry, where the employee has reasonable
cause to believe that the information discloses a violation of state
or federal statute, or a violation of or noncompliance with a state
or federal rule or regulation.
(b) An employer, or any person acting on behalf of the employer,
shall not retaliate against an employee for disclosing information to
a government or law enforcement agency, or for providing information
to, or testifying before, any public body conducting an
investigation, hearing, or inquiry, where the employee has reasonable
cause to believe that the information discloses a violation of state
or federal statute, or a violation of or noncompliance with a state
or federal rule or regulation.
(c) An employer, or any person acting on behalf of the employer,
shall not retaliate against an employee for refusing to participate
in an activity that would result in a violation of state or federal
statute, or a violation of or noncompliance with a state or federal
rule or regulation.
(d) An employer, or any person acting on behalf of the employer,
shall not retaliate against an employee for having exercised his or
her rights under subdivision (a), (b), or (c) in any former
employment.
(e) A report made by an employee of a government agency to his or
her employer is a disclosure of information to a government or law
enforcement agency pursuant to subdivisions (a) and (b).
(f) In addition to other penalties, an employer that is a
corporation or limited liability company is liable for a civil
penalty not exceeding ten thousand dollars ($10,000) for each
violation of this section.
(g) This section does not apply to rules, regulations, or policies
that implement, or to actions by employers against employees who
violate, the confidentiality of the lawyer-client privilege of
Article 3 (commencing with Section 950) of, or the physician-patient
privilege of Article 6 (commencing with Section 990) of, Chapter 4 of
Division 8 of the Evidence Code, or trade secret information.
SEC. 6.5. Section 1102.5 of the Labor Code is amended to read:
1102.5. (a) An employer, or any person acting on behalf of the
employer, shall not make, adopt, or enforce any rule, regulation, or
policy preventing an employee from disclosing information to a
government or law enforcement agency, or to a person with authority
over the employee or to another employee who has authority to
investigate, discover, or correct the violation or noncompliance, or
from providing information to, or testifying before, any public body
conducting an investigation, hearing, or inquiry, if the employee has
reasonable cause to believe that the information discloses a
violation of state or federal statute, or a violation of or
noncompliance with a local, state, or federal rule or regulation,
regardless of whether disclosing the information is part of the
employee's job duties.
(b) An employer, or any person acting on behalf of the employer,
shall not retaliate against an employee for disclosing information,
or because the employer believes that the employee disclosed or may
disclose information, to a government or law enforcement agency, or
to a person with authority over the employee or another employee who
has the authority to investigate, discover, or correct the violation
or noncompliance, or for providing information to, or testifying
before, any public body conducting an investigation, hearing, or
inquiry, if the employee has reasonable cause to believe that the
information discloses a violation of state or federal statute, or a
violation of or noncompliance with a local, state, or federal rule or
regulation, regardless of whether disclosing the information is part
of the employee's job duties.
(c) An employer, or any person acting on behalf of the employer,
shall not retaliate against an employee for refusing to participate
in an activity that would result in a violation of state or federal
statute, or a violation of or noncompliance with a local, state, or
federal rule or regulation.
(d) An employer, or any person acting on behalf of the employer,
shall not retaliate against an employee for having exercised his or
her rights under subdivision (a), (b), or (c) in any former
employment.
(e) A report made by an employee of a government agency to his or
her employer is a disclosure of information to a government or law
enforcement agency pursuant to subdivisions (a) and (b).
(f) In addition to other penalties, an employer that is a
corporation or limited liability company is liable for a civil
penalty not exceeding ten thousand dollars ($10,000) for each
violation of this section.
(g) This section does not apply to rules, regulations, or policies
that implement, or to actions by employers against employees who
violate, the confidentiality of the lawyer-client privilege of
Article 3 (commencing with Section 950) of, the physician-patient
privilege of Article 6 (commencing with Section 990) of, Chapter 4 of
Division 8 of the Evidence Code, or trade secret information.
SEC. 7. Section 1103 of the Labor Code is amended to read:
1103. An employer or any other person or entity that violates
this chapter is guilty of a misdemeanor punishable, in the case of an
individual, by imprisonment in the county jail not to exceed one
year or a fine not to exceed one thousand dollars ($1,000) or both
that fine and imprisonment, or, in the case of a corporation, by a
fine not to exceed five thousand dollars ($5,000).
SEC. 8. The provisions of this act are severable. If any provision
of this act or its application is held invalid, that invalidity shall
not affect other provisions or applications that can be given effect
without the invalid provision or application.
SEC. 9. Section 6.5 of this bill incorporates amendments to
Section 1102.5 of the Labor Code proposed by both this bill and
Senate Bill 496. It shall only become operative if (1) both bills are
enacted and become effective on or before January 1, 2014, (2) each
bill amends Section 1102.5 of the Labor Code, and (3) this bill is
enacted after Senate Bill 496, in which case Section 6 of this bill
shall not become operative.
SEC. 10. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
