Bill Text: CA SB666 | 2013-2014 | Regular Session | Chaptered
Bill Title: Employment: retaliation.
Spectrum: Partisan Bill (Democrat 7-0)
Status: (Passed) 2013-10-05 - Chaptered by Secretary of State. Chapter 577, Statutes of 2013. [SB666 Detail]
Download: California-2013-SB666-Chaptered.html
BILL NUMBER: SB 666 CHAPTERED
BILL TEXT
CHAPTER 577
FILED WITH SECRETARY OF STATE OCTOBER 5, 2013
APPROVED BY GOVERNOR OCTOBER 5, 2013
PASSED THE SENATE SEPTEMBER 10, 2013
PASSED THE ASSEMBLY SEPTEMBER 9, 2013
AMENDED IN ASSEMBLY SEPTEMBER 4, 2013
AMENDED IN ASSEMBLY AUGUST 22, 2013
AMENDED IN ASSEMBLY AUGUST 5, 2013
AMENDED IN SENATE MAY 7, 2013
AMENDED IN SENATE APRIL 11, 2013
AMENDED IN SENATE APRIL 1, 2013
INTRODUCED BY Senator Steinberg
(Coauthors: Senators Beall, Evans, Hueso, Jackson, Monning, and
Padilla)
FEBRUARY 22, 2013
An act to add Sections 494.6 and 6103.7 to the Business and
Professions Code, and to amend Sections 98.6 and 1102.5 of, and to
add Section 244 to, the Labor Code, relating to employment.
LEGISLATIVE COUNSEL'S DIGEST
SB 666, Steinberg. Employment: retaliation.
Existing law establishes grounds for suspension or revocation of
certain business and professional licenses.
This bill would subject those business licenses to suspension or
revocation, with a specified exception, if the licensee has been
determined by the Labor Commissioner or the court to have violated
specified law and the court or Labor Commissioner has taken into
consideration any harm such a suspension or revocation would cause to
employees of the licensee, as well as the good faith efforts of the
licensee to resolve any alleged violations after receiving notice.
The bill would subject a licensee of an agency within the Department
of Consumer Affairs who has been found by the Labor Commissioner or
the court to have violated specified law to disciplinary action by
his or her respective licensing agency.
The State Bar Act establishes specific causes for the disbarment
or suspension of a member of the State Bar.
This bill would make it a cause for suspension, disbarment, or
other discipline for any member of the State Bar to report suspected
immigration status or threaten to report suspected immigration status
of a witness or party to a civil or administrative action or his or
her family member, as defined, to a federal, state, or local agency
because the witness or party exercises or has exercised a right
related to his or her employment.
Existing law establishes various rights and protections relating
to employment and civil rights that may be enforced by civil action.
This bill would provide that it is not necessary to exhaust
administrative remedies or procedures in order to bring a civil
action enforcing designated rights. Under the bill, reporting or
threatening to report an employee's, former employee's, or
prospective employee's suspected citizenship or immigration status,
or the suspected citizenship or immigration status of the employee's
or former employee's family member, as defined, to a federal, state,
or local agency because the employee, former employee, or prospective
employee exercises a designated right would constitute an adverse
action for purposes of establishing a violation of the designated
right. Because a violation of certain of those designated rights is a
misdemeanor, this bill would impose a state-mandated local program
by changing the definition of a crime.
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 makes it a misdemeanor
for an employer to take adverse employment action against employees
who file bona fide complaints.
This bill would also prohibit an employer from retaliating or
taking any 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 subject an employer to a civil penalty
of up to $10,000 per violation of these provisions.
Existing law entitles an employee to reinstatement and
reimbursement for lost wages and benefits if the employee has been
discharged, demoted, suspended, or in any way discriminated against
because the employee engaged in protected conduct or because the
employee made a bona fide complaint or claim or initiated any action
or notice, as prescribed.
This bill would similarly grant these entitlements to an employee
who is retaliated against or subjected to an adverse action.
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 such a disclosure. Under existing
law, a violation of these provisions by an employer is a crime.
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 would extend those prohibitions to 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. Because a violation of these provisions by an
employer would be a crime, this bill would impose a state-mandated
local program.
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. Section 494.6 is added to the Business and Professions
Code, to read:
494.6. (a) A business license regulated by this code may be
subject to suspension or revocation if the licensee has been
determined by the Labor Commissioner or the court to have violated
subdivision (b) of Section 244 of the Labor Code and the court or
Labor Commissioner has taken into consideration any harm such
suspension or revocation would cause to employees of the licensee, as
well as the good faith efforts of the licensee to resolve any
alleged violations after receiving notice.
(b) Notwithstanding subdivision (a), a licensee of an agency
within the Department of Consumer Affairs who has been found by the
Labor Commissioner or the court to have violated subdivision (b) of
Section 244 of the Labor Code may be subject to disciplinary action
by his or her respective licensing agency.
(c) An employer shall not be subject to suspension or revocation
under this section for requiring a prospective or current employee to
submit, within three business days of the first day of work for pay,
an I-9 Employment Eligibility Verification form.
SEC. 2. Section 6103.7 is added to the Business and Professions
Code, to read:
6103.7. It is cause for suspension, disbarment, or other
discipline for any member of the State Bar to report suspected
immigration status or threaten to report suspected immigration status
of a witness or party to a civil or administrative action or his or
her family member to a federal, state, or local agency because the
witness or party exercises or has exercised a right related to his or
her employment, broadly interpreted. As used in this section,
"family member" means a spouse, parent, sibling, child, uncle, aunt,
niece, nephew, cousin, grandparent, or grandchild related by blood,
adoption, marriage, or domestic partnership.
SEC. 3. 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) Any 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 any 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. 4. Section 244 is added to the Labor Code, to read:
244. (a) An individual is not required to exhaust administrative
remedies or procedures in order to bring a civil action under any
provision of this code, unless that section under which the action is
brought expressly requires exhaustion of an administrative remedy.
This subdivision shall not be construed to affect the requirements of
Section 2699.3.
(b) Reporting or threatening to report an employee's, former
employee's, or prospective employee's suspected citizenship or
immigration status, or the suspected citizenship or immigration
status of a family member of the employee, former employee, or
prospective employee, to a federal, state, or local agency because
the employee, former employee, or prospective employee exercises a
right under the provisions of this code, the Government Code, or the
Civil Code constitutes an adverse action for purposes of establishing
a violation of an employee's, former employee's, or prospective
employee's rights. As used in this subdivision, "family member" means
a spouse, parent, sibling, child, uncle, aunt, niece, nephew,
cousin, grandparent, or grandchild related by blood, adoption,
marriage, or domestic partnership.
SEC. 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 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. 5.5. 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. 6. 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. 7. Section 5.5 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 5 of this bill
shall not become operative.
SEC. 8. 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.
