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Labor commissioner can bring retaliation claims without an employee complaint
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A new California workplace retaliation law will take effect on Jan. 1, 2018, that expands the state labor commissioner's enforcement authority. Employers should know what to expect.
S.B. 306 substantially changes certain aspects of the process for retaliation claims that go through the state labor commissioner's office, said Jason Barsanti, an attorney with Cozen O'Connor in San Diego. Most significantly, in some situations, the new law allows the office to investigate retaliation without first receiving a retaliation complaint from an employee.
[SHRM members-only toolkit: Preventing Unlawful Workplace Retaliation in California]
California law prohibits employers from firing workers or taking other adverse action against employees and job applicants who exercise their rights under state employment laws. If an employee experiences unlawful retaliation, he or she may be entitled to job reinstatement or reimbursement for lost wages and work benefits. The aggrieved employee may also file a complaint with the California Division of Labor Standards Enforcement.
Under existing law, state agents must investigate and submit a report on each discrimination complaint to the labor commissioner. The new law authorizes the labor commissioner to investigate retaliation or discrimination when it suspects such violations during the course of a wage claim or other proceedings, explained Molly Lee Kaban, an attorney with Hanson Bridgett in San Francisco.
The new law also allows the labor commissioner or an allegedly aggrieved worker to seek immediate injunctive relief from a court that, if granted, would allow a discharged employee to return to work while a resolution to the lawsuit is pending.
The labor commissioner can obtain such relief before its investigation has been completed and before it has made any findings about an alleged violation.
Ordinarily, the burden of proof required to obtain an injunction is high. Employees would have to show, among other things, a substantial likelihood that they would ultimately succeed on the merits of the claim and that they would experience irreparable harm if the injunction wasn't granted.
The burden under S.B. 306 is much lower, Barsanti said. The labor commissioner or employee will now only have to show that "reasonable cause exists to believe that an employee has been discharged or subjected to adverse action for raising a claim of retaliation or asserting rights under any law under the jurisdiction of the labor commissioner," according to the bill.
Employers will also face new penalties in enforcement actions, Kaban noted. An employer may have to pay the labor commissioner's reasonable attorney fees if violations are found and may have to pay $100 per day (up to $20,000) if it willfully refuses to comply with a court order.
Furthermore, S.B. 306 allows the labor commissioner to issue citations directly to the employer that order reinstatement of a worker—rather than requiring a court action. The employer would then have the burden of challenging the citation through the appeals process.
Tips for Employers
"It is unlikely that written workplace policies address whistle-blower retaliation issues at this level of specificity, so specific written revisions generally shouldn't be needed," Kaban said. But since the new law does make it easier for an employee alleging retaliation to obtain relief, employers should make sure all of their supervisors and managers are trained effectively to prevent these issues from arising, she added.
"The new law highlights the need for employers to be objectively truthful in performance reviews and to document every disciplinary action they take," Barsanti said. "Employers should have all their ducks in a row before terminating an employee."
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