Written by By Galen Shimoda and Jennet Zapata
The California Legislature passed legislation in 2013 that provides additional protections to employees who make complaints about owed wages, who report or refuse to engage in unlawful activity, and who are threatened because of their immigration status. Below is a short summary of some of the new changes to California’s labor and employment laws, which will become effective in January 2014.
Retaliation for Making a Complaint About Wages
Under Labor Code section 98.6, an employer cannot terminate or discriminate against an employee or applicant for employment because the individual filed a bona fide complaint, or has started a proceeding relating to his or her rights, or because it has initiated an action under Labor Code section 2699, relating to representative actions for certain violations of the Labor Code, or because he has testified in a proceeding.
Under existing law, an employee who is terminated, threatened with termination, demoted, suspended or discriminated in any other manner because it filed a claim for owed wages due to retaliation, or other action under Labor Code section 2699, can recover lost wages and work benefits as a result of the wrongful action of the employer or may be reinstated into the former job.
Under the new law, which will be effective in January 2014, an employer may not retaliate or take adverse action against any employee or applicant for employment, because the individual has made a written or oral complaint that he or she is owed unpaid wages. An employee who has retaliated against or otherwise was subjected to an adverse action is entitled to reinstatement and reimbursement for lost wages. An employer who violates these provisions is subject to a civil penalty of up to $10,000 per violation. Under the new law, it will not be necessary to exhaust administrative remedies or procedures in the enforcement of specified provisions.
An employee may file a retaliation complaint with the Labor Commissioner within six months of the occurrence of the discriminatory act. The Labor Commissioner will establish procedures for the investigation of discrimination complaints.
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. This action may include, 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 Labor Commissioner determines no violation has occurred, he or she will 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. Thus, employees should only file complaints that they are making in good faith.
Retaliation based on 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.
Under Labor Code 1019, it will be unlawful for an employer or any other person to engage in an unfair immigration-related practice, as defined, against a person for the purpose of retaliating against such person for exercising a right protected under state employment laws or a local ordinance.
An unfair immigration-related practice is defined as:
Under the new law, there will be a rebuttable presumption that an adverse action taken within 90 days of the exercising of a protected right is committed for the purpose of retaliation.
A court may order government agencies to suspend certain business licenses held by the violating party for prescribed periods from a couple of weeks to approximately three months based on the number of violations. The court will consider certain circumstances in determining whether a suspension of all licenses is appropriate.
An employee or other person who is the subject of an unfair immigration-document practice, and who prevails in his or her lawsuit, shall recover their reasonable attorney’s fees and costs, including any expert witness costs.
Labor Code section 1102.5 retaliation for disclosing violations or non-compliance with state or federal law.
Under Labor Code section 1102.5, an employer cannot make, adopt, or enforce 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.
Under the new section 1102.5, an employer may not retaliate against a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, 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.
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.
While the new laws include additional provisions not covered in this article, these are some of the main protections provided to employees under the law. Should you wish to discuss your particular situation, please contact the Shimoda Law Corp.