Effective January 1, 2018, Senate Bill 306 amends Labor Code § 98.7 and adds Labor Code §§ 98.74, 1102.61 and 1102.62 to provide the Division of Labor Standards Enforcement (“DLSE”) with expanded authority to enforce the retaliation provisions of the Labor Code. Specifically:
- The Labor Commissioner will be authorized to conduct an investigation of an employer and petition a superior court for temporary or permanent injunctive relief (e.g., reinstatement) with or without a complaint having been filed by an applicant or employee with the DLSE, if “reasonable cause exists to believe a violation has occurred” during a field inspection, in the course of adjudicating a wage claim, or in instances of suspected immigration-related threats.
- In assessing whether “reasonable cause exists to believe a violation has occurred,” the superior court is directed to consider “the chilling effect on other employees asserting their rights under those laws in determining if temporary injunctive relief is just and proper.” However, injunctive relief does not prohibit an employer from disciplining or terminating an employee for conduct unrelated to the claim of retaliation.
- If the Labor Commissioner determines that an employer has engaged or is engaging in retaliatory acts, the Labor Commissioner will be authorized to issue a citation directing an employer to take various remedial actions (e.g., reinstating an employee or paying lost wages). If the employer disagrees with the citation or the relief ordered, the employer has the burden of seeking review of the citation through an administrative hearing before the Labor Commissioner within 30 days of the citation. Otherwise, the citation becomes final. Following an administrative hearing and issuance of the Labor Commissioner’s decision, an employer has 45 days to request review by a superior court through a writ of mandate. Otherwise, the decision becomes final.
- Employers may be subject to civil penalties of $100 per day (up to a maximum of $20,000) for willfully refusing to comply with a final order of the Labor Commissioner.
- The Labor Commissioner is entitled to recover reasonable attorneys’ fees if it is a prevailing party in an enforcement action, to be determined by the court.
Finally, if an employee commences a civil action, the employee is also entitled to seek injunctive relief from the superior court. Should injunctive relief be granted, such an order is not stayed pending appeal.
Please contact Jackson Lewis with any questions that may arise regarding your compliance with the California Labor Code.