Bill Text: CA AB1509 | 2015-2016 | Regular Session | Chaptered
Bill Title: Employer liability.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2015-10-11 - Chaptered by Secretary of State - Chapter 792, Statutes of 2015. [AB1509 Detail]
Download: California-2015-AB1509-Chaptered.html
BILL NUMBER: AB 1509 CHAPTERED
BILL TEXT
CHAPTER 792
FILED WITH SECRETARY OF STATE OCTOBER 11, 2015
APPROVED BY GOVERNOR OCTOBER 11, 2015
PASSED THE SENATE SEPTEMBER 2, 2015
PASSED THE ASSEMBLY SEPTEMBER 4, 2015
AMENDED IN SENATE AUGUST 31, 2015
AMENDED IN ASSEMBLY APRIL 27, 2015
AMENDED IN ASSEMBLY MARCH 26, 2015
INTRODUCED BY Assembly Member Roger Hernández
MARCH 4, 2015
An act to amend Sections 98.6, 1102.5, 2810.3, and 6310 of the
Labor Code, relating to employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 1509, Roger Hernández. Employer liability.
(1) Existing law prohibits an employer from discharging an
employee or in any manner discriminating, retaliating, or taking any
adverse action against any employee or applicant for employment
because the employee or applicant has engaged in protected conduct,
as specified. 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. Existing law subjects a person who violates these
provisions to a civil penalty of up to $10,000 per violation.
This bill would extend the protections of these provisions, as
specified, to an employee who is a family member of a person who
engaged in, or was perceived to engage in, the protected conduct or
make a complaint protected by these provisions. This bill would
define terms for the purpose of these provisions.
(2) Existing law requires a client employer to share with a labor
contractor all civil legal responsibility and civil liability for all
workers supplied by that labor contractor for the payment of wages
and the failure to obtain valid workers' compensation coverage.
Existing law also prohibits a client employer from shifting to the
labor contractor legal duties or liabilities under workplace safety
provisions with respect to workers provided by the labor contractor.
Existing law defines terms for these purposes and authorizes the
Labor Commissioner to adopt regulations and rules of practice and
procedure necessary to administer and enforce these provisions.
Existing law excludes certain types of employers from these
provisions, including, but not limited to, a client employer that is
not a motor carrier of property based solely on the employer's use of
a third-party motor carrier of property with interstate or
intrastate operating authority to ship or receive freight, and a
client employer that is a motor carrier of property subcontracting
with, or otherwise engaging, another motor carrier of property to
provide transportation services using its own employees and
commercial motor vehicles.
The Household Goods Carriers Act subjects household goods carriers
to the jurisdiction and control of the Public Utilities Commission.
The act prohibits a household goods carrier from engaging, or
attempting to engage, in the business of the transportation of used
household goods and personal effects by motor vehicle over any public
highway in the state without a permit issued by the commission
authorizing transportation entirely within the state, or a valid
operating authority issued by the Federal Motor Carrier Safety
Administration for interstate transportation.
This bill would expand the types of employers excluded from those
labor contracting provisions to include a client employer that is not
a household goods carrier based solely on the employer's use of a
third-party household goods carrier permitted by the commission to
move household goods, and a client employer that is a permitted
household goods carrier subcontracting with, or otherwise engaging,
another permitted household goods carrier to provide transportation
of household goods using its own employees and motor vehicles.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. 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, to be awarded to the employee or employees who suffered the
violation.
(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.
(e) An employer, or a person acting on behalf of the employer,
shall not retaliate against an employee because the employee is a
family member of a person who has, or is perceived to have, engaged
in any conduct delineated in this chapter.
(f) For purposes of this section, "employer" or "a person acting
on behalf of the employer" includes, but is not limited to, a client
employer as defined in paragraph (1) of subdivision (a) of Section
2810.3 and an employer listed in subdivision (b) of Section 6400.
(g) Subdivisions (e) and (f) shall not apply to claims arising
under subdivision (k) of Section 96 unless the lawful conduct
occurring during nonwork hours away from the employer's premises
involves the exercise of employee rights otherwise covered under
subdivision (a).
SEC. 2. 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, 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, 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, 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.
(h) An employer, or a person acting on behalf of the employer,
shall not retaliate against an employee because the employee is a
family member of a person who has, or is perceived to have, engaged
in any acts protected by this section.
(i) For purposes of this section, "employer" or "a person acting
on behalf of the employer" includes, but is not limited to, a client
employer as defined in paragraph (1) of subdivision (a) of Section
2810.3 and an employer listed in subdivision (b) of Section 6400.
SEC. 3. Section 2810.3 of the Labor Code is amended to read:
2810.3. (a) As used in this section:
(1) (A) "Client employer" means a business entity, regardless of
its form, that obtains or is provided workers to perform labor within
its usual course of business from a labor contractor.
(B) "Client employer" does not include any of the following:
(i) A business entity with a workforce of fewer than 25 workers,
including those hired directly by the client employer and those
obtained from, or provided by, any labor contractor.
(ii) A business entity with five or fewer workers supplied by a
labor contractor or labor contractors to the client employer at any
given time.
(iii) The state or any political subdivision of the state,
including any city, county, city and county, or special district.
(2) "Labor" has the same meaning provided by Section 200.
(3) "Labor contractor" means an individual or entity that
supplies, either with or without a contract, a client employer with
workers to perform labor within the client employer's usual course of
business. "Labor contractor" does not include any of the following:
(A) A bona fide nonprofit, community-based organization that
provides services to workers.
(B) A bona fide labor organization or apprenticeship program or
hiring hall operated pursuant to a collective bargaining agreement.
(C) A motion picture payroll services company as defined in
subparagraph (A) of paragraph (4) of subdivision (f) of Section 679
of the Unemployment Insurance Code.
(D) A third party who is a party to an employee leasing
arrangement, as defined by Rule 4 of Section V of the California
Workers' Compensation Experience Rating Plan-1995 (Section 2353.1 of
Title 10 of the California Code of Regulations), as it read on
January 1, 2014, except those arrangements described in subrule d of
Rule 4 of Section V, if the employee leasing arrangement
contractually obligates the client employer to assume all civil legal
responsibility and civil liability under this act.
(4) "Wages" has the same meaning provided by Section 200 and all
sums payable to an employee or the state based upon any failure to
pay wages, as provided by law.
(5) "Worker" does not include an employee who is exempt from the
payment of an overtime rate of compensation for executive,
administrative, and professional employees pursuant to wage orders by
the Industrial Welfare Commission described in Section 515.
(6) "Usual course of business" means the regular and customary
work of a business, performed within or upon the premises or worksite
of the client employer.
(b) A client employer shall share with a labor contractor all
civil legal responsibility and civil liability for all workers
supplied by that labor contractor for both of the following:
(1) The payment of wages.
(2) Failure to secure valid workers' compensation coverage as
required by Section 3700.
(c) A client employer shall not shift to the labor contractor any
legal duties or liabilities under Division 5 (commencing with Section
6300) with respect to workers supplied by the labor contractor.
(d) At least 30 days prior to filing a civil action against a
client employer for violations covered by this section, a worker or
his or her representative shall notify the client employer of
violations under subdivision (b).
(e) Neither the client employer nor the labor contractor may take
any adverse action against any worker for providing notification of
violations or filing a claim or civil action.
(f) The provisions of subdivisions (b) and (c) are in addition to,
and shall be supplemental of, any other theories of liability or
requirement established by statute or common law.
(g) This section does not prohibit a client employer from
establishing, exercising, or enforcing by contract any otherwise
lawful remedies against a labor contractor for liability created by
acts of a labor contractor.
(h) This section does not prohibit a labor contractor from
establishing, exercising, or enforcing by contract any otherwise
lawful remedies against a client employer for liability created by
acts of a client employer.
(i) Upon request by a state enforcement agency or department, a
client employer or a labor contractor shall provide to the agency or
department any information within its possession, custody, or control
required to verify compliance with applicable state laws. Upon
request, these records shall be made available promptly for
inspection, and the state agency or department shall be permitted to
copy them. This subdivision does not require the disclosure of
information that is not otherwise required to be disclosed by
employers upon request by a state enforcement agency or department.
(j) The Labor Commissioner may adopt regulations and rules of
practice and procedure necessary to administer and enforce the
provisions of subdivisions (b) and (i) that are under his or her
jurisdiction.
(k) The Division of Occupational Safety and Health may adopt
regulations and rules of practice and procedure necessary to
administer and enforce the provisions of subdivisions (c) and (i)
that are under its jurisdiction.
(l) The Employment Development Department may adopt regulations
and rules of practice and procedure necessary to administer and
enforce the provisions of subdivisions (b) and (i) that are under its
jurisdiction.
(m) A waiver of this section is contrary to public policy, and is
void and unenforceable.
(n) This section shall not be interpreted to impose individual
liability on a homeowner for labor or services received at the home
or the owner of a home-based business for labor or services received
at the home.
(o) This section shall not be interpreted to impose liability on a
client employer for the use of an independent contractor other than
a labor contractor or to change the definition of independent
contractor.
(p) This section shall not be interpreted to impose liability on
the following:
(1) A client employer that is not a motor carrier of property
based solely on the employer's use of a third-party motor carrier of
property with interstate or intrastate operating authority to ship or
receive freight.
(2) A client employer that is a motor carrier of property
subcontracting with, or otherwise engaging, another motor carrier of
property to provide transportation services using its own employees
and commercial motor vehicles, as defined in Section 34601 of the
Vehicle Code.
(3) A client employer that is not a household goods carrier based
solely on the employer's use of a third-party household goods carrier
permitted by the Public Utilities Commission pursuant to Chapter 7
(commencing with Section 5101) of Division 2 of the Public Utilities
Code to move household goods.
(4) A client employer that is a household goods carrier permitted
by the Public Utilities Commission pursuant to Chapter 7 (commencing
with Section 5101) of Division 2 of the Public Utilities Code
subcontracting with, or otherwise engaging, another permitted
household goods carrier to provide transportation of household goods
using its own employees and motor vehicles, as defined in Section
5108 of the Public Utilities Code.
(5) A client employer that is a cable operator as defined by
Section 5830 of the Public Utilities Code, a direct-to-home satellite
service provider, or a telephone corporation as defined by Section
234 of the Public Utilities Code, based upon its contracting with a
company to build, install, maintain, or perform repair work utilizing
the employees and vehicles of the contractor if the name of the
contractor is visible on employee uniforms and vehicles.
(6) A motor club holding a certificate of authority issued
pursuant to Chapter 2 (commencing with Section 12160) of Part 5 of
Division 2 of the Insurance Code when it contracts with third parties
to provide motor club services utilizing the employees and vehicles
of the third-party contractor if the name of the contractor is
visible on the contractor's vehicles.
SEC. 4. Section 6310 of the Labor Code is amended to read:
6310. (a) No person shall discharge or in any manner discriminate
against any employee because the employee has done any of the
following:
(1) Made any oral or written complaint to the division, other
governmental agencies having statutory responsibility for or
assisting the division with reference to employee safety or health,
his or her employer, or his or her representative.
(2) Instituted or caused to be instituted any proceeding under or
relating to his or her rights or has testified or is about to testify
in the proceeding or because of the exercise by the employee on
behalf of himself, herself, or others of any rights afforded him or
her.
(3) Participated in an occupational health and safety committee
established pursuant to Section 6401.7.
(b) Any employee who is discharged, threatened with discharge,
demoted, suspended, or in any other manner discriminated against in
the terms and conditions of employment by his or her employer because
the employee has made a bona fide oral or written complaint to the
division, other governmental agencies having statutory responsibility
for or assisting the division with reference to employee safety or
health, his or her employer, or his or her representative, of unsafe
working conditions, or work practices, in his or her employment or
place of employment, or has participated in an employer-employee
occupational health and safety committee, shall be entitled to
reinstatement and reimbursement for lost wages and work benefits
caused by the acts of the employer. Any employer who willfully
refuses to rehire, 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.
(c) An employer, or a person acting on behalf of the employer,
shall not retaliate against an employee because the employee is a
family member of a person who has, or is perceived to have, engaged
in any acts protected by this section.
(d) For purposes of this section, "employer" or "a person acting
on behalf of the employer" includes, but is not limited to, a client
employer as defined in paragraph (1) of subdivision (a) of Section
2810.3 and an employer listed in subdivision (b) of Section 6400.
