New California Laws Part 5- Retaliation

Retaliation:

CA S.B. 306 expands certain employee retaliation and whistleblower claims. The law allows the Labor Commissioner to investigate an employer, with or without a complaint being filed, when it suspects the employer discharged or otherwise discriminated against an individual in violation of any law under the Labor Commissioner’s jurisdiction.

Under the new law, the Labor Commissioner or an employee may seek injunctive relief (meaning employee be reinstated pending resolution of claim) during the course of a wage claim or other investigation, upon mere finding of “reasonable cause” that a violation of the law has occurred.  

This diminishes the burden of proof for injunctive relief in retaliation or whistleblower cases under the Labor Commissioner’s jurisdiction, in part due to the “chilling effect on other employees asserting their rights under those laws” in determining if temporary injunctive relief or a permanent injunction is proper.

S.B. 306 does provide that any temporary relief does not restrain an employer from disciplining or terminating an employee for conduct unrelated to the retaliation claim. In practice, however, employees with performance issues who know that they are about to be terminated or disciplined may attempt to file retaliation claims internally or with state and federal agencies in order to protect themselves from adverse action.

The bill also authorizes the Labor Commissioner to issue citations directing the employer to cease the alleged violation and take actions necessary to remedy the violation, such as ordering reinstatement or back pay, placing the burden on the employer to challenge the citation through an administrative and court appeal. The law also requires any employer challenging the citation to post a bond with the Labor Commissioner’s office equal to the amount of back pay allegedly owed. 

How to Prepare

-Document, analyze, and make reasonable disciplinary decisions.

-Know that litigating retaliation and whistleblower claims under the Labor Commissioner’s jurisdiction, opposing petitions for injunctive relief related to these claims, and challenging citations will be more difficult under the new law.