Bill Text: CA AB2261 | 2015-2016 | Regular Session | Amended
Bill Title: Division of Labor Standards Enforcement: duties.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Engrossed - Dead) 2016-11-30 - Died on Senate inactive file. [AB2261 Detail]
Download: California-2015-AB2261-Amended.html
BILL NUMBER: AB 2261 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 14, 2016
INTRODUCED BY Assembly Member Roger Hernández
FEBRUARY 18, 2016
An act to add Section 98.74 to amend
Section 98.7 of the Labor Code, relating to employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 2261, as amended, Roger Hernández. Division of Labor Standards
Enforcement: duties.
Existing law authorizes any person who believes that he or she has
been discharged or otherwise discriminated against in violation of
any law under the jurisdiction of the Labor Commissioner to file a
complaint, as specified, with the Division of Labor Standards
Enforcement, which is within the Department of Industrial Relations,
and requires the commissioner to establish procedures for the
investigation of discrimination complaints.
This bill would authorize the division to, with or without
receiving a complaint from an employee, commence an
investigation, issue a citation, or bring an action against
investigation of an employer who discharges or
otherwise discriminates that it suspects to have
discharged or otherwise discriminated against an individual in
violation of any law under the jurisdiction of the Labor
Commissioner.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 98.7 of the Labor
Code is amended to read:
98.7. (a) (1) Any person who believes that
he or she has been discharged or otherwise discriminated against in
violation of any law under the jurisdiction of the Labor Commissioner
may file a complaint with the division within six months after the
occurrence of the violation. The six-month period may be extended for
good cause. The complaint shall be investigated by a discrimination
complaint investigator in accordance with this section. The Labor
Commissioner shall establish procedures for the investigation of
discrimination complaints. A summary of the procedures shall be
provided to each complainant and respondent at the time of initial
contact. The Labor Commissioner shall inform complainants charging a
violation of Section 6310 or 6311, at the time of initial contact, of
his or her right to file a separate, concurrent complaint with the
United States Department of Labor within 30 days after the occurrence
of the violation. Each complaint of unlawful discharge or
discrimination shall be assigned to a discrimination complaint
investigator who shall prepare and submit an investigation report to
the Labor Commissioner based on an investigation of the complaint.
(2) The division may, with or without receiving a complaint,
commence an investigation of an employer that it suspects to have
discharged or otherwise discriminated against an individual in
violation of any law under the jurisdiction of the Labor Commissioner
in accordance with this section. The assigned investigator shall
prepare and submit an investigation report to the Labor Commissioner
based upon the investigation.
(b) Each complaint of unlawful discharge or
discrimination shall be assigned to a discrimination complaint
investigator who shall prepare and submit a report to the Labor
Commissioner based on an investigation of the complaint.
The Labor Commissioner may designate the chief deputy or
deputy, the assistant Labor
Commissioner Commissioner, or the chief counsel
to receive and review the investigation
reports. The investigation An investigation
shall include, where if
appropriate, interviews with the complainant, respondent,
if there is one, the employer, and any witnesses
who may have information concerning the alleged
a possible violation, and a review of any documents that
may be relevant to the disposition of the complaint.
investigation. The identity of a witness shall
remain confidential unless the identification of the witness becomes
necessary to proceed with the investigation or to prosecute an action
to enforce a determination. The investigation report submitted to
the Labor Commissioner or designee shall include the statements and
documents obtained in the investigation, and the findings of the
investigator concerning whether a violation occurred. The Labor
Commissioner may hold an investigative hearing whenever
if the Labor Commissioner determines, after
review of the investigation report, that a hearing is necessary to
fully establish the facts. In the hearing the investigation report
shall be made a part of the record record
, and the complainant and respondent
complainant, if there is one, and the employer
shall have the opportunity to present further evidence. The Labor
Commissioner shall issue, serve, and enforce any necessary subpoenas.
(c) If the Labor Commissioner determines a violation has occurred,
he or she shall notify the complainant and respondent
complainant, if there is one, and the employer
and direct the respondent employer to
cease and desist from the violation and take any action deemed
necessary to remedy the violation, including, where
if 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,
related to the investigation, and the posting of notices
to employees. If the respondent employer
does not comply with the order within 10 working days following
notification of the Labor Commissioner's determination, the Labor
Commissioner shall bring an action promptly in an appropriate court
against the respondent. employer. If
the Labor Commissioner fails to bring an action in court promptly,
the a complainant may bring an action
against the Labor Commissioner in any appropriate court for a writ of
mandate to compel the Labor Commissioner to bring an action in court
against the respondent. If the complainant prevails in his or her
action for a writ, the court shall award the complainant court costs
and reasonable attorney's fees, notwithstanding any other law.
Regardless of any delay in bringing an action in court, the Labor
Commissioner shall not be divested of jurisdiction. In any action,
the court may permit the claimant to intervene as a party plaintiff
to the action and shall have jurisdiction, for cause shown, to
restrain the violation and to order all appropriate relief.
Appropriate relief includes, but is not limited to, rehiring or
reinstatement of the complainant, reimbursement of lost wages and
interest thereon, and any other compensation or equitable relief as
is appropriate under the circumstances of the case. The Labor
Commissioner shall petition the court for appropriate temporary
relief or restraining order unless he or she determines good cause
exists for not doing so.
(d) (1) If the Labor Commissioner determines no violation has
occurred, he or she shall notify the complainant and
respondent complainant, if there is one, and the
employer and shall dismiss the complaint.
complaint or close the investigation. The Labor
Commissioner may direct the a
complainant to pay reasonable attorney's fees associated with any
hearing held by the Labor Commissioner if the Labor Commissioner
finds the that a complaint was
frivolous, unreasonable, groundless, and was brought in bad faith.
The A complainant may, after
notification of the Labor Commissioner's determination to dismiss a
complaint, bring an action in an appropriate court, which
court that shall have jurisdiction to determine
whether a violation occurred, and occurred
and, if so, to restrain the violation and order all appropriate
relief to remedy the violation. Appropriate relief includes, but is
not limited to, rehiring or reinstatement of the complainant,
reimbursement of lost wages and interest thereon, and other
compensation or equitable relief as is appropriate under the
circumstances of the case. When dismissing If
the Labor Commission dismisses a complaint, the Labor
Commissioner shall advise the a
complainant of his or her right to bring an action in an appropriate
court if he or she disagrees with the determination of the Labor
Commissioner, and in the case of an alleged violation of Section 6310
or 6311, to file a complaint against the state program with the
United States Department of Labor.
(2) The filing of a timely complaint against the state program
with the United States Department of Labor shall stay the Labor
Commissioner's dismissal of the division complaint until the United
States Secretary of Labor makes a determination regarding the alleged
violation. Within 15 days of receipt of that determination, the
Labor Commissioner shall notify the parties whether he or she will
reopen the complaint filed with the division or whether he or she
will reaffirm the dismissal.
(e) The Labor Commissioner shall notify the complainant
and respondent complainant, if there is one, and the
employer of his or her determination under subdivision (c) or
paragraph (1) of subdivision (d), not later than 60 days after the
filing of the complaint. complaint, or
commencing the investigation pursuant to paragraph (2) of subdivision
(a). Determinations by the Labor Commissioner under
subdivision (c) or (d) may be appealed by the
a complainant or respondent employer
to the Director of Industrial Relations within 10 days
following notification of the Labor Commissioner's determination. The
appeal shall set forth specifically and in full detail the grounds
upon which the appealing party considers the Labor Commissioner's
determination to be unjust or unlawful, and every issue to be
considered by the director. The director may consider any issue
relating to the initial determination and may modify, affirm, or
reverse the Labor Commissioner's determination. The director's
determination shall be the determination of the Labor Commissioner.
The director shall notify the complainant
complainant, if there is one, and respondent
employer of his or her determination within 10 days of
receipt of the appeal.
(f) The rights and remedies provided by this section do not
preclude an employee from pursuing any other rights and remedies
under any other law.
(g) In the enforcement of this section, there is no requirement
that an individual exhaust administrative remedies or procedures.
SECTION 1. Section 98.74 is added to the Labor
Code, immediately following Section 98.7, to read:
98.74. In addition to receiving employee complaints pursuant to
Section 98.7, the division may, with or without receiving a complaint
from an employee, commence an investigation, issue a citation, or
bring an action against an employer who discharges or otherwise
discriminates against an individual in violation of any law under the
jurisdiction of the Labor Commissioner.
