On October 4, 2017, Governor Brown signed SB 306 into law. The brand-new statute, which was sponsored by the California Labor Federation, substantially broadens the California Labor Commissioner’s power to examine retaliation and discrimination grievances– consisting of California pay equity claims– and to get initial injunctive relief throughout those examinations. The law, which works on January 1, 2018, also empowers workers in whistleblower cases to get injunctions under an unwind requirement. These modifications develop extra danger for companies dealing with pay equity, retaliation, or whistleblower claims (amongst many others).
Prior variation of Section 98.7: SB 306 mostly changes California Labor Code area 98.7 et seq. Area 98.7 licenses the Labor Commissioner to examine grievances of “anybody who thinks that she or he has been released or otherwise victimized in infraction of any law under the jurisdiction of the Labor Commissioner.” Cal. Laboratory. Code § 98.7( a)( 1 ). Many laws fall within the Labor Commissioner’s jurisdiction, and a complete list is found here. Those laws consist of California’s pay equity law, its whistleblower laws, and laws restricting companies from striking back versus staff members who make wage-related and workplace health and wellness problems. The Labor Commissioner’s jurisdiction does not consist of discrimination grievances under California’s Fair Employment and Housing Act for office harassment or non-pay-equity discrimination.
Previously, the Labor Commissioner might issue its “decision” on the benefits of a worker’s grievance, but had to rely on the courts for enforcement and/or to look for injunctive relief. SB 306 modifications those restrictions on the Labor Commissioner’s powers, to name a few.
Labor Commissioner’s Expanded Ability to Pursue Injunctive Relief: SB 306 grants the Labor Commissioner broad injunctive relief powers. For both discrimination and retaliation problems, the Labor Commissioner might look for an initial injunction throughout an examination if the Labor Commissioner has “affordable cause” to think an offense has taken place. Cal. Laboratory. Code § 98.7(b) (2) (A). The law does not specify “sensible cause.” The brand-new law also develops a more liberal injunction requirement than a court would normally use to a personal action where a complainant looks for initial injunctive relief. See id. § 98.7(b) (2).
An injunction under area 98.7 stays in result till the Labor Commissioner releases a decision or a citation, or finishes the citation evaluation procedure gone over listed below, whichever is later. Cal. Laboratory. Code § 98.7(b) (2)( E). That provides the Labor Commissioner an effective tool through injunctive relief throughout the pendency of a retaliation or discrimination examination. Since there is no time at all limitation on these examinations, companies might deal with the possibility of having their business operations limited for prolonged durations.
New Self-Executing Citation Process: Before SB 306, the Labor Commissioner had to impose its “decisions” in court. SB 306 now puts the concern on companies to leave the Labor Commissioner’s findings.
This brand-new procedure is called the “citation” procedure. After an examination, the Labor Commissioner might issue a citation that consists of “proper relief,” which can consist of an order “directing the person pointed out to stop and desist from the offense and take any action essential to treat the offense, consisting of, where proper, rehiring or reinstatement, repayment of lost incomes and interest thereon, and publishing notifications to staff members.” Cal. Laboratory. Code § 98.74(a). The company then has 30 days to look for evaluation. Id. § 98.74(b). If the company does so, the Labor Commissioner should hold a hearing within 90 days and issue a choice within 90 days after the hearing. Id. § 98.74(c). If the Labor Commissioner verifies the citation, the company has 45 days to look for a writ of required in the suitable Superior Court and to publish a bond. Id. § 98.74(d).
New Sua Sponte Investigations: SB 306 also permits the Labor Commissioner to continue with a retaliation examination even without a protest from a staff member if the Labor Commissioner believes retaliation throughout a hearing under Labor Code area 98 (for wage-related claims), throughout a field evaluation pursuant to area 90.5, or in circumstances of specific presumed immigration-related hazards. Cal. Laboratory. Code § 98.7(a) (2).
New Availability of Employee-Initiated Injunctions in Whistleblower Actions: SB 306 also includes Labor Code areas 1106.61 and 1106.62. These brand-new areas allow a staff member to straight look for an initial injunction in the Superior Court if the staff member is prosecuting a civil or administrative problem under California’s whistleblower security law, Cal. Laboratory. Code § 1102.5. These brand-new arrangements usually integrate the guidelines for retaliation-related injunctions looked for by the Labor Commissioner under area 98.7. See Cal. Laboratory. Code § 1106.62.
Practical Implications for Employers: The Labor Commissioner’s restricted examination and litigation resources might minimize a few of SB 306’s effect. The brand-new arrangements stress the need for companies to act thoroughly in dealing with claims that fall within the Labor Commissioner’s jurisdiction.
Pay Equity Claims: SB 306 enables the Labor Commissioner to look for possibly broad pay-equity injunctive relief on an unwind requirement, and such injunctions might substantially interfere with a company’s operations. The threat of such an injunction supplies yet another factor for companies to perform a proactive, fortunate pay equity analysis. We often assist companies through that procedure, and we have established exclusive analytical tools to assist companies of all sizes.
Retaliation Claims: If a worker participates in a safeguarded activity that falls within the Labor Commissioner’s jurisdiction, the company needs to thoroughly record the legal factor for any unfavorable action and, where proper, consult from knowledgeable work counsel before taking the unfavorable action. Doing so will increase the company’s opportunities for encouraging the Labor Commissioner and a court that no “sensible cause” exists to support an injunction pending an examination because the negative action was considered factors unassociated to any supposed secured activity.
Labor Commissioner Investigations and Employee Whistleblower Claims: Employers dealing with Labor Commissioner examinations or an employee-initiated whistleblower claim after January 1, 2018, ought to maintain knowledgeable work counsel, provided the increased threats provided by SB 306.