Assembly Policy Committee Passes Bill Enhancing Labor Commissioner Authority

A California Chamber of Commerce-opposed bill that allows the Labor Commissioner to seek injunctive relief before completing an investigation and determining retaliation has occurred passed the Assembly Labor and Employment Committee yesterday.

SB 306 (Hertzberg; D-Van Nuys) also requires an employer to pay the costs and fees of the Labor Commissioner to pursue a civil action for retaliation, even if the claim lacks merit.

CalChamber is opposed to SB 306 because it provides the Labor Commissioner’s office and an individual employee with authority that will:

  • expose employers to increased legal costs;
  • potentially require an employer to continue to employ an individual who has committed harassment, assaults, dangerous threats, or other egregious conduct;
  • place employees who allege retaliation in a better position than victims of stalking or harassment; and
  • expose employers to constant threats of civil proceedings and costs, as well as excessive penalties for simple posting violations.

Prohibits an Employer from Terminating an Employee Who Has Engaged in Egregious Conduct

SB 306 proposes to allow an employee or the Labor Commissioner to obtain a temporary restraining order that will prohibit the employer from terminating an employee based upon an allegation of retaliation. Currently, the Labor Commissioner has the authority to seek any appropriate relief, including injunctive relief, after it has investigated a claim of retaliation and made a determination that a violation exists. SB 306 proposes to allow the Labor Commissioner the authority to petition the court for temporary or permanent injunctive relief before it has completed an investigation and made a determination. The injunction would remain in effect until the Labor Commissioner issues a citation or determination as to whether a violation actually occurred.

Once an order from a court is obtained prohibiting an employer from terminating an employee, the employer is precluded from taking any action. What happens if, after this order is obtained, the employee violates employer policies? What happens if, after this order is obtained, the employee commits multiple acts of sexual harassment? What happens if, after this order is obtained, the employee makes threats of violence in the workplace? What happens if, after this order is obtained, the employee commits even more severe acts or conduct? Under SB 306, the employer would be prohibited from terminating the employee that engages in egregious conduct based on the temporary restraining order obtained by the Labor Commissioner’s office. Nothing in the language allows the employer to terminate an employee for good cause after the order is obtained.

Places the Labor Commissioner in a Better Position to Obtain a Temporary Restraining Order than Victims of Harassment or Stalking

Notably, this proposal also places the Labor Commissioner and an individual alleging retaliation in a better position to obtain a temporary restraining order than victims of stalking or harassment, recipients of public benefits, or individuals seeking to engage in protests. Under a section of the California Civil Code, an individual who seeks a temporary restraining order must establish:

  • irreparable harm if the restraining order is not granted;
  • likelihood of success on the merits of the claim; and
  • that these interests outweigh the harm that the defendant will suffer from the order.

Under SB 306, the Labor Commissioner or individual employee does not have to establish “irreparable harm” or that the Labor Commissioner or individual is likely to prevail on the merits of the claim for retaliation, as individuals subject to harassment, stalking, or denial of significant benefits must prove.

Rather, the Labor Commissioner must simply show “reasonable cause” to obtain a temporary restraining order that will prohibit an employer from taking action against an employee who engages in egregious conduct. This is a significant expansion of authority and will preclude an employer from maintaining a safe work environment for all employees.

Moreover, despite the requirement in the state Labor Code that the Labor Commissioner must make a determination within 60 days after a complaint has been filed for retaliation, these investigations can take as long as three years.

Under SB 306, during this three-year period, or even longer, an employer could be prevented from terminating an employee engaging in egregious conduct. Additionally, for three years or longer, SB 306 would give an employee and the Labor Commissioner authority to legally challenge every action or omission of an employer before a violation is proven. This would significantly interfere with an employer’s ability to manage its workforce as well as create a constant threat of civil proceedings and cost.

SB 306 also completely alters the procedure under which a retaliation determination is processed. Currently, the burden is on the Labor Commissioner to enforce the determination through a civil action. SB 306 provides the option for the Labor Commissioner to simply cite the employer for an alleged violation, and places the burden on the employer to challenge the citation through an administrative hearing and writ of mandate. Furthermore, SB 306 exposes employers to significant penalties of $100 per day up to a maximum of $20,000 for a posting violation, which is overly punitive.

Key Vote

SB 306 passed the Assembly Labor and Employment Committee 5-2 on July 5.

Ayes: Gonzalez Fletcher (D-San Diego), Jones-Sawyer (D-South Los Angeles), Kalra (D-San Jose), McCarty (D-Sacramento), Thurmond (D-Richmond)

Noes: Flora (R-Ripon), Harper (R-Huntington Beach).

Staff Contact: Jennifer Barrera

Jennifer Barrera
Jennifer Barrera took over as president and chief executive officer of the California Chamber of Commerce on October 1, 2021. Previously, she oversaw the development and implementation of policy and strategy as executive vice president and represented the CalChamber on legal reform issues. She led CalChamber advocacy on labor and employment and taxation from September 2010 through the end of 2017. As senior policy advocate in 2017, she worked with the executive vice president in developing policy strategy. Before joining the CalChamber, she worked at a statewide law firm that specializes in labor/employment defense. Barrera earned a B.A. in English from California State University, Bakersfield, and a J.D. with high honors from California Western School of Law. See full bio.