DISCLAIMER: The statements and opinions contained in this publication are those of the contributors only and are not necessarily those of The State Bar of California, the Workers' Compensation Section, or any government body. This information is intended to be a reference tool only and is not meant to be relied upon as legal advice.
The Workers’ Compensation Section of the State Bar is responsible for presenting many educational offerings throughout the year and does so through its education subcommittee, which is chaired by the Hon. Eric Ledger and co-chaired by the Hon. Colleen Casey. Through their dedication and coordination and with the generous assistance of speakers who contribute their time and talent, the Section presents continuing legal education throughout the state and via the web. On November 18, 2017, the Section will again present its Annual Fall Conference in Los Angeles. I accepted the Section’s invitation to participate on one of the conference panels and I’m looking forward not only to presenting on “Prestidigitation and Other Tricks, Gimmicks, and Gotchas” but also to attending the other interesting sessions, including “Special Considerations When Handling Death Claims,” “The DWC Update,” “At Writ’s End: Practicing with an Eye for Appeal,” “Mastering Opinion Evidence: Balancing Substantiality with the Duty to Develop the Record,” and “One Good Tip Deserves Another.” The conference qualifies for 6 hours of participatory MCLE.
David M. Skaggs, Thousand Oaks/Westlake, CA
Saturday, November 18, 2017
Hyatt Regency LAX
6225 W. Century Blvd.
Los Angeles, CA 90045
Earn 6 Hours of MCLE Credit
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By Julius Young
Governor Brown has signed SB 306, an anti-retaliation bill supported by many labor advocates.
While not a bill directly pertaining to workers’ comp claims, SB 306 has the potential to be very helpful to workers who have difficulty with their employers and want to file claims involving wages, hours, safety violations, or other employment claims.
At the end of this post I’ve included links to the bill text and to the California Senate and California Assembly analyses of the bill.
The Senate Analysis of SB 306 (Hertzberg) notes that:
The California Labor Code establishes a lengthy administrative procedure through which workers can seek redress if their employer retaliates against them for exercising certain workplace rights, such as the rights not to work in hazardous conditions and to demand payment of wages to which they are lawfully entitled. (Lab. Code Sec. 98.7.) If the employer refuses to comply with the Labor Commissioner’s instructions at the end of the process, the worker and the Labor Commissioner are stuck going to court to enforce their remedies. In the meantime, the worker is bearing the consequences of the retaliation: demotion, job loss, or assignment to unpleasant tasks, for instance. Even if the worker is fully compensated in the end, the prospect of enduring these consequences in the meantime can act as a deterrent, discouraging workers from asserting their lawful rights in the workplace.
This bill permits the Labor Commissioner and the employee to seek temporary injunctive relief addressing retaliation during the investigatory phase of the retaliation complaint process. In determining whether or not to grant this injunctive relief, this bill instructs the superior court making the decision to consider the chilling effect of the alleged retaliation on other employees asserting their workplace rights. In addition, this bill gives the Labor Commissioner the option of directly citing an employer at the conclusion of its investigation, rather than having to proceed to superior court. Finally, this bill permits the Labor Commissioner to obtain an award for attorney’s fees and costs when it successfully prosecutes a retaliation claim through the courts.
Workers’ compensation applicant attorneys sometimes see workers whose comp claims are bound up with other types of disputes with their employer. Perhaps an employee has been concerned about safety conditions or wage and hour issues but the employer has dealt harshly with those who complain. The employee is fearful for her or her job.
An injury may occur and subsequently there may be issues arise as to whether the employer’s safety violations amounted to a “Serious and Willful” violation within the meaning of Labor Code §4553. If the employee had felt able to make safety complaints in the first place the injury might not have occurred.
Other workers may end up filing comp claims after wage and hour violations take their physical or psychic toll on the worker.
Sometimes these issues are side issues in a Labor Code §132A allegation, as it may be difficult to determine whether a demotion or firing was due to retaliation for reporting safety concerns or wage and hour violations, or whether it was due to retaliation for claiming a work injury.
The Senate Committee analysis recognizes this, noting that:
Retaliation against an employee in the workplace is a very serious problem that can go beyond the individual who is discharged or faces other adverse actions. That’s because safety and employee rights in the workplace depend on workers reporting health and safety hazards or other violations. Sometimes, the employer remedies the situation immediately. Unfortunately, some whistleblower employees are discharged or retaliated against in other ways for reporting such hazards.
Despite the fact that retaliation is prohibited, it remains disturbingly common across California. In 2014 alone, the state began investigations of 1,874 cases covering 3,045 violations. Complicating things further, the Labor Commissioner does not have direct penalty authority to enforce determinations made affirming the employee’s rights, meaning a separate court order – and even more time – is needed to hold recalcitrant employers accountable.
The deficiency in current law is that finalizing these complaints is extremely time-consuming, sometimes taking a year or more before a worker is given their job back or made whole. But by that time, the employee may have found other work and their co-workers only see that a person who reported violations is no longer there. The fear of retaliation results in a chilling effect, reducing the likelihood that workers will report workplace violations.
SB 306 makes important amendments to Labor Code §98.7 and adds new Labor Code sections, giving the Labor Commissioner additional power to investigate retaliation complaints (or to initiate investigation without a formal complaint).
As the Assembly analysis noted, the bill essentially shifts the legal burden. In the past the law required the Labor Commissioner to go to court to bring an enforcement action. Under SB 306 the Labor Commissioner will be able to issue an enforcement order and the employer would have to go to court to challenge such an order.
Here is the California Senate analysis of SB 306:
http://201720180SB306_Senate Floor Analyses.pdf
The California Assembly analysis of SB 306 can be seen here:
http://201720180SB306_Assembly Floor Analysis.pdf
The text of SB 306 showing what Labor Code sections have been added or amended can be see here:
The current Labor Commissioner web page can be found here:
Stay tuned. The Governor will be acting on several other comp-related bills within the next few days.
© Copyright 2017 by Julius Young. All rights reserved. Reprinted with permission.
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