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Retaliation Claims Get Stronger

Governor Brown just signed SB-306, which significantly strengthens retaliation claims. Employers cannot discharge, discriminate, retaliate, or take adverse action against employees because they engaged in specified protected conduct. Aggrieved employees can seek reinstatement and reimbursement for lost wages and work benefits. Employees can file claims with the Labor Commissioner or pursue a case in court.

Retaliation Claims by Labor Commissioner

Under amdned Labor Code 98.7, the Labor Commissioner can pursue retaliation claims even if no one complains.

The division may, with or without receiving a complaint, commence investigating an employer, in accordance with this section, that it suspects to have discharged or otherwise discriminated against an individual in violation of any law under the jurisdiction of the Labor Commissioner.

The Labor Commissioner can petition the court for injunctive relief, including reinstatement. The court must order injunctive relief if “reasonable cause exists to believe that an employee has been discharged or subjected to adverse action for raising a claim of retaliation or asserting rights under any law under the jurisdiction of the Labor Commissioner.” The court must consider the “chilling effect” on other employees when determining the appropriate injunctive relief.

An employer that refuses to comply with the injunctive relief can be fined “one hundred dollars ($100) per day for each day the employer continues to be in noncompliance with the court order, up to a maximum of twenty thousand dollars ($20,000)

Retaliation Claim Process

New Labor Code section 98.74 describes specific timelines and processes for retaliations claims by the Labor Commissioner. The Labor Commissioner issues a citation in writing, describing the nature of the violation and the amount of wages and penalties due. The citation must also include any and all appropriate relief, such as cease and desist orders, rehiring or reinstatement, reimbursement of lost wages and interest thereon, and posting notices to employees.

Employers have 30 days to request  hearing, or the citation becomes final. The hearing must proceed within 90 days. There is no mechanism for conducting discovery before the hearing, and no limit on how short or how long a hearing can last. The decision must be issued within 90 days of the conclusion of the hearing. The decision must contain a statement of findings, conclusions of law, and an order.

Employers dissatisfied with the results can file a writ of mandate with the superior court within 45 days. Employers must also obtain a bond “equal to the total amount of any minimum wages, liquidated damages, and overtime compensation” owed.  The bond does not have to include penalties. The order becomes final when no writ is filed.

Employers refusing to comply with a final order are subject to penalties of $100 per day per employee, up to $20,000. The affected employees receive the penalties.

Retaliation Claims by Employees

SB-306 allows employees bringing retaliation claims to include requests for injunctive relief. Courts are directed to issue injunctive relief (i.e., reinstatement) when “reasonable cause exists to believe a violation has occurred.”

The court is must consider the “chilling effect” on other employees.

The new law will go into effect January 1, 2018. You can read the full text of the bill here.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties

Where Can I Sue?

 

When Rachel Verdugo began working for Alliantgroup, L.P., she signed an employment agreement agreeing to file any employment-related lawsuits in Harris County, Texas, and agreeing that Texas law governed all disputes. Verdugo had to first address the question, Where Can I Sue? When Verdugo tried to sue in California, the trial court said she had to file in Texas.  Verdugo appealed contending the trial court erred because enforcing the forum selection clause and related choice-of-law clause violated California’s public policy on employee compensation.  The California court of appeal agreed and reversed the trial court’s order.

Where Can I Sue? Enforcing Forum Selection Clauses

Although a party opposing enforcement of a forum selection clause ordinarily bears the burden to show enforcement would be unreasonable or unfair, the burden is reversed when the underlying claims are based on statutory rights the Legislature has declared to be unwaivable.  In that instance, the party seeking to enforce the forum selection clause has the burden to show enforcement would not diminish unwaivable California statutory rights. Otherwise a forum selection clause could be used to force a plaintiff to litigate in another forum that may not apply California law.

Verdugo based all her claims on Labor Code provisions that not only establish when and how employers must pay overtime and other forms of compensation, provide meal and rest breaks, and provide accurate wage statements to all California employees, but also establish specific remedies for an employer’s violation of these provisions, including recovery of unpaid wages, interest, civil penalties, and attorney fees.  To protect these important rights and remedies, the Labor Code declares they cannot be waived by agreement.

Alliantgroup failed to show enforcing the forum selection clause and related choice-of-law clause in Verdugo’s employment agreement would not diminish her statutory rights by requiring her to litigate her claims in Texas under Texas law.  Alliantgroup contended Verdugo’s statutory rights would not be affected by enforcing the forum selection clause because a Texas court “most likely” would reject the parties’ choice-of-law clause and apply California law.  Alliantgroup’s supposition about what a Texas court is likely to do was not sufficient to meet its burden because Alliantgroup’s arguments on appeal suggested it would argue against applying California law if the case was litigated in Texas, and Alliantgroup did not cite any authority that convinced the court that a Texas court would necessarily apply California law.

The few cases Alliantgroup cited did not address how a Texas court would view a choice-of-law clause in the context of a wage and hour dispute between a Texas employer and a California employee.  Alliantgroup did not address the competing policies of the two states.  Alliantgroup could have eliminated any doubt about which law would apply to Verdugo’s claims by stipulating to have the Texas courts apply California law, but failed to do so.  Instead, Alliantgroup carefully phrased its arguments in terms of vague possibilities while simultaneously seeking to minimize the significance of the California statutory rights on which Verdugo bases her claims.  Alliantgroup therefore did not show Verdugo’s unwaivable statutory rights would not be diminished.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.