California rebalances the scales when it comes to employee retaliation and whistleblower claims

SB 306 is a substantial expansion of protections for workers against retaliation by employers.

Effective January 1, 2018, SB 306 authorizes the Labor Commissioner, “with or without receiving a complaint” from an employee, to commence an investigation into alleged retaliation.  Prior to SB 306, the Labor Commissioner was authorized to conduct such investigations only after receiving a worker complaint.

The bill also authorizes the Labor Commissioner to petition a superior court for “injunctive relief.”  Injunctive relief means a court order requiring, in this case, an employer to do, or not do, a specific action. 

For example, injunctive relief would include ordering reinstatement of a worker who is fired for retaliatory reasons.  In a situation where a worker faced retaliation for asserting her rights, the Labor Commissioner can ask the court to order injunctive relief in the form of reinstatement based on a showing of “reasonable cause.”  

This law makes it easier for workers to obtain injunctive relief from a court when their employer has retaliated against them.  Employers may now have to put an employee back to work pending the years it can take to litigate a claim made by the employee that she was subject to unlawful retaliation.

This bill could prove to be beneficial to unions engaged in organizing campaigns.  Previously, when an employer fired pro-union workers or otherwise retaliated against them—even where this conduct violated the law—it could be difficult and time consuming to prevail.  The right to injunctive relief under this new provision could put workers back to work immediately, preserve a union organizing campaign, and could support increased unionization.

SB 306 amends Labor Code § 98.7 and adds Labor Code §§ 98.74, 1102.61 and 1102.62.  Please contact your labor law counsel with further inquiries. 

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