The 12 days of California Labor & Employment Series – Day 10 "Expansion of DLSE Powers"

It's the end of the year and while everyone is busy, employers in California should be aware of new laws and regulations that go into effect on January 1, 2018. In the spirit of the season, we are using the next "12 days of the holidays" to blog about one California law a day and that law's impact on California employers. On the tenth day of Christmas, my Labor and Employment attorney gave to me – ten pipers piping and SB 306.

It is unlawful for an employer to discharge or otherwise discriminate against an employee in violation of any law under the jurisdiction of the Labor Commissioner. Currently, the Labor Commissioner is allowed to investigate alleged retaliation claims only after receiving a complaint. As of January 1, 2018, the Division of Labor Standards Enforcement ("DLSE") will have the authority to commence an investigation of an employer, with or without a complaint being filed, when specified retaliation or discrimination is suspected during the course of a wage claim or other specified investigation being conducted by the DLSE. If good cause is found, the DLSE may petition the superior court for injunctive relief. 

In order to succeed obtaining injunctive relief, the Labor Commissioner must show "reasonable cause" that the employee has been unlawfully discharged, retaliated against or subjected to an adverse action. Employers take note that if injunctive relief is granted, the temporary injunctive relief does not prohibit an employer from disciplining or terminating an employee for conduct that is unrelated to the claim of retaliation.   

In addition, the DLSE  can issue citations directing specific relief to persons determined to be responsible for violations. An employer may be subject to penalties of $100 per day (up to a maximum of $20,000) for any willful refusal to comply with a court order to cease and desist a retaliation violation, to post a notice to employees, or to hire, promote, or otherwise restore a current or former employee to a position. An employer who disagrees with an Order may seek review through an administrative hearing before the Labor Commissioner within 30 days of the citation. Any decision by the Labor Commissioner will be subject to review by a Superior Court through an administrative writ of mandate.