SB 306: Whistleblower protections enhanced

Senate Bill 306 expands the protections afforded to whistleblowers in the workplace and revises retaliation claim procedures by amending California Labor Code Section 98.7. Existing Section 98.7 prohibits an employer from discharging, discriminating, retaliating, or taking any adverse action against any employee or applicant for engaging in protected conduct, such as reporting Labor Code violations.

As of Jan. 1, 2018, SB 306 allows the California Division of Labor Standards Enforcement to investigate an employer, with or without receiving a complaint, when it suspects an employer has discharged or discriminated against a person in violation of any law under the jurisdiction of the labor commissioner. The DLSE may proceed without a complaint where retaliation is suspected during the course of adjudicating a wage claim, during a field inspection, or in instances of suspected immigration-related threats in violation of law. This amendment expands existing law, under which the labor commissioner will investigate complaints by aggrieved employees or applicants.

Additionally, SB 306 permits the labor commissioner to petition a court for temporary or preliminary injunctive relief, including reinstatement of an employee, upon finding reasonable cause to conclude that the employer has violated Section 98.7 by taking adverse action against the employee for reporting a Labor Code violation. Existing law entitles an employee to back pay or reinstatement after the labor commissioner has found a violation; however, the amended law allows for reinstatement before completion of any investigation or litigation to determine whether a violation has occurred. Under SB 306, the temporary injunction will remain in effect until the labor commissioner issues a determination or citation, or after a review under Section 98.74. Although the bill provides temporary injunctive relief for whistleblowers, it does not prohibit an employer from disciplining or terminating an employee for conduct unrelated to the retaliation claim.

Current law requires that the labor commissioner enforce a determination through a civil action. SB 306 adds Section 98.74 to the Labor Code, authorizing the labor commissioner, after investigating a retaliation or discrimination complaint, to issue a citation directing an employer in violation to cease and desist and remedy the violation, which may include reinstating the employee, reimbursing lost wages, and posting workplace notices.