On October 8, 2023, California Governor Gavin Newsom signed into legislation Senate Invoice No. 497, the “Equal Pay and Anti-Retaliation Safety Act.” The brand new legislation amends California Labor Code sections 98.6, 1102.5, and 1197.5 to create a “rebuttable presumption of retaliation” if an worker experiences an antagonistic employment motion inside 90 days of partaking in any protected exercise coated by the desired sections. This new legislation, which is able to turn out to be efficient on January 1, 2024, additionally entitles a prevailing plaintiff civil penalties for every violation.
Part 98.6 issues the train of worker rights afforded underneath the Labor Code, together with partaking in protected conduct associated to wage claims, claims arising from violations of the worker’s political and civic rights, claims for restoration by way of the Non-public Attorneys Common Act (PAGA), and submitting a declare or collaborating in a continuing regarding worker rights which are underneath the jurisdiction of the Labor Commissioner. Part 1102.5 issues sure whistleblower exercise and an worker’s proper to refuse to take part in conduct that might lead to a violation of state or federal legal guidelines or laws. Part 1197.5 issues protected exercise associated to California’s Equal Pay Act.
Background
Senator Lola Smallwood-Cuevas (D-Los Angeles) launched SB 497 on February 14, 2023. Previous to her election, Smallwood-Cuevas had labored for the UCLA Labor Middle from 2004 to 2022, serving as its Mission Director for 15 years.[1] Senator Smallwood-Cuevas ran on a marketing campaign platform promising the enlargement of office anti-discrimination protections.[2]
In advocating the adoption of SB 497, Senator Smallwood-Cuevas claimed that, “the worry of retaliation remains to be one of many predominant causes employees are afraid to report labor violations.”[3] She went on to argue that, many retaliation claims are dismissed largely as a consequence of the truth that the employee presently has the burden of proof.[4] The Senator additionally claimed that the burden of proof is “extraordinarily difficult for a employee who doesn’t have the identical stage of entry to info because the employer. [This bill] would shift the burden of proof from the employee to the employer.”[5]
In opposition, a coalition of employer organizations, together with the California Chamber of Commerce, argued that courts, “already take timing into consideration when evaluating a retaliation declare… [and] must be allowed to contemplate different components related to the particular case. Making a presumption merely permits claims to proceed that shouldn’t be transferring ahead, which wastes priceless courtroom and litigant sources.”[6]
Current Retaliation Legislation
Below current legislation, retaliation claims focus on an allegation that the employer subjected the worker to an antagonistic employment motion as a result of the worker engaged in protected actions. Traditionally, the place a retaliation declare is introduced primarily based on allegations of retaliation for partaking in protected actions underneath the Labor Code, courts apply a three-step burden-shifting evaluation.
First, the plaintiff bears the burden of creating a prima facie case of retaliation by demonstrating that (a) the worker engaged in protected exercise; (b) the worker skilled an antagonistic employment motion (e.g., separation, demotion, suspension, and many others.); and (c) a causal nexus exists between the protected exercise and the alleged antagonistic motion. Second, if the plaintiff establishes a prima facie case, the employer could rebut that presumption by figuring out a reputable, non-retaliatory cause for the antagonistic employment motion. And at last, if the employer establishes a reputable, non-retaliatory motive, the worker should provide proof to determine that the employer’s non-retaliatory cause was pretextual in nature.
Modifications to the Burden of Proof
SB 497 creates a rebuttable presumption that an employer has retaliated in opposition to an worker if the worker experiences an antagonistic employment motion inside 90 days of the worker partaking in exercise protected underneath any of the Labor Code provisions specified above. The brand new legislation basically codifies the notion that the timing of an allegedly antagonistic employment motion following the worker’s engagement within the specified protected exercise obviates the standard burden-shifting evaluation. As a substitute, it squarely locations the burden of proof on the employer to determine that the antagonistic employment motion inside that 90-day window was primarily based on a reputable non-retaliatory cause(s), successfully eliminating the plaintiff’s want to determine a prima facie case by routinely beginning the burden-shifting evaluation on the second step.
SB 497 additional supplies that if an employer is discovered to have retaliated in opposition to an worker for Part 1102.5 protected exercise, along with the opposite accessible treatments underneath the Labor Code, the employer might also be responsible for a civil penalty not exceeding $10,000 per worker for every violation. This civil penalty is already accessible for Part 98.6 protected exercise.
Impression of the New Legislation
SB 497 will make it simpler for an worker to pursue a declare for retaliation the place the worker experiences an antagonistic employment motion inside 90 days of partaking in sure protected actions. Nevertheless, as a result of that is merely a rebuttable resumption, the employer should articulate a reputable non-retaliatory cause or causes for the choice. For instance, if an worker complains to her supervisor that she is being underpaid as in comparison with her male workers, after which two months later the worker’s at-will employment is terminated and he or she brings a Labor Commissioner grievance of retaliation, the Labor Commissioner will presume that the employer engaged in illegal retaliation, until and till, the employer supplies proof to determine non-retaliatory causes for the termination. Furthermore, SB 497 doesn’t relieve an worker of the duty to in the end provide proof to determine that the employer’s non-retaliatory cause was pretextual in nature.
What’s Subsequent
Time will inform how the brand new rebuttable presumption normal together with the brand new civil penalties will impression Labor Commissioner hearings and potential PAGA litigation, in addition to an employer’s potential to dismiss retaliation claims on abstract judgment. What is evident is that SB 497 is one other necessary reminder to employers within the Golden State that they need to take worker complaints relating to wages and potential Labor Code violations very critically and keep away from any actions in opposition to an worker that might rise to the extent of illegal retaliation. Moreover, the legislation additional serves to remind employers of the significance of documenting reputable office efficiency points.
FOOTNOTES
[1] https://dailybruin.com/2023/03/14/labor-center-celebrates-lola-smallwood-cuevas-election-to-state-senate
[2] https://lolaforca.com/campaign-issues/
[3] https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=202320240SB497#
[4] Id.
[5] Id.
[6] Id.
