09 Nov 2017
November 9, 2017

Beware of Retaliation Claims!

November 9, 2017 0 Comment
New Senate Bill 306 
Allows Employee to Force Reinstatement

On October 3, 2017 Governor Jerry Brown signed into law Senate Bill 306. This law will allow an employee or the labor commissioner to obtain a court order that the employee be reinstated while the employee’s retaliation claim is pending. When the law goes into effect in January 2018, the labor commissioner or the employee can obtain a preliminary injunction upon a showing of only “reasonable cause” that a violation has occurred.

As we have written previously, savvy employees who think that they may be terminated will often make a claim of discrimination or a wage claim, just to put themselves into a protected category and prevent their termination. If they are then terminated, they can claim that it was in retaliation for making the complaint. With the new law, the employee can run to court and ask a judge to reinstate them. The law even lowers the injunction standard. Typically, an injunction can only be granted if the party shows that there is a “likelihood of success” on the claim and irreparable harm if the injunction is not granted. The new law provides that injunctive relief can be granted if the employee proves that there is “reasonable cause” to believe that the employee was terminated in retaliation for making a complaint.

In addition, the new law authorizes the Labor Commissioner to issue a citation against an employer directing the employer to stop and remedy any alleged illegal behavior. To challenge the citation, the employer has to go to court and now has the burden to challenge the citation. This procedure is significantly different from the past process when the Labor Commissioner had the burden to prove the employer’s actions violated law.

Employers should be extra cautious when terminating an employee and should speak with their employment attorney before taking any action.

Contact De Castro & Morrow, LLP for more information. Let’s be proactive together.
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