The recent legislative session gave rise to a plethora of new laws applicable to employment. One of these laws, SB 497, gives certain employees new rights and presumptions in litigation over termination of their employment.
Even prior to enactment of SB 497, existing law prohibited a person from discharging an employee or in any manner discriminating, retaliating, or taking any adverse action against any employee or applicant for employment because the employee or applicant engaged in “protected conduct” under the Labor Code. An employee who was discharged, threatened with discharge, demoted, suspended, retaliated against, subjected to adverse action, or in any other manner discriminated against in the terms and conditions of their employment because, among other things, the employee engaged in “protected conduct” was entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer.
AB 497, however, has created a rebuttable presumption in favor of the employee’s claim if an employer engages in any action prohibited by the Labor Code within 90 days of the “protected activity.” This shifts the burden of proof of the reasons for the employer’s actions upon the employer if the termination occurred within 90 days of the” protected activity.” One can easily imagine a poorly performing employee recurrently engaging in “protected activity” to forestall termination of employment.
However, the fun does not stop here. AB 497 established that, in addition to other remedies, an employer is liable for a civil penalty not exceeding $10,000 per employee for each violation of AB 497 to be awarded to the employee who was retaliated against. The Labor Commissioner can assess the penalty, upon consideration of the nature and seriousness of the violation based on the evidence obtained during its investigation.
AB 497 also created a rebuttable presumption in favor of the employee’s claim if an employer prohibits the discussion of wages against the employer and acts against the employee within 90 days of the employee sharing of wage information with others and the employer engages in any action against the employee within 90 days of the protected activity specified in this provision.
One can easily see how an unscrupulous employee is likely to manipulate these provisions to stay employed. If you are an employer, no matter what reason you may have to terminate an employee, contact your attorney before you do so. If you don’t you may be presumed to have wrongfully terminated the employee(s).
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
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