March 2018 Newsletter – Community College Districts

Senate Bill 306 Makes Retaliation Claims Harder to Combat

On October 3, 2017, Governor Brown signed Senate Bill 306 (Hertzberg), granting additional powers to the Division of Labor Standards Enforcement. Effective on January 1, 2018, the new law will change the standards courts use to grant injunctive relief, will allow the Labor Commissioner to investigate suspected discrimination even when no complaint has been filed, and will empower the Labor Commissioner to issue citations to compel appropriate relief. All employers in the state are potentially susceptible to claims of retaliation.

Injunctive Relief

When a court is asked to grant “injunctive relief,” a party is asking the court to order someone to stop doing something by issuing an injunction. Generally, in order to convince the court to issue an injunction, the asking party must show that they will be irreparably harmed without court intervention, that they have a high probability of winning their case on the merits, and that any harm to the other party is outweighed by the harm the asking party would suffer if the court refused to grant the order.

Senate Bill 306 changes this legal calculus in favor of the employee, setting the bar much lower. Going forward, the standard in these cases will be “reasonable cause.” If the Labor Commissioner can show “reasonable cause” that the employee was the target of retaliation or an adverse employment action based on discrimination, a court may grant injunctive relief. SB-306 requires the court to consider a “chilling effect” on other employees when deciding whether injunctive relief is proper, a factor that considerably favors the employee over the employer.

The timeline for seeking injunctive relief has also changed. Prior to enacting SB-306, injunctive relief was available to employees after the Labor Commissioner investigated and determined that an unlawful act had occurred. Under the new law, the Labor Commissioner will be able to seek injunctive relief during the course of the investigation. Such an order may require that an employee alleging retaliatory termination be rehired or reinstated pending the outcome of the investigation. However, employers will be relieved to learn that temporary injunctive relief does not prevent an employer from disciplining or terminating an employee for unrelated conduct.


SB-306 establishes for the Labor Commissioner a new power to issue citations to enforce retaliation claims. Previously, when the Commissioner sought to enforce a penalty, a civil action would be filed. Beginning January 1, 2018, however, the Commissioner can issue a citation that orders an employer to cease any illegal actions and implement a remedy. This shifts the burden of seeking judicial review of the citation to the employer seeking to challenge it.

Spontaneous Investigations

The new law will untether the Labor Commissioner from established DLSE complaint procedures, authorizing the Commissioner to initiate an investigation of an employer if the employer is suspected of discharging or otherwise discriminating against an individual in violation of any of the laws within the Labor Commissioners jurisdiction. DLSE is authorized to investigate, without a complaint, instances where the suspected retaliation occurs during a field inspection, during the adjudication of a wage claim, or regarding suspected immigration-related threats.

Senate Bill 306 significantly expands the rights of employees and will make it more burdensome, and potentially more expensive, for employers to fight allegations of retaliation.

If you have any questions or concerns, or if you wish to further discuss this or other similar issues, please feel free to contact our law firm.

For more information regarding this article, please contact Joshua Taylor at jtaylor@ericksonlaw.com. For questions in general regarding this newsletter, please contact Kristina Limon at klimon@ericksonlaw.com.

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This publication was prepared solely for information purposes and should not be construed to be legal advice. If you would like further information on this matter, please contact our office.

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