Executive Summary
The California Assembly has made several small amendments to AB257. While most are not material, two would likely allow additional employment claims to proceed.
Analysis
On April 28, 2021, the Assembly amended AB257. While most amendments are technical terminology changes to the bill, two changes are substantive. Those are as follows:
1473. (a) A fast food restaurant franchisee or fast food restaurant franchisor operator shall not discharge or in any manner discriminate or retaliate against any fast food restaurant employee for any of the following reasons:
(1) The employee made a complaint or disclosed information to the franchisee, franchisor, fast food restaurant operator or a governmental agency regarding employee or public health or safety.
(2) The employee instituted, caused to be instituted, testified in, or otherwise participated in a proceeding relating to employee or public health or safety, or any council or Local Fast Food Sector Council proceeding.
(3) The employee refused to perform work in a fast food restaurant because the employee had reasonable cause to believe that the practices or premises of that fast food restaurant would violate any of the worker and public health and safety laws, regulations, or orders in Section 1471, or would pose a substantial risk to the health or safety of the employee, other employees, or the public.
(b) Any employee of a fast food restaurant franchisor or fast food restaurant franchisee operator discharged or otherwise discriminated or retaliated against in the terms and conditions of employment in violation of subdivision (a) shall have a right of action for, and shall be entitled to to, reinstatement, and treble the lost wages and work benefits caused by the discrimination or retaliation, and the employee’s reasonably incurred attorney’s fees and costs. The Labor Commissioner may enforce violations of this section, with or without receiving a complaint, pursuant to Sections 98.7 and 98.74.
(c) There shall be a rebuttable presumption of unlawful discrimination or retaliation for purposes of this section if a fast food restaurant operator discharges or takes any other adverse action against one of its employees within 90 days following the date when the operator had knowledge of that employee’s action or actions described in paragraphs (1) to (3), inclusive, of subdivision (a).
Looking Forward
Providing the Labor Commissioner with the authority to enforce violations of this section “without receiving a complaint” appears on its face to be an extreme change to the bill. In reality, this is merely a codification of power already given to the Labor Commissioner. Specifically, Labor Code section 98.7(d) states, “The division may, with or without receiving a complaint, commence investigating an employer, in accordance with this section, that it suspects to have discharged or otherwise discriminated against an individual in violation of any law under the jurisdiction of the Labor Commissioner.”
The change that is more complicated/interesting is the new “rebuttable presumption of unlawful discrimination” where an “operator discharges or takes any other adverse action against one of its employees within 90 days following the date when the operator had knowledge of that employee’s actions.” Construing this new section in the light most favorably to the legislature, the legislature may mean that a plaintiff could establish a prima facie case of unlawful retaliation if an employer takes an adverse employment action against an employee within 90 days of that employee’s complaint of unlawful conduct but such action should not be employment complaint of unlawful conduct but (i) an employer could rebut that allegation by articulating a legitimate reason for its adverse employment action, (ii) the timing of the adverse employment action should not, in and of itself, be taken as pretext for the adverse employment action, and (iii) the employee would still need to prove by a preponderance of the evidence that their allegedly protected activity was a contributing factor in the contested employment action. This would more closely align with well-settled law so it will be interesting to see if the legislature amends this section or if a Court will need to resolve this potential over simplification of the language in the bill.
This article was originally published on the California Franchise Network.
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Thomas O’Connell – Tom O’Connell is a Shareholder at Buchalter APC, where he serves as Chair of the firm’s Franchise Law Practice and Chair of Litigation for the firm’s San Diego office.
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