Labor Commissioner Enforces Discrimination Prohibitions

Last fall when flames blew across southern California in a dramatic and tragic firestorm, most thoughts concerned emergency aid and rebuilding. Probably few people would have expected the Labor Commissioner to possibly be involved. Yet under the state Labor Code, the Labor Commissioner can play a role in such situations.

In emergency situations throughout California, volunteer firefighters protect their communities. In recognition of this essential service to public safety, the Labor Code prohibits employers from discharging or discriminating against employees for serving as volunteer firefighters in an emergency situation.

In two cases resulting from the southern California firestorm, employees serving as volunteer firefighters allegedly suffered discrimination because of their public service. As a result, they filed discrimination complaints with the Labor Commissioner.

In all, the Labor Commissioner investigates discrimination complaints involving 20 types of prohibited discrimination. The Labor Code gives the Labor Commissioner authority to investigate such complaints and order any of several available remedies, if the administrative investigation or hearing establishes that discrimination occurred.

The types of discrimination investigated by the Labor Commissioner differ somewhat from the types handled by civil rights enforcement agencies. California's civil rights enforcement agency, the Department of Fair Employment and Housing, investigates allegations of discrimination on the basis of race, gender, religion, and physical handicap, among other protected categories.

Discrimination complaints reviewed by the Labor Commissioner relate mostly to labor standards, rather than civil rights protections. For instance, some of the most common discrimination complaints involve allegations of retaliation or discrimination for filing a complaint or a wage claim with the Labor Commissioner, making a complaint about safety or health conditions in the workplace, acting as a whistleblower, serving on jury duty, or exercising one's right to engage freely in political activity.

In essence, the statutes enforced by the Labor Commissioner protect individuals from discrimination for exercising certain rights or engaging in certain protected activities.

During the past couple of years, the Labor Commissioner's role in investigating discrimination complaints has received increased attention since the Division of Labor Standards Enforcement (DLSE) began accepting complaints alleging employment discrimination on the basis of sexual orientation. These complaints, though commonly considered a civil rights matter, draw their legal basis from the Labor Code sections prohibiting discrimination on the basis of an employee's political activity.

Assembly Bill 2601, enacted in 1992, codified two court decisions holding that prohibitions on political activity discrimination in employment also prohibit employment discrimination on the basis of sexual orientation. During 1993, the first year AB 2601 was in effect, the Labor Commissioner received 159 complaints alleging sexual orientation discrimination.

In 1993 the Labor Commissioner opened investigations in 658 discrimination complaints over which DLSE was found to have jurisdiction.

An individual may file a discrimination complaint by submitting the necessary form and any supporting documentation to a DLSE field office, or by mailing it to DLSE headquarters. Last year DLSE streamlined the handling of discrimination complaints by centralizing it in a discrimination complaint unit headed by the regional manager at headquarters.

After receipt, complaints are assigned to one of five specially trained discrimination complaint investigators (DCIs) who work in the field throughout the state. At the conclusion of an investigation, the Labor Commissioner reviews all evidence and issues a decision.

In order for the Labor Commissioner to have the authority to investigate a case, in most cases a complaint must be filed within 30 days of the alleged discriminatory action. After a complaint is filed and assigned to a DCI, the DCI contacts the complainant to review the complaint and obtain evidence and a list of potential witnesses. The DCI then informs the employer of the complaint.

The resulting investigation by the DCI usually includes interviews with the complainant, the employer, and any witnesses. At his/her discretion, the DCI may bring together the parties and attempt settlement of the complaint. After the investigation, the DCI sends a summary of the evidence and a proposed order to the Labor Commissioner, who reviews the case and issues a decision that is served on the complainant and the respondent by certified mail.

If unresolved questions remain, the Labor Commissioner may remand a case to a district office for a formal hearing before a hearing officer. This hearing involves testimony from both parties, the DCI, and any witnesses.

The hearing officer then sends the results of the hearing to the Labor Commissioner, who issues a decision on the complaint. Though most cases do not include a formal hearing, about 15 percent do.

The Labor Code establishes four remedies for instances in which the Labor Commissioner determines that an individual suffered discrimination. These remedies are a cease and desist order, an order to rehire or reinstate, reimbursement of lost wages, and requiring the employer to post notices. The Labor Commissioner cannot award punitive damages.

In cases where discrimination has been found, the employer has 10 days to comply with the decision. DLSE legal staff takes whatever legal action necessary against employers who refuse to comply with an order of the Labor Commissioner.

In cases in which the Labor Commissioner determines that discrimination has not been proven, the case is closed. Nonetheless, the complainant is advised that he/she retains the right to pursue a civil legal action against the employer.

All decisions of the Labor Commissioner-whether they favor complainant or employer-may be appealed to the Director of DIR within 10 working days. The Director reviews the records of the case, as well as arguments made by both parties, before issuing a decision. The Director may affirm, reject, or modify the Labor Commissioner's determination, or order the matter to a formal hearing before issuing a decision.

For further information please contact the Division of Labor Standards Enforcement at (415) 703-4750 or write to DLSE, Attn: Discrimination Complaint Unit, P.O. Box 420603, San Francisco, CA 94142-0603.