2000 DISCRIMINATION COMPLAINT REPORT

(LABOR CODE §98.75)

Labor Code §98.7 which became effective January 1986, establishes the authority of the Labor Commissioner to investigate, process, and resolve employee complaints of discrimination arising under various sections of the Labor Code. The procedures established pursuant to Labor Code §98.7 entail an investigation and or the convening of an investigative hearing after the filing of a complaint alleging discrimination in employment by an employee. In the event that the Labor Commissioner determines that a violation has occurred, the statute authorizes the Labor Commissioner to direct the violator to cease and desist from the violation and to take such action as is deemed necessary to remedy the violation including, where appropriate, rehiring or reinstatement of the aggrieved employee, reimbursement of lost wages and interest thereon, and or payment of reasonable attorney’s fees associated with any investigative hearing by the Labor Commissioner.

Currently, the Division is charged with enforcing twenty-seven statutes prohibiting discrimination in the work place. While the majority of these statutes are contained in the Labor Code, the Division also enforces statutes contained in the Health and Welfare Code and the Unemployment Insurance Code.

Effective January 1, 2000 the following changes in the Discrimination statutes occurred:

    1. AB 1127 changed the statute of limitations on the filing of a discrimination complaint from 30 days to 6 months.

    2. AB 1689 added subsection ‘k’ to Labor Code Section 96. These are claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during non working hours away from the employer’s premises.

    3. AB109 added Labor Code Section 233. Requires an employer that provides sick leave, as a part of the employment contract, to permit an employee to attend to the illness of a child, parent, or spouse. The employee can use only the amount of sick leave earned during six months’ of employment.

    4. SB 56 amended Labor Code Section 230 to add section ‘c’. An employer cannot discharge or discriminate against an employee who is a victim of domestic violence for taking time from work to obtain a restraining order, etc.

    5. AB 1001 repealed Labor Code Section 1102.1 Discrimination/Retaliation based on a person’s sexual orientation. This protection is now covered in the Government Code and enforced by the Department of Fair Employment and Housing.

The following data is submitted in accordance with Labor Code §98.75:

Exhibit "A" shows the number of complaints filed or opened under the various Labor Code Sections in 2000. The Division recorded a total of 834 cases filed in 2000. Approximately 53% of all cases opened during the year were complaints filed pursuant to Labor Code Section 98.6, which prohibits retaliation or discrimination in the workplace as a result of filing or intent to file a claim with the Labor Commissioner. These claims numbered 446. The second largest group of complaints of discrimination filed arose from health and safety issues in the workplace. These complaints, numbering 180, involved employees who claimed discrimination due to reporting safety and health violations on the job, which comprised 22% of total complaints filed.

Exhibit "B" shows the disposition of the various discrimination cases that were processed in 2000. The Division issued decisions in 179 cases, finding for the complainant in 50 of those and for the respondent in 129 cases. Of the total 652 cases closed in 2000, 115 were withdrawn by the complainants before a determination was reached, and 62 cases resulted in voluntary settlements to the satisfaction of both parties.

In calendar year 2000, 25 referrals were made to the Division’s Legal Section to enforce the Decision of the Labor Commissioner. Of the 25 referrals made to the DLSE Legal Section, court actions were filed in 22 cases. Three referrals did not result in filings because 1 settled prior to filing, and 2 defendants filed bankruptcy.

Of the 20 court actions filed, there were 7 settlements or judgments entered after filing and 13 other cases are proceeding with discovery and/or going to trial.

Beginning in 1993 the Division implemented a statewide centralized Discrimination Complaint Investigation (DCI) Unit with five Deputy Labor Commissioners assigned full-time to investigate all discrimination complaints referred to the Division. The Deputies in the DCI Unit, currently twelve full-time investigators, receive ongoing training in investigative techniques and report writing in a effort to ensure they all have a thorough knowledge of the discrimination statutes. The Division will continue to review its procedures to ensure the continuing success of the program.

Respectfully Submitted,

 

Arthur S. Lujan
Labor Commissioner

Attachments (2)

February 2, 2001