L.A. County Adds Anti-Retaliation Ordinance to COVID-19 Reporting Program

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On Tuesday, November 24, 2020, the Los Angeles Board of Supervisors unanimously approved a new anti-retaliation ordinance, which is intended to protect employees in the County who report or discuss public health violations by their employers and, in particular, to encourage the reporting of potential violations of Health Officer Orders and regulations implemented to address the COVID-19 pandemic. This ordinance complements the County’s newly created Public Health Councils (PHCs) program, a new COVID-19 workplace safety compliance monitoring initiative designed to help workers regulate and monitor compliance with local COVID-19 safety regulations and Health Officer Orders in the workplace.

The ordinance was adopted as an urgency ordinance, meaning that it went into effect immediately upon adoption on November 24, 2020.

New Protections

The ordinance prohibits discrimination or adverse action by an employer, or the employer’s agent, against an employee for:

  1. Reporting any perceived noncompliance with a Health Officer Order or the County Code’s health and safety rules, whether by the employer or an employee;
  2. Discussing any such perceived noncompliance, whether with County staff, other employees or members of a Public Health Council;
  3. Belonging to a Public Health Council;
  4. Informing any employee of their rights under the new ordinance or assisting in the exercise of those rights; or
  5. Exercising any rights provided by the new ordinance.

Any alleged noncompliance must be based on a good faith belief. Further, any adverse action against an employee within 90 days of the exercise of protected rights under the new ordinance creates a rebuttable presumption of retaliation.

Enforcement Process

Under the new ordinance, complaints must be lodged with the L.A. County Department of Public Health. Complaints are to be investigated and evaluated by the Department of Consumer and Business Affairs. Findings of violations must be made within one year after a complaint is received. Penalties for violation of the new rules may result in a fine of up to $10,000.

The new ordinance also provides employees in the County with a private right of action. Employees (or the County on behalf of an employee) may bring a claim for retaliation in California Superior Court within three years of any alleged retaliation, and may seek hiring or reinstatement as well as actual and punitive damages, and may also seek attorneys’ fees. An employer may also seek attorneys’ fees where it can show that an employee’s claim was frivolous. In order to bring suit, an employee (or County Counsel) must provide written notice to the employer and give the employer 15 business days after receipt to cure the violation(s).

Notably, the ordinance does not apply to employees within cities with their own Health Officer, effectively exempting the cities of Pasadena and Long Beach from the new law.

More on the Public Health Councils Program

More information on the Public Health Councils program is available in this article for the Daily Journal, authored by Manatt government and regulatory partner Brandon Young and associate Jacob Itzkowitz.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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