On Tuesday, November 10, 2020, the Los Angeles County Board of Supervisors approved a program allowing third-party organizations in the food, apparel manufacturing, warehousing and storage, and restaurant sectors to create "Public Health Councils." The Board is authorizing formation of the councils for the stated purpose of educating workers on health orders, and helping workers report health and safety violations. On November 24, 2020, the Board unanimously adopted Ordinance 2020-0065U, which provides sweeping anti-retaliation provisions relating to work of these councils.
Such third-party organizations presumably would include labor unions, which supported the program. The county will certify the organizations to provide training to the councils with regard to COVID-19 health and safety protocols. Business groups including the Los Angeles Area Chamber of Commerce, and the Los Angeles County Business Federation (BizFed), opposed the program, but were unsuccessful in preventing the Board from creating the program.
Under Ordinance 2020-0065U, an employer may not take any adverse action against an employee for reporting to the county, "non-County agencies or entities, the Worker's Employer, other Workers, or Public Health Councils" any information about an employer's or another worker's noncompliance with any County health officer orders, or any provision of Title 11 (Health and Safety) of the Los Angeles County Code. Retaliation is similarly prohibited for "discussing ... perceived" noncompliance with such provisions. Employers also may not retaliation against any employee for "forming or belonging to a Public Health Council."
The ordinance includes a private right of action for employees to file suit, and imposes penalties for retaliation, but also contains a "right to cure" provision. Prior to filing suit, the claimant must provide an employer with written notice of any alleged violations, along with a statement of facts to support the allegations. The employer then has 15 days to cure any violation before the employee may bring a lawsuit.
This is an urgency ordinance, and so is in effect immediately. Employers doing business in Los Angeles County within the industrial sectors covered should prepare for the possible formation of Public Health Councils, which could then potentially attempt to make contact with employees with regard to COVID-19-related health and safety issues. Such activities are broadly protected under the new ordinance.
Originally Published by Littler Mendelson, December 2020
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