Amended in Assembly May 24, 2013

Amended in Assembly April 11, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 263

Introduced by Assembly Member Roger Hernández

February 7, 2013

An act to amend Sections 98.6, 1102.5, and 1103 of, to add Section 1024.6 to, and to add Chapter 3.1 (commencing with Section 1019) to Part 3 of Division 2 of, the Labor Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

AB 263, as amended, Roger Hernández. Employment: retaliation: immigration-related practices.

Existing law prohibits an employer from discharging an employee or in any manner discriminating against any employee or applicant for employment because the employee or applicant has engaged in prescribed protected conduct relating to the enforcement of the employee’s or applicant’s rights. Existing law provides that an employee who made a bona fide complaint, and was consequently discharged or otherwise suffered an adverse action, is entitled to reinstatement and reimbursement for lost wages. Existing law makes it a misdemeanor for an employer to willfully refuse to reinstate or otherwise restore an employee who is determined by a specified procedure to be eligible for reinstatement.

This bill would also prohibit an employer from retaliating or taking adverse action against any employee or applicant for employment because the employee or applicant has engaged in protected conduct. The bill would provide that an employee who was retaliated against or otherwise was subjected to an adverse action is entitled to reinstatement and reimbursement for lost wages. The bill would subject a person who violates these provisions to a civil penalty of up to $10,000 per violation. The bill would also provide that it is not necessary to exhaust administrative remedies or procedures in the enforcement of these provisions. Because the willful refusal by an employer to reinstate or reimburse an employee who suffered a retaliatory action under these provisions would be a misdemeanor, the bill would expand the scope of a crime and impose a state-mandated local program.

Existing law declares that an individual who has applied for employment, or who is or has been employed in this state, is entitled to the protections, rights, and remedies available under state law, regardless of his or her immigration status. Existing law declares that an inquiry into a person’s immigration status for purposes of enforcing state labor and employment laws shall not be permitted, unless a showing is made, by clear and convincing evidence, that the inquiry is necessary in order to comply with federal immigration law.

This bill would make it unlawful for an employer or any other person to engage in, or direct another person to engage in, an unfair immigration-related practice, as defined, against a person for the purpose of, or with the intent of, retaliating against any person for exercising a right protected under state labor and employment laws or under a local ordinance applicable to employees, as specified. The bill would also create a rebuttable presumption that an adverse action taken within 90 days of the exercising of a protected right is committed for the purpose of, or with the intent of, retaliation.

The bill would authorize a civil action by an employee or other person who is the subject of an unfair immigration-related practice, and would require a court to order the appropriate government agencies to suspend for begin delete 90 end delete begin insert 14 end insert days the business license, as defined, of a person who violates these provisions for a first violation, begin delete as specified, and to permanently revoke end delete begin insert to suspend for 30 or 90 days end insert that license for a 2nd or begin delete subsequent end delete begin insert 3rd end insert violation, begin insert respectively, and to permanently revoke that license for a 4th violation or if the court establishes a pattern or practice of willful violations, end insert as specified. begin delete The bill would require the court to send a copy of its order to the Attorney General, and would require the Attorney General to maintain these copies and a database of violations of these provisions, and post copies of the court orders on the Attorney General’s Internet Web site. end delete The bill would authorize a person who prevails in an action pursuant to these provisions to recover reasonable attorney’s fees and costs.

Existing law prohibits an employer from making, adopting, or enforcing any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation. Existing law further prohibits an employer from retaliating against an employee for that disclosure. Under existing law, a violation of these provisions by the employer is a misdemeanor. Existing law additionally subjects an employer that is a corporation or a limited liability company to a civil penalty not exceeding $10,000 for each violation of these provisions.

This bill would additionally prohibit any person or entity from making, adopting, or enforcing any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, as provided, and would prohibit any person or entity from retaliating against an employee for that disclosure. This bill would provide that any person or entity that violates these provisions is guilty of a misdemeanor, and would further subject an entity that violates these provisions that is a corporation or limited liability company to a civil penalty of not exceeding $10,000 for each violation of these provisions. By expanding the scope of a crime, this bill would impose a state-mandated local program.

Existing law prohibits an employer or prospective employer, with the exception of certain financial institutions, from obtaining a consumer credit report, as defined, for employment purposes unless it is for a specified position, including, among others, a position in the state Department of Justice, a managerial position, as defined, or a position that involves regular access to $10,000 or more of cash, as specified.

This bill would prohibit an employer from discharging an employee or in any manner discriminating, retaliating, or taking any adverse action against an employee because the employee updates or attempts to update his or her personal information, unless the changes are directly related to the skill set, qualifications, or knowledge required for the job.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

The Legislature finds and declares all of the
following:

(a) Wage theft is a serious and widespread problem that causes
severe hardship to low-wage workers, their families, and their
communities.

(b) When a worker is denied wages or forced to work “off the
clock,” there is an immediate and irreparable harm to the worker
and his or her family.

(c) Low-wage, often immigrant, workers are the most frequent
victims of wage theft and are also exposed to the greatest hazards
at work.

(d) Immigrant workers have the greatest number of work-related
injuries and fatalities.

(e) Far too often, when workers come forward to expose unfair,
unsafe, or illegal conditions, they face retaliation from the
employer.

(f) Where there are immigrant workers involved, employer
retaliation often involves threats to contact law enforcement
agencies, including immigration enforcement agencies, if a worker
engages in protected conduct.

(g) No employee should have to fear adverse action, whether it
involves threats to cut hours, move a worker to night shift, or
contact law enforcement agencies, simply for engaging in rights
the State of California has deemed so important that they are
protected by law.

(h) It is in the public policy interest of the State of California
that workers be able to report concerns to their employers without
fear of retaliation or discrimination.

(i) It is in the public policy interest of the State of California
for workers to be willing to come forward to expose hazardous,
unsafe, and unfair conditions at their worksites so that local, state,
and federal agencies can effectively enforce the laws.

(j) It is essential to the enforcement of this state’s labor laws
that we have broad, clear, and effective protections for workers
engaging in conduct protected by law from all forms of employer
retaliation, including prohibiting immigration-related threats.

SEC. 2.  

Section 98.6 of the Labor Code is amended to read:

98.6.  

(a) A person may not discharge an employee or in any
manner discriminate, retaliate, or take any adverse action against
any employee or applicant for employment because the employee
or applicant engaged in any conduct delineated in this chapter,
including the conduct described in subdivision (k) of Section 96,
and Chapter 5 (commencing with Section 1101) of Part 3 of
Division 2, or because the employee or applicant for employment
has filed a bona fide complaint or claim or instituted or caused to
be instituted any proceeding under or relating to his or her rights,
which are under the jurisdiction of the Labor Commissioner, or
because the employee has initiated any action or notice pursuant
to Section 2699, or has testified or is about to testify in a
proceeding pursuant to that section, or because of the exercise by
the employee or applicant for employment on behalf of himself,
herself, or others of any rights afforded him or her.

(b) (1) Any employee who is discharged, threatened with
discharge, demoted, suspended, retaliated against, subjected to an
adverse action, or in any other manner discriminated against in
the terms and conditions of his or her employment because the
employee engaged in any conduct delineated in this chapter,
including the conduct described in subdivision (k) of Section 96,
and Chapter 5 (commencing with Section 1101) of Part 3 of
Division 2, or because the employee has made a bona fide
complaint or claim to the division pursuant to this part, or because
the employee has initiated any action or notice pursuant to Section
2699 shall be entitled to reinstatement and reimbursement for lost
wages and work benefits caused by those acts of the employer.

(2) An employer who willfully refuses to hire, promote, or
otherwise restore an employee or former employee who has been
determined to be eligible for rehiring or promotion by a grievance
procedure, arbitration, or hearing authorized by law, is guilty of a
misdemeanor.

(3) In addition to other remedies available, an employer who
violates this section is liable for a civil penalty not exceeding ten
thousand dollars ($10,000) per employee for each violation of this
section.

(4) In the enforcement of this section, there is no requirement
that an individual exhaust administrative remedies or procedures.

(c) (1) Any applicant for employment who is refused
employment, who is not selected for a training program leading
to employment, or who in any other manner is discriminated
against in the terms and conditions of any offer of employment
because the applicant engaged in any conduct delineated in this
chapter, including the conduct described in subdivision (k) of
Section 96, and Chapter 5 (commencing with Section 1101) of
Part 3 of Division 2, or because the applicant has made a bona fide
complaint or claim to the division pursuant to this part, or because
the employee has initiated any action or notice pursuant to Section
2699 shall be entitled to employment and reimbursement for lost
wages and work benefits caused by the acts of the prospective
employer.

(2) This subdivision shall not be construed to invalidate any
collective bargaining agreement that requires an applicant for a
position that is subject to the collective bargaining agreement to
sign a contract that protects either or both of the following as
specified in subparagraphs (A) and (B), nor shall this subdivision
be construed to invalidate any employer requirement of an
applicant for a position that is not subject to a collective bargaining
agreement to sign an employment contract that protects either or
both of the following:

(A) An employer against any conduct that is actually in direct
conflict with the essential enterprise-related interests of the
employer and where breach of that contract would actually
constitute a material and substantial disruption of the employer’s
operation.

(B) A firefighter against any disease that is presumed to arise
in the course and scope of employment, by limiting his or her
consumption of tobacco products on and off the job.

(d) The provisions of this section creating new actions or
remedies that are effective on January 1, 2002, to employees or
applicants for employment do not apply to any state or local law
enforcement agency, any religious association or corporation
specified in subdivision (d) of Section 12926 of the Government
Code, except as provided in Section 12926.2 of the Government
Code, or any person described in Section 1070 of the Evidence
Code.

SEC. 3.  

Chapter 3.1 (commencing with Section 1019) is added
to Part 3 of Division 2 of the Labor Code, to read:

 

Chapter  3.1. Unfair Immigration-Related Practices

 

1019.  

(a) It shall be unlawful for an employer or any other
person or entity to engage in, or to direct another person or entity
to engage in, unfair immigration-related practices against any
person for the purpose of, or with the intent of, retaliating against
any person for exercising any right protected under this code or
by any local ordinance applicable to employees. Exercising a right
protected by this code or local ordinance includes, but is not limited
to, the following:

(1) Filing a complaint or informing any person of an employer’s
or other party’s alleged violation of this code or local ordinance,
so long as the complaint or disclosure is made in good faith.

(2) Seeking information regarding whether an employer or other
party is in compliance with this code or local ordinance.

(3) Informing a person of his or her potential rights and remedies
under this code or local ordinance, and assisting him or her in
asserting those rights.

(b) (1) As used in this chapter, “unfair immigration-related
practice” means any of the following practices, when undertaken
for the retaliatory purposes prohibited by subdivision (a):

(A) Requesting more or different documents than are required
under Section 1324a(b) of Title 8 of the United States Code, or a
refusal to honor documents tendered pursuant to that section that
on their face reasonably appear to be genuine.

(B) Using the federal E-Verify system to check the employment
authorization status of a person at a time or in a manner not
required under Section 1324a(b) of Title 8 of the United States
Code, or not authorized under any memorandum of understanding
governing the use of the federal E-Verify system.

(C) Threatening to file or the filing of a false police report.

(D) Threatening to contact begin insert or contacting end insert immigration authorities.

(2) “Unfair immigration-related practice” does not include
conduct undertaken at the express and specific direction or request
of the federal government.

(c) Engaging in an unfair immigration-related practice against
a person within 90 days of the person’s exercise of rights protected
under this code or local ordinance applicable to employees shall
raise a rebuttable presumption of having done so in retaliation for
the exercise of those rights.

(d) (1) An employee or other person who is the subject of an
unfair immigration-related practice prohibited by this section, or
a representative of that employee or person, may bring a civil
action for equitable relief and any damages or penalties, in
accordance with this section.

(2) Upon a finding by a court of applicable jurisdiction of a
violation this section:

(A) For a first violation, the court shall order the appropriate
government agencies to suspend all licenses subject to this chapter
that are held by the violating party for a period of begin delete 90 end delete begin insert 14 end insert days. For
the purposes of this paragraph, the licenses that are subject to
suspension are all licenses held by the violating party specific to
the business location or locations where the unfair
immigration-related practice occurred. If the violating party does
not hold a license specific to the business location or locations
where the unfair immigration-related practice occurred, but a
license is necessary to operate the violating party’s business in
general, the licenses that are subject to suspension under this
subdivision are all licenses that are held by the violating party at
the violating party’s primary place of business. On receipt of the
court’s order and notwithstanding any other law, the appropriate
agencies shall suspend the licenses according to the court’s order.
begin delete The court shall send a copy of the court’s order to the Attorney
General. end delete

(B) For a second begin delete or subsequent end delete violation, the court shall order
the appropriate government agencies to begin delete revoke permanently end delete
begin insert suspend end insert begin insert for a period of 30 days end insert all licenses that are held by the
violating party specific to the business location or locations where
the unfair immigration-related practice occurred. If the violating
party does not hold a license specific to the business location or
locations where the unfair immigration-related practice occurred,
but a license is necessary to operate the violating party’s business
in general, the court shall order the appropriate agencies to
begin delete permanently revoke end delete begin insert suspend for a period of 30 days end insert all licenses
that are held by the violating party at the violating party’s primary
place of business. On receipt of the court’s order and
notwithstanding any other law, the appropriate agencies shall
immediately begin delete revoke end delete begin insert suspend end insert the licenses. begin delete The court shall send a
copy of the court’s order to the Attorney General. end delete

begin insert

(C) For a third violation, the court shall order the appropriate
government agencies to suspend for a period of 90 days all licenses
that are held by the violating party specific to the business location
or locations where the unfair immigration-related practice
occurred. If the violating party does not hold a license specific to
the business location or locations where the unfair
immigration-related practice occurred, but a license is necessary
to operate the violating party’s business in general, the court shall
order the appropriate agencies to suspend for a period of 90 days
all licenses that are held by the violating party at the violating
party’s primary place of business. On receipt of the court’s order
and notwithstanding any other law, the appropriate agencies shall
immediately suspend the licenses.

end insert begin insert

(D) For a fourth violation, or if the court establishes a pattern
or practice of willful violations, the court shall order the
appropriate government agencies to permanently revoke all
licenses that are held by the violating party specific to the business
location or locations where the unfair immigration-related practice
occurred. If the violating party does not hold a license specific to
the business location or locations where the unfair
immigration-related practice occurred, but a license is necessary
to operate the violating party’s business in general, the court shall
order the appropriate agencies to permanently revoke all licenses
that are held by the violating party at the violating party’s primary
place of business. On receipt of the court’s order and
notwithstanding any other law, the appropriate agencies shall
immediately revoke the licenses.

end insert begin delete

(3) The Attorney General shall maintain copies of court orders
that are received pursuant to this section, shall maintain a database
of the violating parties and business locations that have violated
this section, and make any applicable court orders available on the
Attorney General’s Internet Web site.

end delete begin delete

(4)

end delete

begin insert (3) end insert  An employee or other person who is the subject of an unfair
immigration-document practice prohibited by this section, and
who prevails in an action authorized by this section, shall recover
its reasonable attorney’s fees and costs, including any expert
witness costs.

(e) (1) As used in this chapter, “license” means any agency
permit, certificate, approval, registration, charter, or similar form
of authorization that is required by law and that is issued by any
agency for the purposes of operating a business in this state,
including any of the following:

(A) Articles of incorporation.

(B) Certificate of partnership, partnership registration, or articles
of organization.

(C) Transaction privilege tax license.

(2) As used in this chapter, “license” does not include a
professional license.

1019.1.  

The provisions of this chapter are severable. If any
provision of this chapter or its application is held invalid, that
invalidity shall not affect other provisions or applications that can
be given effect without the invalid provision or application.

SEC. 4.  

Section 1024.6 is added to the Labor Code, to read:

1024.6.  

An employer may not discharge an employee or in any
manner discriminate, retaliate, or take any adverse action against
an employee because the employee updates or attempts to update
his or her personal information, unless the changes are directly
related to the skill set, qualifications, or knowledge required for
the job.

SEC. 5.  

Section 1102.5 of the Labor Code is amended to read:

1102.5.  

(a) An employer or any other person or entity may
not make, adopt, or enforce any rule, regulation, or policy
preventing an employee from disclosing information to a
government or law enforcement agency, where the employee has
reasonable cause to believe that the information discloses a
violation of state or federal statute, or a violation or noncompliance
with a state or federal rule or regulation.

(b) An employer or any other person or entity may not retaliate
against an employee for disclosing information to a government
or law enforcement agency, where the employee has reasonable
cause to believe that the information discloses a violation of state
or federal statute, or a violation or noncompliance with a state or
federal rule or regulation.

(c) An employer or any other person or entity may not retaliate
against an employee for refusing to participate in an activity that
would result in a violation of state or federal statute, or a violation
or noncompliance with a state or federal rule or regulation.

(d) An employer or any other person or entity may not retaliate
against an employee for having exercised his or her rights under
subdivision (a), (b), or (c) in any former employment.

(e) A report made by an employee of a government agency to
his or her employer is a disclosure of information to a government
or law enforcement agency pursuant to subdivisions (a) and (b).

(f) In addition to other penalties, an employer or other entity
that is a corporation or limited liability company is liable for a
civil penalty not exceeding ten thousand dollars ($10,000) for each
violation of this section.

(g) This section does not apply to rules, regulations, or policies
which implement, or to actions by employers against employees
who violate, the confidentiality of the lawyer-client privilege of
Article 3 (commencing with Section 950), the physician-patient
privilege of Article 6 (commencing with Section 990) of Chapter
4 of Division 8 of the Evidence Code, or trade secret information.

SEC. 6.  

Section 1103 of the Labor Code is amended to read:

1103.  

An employer or any other person or entity that violates
this chapter is guilty of a misdemeanor punishable, in the case of
an individual, by imprisonment in the county jail not to exceed
one year or a fine not to exceed one thousand dollars ($1,000) or
both that fine and imprisonment, or, in the case of a corporation,
by a fine not to exceed five thousand dollars ($5,000).

SEC. 7.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.