Amended in Senate August 12, 2013

Amended in Senate July 8, 2013

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. begin insert The bill would expand the protected conduct to include a written or oral complaint by an employee that he or she is owed unpaid wages. end insert 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 begin delete practice, and end delete begin insert practice. The bill end insert would authorize a court to order the appropriate government agencies to suspend begin delete for 14 days the business license, as defined, of a person who violates these provisions for a first violation. The bill would require a court to order the appropriate government agencies to suspend for 30 or 90 days that license for a 2nd or 3rd violation, respectively, and to permanently revoke that license for a 4th violation or if the court establishes a pattern or practice of willful violations, as specified. The bill would authorize a person who prevails in an action pursuant to these provisions to recover reasonable attorney’s fees and costs. end delete begin insert certain business licenses held by the violating party for prescribed periods based on the number of violations. The bill would require the court to consider prescribed circumstances in determining whether a suspension of all licenses is appropriate. end insert

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 begin delete or entity end delete begin insert acting on behalf of the employer end insert 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 begin delete would prohibit any person or entity from retaliating against an employee for that disclosure. This end delete begin insert from retaliating against an employee for such a disclosure. The bill would also expand the prohibited actions to include preventing an employee from, or retaliating against an employee for, providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry. The end insert 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 begin delete of end delete 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 begin delete may end delete begin insert shall end insert 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 begin delete rights, which end delete begin insert rights that end insert are under the jurisdiction of the
Labor Commissioner, begin insert or made a written or oral complaint that he
or she is owed unpaid wages, end insert 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 or contacting 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 begin delete may, end delete in begin delete the court’s end delete begin insert its end insert
discretion, begin insert may end insert 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 insert up to end insert 14 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.
begin delete 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. end delete begin insert In
determining whether a suspension of all licenses is appropriate,
the court shall consider whether the employer knowingly committed
an unfair immigration practice, the good faith efforts of the
employer to resolve any alleged unfair immigration related practice
after receiving notice of the violations, as well as the harm other
employees of the employer will suffer as a result of the suspension
of all licenses. end insert 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.

(B) For a second violation, the court begin delete shall end delete begin insert , in its discretion, may end insert
order the appropriate government agencies to suspend begin delete for a period
of 30 days end delete all licenses that are held by the violating party specific
to the business location or locations where the unfair
immigration-related practice begin delete 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 30 days all licenses that are held by the violating
party at the violating party’s primary place of business. end delete begin insert occurred,
for a period of up to 30 days. In determining whether a suspension
of all licenses is appropriate, the court shall consider whether the
employer knowingly committed an unfair immigration practice,
the good faith efforts of the employer to resolve any alleged unfair
immigration related practice after receiving notice of the
violations, as well as the harm other employees of the employer
will suffer as a result of the suspension of all licenses. end insert On receipt
of the court’s order and notwithstanding any other law, the
appropriate agencies shall immediately suspend the licenses.

(C) For a third violation, begin insert or any violation thereafter, end insert the court
begin delete shall end delete begin insert , in its discretion, may end insert order the appropriate government
agencies to suspend for a period of begin insert up to end insert 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.
begin delete 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. end delete
begin insert In determining whether a suspension of all licenses is appropriate,
the court shall consider whether the employer knowingly committed
an unfair immigration practice, the good faith efforts of the
employer to resolve any alleged unfair immigration related practice
after receiving notice of the violations, as well as the harm other
employees of the employer will suffer as a result of the suspension
of all licenses. end insert On receipt of the court’s order and notwithstanding
any other law, the appropriate agencies shall immediately suspend
the licenses.

begin delete

(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 delete

(3) 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)  begin delete (1) end delete begin delete   end delete begin delete As used in this chapter, “license” end delete begin insert As used in this chapter: end insert

begin insert (1) end insert begin insert   end insert begin insert “License” end insert means any agency permit, certificate, approval,
registration, begin delete charter, or similar form of authorization end delete begin insert or charter end insert
that is required by law and that is issued by any agency for the
purposes of operating a business in this begin delete state, including any of the
following: end delete begin insert state. “License” does not include a professional license. end insert

begin delete

(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.

end delete begin insert

(2) “Violation” means each incident when an unfair immigration
practice was committed, without reference to the number of
employees involved in the incident.

end insert

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 begin delete employer or any other person or entity may end delete
begin insert employer, or any person acting on behalf of the employer, shall end insert
not make, adopt, or enforce any rule, regulation, or policy
preventing an employee from disclosing information to a
government or law enforcement agency, begin insert or for providing
information to, or testifying before, any public body conducting
an investigation, hearing, or inquiry, end insert 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 begin delete employer or any other person or entity may end delete begin insert employer,
or any person acting on behalf of the employer, shall end insert not retaliate
against an employee for disclosing information to a government
or law enforcement agency, begin insert or for providing information to, or
testifying before, any public body conducting an investigation,
hearing, or inquiry, end insert 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 begin delete employer or any other person or entity may end delete begin insert employer,
or any person acting on behalf of the employer, shall end insert 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 begin delete employer or any other person or entity may end delete begin insert employer,
or any person acting on behalf of the employer, shall end insert 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 begin delete or other entity end delete
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
begin delete which end delete begin insert that end insert implement, or to actions by employers against
employees who violate, the confidentiality of the lawyer-client
privilege of Article 3 (commencing with Section begin delete 950), end delete begin insert 950) of, or end insert
the physician-patient privilege of Article 6 (commencing with
Section 990) begin delete of end delete begin insert of, end insert 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.