BILL NUMBER: AB 263 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 12, 2013
AMENDED IN SENATE JULY 8, 2013
AMENDED IN ASSEMBLY MAY 24, 2013
AMENDED IN ASSEMBLY APRIL 11, 2013
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 expand the protected conduct to include
a written or oral complaint by an employee that he or she is owed
unpaid wages. 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 practice. The bill would authorize
a court to order the appropriate government agencies to suspend
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. 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.
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 acting on behalf of the employer 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 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 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 shall 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 rights that are
under the jurisdiction of the Labor Commissioner, or made a
written or oral complaint that he or she is owed unpaid wages,
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 may, in
the court's its discretion, may
order the appropriate government agencies to suspend all
licenses subject to this chapter that are held by the violating party
for a period of up to 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. 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. 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. 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 shall
, in its discretion, may order the appropriate government
agencies to suspend for a period of 30 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
30 days all licenses that are held by the violating party at the
violating party's primary place of business. 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. 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, or any violation thereafter,
the court shall , in its discretion, may
order the appropriate government agencies to suspend for a
period of up to 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.
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. On receipt of the court's order and
notwithstanding any other law, the appropriate agencies shall
immediately suspend the licenses.
(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.
(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) (1) As used in
this chapter, "license" As used in this chapter:
(1) "License" means any agency
permit, certificate, approval, registration, charter, or
similar form of authorization or charter 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: state. "License" does not include a
professional license.
(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.
(2) "Violation" means each incident when an unfair immigration
practice was committed, without reference to the number of employees
involved in the incident.
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 employer, or any person acting on behalf of the
employer, shall not make, adopt, or enforce any rule,
regulation, or policy preventing an employee from disclosing
information to a government or law enforcement agency, or for
providing information to, or testifying before, any public body
conducting an investigation, hearing, or inquiry, 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
employer, or any person acting on behalf of the
employer, shall not retaliate against an employee for
disclosing information to a government or law enforcement agency,
or for providing information to, or testifying before, any
public body conducting an investigation, hearing, or inquiry,
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
employer, or any person acting on behalf of the
employer, shall 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
emp loyer, or any person acting on
behalf of the employer, shall 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 that implement, or to actions by
employers against employees who violate, the confidentiality of the
lawyer-client privilege of Article 3 (commencing with Section
950), 950) of, or the physician-patient
privilege of Article 6 (commencing with Section 990) of
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.