BILL ANALYSIS Ó
AB 263
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Date of Hearing: April 23, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 263 (Hernandez) - As Amended: April 11, 2013
SUBJECT : EMPLOYMENT: RETALIATION
KEY ISSUE : SHOULD THE LEGISLATURE ENACT FURTHER PROTECTIONS
AGAINST IMMIGRATION-RELATED RETALIATION AND OTHER IMPROPER ACTS
BY EMPLOYERS AND OTHER PERSONS?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This bill is sponsored by the California Labor Federation to
strengthen protections against retaliation. The main focus of
the bill is to prohibit specified immigration-related practices
against a person in retaliation for the exercise of protected
rights. In addition, the bill would clarify that the existing
general prohibition for engaging in conduct covered by the Labor
Code specifically includes retaliation and adverse action, and
strengthens the penalty and enforcement mechanism for a
violation of this section. The bill also extends existing
protections against retaliation to all persons, not just
employers. The bill is supported by a number of labor and
employment rights advocates who contend that additional steps
are needed to safeguard the rights of vulnerable workers. The
measure is opposed by the California Employment Law Council,
which argues principally that the penalties proposed for the
immigration-related practices are too severe because they would
effectively put defendant companies out of business entirely.
SUMMARY : Prohibits retaliation against employees.
Specifically, this bill :
1)Provides that 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 the Labor code or by any local ordinance
applicable to employees, including the following:
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a) 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.
b) Seeking information regarding whether an employer or
other party is in compliance with this code or local
ordinance.
c) 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.
2)Defines "unfair immigration-related practice" to mean any of
the following practices, when undertaken for a retaliatory
purpose:
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 immigration authorities.
3)Specifies that 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.
4)Provides that 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.
5)Provides the following remedies upon a finding of violation by
a court of applicable jurisdiction:
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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 90 days.
b) For a second or subsequent violation, the court shall
order the appropriate government agencies to revoke
permanently all licenses that are held by the violating
party specific to the business location or locations where
the unfair immigration-related practice occurred.
6)Defines "license" to mean 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.
7)Permits 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 to recover reasonable attorney's fees and costs,
including any expert witness costs.
8)Requires that 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.
9)Provides that 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.
1)Adds non-employers to the existing prohibition applicable to
employers not to:
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a) 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) 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) 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;
not to retaliate against an employee for having exercised
his or her rights under subdivision (a), (b), or (c) in any
former employment.
10)Adds a prohibition against retaliation or adverse action to
the existing law forbidding any person to discriminate 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, and provides that a person aggrieved by a violation of
this provision shall be entitled to reinstatement and
reimbursement for lost wages and work benefits caused by those
acts of the employer, and 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.
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EXISTING LAW :
1)Provides that a person may not discharge an employee or in any
manner discriminate 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 any such proceeding 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. (Labor Code section 98.6.)
2)Provides that any employee who is discharged, threatened with
discharge, demoted, suspended, 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. (Labor
Code section 98.6.)
3)Provides that 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. (Labor Code
section 98.6.)
4)Provides that 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
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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. (Labor Code
section 98.6.)
COMMENTS : According to the author:
Immigrant workers represent perhaps the most vulnerable
segment of the workforce population in both the United
States and California. First, many immigrant workers are
highly-concentrated in low-wage, "underground economy"
industries - garment manufacturing, agriculture,
construction, restaurants, domestic work, janitorial or
building maintenance work, and car washes, among others.
As such, immigrant workers work often work under harsh
working conditions, earn very low wages with little or no
benefits, risk serious and fatal injuries on the job, and
are susceptible to employer harassment and other forms of
abuse. Second, immigrant workers are especially vulnerable
to retaliation and often face the additional risk that
unscrupulous employers will threaten to report them to
immigration authorities. Other employers engage in other
forms of retaliation and coercion that chill employees from
exercising their rights under the law.
This Bill Would Prohibit Immigration-Related Retaliation Against
An Employee For Exercising Legal Rights. This bill is sponsored
by the California Labor Federation, which argues:
Almost one-quarter of all undocumented immigrants in the
U.S. live in California and one in ten workers here is
undocumented. These workers are forced to live in the
shadows, with no path to legalization, leaving them
extremely vulnerable to employer abuse. A recent study by
the National Employment Law Project, entitled "Workers'
Rights on ICE: How Immigration Reform can Stop Retaliation
and Advance Labor Rights," found widespread and pervasive
abuses against immigrant workers. 76% of undocumented
workers surveyed worked off the clock without pay; 85% did
not receive overtime. 29% of California workers killed in
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industrial accidents are immigrants.
So long as workers are willing to endure widespread wage
theft and unsafe working
conditions, these employers do not ask about immigration
status. It is only when workers
speak out about unfair or illegal conditions that employers
turn to tools like real or
threatened immigration audits, Immigration & Customs
Enforcement (ICE) raids, and
implementation of e-verify as retaliation. In fact, the
report provides multiple examples of
employers using immigration threats to try to get away with
wage theft.
The reality is that immigration-related retaliation and
threats undermine workers' rights for all workers. Those
who might be willing to act as whistleblowers and expose
unfair and illegal treatment worry they will be the cause
of serious harm to their co-workers for
calling attention to abuses. Meanwhile, employers who are
following the law are at a
competitive disadvantage against those that exploit
workers.
AB 263 will prohibit employers from engaging in
immigration-related retaliation against
workers who have spoken up about unpaid wages, unsafe
working conditions, or unfair
treatment. The State has both a right and an obligation to
protect workers and to ensure that basic labor laws can be
enforced. Employers who engage in these forms of
retaliation must be held accountable. AB 263 allows a court
to order the relevant agency to revoke an employer's
business license if they are using immigration threats to
exploit, intimidate, and hold workers hostage.
This Bill Would Also Prohibit Retaliation Against Other Workers.
The Labor Code currently prohibits discrimination against
employees and applicants for employment because he or she
engaged in specified conduct, 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
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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. Current law provides
that an employee who is discharged, threatened with discharge,
demoted, suspended, or in any other manner discriminated against
in the terms and conditions of his or her employment in
violation of the law shall be entitled to reinstatement and
reimbursement for lost wages and work benefits caused by those
acts of the employer.
This bill adds retaliation and adverse employment action to this
prohibition, and provides that in addition to other remedies
available, an employer who violates this section is liable for a
civil penalty not exceeding $10,000 per employee for each
violation of this section. The bill further provides that in
the enforcement of this section, there is no requirement that an
individual exhaust administrative remedies or procedures.
The Labor Federation states that this will strengthen
retaliation protection for all workers by ensuring that a
meaningful penalty is available whether a worker complains to a
state agency or directly to an employer.
Extension of Existing Anti-Retaliation Rule To Persons Other
Than Employers. Under existing law it is improper for an
employer to 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.
Similarly, employers 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. In addition, an employer 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. Likewise, an employer may not retaliate against an
employee for having exercised his or her rights under
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subdivision (a), (b), or (c) in any former employment. This
bill would extend these prohibitions from employers to all
persons and entities.
The Bill Is Opposed By Employment Defense Counsel Regarding The
Severity Of The Penalties.
The California Employment Law Council (CELC), representing
management lawyers in labor and employment matters, argues in
opposition:
While there is a legitimate policy question about the
activities delineated, one major problem with AB 263 is
that the bill essentially provides a "two strikes and you
are out" penalty for violations. The bill would require
courts to permanently revoke all licenses possessed by the
business for second or subsequent violations of unfair
immigration-related practices", except for professional
licenses. This would appear to require a court, for
example, to permanently revoke applicable business licenses
for two violations by a rogue supervisor of a large
employer, permanently putting the business out of operation
at a given location.
We pledge to work with the author to address concerns about
unfair immigration practices with employers, but the
provisions of AB 263 are vastly overbroad and could
threaten the operation of responsible businesses.
A group calling itself Save our State argues that the bill "is
being offered in a disguised attempt to dissuade employers from
reporting illegal aliens to ICE or other federal immigration
authorities." This group concludes, "California's people and
businesses shall retain their rights to report crime, and the
legislature shall make no law infringing upon the right to
freely speak, and especially so, to access law enforcement on
matters of their choosing without fear of reprisal."
REGISTERED SUPPORT / OPPOSITION :
Support
California Labor Federation (sponsor)
AFSCME
Amalgamated Transit Union, California
California Conf. of Machinists
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California Employment Lawyers Association
California Federation of Teachers
California Immigrant Policy Center
California Nurses Association
California Professional Firefighters
California Teachers Association
California Teamsters Public Affairs Council
Engineers and Scientists of CA
International Longshore and Warehouse Union
Maintenance Cooperation Trust Fund
Mexican American Legal Defense and Educational Fund (MALDEF)
National Employment Law Project
Prof. and Tech. Engineers, Local 21
San Mateo County Central Labor Council
SEIU
Services, Immigrant Rights and Education Network
United Food and Commercial Workers Union, Western States
UNITE HERE
Utility Workers Union of America, Local 132
Opposition
California Employment Law Council
Save Our State
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334