BILL ANALYSIS Ó
AB 263
Page A
Date of Hearing: May 1, 2013
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hernández, Chair
AB 263 (Roger Hernández) - As Amended: April 11, 2013
SUBJECT : Employment: retaliation: immigrant-related practices.
SUMMARY : Enacts a number of provisions related to retaliation
against workers and unfair immigration-related practices.
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:
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
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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:
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
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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:
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
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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.
11)Makes related legislative declarations and findings.
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
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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
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.)
FISCAL EFFECT : Unknown
COMMENTS : This bill addresses concerns that have been raised
about retaliation and other abuse directed at immigrant workers.
These concerns were the subject of a recent hearing of this
Committee on March 6, 2013.
Brief Background on Abuse and Retaliation Against Immigrant
Workers
Immigrant workers represent a large segment of the workforce.
As one recent study noted:
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"According to the Pew Hispanic Center, there were 11.2
million undocumented immigrants living in the United States
as of March 2010, constituting 5.2 percent (8 million) of
the U.S. labor force. The percentage of unauthorized
immigrants in the labor force may decrease as beneficiaries
of the Deferred Action for Childhood Arrivals (DACA)
initiative (also known as "DREAMers") become eligible for
deferred action and obtain work authorization. The
Migration Policy Institute estimates that among the 1.26
million prospective beneficiaries of the DACA program, 58
percent (close to 740,000) are in the labor force.
Undocumented workers earn considerably less than documented
and U.S.-born workers. The Urban Institute estimated in
2004 that about two-thirds of undocumented workers earn
less than twice the minimum wage, compare with only
one-third of all workers. The Pew Hispanic Center found
that the median household income of undocumented immigrants
in 2007 was $36,000, well below the $50,000 median
household income for U.S.-born residents. Some of the
low-wage sectors and industries with high shares of
undocumented workers as of 2008 include agriculture (25
percent), construction (17 percent), building,
groundskeeping, and maintenance (19 percent), and food
preparation and serving (12 percent)."<1>
As mentioned above, immigrant workers are particularly at risk
for various forms of workplace abuse and violations of the law.
As the same study stated:
"A landmark national survey of 4,387 low-wage workers in
three largest cities, New York, Chicago, and Los Angeles,
Broken Laws, Unprotected Workers: Violations of Employment
and Labor Laws in American Cities, found that undocumented
workers are far more likely to experience wage and hour
violations than U.S.-born workers and documented workers.
Thirty seven percent of undocumented workers were not paid
the minimum wage in the workweek preceding the survey,
compared to 21 percent of documented workers and 16 percent
of U.S.-born workers. The survey also found that in the
immigrant workforce, women experienced a higher rate of
wage and hour violations then men did - 47 percent of
-------------------------
<1> Yoon, Haeyoung, Tsedeye Gebresalassie, and Rebecca Smith.
"Workplace Rights and Remedies for Undocumented Workers: A Legal
Treatise." National Employment Law Project (January 2013).
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undocumented women experienced the minimum wage violations
while the violation rate among men were 30 percent. Broken
Laws also reported that of those who complained about a
workplace issue or attempted to form a union in the past 12
months, 47 percent of workers experienced employer threats
to fire workers or call immigration authorities.
Underreporting of workplace injuries and illnesses is also
a serious problem among immigrant workers across low-wage
industries. Many workers, due to language barriers or
their employers' lack of robust safety programs, are
unaware of the risks they face on the job. Others may feel
that there is little choice but to accept those risks. A
study of largely unionized immigrant hotel workers found
that only 20 percent of those who had experienced
work-related pain had filed workers' compensation claims,
for fear of getting "in trouble" or being fired. In a study
on immigrant workers' perceptions of workplace health and
safety, researchers from UCLA observed that "[w]orkers
worried because they know the work they did was dangerous,
and also because they knew that if they got injured they
would have limited medical care options. Some respondents
said that they could not really 'afford to worry' because
they needed the job and had little control over the working
conditions." Similarly, researchers in North Carolina
observed that "[m]any immigrant workers believe that in a
dangerous work situation, they have no choice but to
perform the task, despite the risk."<2>
Those immigrant workers who stand up to such forms of
substantive abuse on the job face the additional difficulty of
employer intimidation and retaliation. As a result report<3> by
the National Employment Law Project (NELP) stated:
"Employers and their agents have far too frequently shown
that they will use immigration status as a tool against
labor organizing campaigns and worker claims. From New
York to California, Washington to Georgia, immigrant
workers themselves bear the brunt of these illegal
tactics?"
-------------------------
<2> Id.
<3> Smith, Rebecca and Eunice Hyunhye Cho. "Workers' Rights on
ICE: How Immigration Reform Can Stop Retaliation and Advance
Labor Rights." National Employment Law Project (February 2013).
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"? Silencing or intimidating a large percentage of workers
in any industry means that workers are hobbled in their
efforts to protect and improve their jobs. As long as
unscrupulous employers can exploit some low-wage workers
with impunity, all low-wage workers suffer compromised
employment protections and economic security. Law-abiding
employers are forced to compete with illegal practices,
perpetuating low-wages in a whole host of industries."
The NELP report found that, while threats of job loss have an
especially serious consequence in this job market, an employer's
threat to alert immigration or local law enforcement of an
undocumented immigrant worker's status carries added force.
Such action is at least as frequent as other forms of
retaliation. According to NELP, an analysis of more than 1,000
NLRB certification elections between 1999 and 2003 found that
"[i]n 7% of all campaigns - but 50% of campaigns with a majority
of undocumented workers and 41% with a majority of recent
immigrants - employers make threats of referral to Immigration
Customs and Enforcement (ICE)." Immigration worksite
enforcement data for a 30-month period in the New York region
between 1997 and 1999 show that more than half of raided
worksites had been subject to at least one formal complaint to,
or investigation by, a labor agency.
In addition, NELP states that anecdotal reports show that in
recent years, employers who seek to retaliate against immigrant
workers have increasingly filed reports with local law
enforcement agencies, in addition to direct reports to federal
immigration officials.
Document-related retaliation is another form of abuse cited by
NELP in its report. In limited circumstances, employers may
re-verify, or ask workers to produce their I-9 work
authorization documentation again, after the employer's initial
verification at the time of hire, without running afoul of
anti-discrimination or retaliation protections. However, in
some cases, employers have improperly conducted I-9 self-audits
just after employees have filed workplace-based complaints, or
in the midst of labor disputes or collective bargaining,
creating a climate of fear. In other instances, employers have
attempted to re-verify workers following a reinstatement order,
an illegal practice under the National Labor Relations Act.
Employers often provide little or no notice to workers about the
reason for the I-9 re-verification, and fail to provide a
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reasonable period of time for employees to respond to the
self-audit, even when they are proper.
An Opportunity for Change? - Federal Comprehensive Immigration
Reform
The current debate around comprehensive immigration reform at
the federal level has resulted in a renewed focus on these
issues and may represent an opportunity to further strengthen
federal law to protect immigrant workers from various forms of
abuse.
In addition, on June 14, 2011, U.S. Senator Robert Menendez
re-introduced to the Senate the Protect Our Workers from
Exploitation and Retaliation (POWER) Act, while a House version
was introduced by Reps. George Miller and Judy Chu. The POWER
Act is designed to protect the right of immigrant workers to
expose labor abuses without fear of retaliation-which will
secure job opportunities, wages, and working conditions for
U.S.-born workers as well.
According to supporters of the POWER Act, too often, when
immigrant workers attempt to organize to combat exploitation,
employers use immigration enforcement as a weapon to quash
organizing efforts and trump labor law. The POWER Act ensures
that immigrant workers who try to exercise their basic civil and
labor rights are protected from retaliation. Simultaneously,
the bill ensures that American workers' wages and conditions are
not undermined by employers who pit them against a captive
workforce of exploited immigrant workers.
Is There Still Room for State Action to Protect Immigrant
Workers?
Protecting immigrant workers from workplace abuse, exploitation
and retaliation is obviously complicated by issues of federal
preemption, which holds that the federal government generally
has jurisdiction over immigration-related matters. However, the
states are not completely powerless to act. Numerous federal
and state court decisions have held that immigrant workers enjoy
certain protections under state law regardless of their
immigration status, especially when it comes to issues
surrounding work already performed. In addition, several states
have taken affirmative steps in enacting legislation to
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specifically protect immigrant workers<4>.
While federal immigration reform, should it be enacted, will
dramatically alter the landscape and the law affecting immigrant
workers, the author argues that states should continue to
explore opportunities within the confines of federal law to
protect immigrant workers. This is especially true in light of
the fact that workers placed on a path to documentation or
citizenship will continue to be vulnerable to workplace abuse,
particularly if their status is somehow tied to continued
employment (such as through guest-worker programs).
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
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
---------------------------
<4> In addition, in a recent decision the United States Supreme
Court, while acknowledging that "the power to regulate
immigration is unquestionably?a federal power," emphasized that
states "possess broad authority under their police powers to
regulate the employment relationship to protect workers within
the [s]tate." Chamber of Commerce of U.S. v. Whiting, 131 S.Ct.
1968, 1974 (2011). At issue in that case was an Arizona law
that provided for state employer licenses to be suspended or
revoked if they knowingly or intentionally employ unauthorized
workers. The Court held that the law fell within IRCA's savings
clause within the express preemption provision for "state
licensing and similar laws."
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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 sponsor of this bill 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 subdivision (a), (b),
or (c) in any former employment. This bill would extend these
prohibitions from employers to all persons and entities.
ARGUMENTS IN SUPPORT :
The author states the following in support of this bill:
"Immigrant workers represent perhaps the most vulnerable
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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 is sponsored by the California Labor Federation,
AFL-CIO, who states the following:
"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
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
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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.
[This bill] 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. [This bill]
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."
ARGUMENTS IN OPPOSITION :
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
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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
AFSCME
Amalgamated Transit Union, California
California Conference of Machinists
California Employment Lawyers Association
California Federation of Teachers
California Immigrant Policy Center
California Labor Federation, AFL-CIO (sponsor)
California Rural Legal Assistance Foundation
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
National Employment Law Project
Prof. and Tech. Engineers, Local 21
San Mateo County Central Labor Council
Service Employees International Union
Services, Immigrant Rights and Education Network
UAW Local 5810
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 : Ben Ebbink / L. & E. / (916) 319-2091
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