BILL ANALYSIS Ó
AB 263
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Date of Hearing: May 15, 2013
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Mike Gatto, Chair
AB 263 (Hernandez) - As Amended: April 11, 2013
Policy Committee: JudiciaryVote:7-2
Labor 5-1
Urgency: No State Mandated Local Program:
Yes Reimbursable: No
SUMMARY
This bill makes it unlawful for an employer to engage in unfair
immigration-related practices, as defined, and establishes
penalties for violation of this prohibition. Specifically, this
bill:
1)Makes it unlawful for an employer or anyone else to engage in
unfair immigration-related practices for the purpose of
retaliating against any person for exercising any right
protected under the Labor Code or by local ordinance regarding
employees.
2)Defines unfair immigration-related practice as any of the
following when undertaken for retaliatory purposes:
a) Requesting more or different documents than are required
under relevant federal law, or refusing to honor documents
tendered pursuant to that law that on their face reasonably
appear 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 federal law or not authorized
under any memorandum of understanding governing the use of
that system.
c) Threatening to file, or filing, a false police report.
d) Threatening to contact immigration authorities.
3)Stipulates that engaging in an unfair immigration-related
practice within 90 days of a person exercising their rights
under the Labor Code provides a rebuttable presumption of
having done so in retaliation.
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4)Authorizes the bringing of a civil action by someone subject
to an unfair immigration-related practice, and authorizes that
person to recover reasonable attorney's fees and costs in a
prevailing action.
5)Provides the following sanctions, upon a finding by a court:
a) For a first violation, suspension for 90 days of all
licenses held by the violating party, specific to the
business locations where the unfair practice occurred.
b) For a second or subsequent violation, permanent
revocation of all licenses held by the violating party
specific to the business locations where the unfair
practice occurred.
6)Requires copies of all court orders regarding violations to be
sent to the Attorney General (AG) and requires the AG to
maintain these copies in a database of violating parties and
business locations, and make the court orders available on the
AG's website.
1)Adds non-employers to the following prohibitions currently
applicable to employers:
a) Making, adopting, or enforcing any rule, regulation, or
policy preventing an employee from disclosing information
to a government or law enforcement agency, as specified.
b) Retaliating against an employee for disclosing
information to a government or law enforcement agency, as
specified.
c) Retaliating 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.
2)Makes a violation of (7) a misdemeanor, punishable by to up
one year in jail and/or a fine of up to $1,000, and a fine of
up to $5,000 for a corporation.
3)Adds a prohibition against retaliation or adverse action to
the existing law forbidding any person to discriminate against
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any employee or applicant for employment because the employee
or applicant engaged in any conduct delineated in Labor Code
Chapter 4 (enforcement of labor standards) or Chapter 5
(political activity), or because the employee has filed a bona
fide complaint or claim to his or her rights under the
jurisdiction of the Labor Commissioner, or because the
employee has initiated a private action pursuant to Labor Code
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. 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.
FISCAL EFFECT
1)The Division of Labor Standards Enforcement (DLSE), within the
Department of Industrial Relations (DIR), and the courts will
see increased costs to the extent additional complaints are
filed with the Labor Commissioner and civil actions are
commenced. The DIR estimates that, if only a small fraction of
undocumented workers take action for alleged violations, about
2,300 cases could be filed with the DLSE or the courts.
Assuming 10% of these complaints are filed with DLSE, and 80%
are accepted for investigation (the same percentage as for
current claims), there would be about 190 additional cases
annually. DIR estimates a need for nine additional
investigator positions and two supervisors at an annual cost
of $1.4 million. At the time of this analysis, the
department's workload assumptions were not verified. [Labor
Enforcement and Compliance Fund]
2)General Fund court costs for approximately 2,000 civil cases,
based on the above assumptions, would be several hundred
thousand dollars annually, offset to some extent by filing
fees and civil penalties.
3)The AG could incur one-time costs up to several hundred
thousand dollars to develop the required database, and minor
ongoing costs to maintain the database.
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COMMENTS
1)Purpose . This bill, sponsored by the California Labor
Federation, addresses concerns raised about retaliation and
other abuse directed at immigrant workers. These concerns were
expressed at a March 6, 2013 hearing of the Assembly Committee
on Labor and Employment. Immigrant workers are particularly at
risk for various forms of workplace abuse and violations of
the law, and those who stand up to such forms of substantive
abuse on the job face the additional difficulty of employer
intimidation and retaliation. A report by the National
Employment Law Project (NELP) states:
"? 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.
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.
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
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addition, several states have taken affirmative steps in
enacting legislation to specifically protect immigrant
workers.
2)Broader Protections Included . This bill adds retaliation and
adverse employment action to the existing prohibition on an
employer discriminating against any employee regarding
enforcement of labor standards, engaging in political
activity, for filing a complaint to the Labor Commissioner,
or for bringing an employment related civil action, and
provides that, in addition to other remedies available, an
employer who violates these prohibitions is liable for a civil
penalty not exceeding $10,000 per employee for each violation.
The sponsor states this will strengthen retaliation protection
for all workers by ensuring a meaningful penalty is available
whether a worker complains to a state agency or directly to an
employer.
The bill also extends, to persons other than employers, rules
prohibiting retaliation against an employee for disclosing
relevant information to a government agency or for refusing to
participate in an activity in violation of state or federal
laws or regulations.
3)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? the provisions of AB 263 are vastly
overbroad and could threaten the operation of responsible
businesses."
Analysis Prepared by : Chuck Nicol / APPR. / (916) 319-2081
AB 263
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