BILL ANALYSIS Ó AB 263 Page 1 ASSEMBLY THIRD READING AB 263 (Roger Hernández) As Amended May 24, 2013 Majority vote JUDICIARY 7-2 LABOR & EMPLOYMENT 5-1 ----------------------------------------------------------------- |Ayes:|Wieckowski, Alejo, Chau, |Ayes:|Roger Hernández, Alejo, | | |Dickinson, Garcia, | |Chau, Gomez, Holden | | |Muratsuchi, Stone | | | | | | | | |-----+--------------------------+-----+--------------------------| |Nays:|Wagner, Maienschein |Nays:|Morrell | | | | | | ----------------------------------------------------------------- APPROPRIATIONS 12-4 ----------------------------------------------------------------- |Ayes:|Gatto, Bocanegra, | | | | |Bradford, | | | | |Ian Calderon, Campos, | | | | |Eggman, Gomez, Hall, | | | | |Ammiano, Pan, Quirk, | | | | |Weber | | | | | | | | |-----+--------------------------+-----+--------------------------| |Nays:|Harkey, Bigelow, | | | | |Donnelly, Wagner | | | | | | | | ----------------------------------------------------------------- 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: a) Filing a complaint or informing any person of an employer's or other party's alleged violation of this code AB 263 Page 2 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 bill or a representative of that employee or person, may bring a civil action for equitable relief and any damages or AB 263 Page 3 penalties, in accordance with this bill. 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 14 days. b) For subsequent violations, the court shall order the appropriate government agencies to temporarily suspend for increasing periods all licenses that are held by the violating party specific to the business location or locations where the unfair immigration-related practice occurred, and to permanently revoke the applicable licenses for further or willful violations. 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. AB 263 Page 4 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 in any former employment. AB 263 Page 5 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 Labor Code 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 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, and 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 : According to the Assembly Appropriations Committee: 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, AB 263 Page 6 based on the above assumptions, would be several hundred thousand dollars annually, offset to some extent by filing fees and civil penalties. Alternatively, these additional cases will instead increase court backlogs. 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." 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 Labor Code 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 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. 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. AB 263 Page 7 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. 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 in any former employment. This bill would extend these prohibitions from employers to all persons and entities. Prior to recent amendments, the California Employment Law Council (CELC), representing management lawyers in labor and employment matters, argued that the penalties in the bill were too severe. Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334 FN: 0000942