BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 263
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          ASSEMBLY THIRD READING
          AB 263 (Roger Hernández)
          As Amended  May 24, 2013
          Majority vote 

           JUDICIARY           7-2         LABOR & EMPLOYMENT  5-1         
           
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          |Ayes:|Wieckowski, Alejo, Chau,  |Ayes:|Roger Hernández, Alejo,   |
          |     |Dickinson, Garcia,        |     |Chau, Gomez, Holden       |
          |     |Muratsuchi, Stone         |     |                          |
          |     |                          |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |Nays:|Wagner, Maienschein       |Nays:|Morrell                   |
          |     |                          |     |                          |
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           APPROPRIATIONS      12-4                                        
           
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          |Ayes:|Gatto, Bocanegra,         |     |                          |
          |     |Bradford,                 |     |                          |
          |     |Ian Calderon, Campos,     |     |                          |
          |     |Eggman, Gomez, Hall,      |     |                          |
          |     |Ammiano, Pan, Quirk,      |     |                          |
          |     |Weber                     |     |                          |
          |     |                          |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |Nays:|Harkey, Bigelow,          |     |                          |
          |     |Donnelly, Wagner          |     |                          |
          |     |                          |     |                          |
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           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  








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               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  








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            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.









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          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.









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          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,  








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            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.









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          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 


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