BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
AB 263 (Hernández)
As Amended May 24, 2013
Hearing Date: July 2, 2013
Fiscal: Yes
Urgency: No
TMW
SUBJECT
Employment: Retaliation: Immigration-Related Practices
DESCRIPTION
This bill would prohibit an employer or any other person or
entity from engaging in unfair immigration-related practices, as
defined, for the purpose of retaliation against any person who
exercises any rights under the Labor Code. This bill would
authorize a private right of action for equitable relief,
damages, and penalties by an employee against an employer who
engages in unfair immigration-related practices and would also
establish a four-tier license suspension and revocation scheme
for first and subsequent violations.
This bill would also clarify that an employer is prohibited from
discriminating, retaliating, or taking adverse action against an
employee or job applicant who has engaged in prescribed
protected conduct relating to the enforcement of the employee's
or applicant's rights, provides up to a $10,000 penalty for
violations thereof, and would specify that an employee is not
required to exhaust administrative remedies or procedures to
enforce this prohibition.
BACKGROUND
Existing law provides protections, rights, and remedies
available under state law to all individuals, regardless of
immigration status, who have applied for employment, or who are
or who have been employed, in this state. Further, California's
labor laws provide anti-retaliation protection for employees,
who make claims against their employers for violations of labor
(more)
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laws.
A recent study noted that there are approximately 2.6 million
undocumented individuals in California. (Cho and Smith,
Workers' Rights on ICE: How Immigration Reform Can Stop
Retaliation and Advance Labor Rights, National Employment Law
Project (Feb. 2013)
[as of June 23, 2013],
p. 2.) The study also noted that "[m]ost undocumented
immigrants work in traditionally low-wage occupations such as
agriculture, construction, manufacturing, and service
industries, where workers face the greatest risk for
exploitation. Undocumented workers are far more likely to
experience violations of wage and hour laws." (Ibid.) The
study states that many undocumented workers do not file claims
against their employers out of fear of "'getting in trouble' or
being fired." (Ibid.) The study also found that "[w]hile
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." (Id. at pp. 2-3.)
In order to further address employer retaliation against
employees who assert their rights under the Labor Code and
reaffirm the Legislative protections available to all employees,
regardless of citizenship status, this bill would prohibit
retaliation against an employee based on unfair
immigration-related practices, as defined. This bill would also
clarify that an employer is prohibited from discriminating,
retaliating, or taking adverse action against an employee or
applicant who has engaged in prescribed protected conduct
relating to the enforcement of the employee's or applicant's
rights, provides up to a $10,000 penalty for violations thereof,
and would specify that an employee is not required to exhaust
administrative remedies or procedures to enforce this
prohibition.
This bill was heard by the Senate Labor and Industrial Relations
Committee on June 26, 2013, and passed out on a vote of 3-0.
CHANGES TO EXISTING LAW
1. Existing law provides that all protections, rights, and
remedies available under state law, except any reinstatement
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remedy prohibited by federal law, are available to all
individuals regardless of immigration status who have applied
for employment, or who are or who have been employed, in this
state. For purposes of enforcing state labor and employment
laws, existing law provides that a person's immigration status
is irrelevant to the issue of liability, and in proceedings or
discovery undertaken to enforce those state laws, no inquiry
shall be permitted into a person's immigration status except
where the person seeking to make this inquiry has shown by
clear and convincing evidence that the inquiry is necessary in
order to comply with federal immigration law. (Lab. Code Sec.
1171.5; Civ. Code Sec. 3339; Gov. Code Sec. 7285; Health &
Saf. Code Sec. 24000.)
Existing law prohibits discrimination against an employee or
job applicant who has engaged in prescribed protected conduct
relating to the enforcement of the employee's or applicant's
rights, including initiating an action or testifying in any
proceeding thereto, delineated under the Labor Code. (Lab.
Code Sec. 98.6.)
Existing law provides that any 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. (Lab. Code
Sec. 98.6(b).)
This bill would clarify that the employee or job applicant is
also protected under the above provisions from retaliation or
adverse actions by the employer.
This bill would authorize, in addition to any other remedies
available, a civil penalty, not to exceed $10,000 per employee
for each violation, to be imposed against the employer.
This bill would clarify that an employee is not required to
exhaust administrative remedies or procedures to enforce the
above prohibition.
2. Existing law prohibits employers from withholding an
employee's wages and prohibits discrimination, retaliation,
and adverse actions by an employer against an employee or job
applicant who exercises his or her rights under the law.
(Lab. Code Sec. 200 et seq.)
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This bill would also prohibit an employer or any other person
or entity from engaging in, or directing 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. This bill would provide that
exercising a right protected by the Labor Code or local
ordinance includes, but is not limited to, the following:
filing a complaint or informing any person of an
employer's or other party's alleged violation of the Labor
Code or local ordinance, so long as the complaint or
disclosure is made in good faith;
seeking information regarding whether an employer or
other party is in compliance with the Labor Code or local
ordinance; and
informing a person of his or her potential rights and
remedies under the Labor Code or local ordinance, and
assisting him or her in asserting those rights.
This bill would define "unfair immigration-related practice"
to mean any of the following practices, when undertaken for
the retaliatory purposes prohibited above:
requesting more or different documents than are required
to confirm the employee's or prospective employee's
authorization to work in the United States, or a refusal to
honor documents tendered that on their face reasonably
appear to be genuine;
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
the federal E-Verify system;
threatening to file or the filing of a false police
report; and
threatening to contact or contacting immigration
authorities.
This bill would provide that "unfair immigration-related
practice" does not include conduct undertaken at the express
and specific direction or request of the federal government.
This bill would provide that engaging in an unfair
immigration-related practice against a person within 90 days
of the person's exercise of rights protected under the Labor
Code or local ordinance applicable to employees shall raise a
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rebuttable presumption of having done so in retaliation for
the exercise of those rights.
This bill would provide that an employee or other person who
is the subject of a prohibited unfair immigration-related
practice, or a representative of that employee or person, may
bring a civil action for equitable relief and any damages or
penalties.
This bill would provide a tiered suspension scheme regarding
an employer's business license upon a finding by a court of
applicable jurisdiction of a violation, and, on receipt of the
court's order and notwithstanding any other law, the
appropriate agencies shall suspend or revoke the licenses
according to the court's order as follows:
for a first violation, the court shall order the
appropriate government agencies to suspend all licenses
that are held by the violating party for a period of 14
days; the licenses that are subject to suspension are all
licenses held by the violating party specific to the
business location or locations where the unfair
immigration-related practice occurred. If the violating
party does not hold a license specific to the business
location or locations where the unfair immigration-related
practice occurred, but a license is necessary to operate
the violating party's business in general, the licenses
that are subject to suspension under this subdivision are
all licenses that are held by the violating party at the
violating party's primary place of business;
for a second violation, the court shall order the
appropriate government agencies to suspend for a period of
30 days all licenses that are held by the violating party
specific to the business location or locations where the
unfair immigration-related practice occurred. If the
violating party does not hold a license specific to the
business location or locations where the unfair
immigration-related practice occurred, but a license is
necessary to operate the violating party's business in
general, the court shall order the appropriate agencies to
suspend for a period of 30 days all licenses that are held
by the violating party at the violating party's primary
place of business;
for a third violation, the court shall order the
appropriate government agencies to suspend for a period of
90 days all licenses that are held by the violating party
specific to the business location or locations where the
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unfair immigration-related practice occurred. If the
violating party does not hold a license specific to the
business location or locations where the unfair
immigration-related practice occurred, but a license is
necessary to operate the violating party's business in
general, the court shall order the appropriate agencies to
suspend for a period of 90 days all licenses that are held
by the violating party at the violating party's primary
place of business; and
for a fourth violation, or if the court establishes a
pattern or practice of willful violations, the court shall
order the appropriate government agencies to permanently
revoke all licenses that are held by the violating party
specific to the business location or locations where the
unfair immigration-related practice occurred. If the
violating party does not hold a license specific to the
business location or locations where the unfair
immigration-related practice occurred, but a license is
necessary to operate the violating party's business in
general, the court shall order the appropriate agencies to
permanently revoke all licenses that are held by the
violating party at the violating party's primary place of
business.
This bill would require the court to award a prevailing
employee or other person who is the subject of a prohibited
unfair immigration-document practice, reasonable attorney's
fees and costs, including any expert witness costs.
This bill would define "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: (1) articles of
incorporation; (2) certificate of partnership, partnership
registration, or articles of organization; and (3) transaction
privilege tax license. However, "license" would not include a
professional license.
This bill would provide that the above provisions are
severable, and, if any provision or its application is held
invalid, that invalidity shall not affect other provisions or
applications that can be given effect without the invalid
provision or application.
3. Existing law provides specified employee privileges and
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prohibited employer conduct under the Labor Code. (Lab. Code,
Div. 2, Part 3, commencing with Sec. 920.)
This bill would further prohibit an employer from discharging
an employee or in any manner discriminating, retaliating, or
taking 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.
4. Existing law provides whistleblower protections for employees
and prohibits an employer from preventing, discriminating, or
retaliating against an employee who discloses 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.
(Lab. Code Sec. 1102.5.)
Existing law , with respect to whistleblower protections,
provides that an employer who violates these protections is
guilty of a misdemeanor, punishable, in the case of an
individual, by imprisonment in the county jail up to one year
or a fine up to $1,000, or both, and, in the case of a
corporation, by a fine up to $5,000. (Lab. Code Sec.
1102.5(f).)
This bill would also prohibit any other person or entity from
preventing, discriminating, or retaliating against an employee
who discloses information to a government or law enforcement
agency against a whistleblowing employee.
This bill would also extend the whistleblower penalties to any
other person or entity and make other technical revisions.
COMMENT
1. Stated need for the bill
The author writes:
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,
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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.
Assembly Bill 263 addresses the retaliation of employers
against immigrant employees who are vulnerable to workplace
abuse due to their immigration status. The bill makes unlawful
an immigration-related practice committed by an employer or
other person, for retaliating against a worker for exercising
rights protected under the California Labor Code or a local
ordinance.
The bill would also authorize a civil action by an employee or
other person who is the subject of an unfair
immigration-related practice, and would require a court to
order a suspension of the business license for 14 days of a
person who violates these provisions for a first violation,
and to suspend for 30 or 90 days that license for a 2nd or
subsequent 3rd violation, and to permanently revoke that
license for a 4th violation or if the court establishes a
pattern or practice of willful violations.
The California Labor Federation (CLF), AFL-CIO, sponsor, writes:
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 [percent] of undocumented workers
surveyed worked off the clock without pay; 85 [percent] did
not receiver overtime. 29 [percent] of California workers
killed in industrial accidents were immigrants.
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2. Discrimination and retaliation based on unfair
immigration-related practices
Existing law prohibits employers from withholding an employee's
wages and prohibits discrimination, retaliation, and adverse
actions by an employer against an employee or job applicant who
exercises his or her rights under the law. (Lab. Code Sec. 200
et seq.) This bill would also prohibit an employer or any other
person or entity from engaging in, or directing 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.
CLF asserts that "[s]o 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 raids, and
implementation of e-verify retaliation. In fact, the report
provides multiple examples of employers using immigration
threats to try to get away with wage theft."
In a recent report by the National Employment Law Project
(NELP), the following examples of employer misconduct were
identified:
An employer in Garden Grove, California falsely accuses
a day laborer of robbery in order to avoid paying him for
work performed. Local police officers arrest the worker.
Although the police find no merit to the charges, he is
turned over to Immigration and Customs Enforcement (ICE).
After workers at a Latino grocery store chain in the San
Francisco Bay Area attempt to organize a union, the
employer announces that it needs to re-verify workers'
authorization and that it will enroll in the voluntary
E-Verify program, leading to widespread fear.
After the California Labor Commissioner found that a San
Jose, California employer owed an immigrant worker $50,000
for unpaid wages, the employer harasses the worker in his
home and threatens to report him to immigration. (Cho and
Smith, Workers' Rights on ICE: How Immigration Reform Can
Stop Retaliation and Advance Labor Rights, National
Employment Law Project (Feb. 2013)
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[as of June
23, 2013], p. 1.)
The California Rural Legal Assistance Foundation (CRLA), in
support, provided several examples of immigrant workers with
wage and sexual discrimination claims against their employers
but who were afraid of retaliation from the employers:
1. Monterey County - "A female strawberry harvester came to
[the] office primarily to complain about sexual harassment
by the supervisor of [a] mid-size strawberry employer.
During the interview, we determined that she had other
meritorious wage and hour claims, specifically that the
crew never received the afternoon rest period and their
meal periods were always less than 30 minutes. Because the
sexual harassment claim was also strong, we advised her
that we would be willing to pursue both the sexual
harassment claim and the rest & meal period claims. She
told us she was afraid of the negative repercussions that
pursuing anything could have on her family - her father
worked at the company as an assistant row boss, and her
brother was a harvester - as well as some of her
co-workers. She told us she needed to think about her
options and asked us not to make any contact with the
company until she made up her mind about what to do. She
never returned to our office and never responded to our
follow-up phone call.
2. Fresno County - "In 2005 I was approached by a female
farm worker who claimed she was being sexually harassed by
her foreman while she was weeding cotton out in Huron. The
harassment was mostly verbal references to her body parts
and there was some invasion of her personal space in that
he made sure to stand with his pelvis near her back and
buttock area. I remember telling her about internal
complaint procedures and witnesses etc. She looked at me
as if I was unreal and told me that she . . . would rather
quit then to be subjected to what an ex-coworker went
through when she went to the office, (this is a big farm
labor service company), to complain about the foreman's
behavior. She went on to say that the complaining coworker
quit and mysteriously her brother was no longer called back
to work. The farm worker went on to say that she had a
cousin as a co-worker who had a family to feed. She wanted
to do something but did not want her cousin to lose his
job."
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The federal Immigration Reform and Control Act (IRCA) prohibits
unfair immigration-related employment practices, including,
intimidation, threats, coercion, or retaliation (these acts are
considered discrimination under IRCA) against any individual for
the purpose of interfering with any right or privilege provided
under IRCA or because the individual intends to file or has
filed a charge or complaint, testified, or participated in an
investigation, proceeding or hearing, and immigration-related
employment practices such as discriminating on the basis of
citizenship or national origin. (8 U.S.C.S. 1324b(g)(2)(B).)
While IRCA only provides this protection for citizens and
permanent resident immigrants, this bill provides similar
anti-discrimination and retaliation protections based on
California's existing protections for workers who make claims
under the Labor Code, which are available to all California
employees, regardless of citizenship or immigration status.
This bill, by further prohibiting unfair immigration-related
practices, will strengthen existing anti-retaliation
protections.
3. Private right of action and remedies relating to unfair
immigration-related practices
This bill would provide that an employee who is the subject of
an unfair immigration-related practice may bring a civil action
for equitable relief and any damages or penalties, and, upon
prevailing, shall recover reasonable attorney's fees and costs,
including any expert witness costs. Existing law provides that
an employee who prevails against an employer that has
discriminated against the employee for pursuing the employee's
rights under the Labor Code is entitled to reinstatement,
reimbursement for lost wages, and reasonable attorney's fees.
CLF argues that "[t]he reality is that immigration-related
retaliation and threats undermine workers' rights for all
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. . . . We cannot rebuild the middle
class without ensuring that basic labor laws protect all workers
and then when workers' rights are violated, they can speak out
free from fear. AB 263 targets one of the most powerful and
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effective weapons employers have to keep workers silent and
living in the shadows."
Notably, this bill does not provide for reinstatement of the
employee given that, even if the employer is found to have
retaliated against the employee using unfair immigration-related
practices, the employer is prohibited from reinstating an
employee who is not lawfully entitled to work in the United
States. However, this bill would provide the employee with
equitable relief and damages or penalties. Further, this bill
would require the court to award reasonable attorney's fees to
the employee, which allows attorneys to take on cases for
individuals who otherwise could not afford an attorney, thus,
facilitating the enforcement of these Labor Code violations.
4. Tiered business license suspension and revocation provisions
This bill would provide a tiered business license suspension and
revocation scheme for employer's who continually violate the
prohibition on unfair immigration-related practices provided in
this bill, as follows:
for a first violation, the employer's licenses will be
suspended for 14 days;
for a second violation, the employer's licenses will be
suspended for 30 days;
for a third violation, the employer's licenses will be
suspended for 90 days; and
for a fourth violation, or if the court establishes a pattern
or practice of willful violations, the employer's licenses
will be permanently revoked.
This bill would provide that if the violating party does not
hold a license specific to the business location or locations
where the unfair immigration-related practice occurred, but a
license is necessary to operate the violating party's business
in general, the licenses that are subject to suspension are all
licenses that are held by the violating party at the violating
party's primary place of business.
CLF states that "[a]mendments taken in the Appropriations
Committee address the major issue raised by the opposition which
was that the penalty for violations was too severe. Rather than
suspension of a business license after two violations, AB 263
now has a four step process so that an employer will have ample
opportunity to address retaliation before the ultimate
punishment is imposed."
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However, the California Employment Law Council (CELC), in
continued opposition, asserts that "one major problem with AB
263 is that the bill provides draconian penalties for
violations, even when an employer has no knowledge of the
actions of supervisors. Under the bill, courts would be
required to suspend all licenses possessed by the business for a
first violation, and be required to suspend the business for 60
and 90 days for second and third violations. A fourth violation
would result in the permanent revocation of all licenses
possessed by the business, except for professional licenses.
This would appear to require a court, for example, to suspend
operations of the business for violations by a rogue supervisor
of a large employer, for actions taken without the knowledge or
consent of the employer, and even if the supervisor were
terminated for the violations. Remarkably, the 'licenses'
suspended or revoked extend even to the articles of
incorporation of the business. Suspended corporation documents
literally would mean that the business would lack authority to
act on routine matters affecting the entity. The provisions of
AB 263 could cause hardworking, completely innocent employees to
lose jobs, and harm California's business climate."
A coalition of business groups, also in opposition, reiterates
these concerns of CELC, and notes that "[u]nder AB 263, if this
isolated incident that involved at least four employees
occurred, the business could permanently lose all of its
business licenses necessary to operate in California, even if
the employer disciplined or terminated the rogue. Such a harsh
penalty not only impacts the actual employer, but also any other
employees who are working for that employer."
Although the CELC argues the suspension provisions in this bill
are severe, those provisions would be a lawful method to deter
unfair immigration-related practices against employees. In
Chamber of Commerce of the United States of America v. Whiting
(2010) 131 S. Ct. 1968, the court reviewed the Legal Arizona
Workers Act of 2007 (LAWA), which provided that the licenses of
state employers that knowingly or intentionally employ
unauthorized aliens may be, and in certain circumstances must
be, suspended or revoked. The question at issue was whether
LAWA was preempted by IRCA, which provides its own comprehensive
federal statutory scheme for regulation of immigration and
naturalization. (Id. at p. 1973.) The court stated that "IRCA
expressly preempts States from imposing 'civil or criminal
sanctions' on those who employ unauthorized aliens, 'other than
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through licensing and similar laws.' 8 U.S.C. [Sec.]
1324a(h)(2). The Arizona law, on its face, purports to impose
sanctions through licensing laws. The state law authorizes
state courts to suspend or revoke an employer's business
licenses if the employer knowingly or intentionally employs an
unauthorized alien." (Id. at pp. 1977-1978.) Further, the
court noted that "[a] license is a 'right or permission granted
in accordance with law . . . to engage in some business or
occupation, to do some act, or to engage in some transaction
which but for such license would be unlawful. [Citation
omitted.] Articles of incorporation and certificates of
partnership allow the formation of legal entities and permit
them as such to engage in business and transactions 'which but
for such' authorization 'would be unlawful.'" (Ibid.) The
court held that "IRCA expressly preempts some state powers
dealing with the employment of unauthorized aliens and it
expressly preserves others. We hold that Arizona's licensing
law falls well within the confines of the authority Congress
chose to leave to the States and therefore is not expressly
preempted." (Id. at p. 1981.)
This bill does not address the employment of an undocumented
worker as in the Whiting case, but, instead, provides that an
employer is prohibited from discrimination, retaliation, and
adverse actions against an employee based upon unfair
immigration-related practices. However, the Whiting case is
instructive in that the licensing scheme provided in this bill
would not be preempted by IRCA.
To address CELC's concerns that an employer would be severely
punished for the acts of a rogue supervisor, the author has
requested to amend the bill to provide judicial discretion with
regard to a license suspension for a first violation. This
provision would allow the court to consider whether a rogue
supervisor of a large employer took unlawful actions against
employees without the knowledge or consent of the employer.
This provision would also allow the court to consider the impact
of a license suspension on the employees working for the
employer. However, once the employer is charged with a first
violation, that employer would be on notice of misconduct within
the business. The bill would maintain the required license
suspension/revocation for subsequent violations to accomplish
the purpose of the bill - deterrence of immigration-related
retaliation.
Author's amendment :
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On page 8, in line 11, remove and replace "shall" with "may,
in the court's discretion,"
5. Civil penalties and private right of action for
discrimination, retaliation, and adverse action claims
Existing law prohibits discrimination against an employee or job
applicant for exercising his or her rights, including initiating
an action or testifying in any proceeding thereto, delineated
under the Labor Code. (Lab. Code Sec. 98.6.) This bill would
clarify that the employee or job applicant is also protected
under that provision from retaliation or adverse actions by the
employer. This bill would also authorize, in addition to any
other remedies available, a civil penalty, not to exceed $10,000
per employee for each violation, to be imposed against an
employer who unlawfully discriminates, retaliates, or takes
adverse action against an employee making a claim under the
Labor Code, as specified. This bill would also clarify that an
employee or job applicant is not required to exhaust
administrative remedies or procedures before bringing a civil
action to enforce the prohibition against discriminating,
retaliating, or taking adverse action against an employee making
a claim under the Labor Code.
Proponents of this bill argue that such penalties and a private
right of action for harmed workers are warranted in order to
effectively deter employers from deliberately misclassifying
employees as independent contractors. The proponents argue
that, because governmental entities do not have the resources or
time to go after all employers who abuse and threaten
undocumented workers, and employers know this, significant
penalties and a private right of action are the most effective
deterrents to the wrongful conduct.
It is important to note that, as discussed above, IRCA provides
anti-discrimination/ retaliation protections to workers based on
citizenship and immigration status. While IRCA protects
immigrant workers from being discriminated against in the hiring
or firing process, based upon whether the worker is a United
States citizen, this bill on the other hand, provides protection
for workers against employers who use retaliation tactics to
deter workers from filing lawful claims (i.e., for wages,
overtime, contractual benefits, or protection to organize) under
California laws. Further, this bill specifies that its
provisions are severable, and if any of its provisions are held
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invalid, that invalidity shall not affect other provisions or
applications that can be given effect without the invalid
provision or application. Although IRCA and this bill each
contemplate different retaliation/discrimination claims, to the
extent a court finds that this bill could impose penalties
against an employer based on a discrimination claim otherwise
protected under IRCA, the state penalty could be preempted by
IRCA, which provides its own penalties.
6. Extending whistleblower protection
In a recent Assembly Committee on Labor and Employment
informational hearing, employees testified that they feared
retribution by their employers for making claims against their
employers. These claims included seeking full payment of wages
owed to the employees and prohibiting employees from
participating in union meetings. The employees testified that
they feared that, by testifying at the committee hearing and
exposing the egregious conduct perpetrated by their employers,
they would face termination by their employers or be reported by
their employers to immigration authorities.
Existing law, known as the Whistleblower Protection Statute
(WPS), prohibits an employer from preventing an employee from
disclosing information, or retaliating against an employee who
discloses 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. (Lab. Code Sec. 1102.5.) This bill would
additionally prohibit any other person or entity from preventing
an employee from disclosing information to a government or law
enforcement agency regarding employer violations of the law.
Proponents assert that "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 seeks to encourage individuals to expose unlawful
conduct, which furthers the underlying purpose of the WPS.
7. Additional opposition concerns
AB 263 (Hernández)
Page 17 of ?
As discussed above, CELC and a coalition of business groups are
opposed to the license suspension/revocation scheme. (See
Comment 4.) Save Our State, in opposition, writes:
AB 263 is being offered in a disguised attempt to dissuade
employers from reporting illegal aliens to ICE or other
federal immigration authorities. While it may serve a small
genuine interest in giving pause to a few unscrupulous
employers who might use federal law as a tool of oppression,
there is an overriding interest in the enforcement of federal
immigration laws. Employers, and anyone for that matter,
should not be afraid to report an illegal alien to
authorities. Further, the state of California should never
enact a law that causes any person, employer or otherwise, to
fear reporting a crime or civil law violation. It's just bad
police for a government to consider this.
. . .
We might point out that California's Anti-SLAPP statutes are
founded in the first amendment's right to free speech, and
that even altering the Anti-SLAPP statutes will not make this
piece of legislation constitutionally sound. The state
legislature has been in an extraordinary rush to generate an
immigration policy of its' own, while hypocritically
denouncing other states who do the same. It is time to
concentrate on native born California citizens rights, and let
immigration law be managed by the people through their
congressional representation, as it was meant to be. . . .
A coalition of business groups also argues that the $10,000
penalty per employee for any retaliation or discrimination in
this bill, in combination with unpaid wages and various other
statutory penalties, would create a windfall for the employee,
and potential financial devastation to the employer.
Furthermore, the business coalition argues that it is
inappropriate to create new rights and liability for "any
person" who retaliates against an employee for reporting an
alleged violation of law because the Labor Code is primarily
limited to regulating the employer/employee relationship, not
the relationship between an employer and member of the public,
or any other "person or entity."
8. Chaptering-out issues
Staff notes that SB 666 (Steinberg) contains similar
anti-retaliation protections regarding immigration-related
practices and would amend sections amended by this bill.
AB 263 (Hernández)
Page 18 of ?
Additionally, this bill contains provisions regarding the
Whistleblower Protection Act that are in conflict with SB 496
(Wright). To avoid any chaptering-out issues, the provisions of
this bill should be conformed as necessary before this bill
leaves the Senate.
Support : American Federation of State, County and Municipal
Employees, AFL-CIO; California Catholic Conference, Inc.;
California Conference Board of the Amalgamated Transit Union;
California Conference of Machinists; California Federation of
Teachers AFT, AFL-CIO; California Nurses Association; California
Rural Legal Assistance Foundation; California Teachers
Association; California Teamsters Public Affairs Council;
Coalition for Humane Immigrant Rights of Los Angeles; Engineers
and Scientists of California; International Longshore and
Warehouse Union; National Association of Social Workers -
California Chapter; Professional & Technical Engineers, Local
21; UAW Local 5810; UNITE HERE!; United Food and Commercial
Workers Union, Western States Council; Utility Workers Union of
America, Local 132
Opposition : Agricultural Council of California; Associated
Builders and Contractors of California; California Association
of Winegrape Growers; California Chamber of Commerce; California
Chapter of American Fence Association; California Employment Law
Council; California Farm Bureau Federation; California Fence
Contractors' Association; California Grocers Association;
California Hotel and Lodging Association; California League of
Food Processors; California Manufacturers and Technology
Association; California Restaurant Association; Construction
Employers' Association; Engineering Contractor's Association;
Flasher Barricade Association; Marin Builders Association;
National Federation of Independent Business; Save Our State;
Western Electrical Contractors Association, Inc.; Western
Growers Association
HISTORY
Source : California Labor Federation, AFL-CIO
Related Pending Legislation :
SB 496 (Wright), among other things, would revise the
Whistleblower Protection Act and is currently in the Assembly
Committee on Appropriations.
AB 263 (Hernández)
Page 19 of ?
SB 666 (Steinberg), among other things, contains similar
anti-retaliation protections regarding immigration-related
practices. SB 666 is currently in the Assembly Committee on
Appropriations.
Prior Legislation : None Known
Prior Vote :
Senate Committee on Labor and Industrial Relations (Ayes 3, Noes
0)
Assembly Floor (Ayes 52, Noes 23)
Assembly Committee on Appropriations (Ayes 12, Noes 4)
Assembly Committee on Labor and Employment (Ayes 5, Noes 1)
Assembly Committee on Judiciary (Ayes 7, Noes 2)
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