BILL ANALYSIS Ó
Senate Appropriations Committee Fiscal Summary
Senator Kevin de León, Chair
AB 263 (Hernandez) - Employment: Retaliation: Immigrant-Related
Practices
Amended: August 12, 2013 Policy Vote: L&IR 3-0; Judiciary
4-2
Urgency: No Mandate: Yes
Hearing Date: August 30, 2013
Consultant: Robert Ingenito
SUSPENSE FILE. AS PROPOSED TO BE AMENDED.
Bill Summary: AB 263 would make it unlawful for an employer to
engage in unfair immigration-related practices, as defined,
against any person as retaliation for exercising Labor
Code-related rights. It also would establish penalties for
violation of this prohibition.
Fiscal Impact:
The Department of Industrial Relations (DIR) estimates
that it would incur costs of $415,000 (special funds) and
require up to five positions to implement the provisions of
the bill.
The Department of Justice indicates its impacts from the
bill would be insignificant.
Costs to the state court system are unknown.
Background: Employees are entitled to protections under current
law regardless of their immigration status. Nevertheless, cases
exist where such workers seek to exercise their employment
rights (e.g. receiving minimum wage, or being paid for the hours
they work, a sexual harassment-free work environment, etc.),
with the employer responding by threatening to report them
and/or their family to immigration or law enforcement officials
(or actually doing so).
Proposed Law: This bill defines an unfair immigration-related
practice as any of the following when undertaken for retaliatory
purposes:
AB 263 (Hernandez)
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Requesting additional or differing documents than are
required under federal law, or the refusal to honor
documents that 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 currently authorized.
Threatening to file or filing a false report to law
enforcement..
Threatening to contact immigration authorities.
This bill prohibits an employer from retaliating or taking
adverse action against any employee or applicant for employment
because the employee or applicant has engaged in protected
activity. The bill also provides that an employee who was
retaliated against or otherwise was subjected to an adverse
action is entitled to reinstatement and reimbursement for lost
wages.
The bill would subject a person who violates these provisions to
a civil penalty of up to $10,000 per violation. It also
authorizes the court to suspend all licenses held by the
business at the location of the violation as follows:
For a 1st violation, the court shall order the
appropriate government agencies to suspend all licenses, as
specified, held by the violating party for a 14 day period.
For a 2nd violation, suspend all licenses for a 30 day
period.
For a 3rd violation, suspend all licenses for a 90 day
period.
For a 4th violation, or if the court establishes a
pattern or practice of willful violations, permanently
revoke all licenses held by the violating party.
While this bill provides the court discretion to consider
various factors such as the impact to its employees before
issuing a license suspension, no other violations specific to
unfair practices for discrimination and retaliation result in
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sanctions such as those provided for in this bill.
Prior Legislation: This bill is very similar to SB 666
(Steinberg) which is pending in the Assembly Appropriations
Committee. This bill, however, subjects violating employers to
possible suspension and/or revocation of their business
license(s), while SB 666 specifies that a business license is
subject to suspension or revocation if a current, former, or
prospective employee of the licensee attempts to exercise a
protected right and, in reaction, the licensee threatens to
retaliate or retaliates based on the employee's citizenship or
immigration status. This bill also extends existing protections
against retaliation to all persons, not just employers.
Staff Comments: DIR indicates that it would need between
$480,000 and $540,000 (Labor Enforcement and Compliance Fund)
and up to 5 additional positions to accommodate the expected
increase in workload. Specifically, DIR expects that it would
have to investigate 45 additional cases per year. Additionally,
since the bill broadens potential liability to persons or
entities that act on behalf of employers, DIR estimates
approximately 1,100 hours of additional investigative work.
These estimates reflect several assumptions, including DIR's
current workload for similar cases and the number of immigrant
workers. For purposes of this bill, DIR used the Employment
Development Department's workforce data that reports 18.6
million workers in the state and assumed that 1 in 10 workers
are undocumented.
Although flagged as a mandate by the Legislative Counsel because
it alters the definition of a crime or infraction, under Section
6(b) of Article XIII B of the California Constitution, any costs
to a unit of local government which result from legislation
defining a new crime or changing the definition of a crime are
not reimbursable by the state.
Author's Amendments would clarify the procedures under which the
Labor Commissioner would investigate potential violations.