BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                            



           ----------------------------------------------------------------- 
          |SENATE RULES COMMITTEE            |                        AB 263|
          |Office of Senate Floor Analyses   |                              |
          |1020 N Street, Suite 524          |                              |
          |(916) 651-1520         Fax: (916) |                              |
          |327-4478                          |                              |
           ----------------------------------------------------------------- 
           
                                           
                                    THIRD READING


          Bill No:  AB 263
          Author:   Roger Hernández (D)
          Amended:  9/3/13 in Senate
          Vote:     21

           
           SENATE LABOR & INDUSTRIAL RELATIONS COMMITTEE  :  3-0, 6/26/13
          AYES:  Monning, Leno, Yee
          NO VOTE RECORDED:  Wyland, Padilla

           SENATE JUDICIARY COMMITTEE  :  4-2, 7/2/13
          AYES:  Corbett, Jackson, Leno, Monning
          NOES:  Walters, Anderson
          NO VOTE RECORDED:  Evans

           SENATE APPROPRIATIONS COMMITTEE  :  5-2, 8/30/13
          AYES:  De León, Hill, Lara, Padilla, Steinberg
          NOES:  Walters, Gaines

           ASSEMBLY FLOOR  :  52-23, 5/29/13 - See last page for vote


           SUBJECT  :    Employment:  retaliation:  immigration-related  
          practices

           SOURCE  :     California Labor Federation, AFL-CIO


           DIGEST  :    This bill prohibits 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, authorizes a  
          civil action by an employee or other person who is the subject  
                                                                CONTINUED





                                                                     AB 263
                                                                     Page  
          2

          of an unfair immigration- related practice, and authorizes a  
          court to order the appropriate government agencies to suspend  
          certain business licenses held by the violating party for  
          prescribed periods based on the number of violations.  Requires  
          a court to consider prescribed circumstances in determining  
          whether a suspension of all licenses is appropriate; expands the  
          protected conduct to include a written or oral complaint by an  
          employee that he/she is owed unpaid wages; authorizes 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 also establishes a three-tier  
          license suspension and revocation scheme for first and  
          subsequent violations; clarifies 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 specifies that an employee  
          is not required to exhaust administrative remedies or procedures  
          to enforce this prohibition.  Also, this bill clarifies the  
          procedures under which the Labor Commissioner would investigate  
          potential violations.

           ANALYSIS  :    R  egarding employee sharing of information with  
          government entities, existing law  :  
           
          1. Prohibits an employer from making, adopting, or enforcing any  
             rule, regulation, or policy preventing an employee from  
             disclosing information to a government or law enforcement  
             agency, where he/she has reasonable cause to believe that the  
             information discloses a violation or noncompliance with state  
             or federal law.  

          2. Prohibits and employer from retaliating against an employee  
             for disclosing this type of information to a government or  
             law enforcement agency. 

          3. In addition to other penalties, imposes upon a corporation or  
             limited liability company a civil penalty not exceeding  
             $10,000 for each violation of this section.

          4. Exempts from these provisions are rules, regulations, or  
             policies implementing the confidentiality of the  
             lawyer-client or physician-patient privilege, or trade  







                                                                     AB 263
                                                                     Page  
          3

             secrets.  

           Existing law, under the Fair Employment and Housing Act (FEHA)  ,  
          prohibits harassment and discrimination in employment because of  
          race, color, religion, sex, sexual orientation, marital status,  
          national origin, ancestry, mental and physical disability,  
          medical condition, age (40 and above), pregnancy, denial of  
          medical and family care leave, or pregnancy disability leave  
          and/or retaliation for protesting illegal discrimination related  
          to one of these categories. 

           Under existing California law  , all employment protections,  
          rights, and remedies available under state law, except any  
          reinstatement remedy prohibited by federal law, are available to  
          all individuals regardless of immigration status.  In addition,  
          for purposes of enforcing state labor and employment laws, a  
          person's immigration status is irrelevant to the issue of  
          liability or in proceedings, where no inquiry is permitted into  
          a person's immigration status except where the person seeking  
          the inquiry has shown, by clear and convincing evidence, that  
          the inquiry is necessary in order to comply with federal  
          immigration law.  

          Existing law establishes grounds for suspension or revocation of  
          certain business and professional licenses.
           
           This bill strengthens labor law protections for workers by  
          enacting a number of provisions related to retaliation and  
          unfair immigration-related practices.  Specifically, this bill:

          1. Provides that it shall be unlawful for an employer, or any  
             other person or entity, to direct or engage in unfair  
             immigration-related practices against any person for the  
             purpose or intent of retaliating for exercising any right  
             protected under the Labor Code or local ordinance applicable  
             to employees, including:

             A.    Filing a good faith complaint or informing any person  
                of an employer's or other party's alleged violation. 

             B.    Seeking information on whether an employer or other  
                party is in compliance with Labor Code or local  
                ordinance.








                                                                     AB 263
                                                                     Page  
          4

             C.    Informing and assisting a person in exercising  
                his/her rights and remedies; as specified. 

          2. Expands the protected conduct to include a written or oral  
             complaint by an employee that he/she is owed unpaid wages.

          3  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  
                federally required for verifying employment  
                authorization, or refusing to honor documents appearing  
                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 federally required authorized.

             C.    Threatening to file or the filing of a false police  
                report.

             D.    Threatening to contact or contacting immigration  
                authorities.

          4. Specifies that engaging in an unfair immigration-related  
             practice against a person within 90 days of the person's  
             exercise of employment protected rights shall raise a  
             rebuttable presumption of having done so in retaliation for  
             exercising those rights.

          5. Provides 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 owed  
             and, if he/she prevails, may recover reasonable attorney's  
             fees and costs, including any expert witness costs.

          6. 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,  
                as specified, held by the violating party for up to a 14  







                                                                     AB 263
                                                                     Page  
          5

                day period. 

             B.    For a second violation, suspend all licenses for up  
                to a 30 day period. 

             C.    For a third violation or any violation, suspend all  
                licenses thereafter for up to a 90 day period. 

          7. Defines "license" as any agency permit, certificate,  
             approval, registration, charter, that is required by law and  
             that is issued by any agency for the purposes of operating a  
             business in this state, as specified. 

          8. Prohibits an employer from retaliating or taking adverse  
             action against [existing law protects against discharge or  
             discrimination] any employee or applicant because he/she has  
             engaged in protected conduct, as specified.

             A.    Subjects an employer that violates these provisions  
                to a civil penalty of up to $10,000 per violation. 

             B.    Specifies that in the enforcement of these  
                provisions, there is no requirement that an individual  
                exhaust administrative remedies or procedures.

          9. Adds non-employers (any other person or entity) to the  
             existing prohibitions [and penalties for non-compliance]  
             applicable to employers that prevents them from:

             A.    Having a policy that prevents an employee from  
                disclosing information to a government or law  
                enforcement agency, as specified.

             B.    Retaliating against an employee for disclosing such  
                protected information.

             C.    Retaliating against an employee for refusing to  
                participate in an activity that resulted in a violation  
                of state or federal statute, as specified. 

          10.Provides that an employer may not discharge an employee or in  
             any manner discriminate, retaliate, or take any adverse  
             action against an employee because he/she updates or attempts  
             to update his/her personal information, unless the changes  







                                                                     AB 263
                                                                     Page  
          6

             are directly related to the skill set, qualifications, or  
             knowledge required for the job. 

          11.Clarifies the procedures under which the Labor Commissioner  
             would investigate potential violations, as follows:

             A.    Allows a person who believes that he/she has been  
                discharged or otherwise discriminated against in  
                violation of any law under the jurisdiction of the Labor  
                Commissioner may file a complaint with the division  
                within six months after the occurrence of the violation.

             B.    Allows each complaint of unlawful discharge or  
                discrimination shall be assigned to a discrimination  
                complaint investigator who shall prepare and submit a  
                report to the Labor Commissioner based on an  
                investigation of the complaint.

             C.    Requires, if the Labor Commissioner determines a  
                violation has occurred, he/she will notify the  
                complainant and respondent and direct the respondent to  
                cease and desist from the violation and take any action  
                deemed necessary to remedy the violation, as specified.

             D.    Requires, if the Labor Commissioner determines no  
                violation has occurred, he/she will notify the  
                complainant and respondent and shall dismiss the  
                complaint.

          12.Makes several legislative findings and declarations related  
             to immigrant workers.

          13.Adds double-jointing language to SB 496 (Wright) to avoid  
             chaptering out issues.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  Yes

          According to the Senate Appropriations Committee:

           The Department of Industrial Relations estimates that it will  
            incur costs of $415,000 (special funds) and require up to five  
            positions to implement the provisions of this bill.








                                                                    AB 263
                                                                     Page  
          7

           The Department of Justice indicates its impacts from this bill  
            will be insignificant

           Costs to the state court system are unknown.

           SUPPORT  :   (Verified  9/3/13)

          California Labor Federation, AFL-CIO (source)
          California Catholic Conference
          California Conference Board of the Amalgamated Transit Union
          California Conference of Machinists
          California Nurses Association
          California Teamsters Public Affairs Council
          Engineers and Scientist of California
          International Longshore and Warehouse Union
          National Association of Social Workers - California Chapter
          Professional & Technical Engineers, Local 21
          UNITE HERE
          United Food and Commercial Workers Union, Western States Council
          Utility Workers Union of America, Local 132

           OPPOSITION  :    (Verified  9/3/13)

          Save Our State

           ARGUMENTS IN SUPPORT  :    According to the author's office,  
          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  
          such as garment manufacturing, agriculture, construction,  
          restaurants, domestic, janitorial and/or building maintenance  
          work.  As such, proponents argue, these workers often work under  
          harsh 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 of unscrupulous  
          employers threatening to report them to immigration authorities.  
           

          Proponents believe that this bill is important because it  
          protects employees against unfair retaliation by exploiting  
          their immigrant status.  They argue that all employees are  







                                                                     AB 263
                                                                     Page  
          8

          protected by certain rights under California law and that this  
          bill clarifies that instances of retaliation against immigrant  
          workers will not be tolerated.  Proponents argue that 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.  They believe this bill  
          targets one of the most powerful and effective weapons employers  
          have to keep workers silent and living in the shadows.  

           ASSEMBLY FLOOR  :  52-23, 5/29/13
          AYES:  Alejo, Ammiano, Atkins, Bloom, Blumenfield, Bocanegra,  
            Bonilla, Bonta, Bradford, Buchanan, Ian Calderon, Campos,  
            Chau, Chesbro, Cooley, Daly, Dickinson, Eggman, Fong, Fox,  
            Frazier, Garcia, Gatto, Gomez, Gonzalez, Gordon, Gray, Hall,  
            Roger Hernández, Jones-Sawyer, Levine, Lowenthal, Medina,  
            Mitchell, Mullin, Muratsuchi, Nazarian, Pan, Perea, V. Manuel  
            Pérez, Quirk, Quirk-Silva, Rendon, Salas, Skinner, Stone,  
            Ting, Weber, Wieckowski, Williams, Yamada, John A. Pérez
          NOES:  Achadjian, Allen, Bigelow, Brown, Chávez, Conway, Dahle,  
            Donnelly, 
          Beth Gaines, Grove, Hagman, Harkey, Jones, Logue, Maienschein,  
            Mansoor, Melendez, Morrell, Olsen, Patterson, Wagner, Waldron,  
            Wilk
          NO VOTE RECORDED:  Gorell, Holden, Linder, Nestande, Vacancy


          PQ:d  9/3/13   Senate Floor Analyses 

                           SUPPORT/OPPOSITION:  SEE ABOVE

                                   ****  END  ****