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 ****