BILL ANALYSIS Ó
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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
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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
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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.
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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
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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
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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.
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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
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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
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