BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 2751 (Hernández)
As Amended May 28, 2014
Hearing Date: June 10, 2014
Fiscal: No
Urgency: No
TMW
SUBJECT
Retaliation: Unfair Immigration-Related Practices
DESCRIPTION
This bill would clarify that the civil penalty of up to $10,000
against an employer who discriminates, retaliates, or takes any
adverse action against an employee or applicant for employment,
who exercises a right protected under local and state labor and
employment laws, is to be awarded to the employee or employees
who suffered the violation.
This bill would also make clarifying changes to unfair
immigration-related employment practices and violations thereof.
This bill would also clarify that an employer may not discharge
an employee or in any manner discriminate, retaliate, or take
any adverse action against an employee because the employee
updates his or her personal information based on a lawful change
of name, social security number, or federal employment
authorization document.
BACKGROUND
Last year, AB 263 (Hernández, Ch. 732, Stats. 2013) was enacted
to 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. AB 263 prohibited retaliation against an
employee based on unfair immigration-related practices, as
defined, prohibited an employer from discriminating,
retaliating, or taking adverse action against an employee or
applicant who has engaged in prescribed protected conduct
(more)
AB 2751 (Hernández)
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relating to the enforcement of the employee's or applicant's
rights, provided up to a $10,000 penalty for violations thereof,
and prescribed business license suspensions for first, second,
third, and subsequent violations.
This bill clarifies the violation and employee awards provisions
in AB 263, and clarifies that the personal information provided
by an employee that may not be used by an employer to discharge,
discriminate, retaliate, or take any other adverse action
against the employee.
CHANGES TO EXISTING LAW
1. Existing law prohibits discrimination, retaliation, or taking
any adverse action against any 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 authorizes, 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. (Lab.
Code Sec. 98.6(b)(3).)
This bill would clarify that civil penalty is to be awarded to
the employee or employees who suffered the violation.
2. Existing law prohibits an employer or any other person from
engaging in, or directing another person to engage in, an
unfair immigration-related practice against a person for the
purpose of, or with the intent of, retaliating against any
person for exercising a right protected under state labor and
employment laws or under a local ordinance applicable to
employees, as specified. (Lab. Code Sec. 1019(a).)
Existing law defines "unfair immigration-related practice" to
mean any of the following practices, when undertaken for
prohibited retaliatory purposes:
requesting more or different documents than are required
under Section 1324a(b) of Title 8 of the United States
Code, or refusing to honor documents tendered pursuant to
that section 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
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a manner not required under Section 1324a(b) of Title 8 of
the United States Code, 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. (Lab. Code Sec. 1019(b).)
Existing law authorizes an employee or other person who is the
subject of an unfair immigration-related practice to bring a
civil action for equitable relief and any applicable damages
or penalties, and upon finding a violation, the court may:
for a first violation, the court in its discretion, may
order the appropriate government agencies to suspend all
licenses held by the violating party for a period of up to
14 days;
for a second violation, the court, in its discretion,
may order the appropriate government agencies to suspend
all licenses that are held by the violating party specific
to the business location or locations where the unfair
immigration-related practice occurred for a period of up to
30 days;
for a third violation, or any violation thereafter, the
court, in its discretion, may order the appropriate
government agencies to suspend for a period of up to 90
days all licenses that are held by the violating party
specific to the business location or locations where the
unfair immigration-related practice occurred; and
in determining whether a suspension of all licenses is
appropriate, the court shall consider whether the employer
knowingly committed an unfair immigration practice, the
good faith efforts of the employer to resolve any alleged
unfair immigration related practice after receiving notice
of the violations, as well as the harm other employees of
the employer, or employees of other employers on a
multiemployer jobsite, will suffer as a result of the
suspension of all licenses. (Lab. Code Sec.
1019(d)(1)-(3).)
Existing law authorizes an employee or other person, who is
the subject of an unfair immigration-document practice and who
prevails in an action, to recover his or her reasonable
attorney's fees and costs, including any expert witness costs.
(Lab. Code Sec. 1019(d)(4).)
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Existing law defines "license" to mean any agency permit,
certificate, approval, registration, or charter that is
required by law and that is issued by any agency for the
purposes of operating a business in California, but "license"
does not include a professional license. (Lab. Code Sec.
1019(e)(1).)
Existing law defines "violation" to mean each incident when an
unfair immigration practice was committed, without reference
to the number of employees involved in the incident (Lab. Code
Sec. 10199e)(2).)
This bill would reorganize the above violation provisions to
remove redundant language and clarify that, upon application
by a party or on the court's own motion, the court may suspend
a business license.
This bill would also include in the above definition of
"unfair immigration-related practice" threatening to file or
the filing of a false report or complaint with any state or
federal agency.
This bill would clarify the above definition of "license" to
be specific to the business location or locations where the
unfair immigration-related practice occurred.
This bill would clarify the above definition of "violation" to
apply to immigration-related practices.
3. Existing law prohibits 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.
(Lab. Code Sec. 1024.6.)
This bill would redefine the personal information provided by
the employee to be based on a lawful change of name, social
security number, or federal employment authorization document.
This bill would also clarify that an employer's compliance
with the above provision shall not serve as the basis for a
claim of discrimination, including any disparate treatment
claim.
AB 2751 (Hernández)
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COMMENT
1. Stated need for the bill
The author writes:
Last year, AB 263 (Hernández) enacted landmark legislation to
protect immigrant workers against unlawful retaliation.
First, [t]his bill would amend the law to also include
threatening to file or the filing of a false report or
complaint with any state or federal agency. Second, at the
request of the California Chamber of Commerce, [this bill]
would clarify the language in Labor Code Section 1024.6 to
clarify the meaning of an employee's ability to "update his or
her personal information."
Third, at the request of the California Labor Federation,
[this bill] would clarify that the $10,000 civil penalty added
last year to Labor Code [Section] 98.6 for retaliation is
payable to the aggrieved worker. Finally, this bill makes a
number of clarifying and streamlining changes to the law that
were identified by Legislative Counsel.
2. Clarifying unfair immigration-related practices, awards, and
violations
This bill would clarify the provisions of AB 263 regarding
unfair immigration-related practices, awards, and violations.
Existing law authorizes a civil penalty up to $10,000 against an
employer who discriminates, retaliates, or takes any adverse
action against an employee or applicant for employment, who
exercises a right protected under local and state labor and
employment laws. This bill would clarify that the civil penalty
ordered by the court against the employer would be awarded to
the employee or employees who suffered the violation.
Further, AB 263 enacted a three-tiered suspension scheme
authorizing a court to suspend the business license of an
employer proven to have engaged in unfair immigration-related
practices. The three-tiered suspension scheme provides for a
license suspension up to 14 days for a first violation, license
suspension up to 30 days for a second violation, and license
suspension up to 90 days for a third or subsequent violation.
In determining whether a suspension of all of the employer's
business licenses is appropriate, the court is required to
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consider whether the employer knowingly committed an unfair
immigration practice, the good faith efforts of the employer to
resolve any alleged unfair immigration related practice after
receiving notice of the violations, as well as the harm other
employees of the employer, or employees of other employers on a
multiemployer jobsite, will suffer as a result of the suspension
of all of the employer's licenses. These suspension provisions
contain duplicative language regarding the information to be
considered by the court with respect to an employer's license
suspension. Accordingly, this bill would reorganize that
language to remove the redundancy, as well as make other
technical modifications to those provisions.
Additionally, this bill would clarify the definition of "unfair
immigration-related practice" to include an employer's threat to
file a false report or complaint with any state or federal
agency, which is consistent with the Legislature's intent in AB
263 to prohibit threats by the employer to file a false police
report against an employee who attempts to exercise a right
protected under local or state employment laws. This bill would
also clarify the definition of a "license" to mean a license
that is specific to the business location or locations where the
unfair immigration-related practice occurred. This
clarification merely moves existing language in the tiered
suspension paragraphs to the license definition.
This bill would also clarify that an employer may not discharge
an employee or in any manner discriminate, retaliate, or take
any adverse action against an employee because the employee
updates his or her personal information based on a lawful change
of name, social security number, or federal employment
authorization document. This clarification was requested by
employer stakeholder groups after AB 263 was enacted. This
provision arguably better informs employers of the specific
information updates provided by an employee that may not be used
against the employee in violation of existing law.
Support : California Chamber of Commerce; California Labor
Federation, AFL-CIO; California Retailers Association;
California Rural Legal Assistance Foundation
Opposition : None Known
HISTORY
AB 2751 (Hernández)
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Source : Author
Related Pending Legislation : None Known
Prior Legislation :
AB 263 (Hernández, Ch. 732, Stats. 2013) See Background, Comment
2.
SB 666 (Steinberg, Ch. 577, Stats. 2013), among other things,
made it unlawful for an employer to retaliation or take any
adverse action against an employee who makes a written oral
complaint that he or she is owed unpaid wages.
Prior Vote :
Assembly Floor (Ayes 54, Noes 19)
Assembly Committee on Labor and Employment (Ayes 5, Noes 1)
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