BILL ANALYSIS Ó
Senate Committee on Labor and Industrial Relations
Ted W. Lieu, Chair
Date of Hearing: April 24, 2013 2013-2014 Regular
Session
Consultant: Alma Perez Fiscal:Yes
Urgency: No
Bill No: SB 666
Author: Steinberg
As Introduced/Amended: April 11, 2013
SUBJECT
Employment: retaliation
KEY ISSUES
Should the Legislature prohibit an employer from preventing, or
retaliating against, an employee for providing information to,
or testifying before, any public body conducting an
investigation, hearing, or inquiry?
Should a member of the State Bar be suspended, disbarred, or
disciplined for reporting [or threatening to report] the
immigration status of an employee because he/she exercises their
employment rights?
Should a business license be subject to suspension or revocation
when an employee attempts to exercise his/her employment rights
and, in reaction, the licensee threatens to retaliate [or
retaliates] based on their citizenship or immigration status?
Should a corporation or limited liability company be subject to
a civil penalty for retaliating or taking adverse action against
any employee that exercises his/her employment rights?
ANALYSIS
Existing state and federal law contains provisions that define
unlawful discrimination and lawful employment practices by
employers and employment agencies to protect both prospective
and current employees against employment discrimination.
Existing law, among other things, provides the following (Labor
Code §98.6):
Prohibits an employer from discharging, or in any manner
discriminating against, any employee or applicant for
employment because he/she has engaged in prescribed
protected conduct relating to the enforcement of the
employee's or applicant's rights.
Any employee that is discharged, threatened with
discharge, demoted, suspended, or in any other manner
discriminated against in the terms and conditions of his or
her employment because the employee engaged in any
protected conduct - such as making a bona fide complaint or
claim to the Division of Labor Standards Enforcement - is
entitled to reinstatement and reimbursement for lost wages
and work benefits.
Any employer who willfully refuses to hire, promote, or
otherwise restore an employee or former employee who has
been determined to be eligible for rehiring or promotion by
a grievance procedure, arbitration, or hearing authorized
by law, is guilty of a misdemeanor.
Regarding employee sharing of information with government
entities, existing law:
(Labor Code§1102.5)
Specifies that an employer may not make, adopt, or
enforce 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.
Prohibits and employer from retaliating against an
employee for disclosing this type of information to a
government or law enforcement agency.
Under existing law, in addition to other penalties, an
employer that is a corporation or limited liability company
is liable for a civil penalty not exceeding $10,000 for
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each violation of this section.
However, these provisions do not apply to rules,
regulations, or policies implementing the confidentiality
of the lawyer-client privilege, the physician-patient
privilege, or trade secret information.
The existing 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. (Government Code §12940, 12945,
12945.2)
Under existing California law , all 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 who have applied
for employment, or who are or have been employed in the state.
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. (Labor Code §1171.5; Civic Code §3339;
Health and Safety Code §24000; Government Code §7285)
Existing law establishes grounds for suspension or revocation of
certain business and professional licenses.
Under the existing State Bar Act, specific causes are
established for the disbarment or suspension of a member of the
State Bar.
This Bill would strengthen labor law protections against threats
and intimidation by employers, or any person acting on behalf of
the employer, for employees who engage in protected activity.
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Specifically, this bill would:
1. Prohibit any person acting on behalf of the employer
[current law already prohibits employers] from making,
adopting, or enforcing any rule, regulation, or policy
preventing an employee from disclosing information to a
government or law enforcement agency.
2. Prohibit an employer or any person acting on behalf of
the employer from preventing, or retaliating against, an
employee for providing information to [or testifying
before] any public body conducting an investigation,
hearing, or inquiry.
3. Prohibit an employer from retaliating or taking adverse
action against [current law protects against discharge or
discrimination] any employee or applicant for employment
because he/she has engaged in protected conduct (such as
rights under the jurisdiction of the Labor Commissioner).
o The bill would expand the protected conduct to
include a written or oral complaint by an employee
that he or she is owed unpaid wages.
o The bill would subject an employer that is a
corporation or limited liability company to a civil
penalty of up to $10,000 per violation of these
provisions.
1. Make it a cause for suspension, disbarment, or other
discipline for any member of the State Bar to report, or
threaten to report, the immigration status of a witness or
party to a civil or administrative action -or his or her
family member- to a federal, state, or local agency because
the witness or party exercises a right related to his or
her employment.
2. Specify that a business license is subject to suspension
or revocation if a current, former, or prospective employee
of the licensee attempts to exercise a right related to
his/her employment or any terms, conditions, or benefits
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protected by state law and, in reaction, the licensee
threatens to retaliate or retaliates based on the
employee's citizenship or immigration status.
3. Provide that it is not necessary for an individual to
exhaust administrative remedies or procedures in order to
bring a civil action under Labor Code, unless the code
section under which the action is brought expressly
requires exhaustion.
4. Specify that reporting [or threatening to report] an
employee's, former employee's, or prospective employee's
citizenship or immigration status, or that of his/her
family member, to a federal, state, or local agency because
he/she exercises a protected right would constitute an
adverse action for purposes of establishing a violation of
the designated right.
COMMENTS
1. Hiring Process - Federal Law:
Under existing law, it is illegal for a person or other entity
to "knowingly" hire, recruit, or refer for employment an
unauthorized individual or any individual without complying
with specified employment verification procedures. Among other
things, the law requires employers to verify that every new
hire is either a U.S. citizen or authorized to work in the
United States. All employers are required to have new
employees complete form I-9, Employment Eligibility
Verification, upon hire. New employees, within three days of
being hired, must show their employers documentation
establishing identity and eligibility to work in the U.S.
The E-Verify Program is an internet-based system, operated by
the U.S. Citizenship and Immigration Service in partnership
with the Social Security Administration, which enables
participating employers to use the program, on a voluntary
basis, to verify that the employees they hire are authorized
to work in the U.S. The effectiveness of E-Verify, however,
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has been the subject of concern for many including the U.S.
Government Accountability Office (GAO). A 2010 GAO report,
titled "Employment Verification: Federal Agencies Have Taken
Steps to Improve E-Verify, but Significant Challenges Remain,"
found that the system still faces challenges, including the
rate of tentative non-confirmation letters (TNCs) that may
occur because of an employee's failure to update his/her
nationalization status in SSA databases, failure to report a
change in his/her name to SSA or an employer's error in
entering the employee's data into the system. The GAO report
notes that of the 22,512 TNCs resulting from name mismatches
in 2009; approximately 76 percent were for citizens and
approximately 24 percent for noncitizens.
Both state and federal law contain various provisions
prohibiting employment discrimination on different bases,
including, but not limited to, the race, color, sex, religion,
or marital status of a person. In addition, existing federal
law pertaining to E-Verify specifies that, among other things,
employers may not use E-Verify to discriminate against any job
applicant or new hire on the basis of his/her national origin,
citizenship, or immigration status; employers may not use the
system to pre-screen applicants for employment; employers may
not verify newly hired employees selectively; and employers
cannot take any adverse action against an employee based upon
E-Verify unless the program issues a Final Non-confirmation.
2. Background on California's Immigrant Workforce:
Immigrants comprise a growing part of the United States labor
force. Immigrant workers, both documented and undocumented,
are a significant presence in California's workplace and
economy. According to a National Employment Law Project (NELP)
report, in 2010, 23.1 million foreign-born persons
participated in the civilian labor force. Of these workers,
5.2 percent (about eight million) form part of the U.S.
undocumented labor force. An estimated 2.6 million
undocumented immigrants reside in California- approximately
seven percent of the State's total population and one-fourth
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of the population of undocumented immigrants nationwide.
Almost one in every ten workers in California is undocumented.
("Workers' Rights on ICE: How Immigration Reform Can Stop
Retaliation and Advance Labor Rights," NELP, February 2013)
Most undocumented immigrants work in traditionally low-wage
occupations such as agriculture, construction, manufacturing,
and service industries, where workers face the greatest risk
for exploitation and are more likely to experience violations
of wage and hour laws. A landmark study of low-wage workers in
Los Angeles ("Wage Theft and Workplace Violations in LA: The
Failure of Employment and Labor Law for Low-Wage Workers,"
UCLA 2010) found that almost 76 percent of undocumented
workers had worked off-the-clock without pay and over 85
percent had not received overtime pay. The study also found
that undocumented workers experienced these violations at
rates higher than their native-born counterparts. Moreover,
immigrant workers are disproportionately likely to be injured
or killed on the job.
The NELP report found that employers and their agents have far
too frequently shown that they will use immigration status as
a tool against worker exercising their employment rights. The
report offers several examples, including one in which the
Labor Commissioner found that a San Jose, California employer
owed an immigrant worker $50,000 for unpaid wages. Upset with
the ruling, the employer harassed the worker in his home and
threatened to report him to immigration.
3. Need for this bill?
California's labor market, although improving at a 9.4
unemployment rate, remains weak. According to the National
Employment Law Project, three unemployed workers compete for
every available job in the United States. Some worker
advocates have argued that this imbalance has given employers
an advantage at setting the terms and conditions of employment
- even if these violate employee rights. The reports
highlighted above have found that this is especially the case
in low-wage industries where workplace abuse is rampant.
California has made it clear that "all protections, rights,
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and remedies available under state law, except any
reinstatement remedy prohibited by federal law, are available
to all individuals regardless of immigration status who have
applied for employment, or who are or who have been employed,
in this state." (Labor Code §1171.5; Civic Code §3339; Health
and Safety Code §24000; Government Code §7285)
While fear and threats of job loss have an especially serious
consequence in this job market, an employer's threat to alert
immigration or local law enforcement of an immigrant worker's
legal status in the United States carries added force. And
although our state and national labor and employment laws
protect undocumented workers - just like any other worker -
against abuse, the reality is that our workers continue to
suffer at the hands of unscrupulous employers.
This bill is necessary to strengthen the retaliation laws that
currently protect all workers while emphasizing that reports
or threats against a worker based on his or her immigration
status are not acceptable and will place the employer, or
his/her representative, at risk of incurring civil penalties,
potential loss of their business license or, if an attorney,
disbarment. By incorporating these provisions into current
law, this bill would ensure adequate protections are in place
against retaliation or threats allowing all workers -
regardless of immigration status - to exercise their
employment rights without fear.
4. Proponent Arguments :
According to the author, there are countless examples of
immigrant workers attempting to exercise their employment
rights only to have their employer threaten to report them or
actually report them or their family members to immigration or
law enforcement under false charges. The reality, proponents
argue, is that immigration-related retaliation and threats
undermine workers' rights for all workers. Those who might be
willing to act as whistleblowers and expose unfair and illegal
treatment worry they will be the cause of serious harm to
their co-workers for calling attention to abuses. Meanwhile,
employers who are following the law are at a competitive
disadvantage against those that exploit workers.
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Additionally, proponents argue that unscrupulous attorneys
representing these law-breaking employers have also used these
immigration related threats to keep people from testifying or
showing up to depositions in support of workers trying to
enforce their rights. Proponents argue that our current
statutory scheme does little to deter a law-breaking business
from using the immigration status of the worker, co-worker, or
family member to create an atmosphere of fear that prevents
workers from demanding their rights in the workplace. They
argue that this bill is needed to empower workers to exercise
their rights under California law without fear that employers
will retaliate by reporting their immigration status or that
of their family members to government officials. Proponents
contend that this bill will not only deter unscrupulous
employers from violating the rights of immigrant workers, but
will also lift the veil of silence in the workplace.
Overall, proponents argue that the state has both a right and
an obligation to protect workers and to ensure that basic
labor laws can be enforced. Employers who engage in these
forms of retaliation must be held accountable. They argue that
this bill will clarify, strengthen and expand existing
retaliation statutes to better address the realities of
workplace retaliation, especially as it affects immigrant
workers.
5. Opponent Arguments :
Opponents argue that this bill would subject employers to
significant penalties, loss of their business license, and
costly litigation for complying with federal law, as well as
circumventing the exhaustion of administrative remedies under
the Fair Employment and Housing Act ("FEHA"). They argue that
currently, the federal Immigration and Control Act of 1968
(ICRA) precludes any employer from knowingly hiring or
continuing to employ an individual that is not authorized to
work in the United States. An employer that violates this
provision is subject to hefty penalties and may be subject to
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criminal sanctions. ICRA also prevents an employer from
discriminating against an employee who provides valid
documentation that he/she is authorized to work in the United
States.
According to opponents, this bill exposes employers to
significant fines, costly litigation, and loss of their
business license if the employer complies with federal law and
terminates or refuses to hire an employee it discovers is
unauthorized to work in the U.S. They argue that with this
bill, if an employer learns through the I-9 process within
three days of hire that the individual is not eligible to work
and terminates him/her as a result as required by federal law;
the employer could lose its business license. Additionally,
that same employer would also be exposed to costly litigation
under the Private Attorney General Act ("PAGA"). They also
argue that this bill would add a potential $10,000 statutory
penalty against an employer who allegedly retaliates against
an employee that files a PAGA claim, thereby layering the
potential penalties against employers simply complying with
federal law.
Additionally, opponents are also concerned regarding the
provision in the bill which extends PAGA to include
retaliation/discrimination claims that are generally pursued
through FEHA and subject to the exhaustion of administrative
remedies. Specifically, instead of filing a retaliation claim
through FEHA based upon race or national origin, this bill
would allow an employee to side step the exhaustion of
administrative remedies that FEHA requires and pursue a PAGA
claim for retaliation that allows the employee to obtain
statutory penalties, as referenced above, as well as employee
only attorney's fees. They believe that discrimination and
retaliation type claims that are based on a protected class
should be mandated to comply with the administrative process
first by submitting such claims to the Department of Fair
Employment and Housing ("DFEH") for review.
6. Double Referral :
This bill has been double referred and, if approved by this
committee, it will be sent to the Senate Judiciary Committee
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for a hearing.
7. Prior or Related Legislation :
AB 263 (R. Hernandez) of 2013: Pending before Assembly
Judiciary Committee
AB 263 is very similar to this bill and would, among other
things, prohibit an employer from retaliating or taking
adverse action against an employee or applicant because he/she
engaged in a protected activity.
AB 1236 (Fong) of 2011: Chaptered
AB 1236 enacted the Employment Acceleration Act to prohibit
the state, or a city, county, city and county, or special
district, from requiring an employer to use an electronic
employment verification system except when required by federal
law or as a condition of receiving federal funds.
AB 1288 (Fong) of 2009 and AB 2076 (Fuentes) were almost
identical to AB 1236 dealing with electronic employment
verification systems.
SUPPORT
California Labor Federation - Sponsor
California Employment Lawyers Association
California Immigrant Policy Center
California Rural Legal Assistance Foundation
Mexican American Legal Defense and Educational Fund
National Employment Law Project
Service Employees International Union California
United Farm Workers
OPPOSITION
California Chamber of Commerce
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Senate Committee on Labor and Industrial Relations
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Consultant: Alma Perez Page 12
Senate Committee on Labor and Industrial Relations