BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
SB 666 (Steinberg)
As Amended April 11, 2013
Hearing Date: April 30, 2013
Fiscal: Yes
Urgency: No
TW
SUBJECT
Employment: retaliation
DESCRIPTION
This bill would suspend or revoke a business license if the
licensee threatens to retaliate or retaliates against an
employee based on his or her citizenship or immigration status.
This bill would also provide for the suspension, disbarment, or
other discipline of an attorney who threatens to report the
immigration status of a witness or party to a civil or
administrative action because the witness or party exercises or
has exercised a right related to his or her employment.
This bill would also authorize a civil penalty up to $10,000 per
employee against a corporate or limited liability company
employer who discriminates, retaliates, or takes adverse action
against an employee who makes a written or oral complaint for
unpaid wages. This bill would clarify that an employee is not
required to exhaust administrative remedies before filing a
civil action under the Labor Code, unless otherwise expressly
statutorily required to exhaust administrative remedies.
This bill would also extend whistleblower protections to
employees who provide information to or testify before any
public body conducting an investigation, hearing, or inquiry
regarding employer violations of federal or state laws.
BACKGROUND
Existing law provides protections, rights, and remedies
available under state law to all individuals, regardless of
(more)
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immigration status, who have applied for employment, or who are
or who have been employed, in this state. Further, California's
labor laws provide anti-retaliation protection for employees,
who make claims against their employers for violations of labor
laws.
A recent study noted that there are approximately 2.6 million
undocumented individuals in California. (Cho and Smith,
Workers' Rights on ICE: How Immigration Reform Can Stop
Retaliation and Advance Labor Rights, National Employment Law
Project (Feb. 2013)
[as of Apr. 22, 2013],
p. 2.) The study also noted that "[m]ost undocumented
immigrants work in traditionally low-wage occupations such as
agriculture, construction, manufacturing, and service
industries, where workers face the greatest risk for
exploitation. Undocumented workers are far more likely to
experience violations of wage and hour laws." (Id.) The study
states that many undocumented workers do not file claims against
their employers out of fear of "'getting in trouble' or being
fired." (Id.) The study also found that "[w]hile 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 undocumented immigrant worker's status carries
added force. Such action is at least as frequent as other forms
of retaliation." (Id. at pp. 2-3.)
In order to further 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, this bill would prohibit
retaliation against an employee based on the citizenship or
immigration status of the employee or his or her family members.
This bill would also clarify that an employer is prohibited
from discriminating, retaliating, or taking adverse action
against an employee who makes a written or oral complaint that
the employee is owed unpaid wages, and provides up to a $10,000
penalty for violations thereof.
This bill would also subject a business licensee to disciplinary
action for threatening to retaliate or retaliating against an
employee based on the employee's citizenship or immigration
status. This bill would also provide for disciplinary action
against an attorney who threatens to report the immigration
status of a witness or party to a civil or administrative
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proceeding, as specified.
This bill would also supplement the California Whistleblower
Protection Statute by protecting an employee who provides
information to, or testifies before, any public body conducting
an investigation, hearing, or inquiry into improper employer
conduct, as specified.
This bill was heard by the Senate Committee on Labor and
Industrial Relations on April 24, 2013, and passed out on a vote
of 4-0.
CHANGES TO EXISTING LAW
1. Existing law subjects a business licensee to suspension or
revocation for various unlawful conduct, including knowingly
making a false statement of or knowingly omitting to state, a
material fact in an application for a license, conviction of a
crime, commission of any act involving dishonesty, fraud or
other deceit with the intent to substantially benefit himself,
herself, or another, or substantially injure another, or
commission of any act which would be grounds for suspension or
revocation of a license. (Bus. & Prof. Code Sec. 475.)
Existing law , the State Bar Act, provides statutory licensing
requirements for attorneys practicing law in the state. (Bus.
& Prof. Code Sec. 6000 et seq.) The State Bar also provides
disciplinary measures, including suspension and disbarment, of
attorneys for acts of dishonesty, moral turpitude, and
corruption. (Bus. & Prof. Code Sec. 6100 et seq.)
This bill would subject a business licensee to suspension or
revocation for threatening to retaliate or retaliating,
through the use of the employee's citizenship or immigration
status, against a current, former, or prospective employee of
the licensee who attempts to exercise an employment right
protected by law.
This bil l would authorize the suspension, disbarment, or other
discipline against a licensed attorney who reports the
immigration status, or threatens 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, or has
exercised, a right related to his or her employment. For
purposes of this provision, this bill would define "family
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member" to mean a spouse, parent, sibling, child, uncle, aunt,
niece, nephew, cousin, grandparent, or grandchild related by
blood, adoption, marriage, or domestic partnership.
2. Existing law provides that 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 who have been employed, in this
state. For purposes of enforcing state labor and employment
laws, existing law provides that a person's immigration status
is irrelevant to the issue of liability, and in proceedings or
discovery undertaken to enforce those state laws, no inquiry
shall be permitted into a person's immigration status except
where the person seeking to make this inquiry has shown by
clear and convincing evidence that the inquiry is necessary in
order to comply with federal immigration law. (Lab. Code Sec.
1171.5, Civ. Code Sec. 3339, Gov. Code Sec. 7285, Health &
Saf. Code Sec. 24000.)
Existing law prohibits discrimination against an employee or
job applicant for exercising his or her rights, including
initiating an action or testifying in any proceeding thereto,
delineated under the Labor Code. (Lab. Code Sec. 98.6.)
This bill would clarify that the employee or job applicant is
also protected under the above provision from retaliation or
adverse actions by the employer. This bill would also provide
these protections to the employee or job applicant for making
a written or oral complaint that he or she is owed unpaid
wages.
This bill would authorize, in addition to any other remedies
available, a civil penalty, not to exceed $10,000 per employee
for each violation, to be imposed against a corporate or
limited liability company employer.
3. Existing law prohibits employers from withholding an
employee's wages and prohibits discrimination, retaliation,
and adverse actions by an employer against an employee or job
applicant who exercises his or her rights under the law.
(Lab. Code Sec. 200 et seq.) Various statutes under the Labor
Code require the employee or applicant to first file a claim
against the employer with the Labor Commissioner, and other
statutes authorize the claimant to either file a complaint
with the Labor Commissioner or file a civil action.
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This bill would clarify that an employee or job applicant is
not required to exhaust administrative remedies or procedures
in order to bring a civil action under any provision of the
Labor Code, unless the provision under which the action is
brought expressly requires exhaustion of an administrative
remedy.
This bill would also provide that reporting or threatening to
report an employee's, former employee's, or prospective
employee's citizenship or immigration status, or the
citizenship or immigration status of his or her family member,
to a federal, state, or local agency because the employee,
former employee, or prospective employee exercises a right
under the provisions of Labor Code, the Government Code, or
the Civil Code constitutes an adverse action for purposes of
establishing a violation of an employee's, former employee's,
or prospective employee's rights. For purposes of this
provision, this bill would define "family member" to mean a
spouse, parent, sibling, child, uncle, aunt, niece, nephew,
cousin, grandparent, or grandchild related by blood, adoption,
marriage, or domestic partnership.
4. Existing law , commonly known as the Whistleblower Protection
Statute (WPS), prohibits an employer from preventing an
employee from disclosing information, or retaliating against
an employee who discloses information, to a government or law
enforcement agency where the employee has reasonable cause to
believe that the information discloses a violation of state or
federal statute, or a violation or noncompliance with a state
or federal rule or regulation. (Lab. Code Sec. 1102.5.)
This bill would also prohibit any person acting on behalf of
the employer from preventing or retaliating against an
employee who uses the WPS.
This bill would also provide protection to a person using the
WPS for providing information to, or testifying before, any
public body conducting an investigation, hearing, or inquiry.
5. This bill would specify that its provisions are severable, and
if any of its provision are held invalid, that invalidity
shall not affect other provisions or applications that can be
given effect without the invalid provision or application.
COMMENT
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1. Stated need for the bill
The author writes:
An employer or attorney's threat to alert immigration or law
enforcement of an undocumented immigrant or their family is an
enormous force against justice. It silences the worker and
the entire workplace. And, it gives a law-breaking business
strong incentive to run a shop that falls far short of
respecting California's employment laws. Law-abiding
businesses are forced to compete with these law-breakers whose
costs are lowered by engaging in illegal activities like wage
theft and shortcuts in safety.
Our current state statutory scheme does little to deter a
law-breaking boss or business from using the immigration
status of the worker, co-worker, or family member to create an
atmosphere of fear to prevent workers from demanding their
rights in the workplace. Our state statutes do not deter an
unscrupulous employer from retaliating against a worker by
calling immigration authorities when that worker demands that
the employer comply with California's labor laws. 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. Senate Bill 666 will deter
unscrupulous employers from violating the rights of immigrant
workers laboring in California and therefore lift the veil of
silence in the workplace.
2. Discrimination and retaliation based on citizenship status
Existing law prohibits employers from withholding an employee's
wages and prohibits discrimination, retaliation, and adverse
actions by an employer against an employee or job applicant who
exercises his or her rights under the law. (Lab. Code Sec. 200
et seq.) This bill would provide that an adverse action taken
by an employer would include reporting or threatening to report
an employee's, former employee's, or prospective employee's
citizenship or immigration status, or the citizenship or
immigration status of his or her family member, to a federal,
state, or local agency because the employee, former employee, or
prospective employee exercises a right under the provisions of
the Labor Code, the Government Code, or the Civil Code.
The National Employment Law Project (NELP), in support, asserts
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that "[a]s our recent report, Worker Rights on ICE, has
documented, immigrant workers are often deterred from exercising
their core labor rights because employers threaten to report
them on false grounds to local law enforcement agencies, federal
immigration enforcement agencies, threaten to re-verify
immigration work authorization documents, or enroll in voluntary
electronic verifications systems such as E-Verify. These
vulnerable workers - including victims of forced labor, sexual
assault, and extortion - consequently fear coming forward to
report abuse due to their fear of being reported."
Further, NELP provided the following examples of employer
misconduct identified in its report:
An employer in Garden Grove, California falsely accuses
a day laborer of robbery in order to avoid paying him for
work performed. Local police officers arrest the worker.
Although the police find no merit to the charges, he is
turned over to Immigration and Customs Enforcement (ICE).
After workers at a Latino grocery store chain in the San
Francisco Bay Area attempt to organize a union, the
employer announces that it needs to re-verify workers'
authorization and that it will enroll in the voluntary
E-Verify program, leading to widespread fear.
After the California Labor Commissioner found that a San
Jose, California employer owed an immigrant worker $50,000
for unpaid wages, the employer harasses the worker in his
home and threatens to report him to immigration.
NELP argues that "[s]ilencing or intimidating a large percentage
of workers in any industry means that workers are hobbled in
their efforts to protect and improve their jobs. As long as
unscrupulous employers can exploit some low-wage workers with
impunity, all low-wage workers suffer compromised employment
protections and economic security. Law-abiding employers are
forced to compete with illegal practices, perpetuating low-wages
in a whole host of industries."
Additionally, Worksafe, in support, asserts that "[c]urrent law
lacks strong and specific language with regard to retaliation
based upon immigration status. This creates an ambiguity that
allows employers to exercise a retaliation tactic that
effectively chills the voices of workers attempting to voice
their concerns about health and safety, as well as other issues
on the job."
The federal Immigration Reform and Control Act (IRCA) prohibits
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intimidation, threats, coercion, or retaliation (these acts are
considered discrimination under IRCA) against any individual for
the purpose of interfering with any right or privilege provided
under IRCA or because the individual intends to file or has
filed a charge or complaint, testified, or participated in an
investigation, proceeding or hearing, and immigration-related
employment practices such as discriminating on the basis of
citizenship or national origin. (8 U.S.C.S. 1324b(g)(2)(B).)
While IRCA only provides this protection for citizens and
permanent resident immigrants, this bill provides similar
anti-discrimination and retaliation protections based on
California's existing protections for workers who make claims
under the Labor Code, which are available to all California
employees, regardless of citizenship or immigration status.
This bill, by further defining that an employer's adverse action
against an employee includes the reporting or threatening to
report an employee's or family member's citizenship or
immigration status, will strengthen existing anti-retaliation
protections.
3. Civil penalties and right of civil action
This bill would authorize, in addition to any other remedies
available, a civil penalty, not to exceed $10,000 per employee
for each violation, to be imposed against a corporate or limited
liability company employer who unlawfully discriminates,
retaliates, or takes adverse action against an employee making a
claim under the Labor Code, as specified. This bill would also
clarify that an employee or job applicant is not required to
exhaust administrative remedies or procedures in order to bring
a civil action under any provision of the Labor Code, unless the
provision under which the action is brought expressly requires
exhaustion of an administrative remedy.
Worksafe asserts that "[c]urrent law lacks sufficient teeth to
penalize employers for retaliatory activity based on immigration
status. Without really significant penalties, or a strong
deterrence to break the law, all workers, irrespective of
immigration status, suffer when workplace health and safety
rights are violated." Accordingly, the author argues that a
statutory civil penalty is necessary to offset the large amounts
of money that many undocumented immigrant workers lose as a
result of the predatory tactics utilized by unscrupulous
employers, and to serve as a deterrent to those defrauding these
workers.
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In addition, proponents of this bill argue that such penalties
and a private right of action for harmed workers are warranted
in order to effectively deter employers from deliberately
misclassifying employees as independent contractors. The
proponents argue that, because governmental entities do not have
the resources or time to go after all employers who abuse and
threaten undocumented workers, and employers know this,
significant penalties and a private right of action are the most
effective deterrents to the wrongful conduct.
It is important to note that, as discussed above, IRCA provides
anti-discrimination/ retaliation protections to workers based on
citizenship and immigration status. While IRCA protects
immigrant workers from being discriminated against in the hiring
or firing process, based upon whether the worker is a United
States citizen, this bill on the other hand, provides protection
for workers who are already working for the employer, who uses
retaliation tactics to deter workers from filing lawful claims
(i.e., for wages, overtime, contractual benefits, or protection
to organize) under California laws. Further, this bill
specifies that its provisions are severable, and if any of its
provision are held invalid, that invalidity shall not affect
other provisions or applications that can be given effect
without the invalid provision or application. Although IRCA and
this bill each contemplate different retaliation/discrimination
claims, to the extent a court finds that this bill could impose
penalties against an employer based on a discrimination claim
otherwise protected under IRCA, the state penalty could be
preempted by IRCA, which provides its own penalties.
4. Attorney discipline
Existing law, the State Bar Act, provides statutory licensing
requirements for attorneys practicing law in the state. (Bus. &
Prof. Code Sec. 6000 et seq.) The State Bar also provides
disciplinary measures, including suspension and disbarment, of
attorneys who demonstrate acts of dishonesty, moral turpitude,
and corruption. (Bus. & Prof. Code Sec. 6100 et seq.) This
bill would authorize the suspension, disbarment, or other
discipline against a licensed attorney who reports immigration
status or threatens to report 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 or has exercised a right related to his or
her employment.
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The author asserts that "[u]nscrupulous lawyers 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." This bill, by prohibiting attorneys from
discouraging employees from testifying at hearings and
depositions through immigration-related threats, would reaffirm
California's interest in protecting employees and their ability
to seek redress under California law.
5. Extending whistleblower protection
In a recent Assembly Committee on Labor and Employment
informational hearing, employees testified that they feared
retribution by their employers for making claims against their
employers. These claims included seeking full payment of wages
owed to the employees and prohibiting employees from
participating in union meetings. The employees testified that
they feared that, by testifying at the committee hearing and
exposing the egregious conduct perpetrated by their employers,
they would face termination by their employers or be reported by
their employers to immigration authorities.
Existing law, known as the Whistleblower Protection Statute
(WPS), prohibits an employer from preventing an employee from
disclosing information, or retaliating against an employee who
discloses information, to a government or law enforcement agency
where the employee has reasonable cause to believe that the
information discloses a violation of state or federal statute,
or a violation or noncompliance with a state or federal rule or
regulation. (Lab. Code Sec. 1102.5.) This bill would
additionally prohibit any person acting on behalf of the
employer from preventing an employee from disclosing information
or retaliating against an employee who does disclose information
and would protect a person who provides information to, or
testifies before, any public body conducting an investigation,
hearing, or inquiry regarding employer violations of the law.
Worksafe, in support, argues that "[c]urrent law lacks clear
language regarding protection for all workers with regard to
whistleblowing. This creates a culture of fear and intimidation
that can no longer be tolerated. In the UCLA study [Wage Theft
and Workplace Violations in Los Angeles: The Failure of
Employment and Labor Law for Low-Wage Workers], a large
percentage of workers indicated that they had not complained
about serious and dangerous work conditions because of the fear
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of retaliation[,] i.e. losing their job or having hours cut.
Without laws that fully protect all workers when whistleblowing,
unscrupulous employers can and will continue to threaten and
exploit workers who stand up for their workplace health and
safety rights."
Arguably, this bill would encourage individuals to testify at
public hearings to expose unlawful conduct. In this way, this
bill would further the underlying purpose of the WPS, which is
to shed light on unlawful employer conduct.
6. Opposition concerns
The California Chamber of Commerce (CalChamber), in opposition,
argues that this bill would subject employers to significant
penalties, loss of their business license, and costly litigation
for complying with IRCA, as well as circumvents the exhaustion
of administrative remedies under the Fair Employment and Housing
Act (FEHA). CalChamber also states that "[e]qually concerning
is SB 666's extension of PAGA [the private attorney general act]
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, SB 666 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 well as employee only
attorney's fees. We believe discrimination and retaliation type
claims that are based on a protected class should be mandated to
comply with the administrative process of first submitting such
claims to the Department of Fair Employment and Housing . . .
for review."
In response, the author argues that SB 666 has nothing to do
with federal immigration law or employer sanctions under IRCA.
This bill is about the rules that apply to employers who
retaliate against workers for engaging in activities protected
by California employment law. Further, the author asserts that
this bill "is not in conflict or duplicative of anything at the
federal level. Complying with federal law or federal directive
is not retaliation. But, immigration verification as a means of
retaliation for protected activity is abhorrent and exactly what
this bill gets at. The employer didn't need to verify the
worker until the worker attempted to assert his/her rights under
the law, like being free from sexual harassment, and now the
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employer wants to re-verify because the worker is asking them to
do something about the sexual harassment. Reporting that worker
to immigration, re-verifying that worker because they are trying
to exercise their employment right, is an adverse action under
[this] bill for purposes of proving retaliation. Retaliating
against complaining employees is not complying with federal law.
See Sure-Tan v. NLRB, 467 U.S. 883 (1984); Singh v. Jutla &
C.D. & R.'s Oil, Inc., 214 F.Supp.2d 1056 (N.D. Cal. 2002) and
Contreras v. Corinthian Vigor Ins. Co., 25 F.Supp.2d 1053 (N.D.
Cal. 1988) (Clarifying that the act of reporting an undocumented
person is by itself usually something the law encourages, but
doing so with retaliatory intent or for a retaliatory purpose
converts it into an unlawful action). Moreover, Sections 1 and
2 of [this] bill impose licensing penalties, which are
specifically permitted by IRCA." It is also important to note
that suspension or revocation of a business license by a state
entity on the basis of an immigration-related issue was affirmed
by the United States Supreme Court as falling well within the
confines of the authority left to the states and would not be
preempted by federal law. (Chamber of Commerce of the U.S.A. v.
Whiting (2011) 131 S.Ct. 1968, 1981.)
The author further responds to the opposition by stating that
"PAGA gives workers a private right of action for serious
violations. This bill adds a new penalty to a violation that
otherwise has no penalty. It makes the penalty for Labor Code
Section 98.6 consistent with the whistleblower retaliation
penalty. Right now the penalty applies where an employee acts
as a whistleblower. That same penalty should apply to all
employers who retaliate against workers for exercising protected
rights. Currently, those workers are only entitled to back pay
minus any wages owed at a new job. The possibility of a civil
penalty of up to $10,000 is necessary to deter law-breaking
companies from retaliating against undocumented workers. PAGA
also provides that its default penalties apply only where there
is not already a civil penalty provided for in the statute being
enforced. Thus, the penalty that [this] bill creates will not
add to PAGA penalties. [This] bill will define the civil
penalties that a PAGA plaintiff could pursue when employers
unlawfully retaliate against workers for exercising their rights
or protesting unlawful working conditions."
With respect to providing an extension of PAGA to include
retaliation/discrimination claims generally pursued through FEHA
and subject to administrative exhaustion requirements, the
author argues that no exhaustion is required under the Labor
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Code unless the code section specifically requires exhaustion.
Further the author notes that this bill neither changes the
underlying law on FEHA, nor the administrative exhaustion
requirement when a worker seeks to sue for retaliation or other
discrimination/ harassment under the FEHA itself. The author
further asserts that "[t]his bill does not change the
exhaustion/notice requirement under PAGA, which requires that
whenever private attorneys general (employees in this case) seek
to collect civil penalties for an employer's violations of the
Labor Code, they must first give notice to the employer and to
the state Labor and Workforce Development Agency and give the
state agency an opportunity to investigate before the workers
can actually pursue the PAGA claim."
7. Author's amendments
In order to address the concerns of CalChamber, the author has
agreed to accept the following amendments in Committee:
Author's amendments:
1. On page 3, in line 3, insert "(a)" before "A"
2. On page 3, between lines 9 and 10, insert "(b) An
employer shall not be subject to suspension or revocation
under this section for requiring a prospective or current
employee to submit within 72 hours of hire an I-9
Employment Eligibility Verification form.
Support : California Immigrant Policy Center; California Labor
Federation; California Rural Legal Assistance Foundation;
Central American Resource Center; National Employment Law
Project; Worksafe
Opposition : California Chamber of Commerce
HISTORY
Source : Author
Related Pending Legislation : AB 263 (Hernandez), among other
things, contains similar anti-retaliation protections regarding
immigration-related practices. AB 263 is currently in the
Assembly Labor and Employment Committee.
Prior Legislation : None Known
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Prior Vote : Senate Committee on Labor and Industrial Relations
(Ayes 4, Noes 0)
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