BILL ANALYSIS Ó Senate Appropriations Committee Fiscal Summary Senator Kevin de León, Chair SB 666 (Steinberg) - Employment: Retaliation Registration Amended: May 7, 2013 Policy Vote: L&IR 4-0, Judiciary 6-1 Urgency: No Mandate: Yes Hearing Date: May 20, 2013 Consultant: Robert Ingenito This bill meets the criteria for referral to the Suspense File. Bill Summary: SB 666 would suspend or revoke an employer's business license for threatening to retaliate or retaliating against an employee based 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. The bill also would establish a civil penalty up to $10,000 for violations of its provisions. Fiscal Impact: The Department of Industrial Relations (DIR) estimates that it would incur costs of $665,000 (special funds) ongoing to implement the provisions of the bill. Background: Employees are entitled to protections under current law regardless of their immigration status. Nevertheless, cases exist where such workers seek to exercise their employment rights (e.g. receiving minimum wage, or being paid for the hours they work, a sexual harassment-free work environment, etc.), with the employer responding by threatening to report them and/or their family to immigration or law enforcement officials (or actually doing so). Additional instances exist where such employers have utilized attorneys who have used similar threats to dissuade people from testifying or participating in depositions in support of workers seeking to enforce their employment rights. Proposed Law: This bill would add to 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. Specifically, this bill would, among other SB 666 (Steinberg) Page 1 things, do the following: Prohibit any person acting on behalf of the employer from making, adopting, or enforcing any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency. Current law already contains these prohibitions with respect to the employer. 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. 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. 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. 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 protected by state law and, in reaction, the licensee threatens to retaliate or retaliates based on the SB 666 (Steinberg) Page 2 employee's citizenship or immigration status. 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. 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. Staff Comments: This bill addresses employer retaliation against employees who assert rights under the Labor Code and reinforces protections available to all employees regardless of citizenship or immigration status. The bill's provisions pertaining to the Labor Code would fall under DIR's Retaliation Complaint Investigation unit (RCI) which investigates and files actions pursuant to Labor Code 98.7 based upon discrimination and retaliation complaints filed by employees. The State's workforce is currently 18.6 million persons. DIR uses a reported statistic that one in ten workers is undocumented to develop a population of about 1.86 million undocumented workers in the State. Beginning with this starting figure, and incorporating various assumptions, DIR estimates the need for five new positions and one partial-year position to investigate additional complaints under the bill's provisions.