BILL ANALYSIS                                                                                                                                                                                                    Ó


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                                    THIRD READING

          Bill No:  SB 666
          Author:   Steinberg (D), et al.
          Amended:  5/7/13
          Vote:     21

          AYES:  Lieu, Wyland, Leno, Yee
          NO VOTE RECORDED:  Padilla

           SENATE JUDICIARY COMMITTEE  :  6-1, 4/30/13
          AYES:  Evans, Walters, Corbett, Jackson, Leno, Monning
          NOES:  Anderson

           SENATE APPROPRIATIONS COMMITTEE  :  5-2, 5/23/13
          AYES:  De León, Hill, Lara, Padilla, Steinberg
          NOES:  Walters, Gaines

           SUBJECT  :    Employment: retaliation

           SOURCE  :     California Labor Federation

           DIGEST  :    This bill suspends or revokes an employers business  
          license for threatening to retaliate or retaliating against an  
          employee based citizenship or immigration status; provides 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/her  
          employment; and also establishes a civil penalty up to $10,000  
          for violations of its provisions. 


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           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  

          1. Existing law, among other things, provides the following: 

             A.    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.  

             B.    Any employee that is discharged, threatened with  
                discharge, demoted, suspended, or in any other manner  
                discriminated against in the terms and conditions of  
                his/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. 

             C.    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.

          2. Regarding employee sharing of information with government  
             entities, existing law:

             A.    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.  

             B.    Prohibits and employer from retaliating against an  
                employee for disclosing this type of information to a  
                government or law enforcement agency. 



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             C.    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 each violation.

          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  

          The existing Fair Employment and Housing Act 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, pregnancy, denial of medical and family  
          care leave, or pregnancy disability leave and/or retaliation for  
          protesting illegal discrimination related to one of these  

          Under existing state 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.  

          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 strengthens 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:



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          1. Prohibits 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.  Existing law already  
             contains these prohibitions with respect to the employer.

          2. Prohibits 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. Prohibits 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). 

             A.    Expands the protected conduct to include a written  
                or oral complaint by an employee that he/she is owed  
                unpaid wages. 

             B.    Subjects an employer that is a corporation or  
                limited liability company to a civil penalty of up to  
                $10,000 per violation of these provisions.

          4. Makes 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/her family  
             member- to a federal, state, or local agency because the  
             witness or party exercises a right related to his/her  

          5. Specifies 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 employee's citizenship  
             or immigration status.

          6. Provides that it is not necessary for an individual to  



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             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  

          7. Specifies 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 constitutes an adverse action for  
             purposes of establishing a violation of the designated right.

          8. Specifies that an employer shall not be subject to suspension  
             or revocation for requiring a prospective or current employee  
             to submit, within three business days of the first day of  
             work for pay, an I-9 Employment Eligibility Verification  

           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 United  
          States (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, 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  



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          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% were for  
          citizens and approximately 24% 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.

           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% (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 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  



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          Failure of Employment and Labor Law for Low-Wage Workers," UCLA  
          2010) found that almost 76% of undocumented workers had worked  
          off-the-clock without pay and over 85% 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.

           Prior legislation  

          AB 1236 (Fong, Chapter 691, Statutes of 2011) 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.  

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  Yes

          According to the Senate Appropriations Committee, Department of  
          Industrial Relations estimates that it incurs costs of $665,000  
          (special funds) ongoing to implement the provisions of this  

           SUPPORT  :   (Verified  5/24/13)

          California Labor Federation (source)
          California Employment Lawyers Association 
          California Immigrant Policy Center
          California Nurses Association
          California Rural Legal Assistance Foundation 
          California School employees Association
          Central American Resource Center
          Equal Rights Advocates 



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          Mexican American Legal Defense and Educational Fund  
          National Employment Law Project
          San Mateo County Central Labor Council
          Service Employees International Union California
          UAW Local 5810
          United Farm Workers

           ARGUMENTS IN SUPPORT  :    According to the author's office, 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.  Also, the author notes, "The discipline provided for  
          in Section 6103.7 does not supplant, but is cumulative to,  
          existing disciplinary sanctions.  In particular, the enactment  
          of Section 6103.7 is not intended to limit or abrogate an  
          attorney's duty to comply with Rule 5-100 of the Rules of  
          Professional Conduct of the State Bar of California, or to limit  
          or preclude the State Bar's enforcement of Rule 5-100."

          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  



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          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  
          clarifies, strengthens and expands existing retaliation statutes  
          to better address the realities of workplace retaliation,  
          especially as it affects immigrant workers. 

          PQ:d  5/24/13   Senate Floor Analyses 

                           SUPPORT/OPPOSITION:  SEE ABOVE

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