BILL ANALYSIS Ó
-----------------------------------------------------------------
|SENATE RULES COMMITTEE | SB 666|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
-----------------------------------------------------------------
THIRD READING
Bill No: SB 666
Author: Steinberg (D), et al.
Amended: 5/7/13
Vote: 21
SENATE LABOR & INDUSTRIAL RELATIONS COMMITTEE : 4-0, 4/24/13
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.
CONTINUED
SB 666
Page
2
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.
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.
CONTINUED
SB 666
Page
3
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
information.
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
categories.
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:
CONTINUED
SB 666
Page
4
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
employment.
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
CONTINUED
SB 666
Page
5
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.
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
form.
Comments
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
CONTINUED
SB 666
Page
6
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
CONTINUED
SB 666
Page
7
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
bill.
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
CONTINUED
SB 666
Page
8
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
Worksafe
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
CONTINUED
SB 666
Page
9
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
**** END ****
CONTINUED