BILL ANALYSIS Ó
SB 666
Page 1
Date of Hearing: June 18, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
SB 666 (Steinberg) - As Amended: May 7, 2013
SENATE VOTE : 31-7
SUBJECT : Employment: retaliation
KEY ISSUE : SHOULD THE LEGISLATURE ENACT FURTHER PROTECTIONS
AGAINST IMMIGRATION-RELATED RETALIATION AND OTHER IMPROPER ACTS
BY EMPLOYERS AND OTHER PERSONS?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This measure is similar to pending legislation, AB 263
(Hernández), which passed this Committee and is currently
pending in the Senate. This bill would allow for suspension or
revocation of a business license if the licensee 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. The 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 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.
Supporters argue that immigrant workers are particularly
vulnerable to exploitation and intimidation and that bolstering
legal protections will help ensure compliance with appropriate
minimum labor standards. The bill has no known opposition.
SUMMARY : Prohibits retaliation against employees and others on
the basis of citizenship and immigration status. Specifically,
this bill :
SB 666
Page 2
1)Provides that a business licensee is subject to suspension or
revocation of the license 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, provided however 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.
2)Authorizes 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 defines "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.
3)Clarifies that the employee or job applicant is also protected
under the above provision from retaliation or adverse actions
by the employer. This bill also provides these protections to
the employee or job applicant for making a written or oral
complaint that he or she is owed unpaid wages.
4)Authorizes, 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.
5)Clarifies 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.
6)Provides 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,
SB 666
Page 3
or prospective employee exercises a right under the provisions
of the 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
defines "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.
7)Prohibits any person acting on behalf of the employer from
preventing or retaliating against an employee who makes use of
anti-retaliation protections.
8)Provides protection to a person for providing information to,
or testifying before, any public body conducting an
investigation, hearing, or inquiry.
9)Specifies that its provisions are severable, and if any of its
provisions are held invalid, that invalidity shall not affect
other provisions or applications that can be given effect
without the invalid provision or application.
EXISTING LAW :
1)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.)
2)Under 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.)
3)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
SB 666
Page 4
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.)
4)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.)
5)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.
6)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.)
COMMENTS : In support of the bill the author states:
This bill empowers 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. The bill's
provisions will deter unscrupulous employers from violating
the rights of immigrant workers laboring in California.
The bill empowers immigrant workers to speak up against
SB 666
Page 5
labor abuses in the judicial process, agency proceeding,
and before the legislature. The bill deters unscrupulous
businesses and attorneys from using an employee's
immigration status or that of their family to prevent an
employee from exercising his or her rights. The provisions
make it clear that threatening to report or reporting a
worker or their family member to a government agency,
including immigration authorities, because that worker
attempts to exercise a right under the law is an adverse
action to prove up retaliation for purposes of establishing
the violation of the employee's right. A law-breaking
business can lose their license to operate and an
unscrupulous attorney can lose their ability to practice
law if they use a person's immigration status in this way.
And, bad acting businesses that retaliate against workers
under section 98.6 are subject to a $10,000 civil penalty.
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.
SB 666
Page 6
Evidence of Retaliation Against Immigrants. According to a
recent study, 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)
.) The study found 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.)
The National Employment Law Project (NELP), in support, asserts
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
SB 666
Page 7
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."
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.)
Although courts have sometimes misconstrued the law, existing
statutes provide protections, rights, and remedies available
under state law to all individuals, regardless of 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.
(Cf. Salas v. Sierra Chemical Co., (2011) 198 Cal. App. 4th
29, review granted, depublished, 133 Cal. Rptr. 3d 392, 2011
Cal. LEXIS 12056.)
In order to further address employer retaliation against
employees who assert their rights under the Labor Code, and to
reaffirm the Legislative protections available to all employees,
regardless of citizenship status, this bill would prohibit
SB 666
Page 8
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.
The 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
proceeding, as specified.
This bill would also supplement Labor Code anti-retaliation law
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.
The 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 federal Immigration Reform and Control Act (IRCA) prohibits
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 may provide this protection only for citizens and
permanent resident immigrants, this bill extends similar
anti-discrimination and retaliation protections based on
California's existing protections for workers who make claims
under the Labor Code, a right available to all California
SB 666
Page 9
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.
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. The 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.
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.
Attorney Discipline. 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
SB 666
Page 10
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.
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." The 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.
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 Labor Code section 1102.5 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. 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
SB 666
Page 11
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
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."
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.
Related Pending Legislation : AB 263 (Hernandez) contains
similar anti-retaliation protections regarding
immigration-related practices. AB 263 passed this Committee and
is currently pending in the Senate.
REGISTERED SUPPORT / OPPOSITION :
Support
California Labor Federation (sponsor)
California Federation of Teachers
California Immigrant Policy Center
California Nurses Association
California Professional Firefighters
California Rural Legal Assistance Foundation
California School Employees Association
Central American Resource Center
Coalition for Humane Immigrants Rights of Los Angeles
Equal Rights Advocates
Mexican American Legal Defense and Educational Fund
National Employment Law Project
San Mateo County Central Labor Council
SEIU
SB 666
Page 12
State Bar of California
United Auto Workers Local 5810
United Farm Workers
Worksafe
Opposition
None on file
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334