BILL ANALYSIS                                                                                                                                                                                                    ”



                                                                  SB 666
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          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  
          (HernŠndez), 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  :   









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          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,  








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            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  








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            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  








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               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.









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           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  








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               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  








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          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  








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          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  








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          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  








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          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








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          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