BILL ANALYSIS                                                                                                                                                                                                    ”



                                                                  SB 666
                                                                  Page  1

          Date of Hearing:   June 26, 2013

                     ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
                               Roger HernŠndez, Chair
                    SB 666 (Steinberg) - As Amended:  May 7, 2013

           SENATE VOTE  :   31-7
           
          SUBJECT  :   Employment: retaliation.

           SUMMARY  :  Enacts a number of provisions related to retaliation  
          against workers and unfair immigration-related practices.   
          Specifically,  this bill  :

          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) as  
            follows:

             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  








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            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 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.

           EXISTING LAW  :

          1)Provides that a person may not discharge an employee or in any  
            manner discriminate against any employee or applicant for  
            employment because the employee or applicant engaged in any  
            conduct delineated in this chapter, including the conduct  
            described in subdivision (k) of Section 96, and Chapter 5  
            (commencing with Section 1101) of Part 3 of Division 2, or  
            because the employee or applicant for employment has filed a  
            bona fide complaint or claim or instituted or caused to be  
            instituted any proceeding under or relating to his or her  
            rights, which are under the jurisdiction of the Labor  
            Commissioner, or because the employee has initiated any action  
            or notice pursuant to Section 2699, or has testified or is  
            about to testify in any such proceeding or because of the  
            exercise by the employee or applicant for employment on behalf  








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            of himself, herself, or others of any rights afforded him or  
            her.  (Labor Code section 98.6.)

          2)Provides that any employee who is discharged, threatened with  
            discharge, demoted, suspended, or in any other manner  
            discriminated against in the terms and conditions of his or  
            her employment because the employee engaged in any conduct  
            delineated in this chapter, including the conduct described in  
            subdivision (k) of Section 96, and Chapter 5 (commencing with  
            Section 1101) of Part 3 of Division 2, or because the employee  
            has made a bona fide complaint or claim to the division  
            pursuant to this part, or because the employee has initiated  
            any action or notice pursuant to Section 2699 shall be  
            entitled to reinstatement and reimbursement for lost wages and  
            work benefits caused by those acts of the employer.  (Labor  
            Code section 98.6.)

          3)Provides that an 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.  (Labor Code  
            section 98.6.)

          4)Provides that any applicant for employment who is refused  
            employment, who is not selected for a training program leading  
            to employment, or who in any other manner is discriminated  
            against in the terms and conditions of any offer of employment  
            because the applicant engaged in any conduct delineated in  
            this chapter, including the conduct described in subdivision  
            (k) of Section 96, and Chapter 5 (commencing with Section  
            1101) of Part 3 of Division 2, or because the applicant has  
            made a bona fide complaint or claim to the division pursuant  
            to this part, or because the employee has initiated any action  
            or notice pursuant to Section 2699 shall be entitled to  
            employment and reimbursement for lost wages and work benefits  
            caused by the acts of the prospective employer.  (Labor Code  
            section 98.6.)


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









                                                                  SB 666
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          COMMENTS  :  Existing law provides 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.

          A recent study noted that 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)  
           [as of Apr. 22, 2013],  
          p. 2.)  The study also noted 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.)

           ARGUMENTS IN SUPPORT  :

          The author writes the following in support of this bill:
          
            "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  








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            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.  [This bill] will deter  
            unscrupulous employers from violating the rights of immigrant  
            workers laboring in California and therefore lift the veil of  
            silence in the workplace."
              

          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."

          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."









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           RELATED LEGISLATION  :

          This bill is similar, but not identical, to AB 263 (Roger  
          HernŠndez) which, among other things, contains numerous  
          anti-retaliation protections regarding immigration-related  
          practices.  AB 263 is currently pending in the Senate. 

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          California Employment Lawyers Association 
          California Immigrant Policy Center
          California Labor Federation, AFL-CIO
          California Nurses Association
          California Rural Legal Assistance Foundation 
          California School Employees Association
          Central American Resource Center
          Coalition for Humane Immigrant Rights of Los Angeles
          Equal Rights Advocates 
          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
           
           

           Opposition 
           
          None on file.


           Analysis Prepared by  :    Ben Ebbink / L. & E. / (916) 319-2091