BILL ANALYSIS Ó
SB 666
Page 1
Date of Hearing: June 26, 2013
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hernández, 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.
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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
Hernández) 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