BILL ANALYSIS                                                                                                                                                                                                    ”



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          SENATE THIRD READING
          SB 666 (Steinberg)
          As Amended  September 4, 2013
          Majority vote 

           SENATE VOTE  :31-7  
           
           JUDICIARY           7-0         LABOR & EMPLOYMENT  7-0         
           
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          |Ayes:|Wieckowski, Alejo, Chau,  |Ayes:|Roger HernŠndez, Morrell, |
          |     |Dickinson, Garcia,        |     |Alejo, Chau, Gomez,       |
          |     |Muratsuchi, Stone         |     |Gorell, Holden            |
          |-----+--------------------------+-----+--------------------------|
          |     |                          |     |                          |
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           APPROPRIATIONS      12-1                                        
           
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          |Ayes:|Gatto, Bocanegra,         |     |                          |
          |     |Bradford,                 |     |                          |
          |     |Ian Calderon, Campos,     |     |                          |
          |     |Eggman, Gomez, Hall,      |     |                          |
          |     |Holden, Pan, Quirk, Weber |     |                          |
          |     |                          |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |Nays:|Donnelly                  |     |                          |
          |     |                          |     |                          |
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           SUMMARY  :  Prohibits retaliation against employees and others on  
          the basis of citizenship and immigration status.  Specifically,  
           this bill  :   

          1)Provides that a business license regulated by the Business and  
            Professions Code may be subject to suspension or revocation if  
            the licensee has been determined by the Labor Commissioner or  
            the court to have violated subdivision (b) of Section 244 of  
            the Labor Code and the court or Labor Commissioner has taken  
            into consideration any harm such suspension or revocation  
            would cause to employees of the licensee, as well as the good  
            faith efforts of the licensee to resolve any alleged  
            violations after receiving notice, provided however that a  
            licensee of an agency within the Department of Consumer  
            Affairs who has been found by the Labor Commissioner or the  
            court to have violated subdivision (b) of Section 244 of the  








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            Labor Code.

          2)Provides 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.

          3)Authorizes the suspension, disbarment, or other discipline  
            against a licensed attorney who reports the suspected  
            immigration status, or threatens to report the suspected  
            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.

          4)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.

          5)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.

          6)Provides that reporting or threatening to report an  
            employee's, former employee's, or prospective employee's  
            suspected citizenship or immigration status, or the suspected  
            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 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.









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          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.

           FISCAL EFFECT  :  According to the Assembly Appropriations  
          Committee:

          1)The Division of Labor Standards Enforcement (DLSE), within the  
            Department of Industrial Relations (DIR), and the courts will  
            see increased costs to the extent additional complaints are  
            filed with the Labor Commissioner and civil actions are  
            commenced.  The DIR anticipates that the bill's provisions  
            will deter a large majority of potential violations.  The  
            department estimates that, if only a small fraction of  
            undocumented workers take action for alleged violations,  
            however, about 800 cases could be filed with the DLSE or the  
            courts.  Assuming 5% of these complaints are filed with DLSE,  
            and 80% are accepted for investigation (the same percentage as  
            for current claims), there would be about 30 additional cases  
            annually. The department believes that this total would be  
            further reduced by two-thirds due to the bill's provision that  
            administrative remedies not be exhausted prior to bringing a  
            civil action.  The result will be only minor additional  
            special fund costs (less than $100,000 annually) associated  
            with a few additional complaint investigations.  (Labor  
            Enforcement and Compliance Fund)

          2)Costs in court time for the over 700 complaints filed with the  
            court instead of DIR would likely total several hundred  
            thousand to a few million dollars annually. These costs are  
            covered in the budgets of the trial courts. Though trial court  
            budgets have been significantly constrained in recent years,  
            this relatively small number of cases, on a statewide basis  
            would not increase pressure on trial court budgets.
           
          COMMENTS  :  The author states that the purpose of this bill is to  








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          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.  

          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.)

          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.  (Labor Code Section  
          200 et seq.)  

          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  
          retaliation against an employee based on the known or suspected  
          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  








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          action for threatening to retaliate or retaliating against an  
          employee based on the employee's known or suspected 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 United States Code Section  
          (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 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.  

          This bill would authorize, in addition to any other remedies  
          available, a civil penalty, not to exceed $10,000 per employee  








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          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.  

          The State Bar Act provides statutory licensing requirements for  
          attorneys practicing law in the state.  The State Bar also  
          provides disciplinary measures, including suspension and  
          disbarment, of attorneys who demonstrate acts of dishonesty,  
          moral turpitude, and corruption.  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.

          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  
          investigation, hearing, or inquiry regarding employer violations  
          of the law.


           Analysis Prepared by  :    Kevin G. Baker / JUD. / (916) 319-2334 


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