BILL ANALYSIS Ó
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UNFINISHED BUSINESS
Bill No: SB 666
Author: Steinberg (D), et al.
Amended: 9/4/13
Vote: 21
SENATE LABOR & INDUSTRIAL RELATIONS COMMITTEE : 4-0, 4/24/13
AYES: Lieu, Wyland, Leno, Yee
NO VOTE RECORDED: Padilla
SENATE JUDICIARY COMMITTEE : 6-1, 4/30/13
AYES: Evans, Walters, Corbett, Jackson, Leno, Monning
NOES: Anderson
SENATE APPROPRIATIONS COMMITTEE : 5-2, 5/23/13
AYES: De León, Hill, Lara, Padilla, Steinberg
NOES: Walters, Gaines
SENATE FLOOR : 31-7, 5/28/13
AYES: Beall, Block, Calderon, Cannella, Corbett, Correa, De
León, DeSaulnier, Emmerson, Evans, Galgiani, Hancock,
Hernandez, Hill, Hueso, Jackson, Lara, Leno, Lieu, Liu,
Monning, Padilla, Pavley, Price, Roth, Steinberg, Torres,
Wolk, Wright, Wyland, Yee
NOES: Anderson, Berryhill, Fuller, Gaines, Knight, Nielsen,
Walters
NO VOTE RECORDED: Huff, Vacancy
ASSEMBLY FLOOR : 52-17, 9/9/13 - See last page for vote
SUBJECT : Employment: retaliation
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SOURCE : California Labor Federation
DIGEST : This bill provides for a suspension or revocation of
an employers business license for retaliation against employees
and others on the basis of citizenship and immigration status,
and establishes a civil penalty up to $10,000 per violation.
Assembly Amendments (1) revise the bill to provide that business
license may be suspended or revoked 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; (2)
provide that a licensee who violates the provisions of the bill
may be subject to disciplinary action from their respective
licensing body; and (3) add double-jointing language with SB 496
(Wright).
ANALYSIS : Existing state and federal law contains provisions
that define unlawful discrimination and lawful employment
practices by employers and employment agencies to protect both
prospective and current employees against employment
discrimination.
1. Existing law, among other things, provides the following:
A. Prohibits an employer from discharging, or in any
manner discriminating against, any employee or applicant
for employment because he/she has engaged in prescribed
protected conduct relating to the enforcement of the
employee's or applicant's rights.
B. Any employee that is discharged, threatened with
discharge, demoted, suspended, or in any other manner
discriminated against in the terms and conditions of
his/her employment because the employee engaged in any
protected conduct - such as making a bona fide complaint
or claim to the Division of Labor Standards Enforcement
- is entitled to reinstatement and reimbursement for
lost wages and work benefits.
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C. Any 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.
2. Regarding employee sharing of information with government
entities, existing law:
A. Specifies that an employer may not make, adopt, or
enforce any rule, regulation, or policy preventing an
employee from disclosing information to a government or
law enforcement agency, where he/she has reasonable
cause to believe that the information discloses a
violation or noncompliance with state or federal law.
B. Prohibits and employer from retaliating against an
employee for disclosing this type of information to a
government or law enforcement agency.
C. Under existing law, in addition to other penalties,
an employer that is a corporation or limited liability
company is liable for a civil penalty not exceeding
$10,000 for each violation.
However, these provisions do not apply to rules, regulations, or
policies implementing the confidentiality of the lawyer-client
privilege, the physician-patient privilege, or trade secret
information.
The existing Fair Employment and Housing Act prohibits
harassment and discrimination in employment because of race,
color, religion, sex, sexual orientation, marital status,
national origin, ancestry, mental and physical disability,
medical condition, age, pregnancy, denial of medical and family
care leave, or pregnancy disability leave and/or retaliation for
protesting illegal discrimination related to one of these
categories.
Under existing state law, all protections, rights, and remedies
available under state law, except any reinstatement remedy
prohibited by federal law, are available to all individuals
regardless of immigration status who have applied for
employment, or who are or have been employed in the state. In
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addition, for purposes of enforcing state labor and employment
laws, a person's immigration status is irrelevant to the issue
of liability or in proceedings, where no inquiry is permitted
into a person's immigration status except where the person
seeking the inquiry has shown, by clear and convincing evidence,
that the inquiry is necessary in order to comply with federal
immigration law.
Existing law establishes grounds for suspension or revocation of
certain business and professional licenses.
Under the existing State Bar Act, specific causes are
established for the disbarment or suspension of a member of the
State Bar.
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 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/her family member, to a
federal, state, or local agency because the witness or party
exercises, or has exercised, a right related to his/her
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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/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.
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
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effect without the invalid provision or application.
Comments
Hiring Process - Federal Law . Under existing law, it is illegal
for a person or other entity to "knowingly" hire, recruit, or
refer for employment an unauthorized individual or any
individual without complying with specified employment
verification procedures. Among other things, the law requires
employers to verify that every new hire is either a United
States (U.S.) citizen or authorized to work in the United
States. All employers are required to have new employees
complete form I-9, Employment Eligibility Verification, upon
hire. New employees, within three days of being hired, must
show their employers documentation establishing identity and
eligibility to work in the U.S.
The E-Verify Program is an internet-based system, operated by
the U.S. Citizenship and Immigration Service in partnership with
the Social Security Administration, which enables participating
employers to use the program, on a voluntary basis, to verify
that the employees they hire are authorized to work in the U.S.
The effectiveness of E-Verify, however, has been the subject of
concern for many including the U.S. Government Accountability
Office (GAO). A 2010 GAO report, titled "Employment
Verification: Federal Agencies Have Taken Steps to Improve
E-Verify, but Significant Challenges Remain," found that the
system still faces challenges, including the rate of tentative
non-confirmation letters (TNCs) that may occur because of an
employee's failure to update his/her nationalization status in
SSA databases, failure to report a change in his/her name to SSA
or an employer's error in entering the employee's data into the
system. The GAO report notes that of the 22,512 TNCs resulting
from name mismatches in 2009; approximately 76% were for
citizens and approximately 24% for noncitizens.
Both state and federal law contain various provisions
prohibiting employment discrimination on different bases,
including, but not limited to, the race, color, sex, religion,
or marital status of a person. In addition, existing federal
law pertaining to E-Verify specifies that, among other things,
employers may not use E-Verify to discriminate against any job
applicant or new hire on the basis of his/her national origin,
citizenship, or immigration status; employers may not use the
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system to pre-screen applicants for employment; employers may
not verify newly hired employees selectively; and employers
cannot take any adverse action against an employee based upon
E-Verify unless the program issues a Final Non-confirmation.
Background on California's Immigrant Workforce . Immigrants
comprise a growing part of the United States labor force.
Immigrant workers, both documented and undocumented, are a
significant presence in California's workplace and economy.
According to a National Employment Law Project (NELP) report, in
2010, 23.1 million foreign-born persons participated in the
civilian labor force. Of these workers, 5.2% (about eight
million) form part of the U.S. undocumented labor force. An
estimated 2.6 million undocumented immigrants reside in
California- approximately seven percent of the State's total
population and one-fourth of the population of undocumented
immigrants nationwide. Almost one in every ten workers in
California is undocumented. ("Workers' Rights on ICE: How
Immigration Reform Can Stop Retaliation and Advance Labor
Rights," NELP, February 2013)
Most undocumented immigrants work in traditionally low-wage
occupations such as agriculture, construction, manufacturing,
and service industries, where workers face the greatest risk for
exploitation and are more likely to experience violations of
wage and hour laws. A landmark study of low-wage workers in Los
Angeles ("Wage Theft and Workplace Violations in LA: The
Failure of Employment and Labor Law for Low-Wage Workers," UCLA
2010) found that almost 76% of undocumented workers had worked
off-the-clock without pay and over 85% had not received overtime
pay. The study also found that undocumented workers experienced
these violations at rates higher than their native-born
counterparts. Moreover, immigrant workers are
disproportionately likely to be injured or killed on the job.
The NELP report found that employers and their agents have far
too frequently shown that they will use immigration status as a
tool against worker exercising their employment rights. The
report offers several examples, including one in which the Labor
Commissioner found that a San Jose, California employer owed an
immigrant worker $50,000 for unpaid wages. Upset with the
ruling, the employer harassed the worker in his home and
threatened to report him to immigration.
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Prior legislation
AB 1236 (Fong, Chapter 691, Statutes of 2011) enacted the
Employment Acceleration Act to prohibit the state, or a city,
county, city and county, or special district, from requiring an
employer to use an electronic employment verification system
except when required by federal law or as a condition of
receiving federal funds.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee, Department of
Industrial Relations estimates that it incurs costs of $665,000
(special funds) ongoing to implement the provisions of this
bill.
SUPPORT : (Verified 9/9/13)
California Labor Federation (source)
California Employment Lawyers Association
California Immigrant Policy Center
California Nurses Association
California Rural Legal Assistance Foundation
California School employees Association
Central American Resource Center
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
ARGUMENTS IN SUPPORT : According to the author's office, there
are countless examples of immigrant workers attempting to
exercise their employment rights only to have their employer
threaten to report them or actually report them or their family
members to immigration or law enforcement under false charges.
The reality, proponents argue, is that immigration-related
retaliation and threats undermine workers' rights for all
workers. Those who might be willing to act as whistleblowers
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and expose unfair and illegal treatment worry they will be the
cause of serious harm to their co-workers for calling attention
to abuses. Meanwhile, employers who are following the law are
at a competitive disadvantage against those that exploit
workers. Also, the author notes, "The discipline provided for
in Section 6103.7 does not supplant, but is cumulative to,
existing disciplinary sanctions. In particular, the enactment
of Section 6103.7 is not intended to limit or abrogate an
attorney's duty to comply with Rule 5-100 of the Rules of
Professional Conduct of the State Bar of California, or to limit
or preclude the State Bar's enforcement of Rule 5-100."
Additionally, proponents argue that unscrupulous attorneys
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. Proponents argue that our current
statutory scheme does little to deter a law-breaking business
from using the immigration status of the worker, co-worker, or
family member to create an atmosphere of fear that prevents
workers from demanding their rights in the workplace. They
argue that 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. Proponents
contend that this bill will not only deter unscrupulous
employers from violating the rights of immigrant workers, but
will also lift the veil of silence in the workplace.
Overall, proponents argue that the state has both a right and an
obligation to protect workers and to ensure that basic labor
laws can be enforced. Employers who engage in these forms of
retaliation must be held accountable. They argue that this bill
clarifies, strengthens and expands existing retaliation statutes
to better address the realities of workplace retaliation,
especially as it affects immigrant workers.
ASSEMBLY FLOOR : 52-17, 09/09/13
AYES: Alejo, Ammiano, Atkins, Bloom, Bocanegra, Bonilla, Bonta,
Bradford, Brown, Buchanan, Ian Calderon, Campos, Chau,
Chesbro, Cooley, Daly, Dickinson, Eggman, Fong, Frazier,
Garcia, Gatto, Gomez, Gonzalez, Gordon, Gorell, Gray, Roger
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Hernández, Holden, Jones-Sawyer, Levine, Lowenthal, Medina,
Mitchell, Mullin, Muratsuchi, Nazarian, Pan, Perea, V. Manuel
Pérez, Quirk, Quirk-Silva, Rendon, Salas, Skinner, Stone,
Ting, Weber, Wieckowski, Williams, Yamada, John A. Pérez
NOES: Achadjian, Conway, Dahle, Donnelly, Beth Gaines, Grove,
Hagman, Jones, Logue, Maienschein, Melendez, Nestande, Olsen,
Patterson, Wagner, Waldron, Wilk
NO VOTE RECORDED: Allen, Bigelow, Chávez, Fox, Hall, Harkey,
Linder, Mansoor, Morrell, Vacancy, Vacancy
PQ:JA:d 9/9/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****
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