BILL ANALYSIS Ó
Senate Committee on Labor and Industrial Relations
William W. Monning, Chair
Date of Hearing: June 26, 2013 2013-2014 Regular
Session
Consultant: Alma Perez Fiscal:Yes
Urgency: No
Bill No: AB 263
Author: Hernandez
As Introduced/Amended: May 24, 2013
SUBJECT
Employment: retaliation: immigration-related practices
KEY ISSUES
Should the Legislature enact further protections against
immigration-related retaliation and other improper acts by
employers and other persons for exercising his/her protected
rights?
Should an employer found to be violating these employee
protections be subject to suspension of their business
license(s) for a period of 14 days for the 1st violation, 30
days for the 2nd, 90 days for the 3rd, and permanently revoked
for a 4th or pattern of violations?
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.
Existing law, among other things, provides the following (Labor
Code §98.6):
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.
Any employee that is discharged, threatened with
discharge, demoted, suspended, or in any other manner
discriminated against because he/she 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 benefits.
Any employer who willfully refuses to hire, promote, or
otherwise restore a current or former employee found to be
eligible for rehiring or promotion by a grievance
procedure, arbitration, or hearing authorized by law, is
guilty of a misdemeanor.
Regarding employee sharing of information with government
entities, existing law:
(Labor Code§1102.5)
Prohibits an employer from making, adopting, or
enforcing 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.
Prohibits and employer from retaliating against an
employee for disclosing this type of information to a
government or law enforcement agency.
In addition to other penalties, imposes upon a
corporation or limited liability company a civil penalty
not exceeding $10,000 for each violation of this section.
However, exempt from these provisions are rules,
regulations, or policies implementing the confidentiality
of the lawyer-client or physician-patient privilege, or
trade secrets.
The existing Fair Employment and Housing Act (FEHA) prohibits
harassment and discrimination in employment because of race,
color, religion, sex, sexual orientation, marital status,
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national origin, ancestry, mental and physical disability,
medical condition, age (40 and above), 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. (Government Code §12940, 12945,
12945.2)
Under existing California law , all employment 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. In 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. (Labor Code §1171.5; Civic Code §3339; Health
and Safety Code §24000; Government Code §7285)
Existing law establishes grounds for suspension or revocation of
certain business and professional licenses.
This Bill would strengthen labor law protections for workers by
enacting a number of provisions related to retaliation and
unfair immigration-related practices.
Specifically, this bill would:
1. Provide that it shall be unlawful for an employer, or
any other person or entity, to direct or engage in unfair
immigration-related practices against any person for the
purpose or intent of retaliating for exercising any right
protected under the Labor Code or local ordinance
applicable to employees, including:
a. Filing a good faith complaint or informing any
person of an employer's or other party's alleged
violation.
b. Seeking information on whether an employer or
other party is in compliance with labor code or local
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ordinance.
c. Informing and assisting a person in exercising
his/her rights and remedies.
1. Define "unfair immigration-related practice" to mean any
of the following practices, when undertaken for a
retaliatory purpose:
a. Requesting more or different documents than
are federally required for verifying employment
authorization, or refusing to honor documents
appearing genuine.
b. Using the federal E-Verify system to check the
employment authorization status of a person at a time
or in a manner not federally required authorized.
c. Threatening to file or the filing of a false
police report.
d. Threatening to contact or contacting
immigration authorities.
1. Specify that engaging in an unfair immigration-related
practice against a person within 90 days of the person's
exercise of employment protected rights shall raise a
rebuttable presumption of having done so in retaliation for
exercising those rights.
2. Provide that an employee or other person, who is the
subject of a prohibited unfair immigration-related
practice, or a representative of that employee or person,
may bring a civil action for equitable relief and any
damages or penalties owed and, if he/she prevails, may
recover reasonable attorney's fees and costs, including any
expert witness costs.
3. Provide the following remedies upon a finding of
violation by a court of applicable jurisdiction:
a. For a 1st violation, the court shall order the
appropriate government agencies to suspend all
licenses, as specified, held by the violating party
for a 14 day period.
b. For a 2nd violation, suspend all licenses for
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a 30 day period.
c. For a 3rd violation, suspend all licenses for
a 90 day period.
d. For a 4th violation, or if the court
establishes a pattern or practice of willful
violations, permanently revoke all licenses held by
the violating party.
1. Define "license" as any agency permit, certificate,
approval, registration, charter, or similar form of
authorization that is required by law and that is issued by
any agency for the purposes of operating a business in this
state, as specified.
2. Prohibit an employer from retaliating or taking adverse
action against [current law protects against discharge or
discrimination] any employee or applicant because he/she
has engaged in protected conduct (ie: rights under the
Labor Code)
a. The bill would subject an employer that
violates these provisions to a civil penalty of up to
$10,000 per violation.
b. The bill specifies that in the enforcement of
these provisions, there is no requirement that an
individual exhaust administrative remedies or
procedures.
3. Add non-employers (any other person or entity) to the
existing prohibitions [and penalties for non-compliance]
applicable to employers that prevents them from:
a. Having a policy that prevents an employee from
disclosing information to a government or law
enforcement agency, as specified;
b. Retaliating against an employee for disclosing
such protected information; and
c. Retaliating against an employee for refusing
to participate in an activity that would result in a
violation of state or federal statute, as specified.
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1. Provide that an employer may not discharge an employee
or in any manner discriminate, retaliate, or take any
adverse action against an employee because he/she updates
or attempts to update his/her personal information, unless
the changes are directly related to the skill set,
qualifications, or knowledge required for the job.
2. Make several legislative findings and declarations
related to immigrant workers.
COMMENTS
1. Hiring Process - Federal Law:
Under existing law, it is illegal for a person or other entity
to "knowingly" hire, recruit, or refer for employment 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 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. Within
three days of being hired, a new employee 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, on a voluntary basis, 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
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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 percent were for citizens and
approximately 24 percent 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
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.
2. 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 percent (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.
("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,"
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UCLA 2010) found that almost 76 percent of undocumented
workers had worked off-the-clock without pay and over 85
percent 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 more 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.
3. Need for this bill?
Although improving at an 8.6% unemployment rate, the lowest
statewide jobless level since November 2008, California's
labor market remains weak. According to the National
Employment Law Project, three unemployed workers compete for
every available job in the U.S. Some worker advocates have
argued that this imbalance has given employers an advantage at
setting the terms and conditions of employment - even if these
violate employee rights. The reports highlighted above have
found that this is especially the case in low-wage industries
where workplace abuse is rampant.
California has made it clear 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 immigration status." While
fear and 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 immigrant worker's
legal status in the United States carries added force. And
although our state and national labor and employment laws
protect undocumented workers - just like any other worker -
against abuse, the reality is that our workers continue to
suffer at the hands of unscrupulous employers.
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This bill is necessary to strengthen the retaliation laws that
currently protect all workers while emphasizing that
immigration-related practices against a person in retaliation
for the exercise of protected rights will place the employer,
or any other person or entity, at risk of incurring civil
penalties and/or suspension or revocation of their business
license. By incorporating these provisions into current law,
this bill would ensure adequate protections are in place
against retaliation or threats allowing all workers -
regardless of immigration status - to exercise their
employment rights without fear.
4. Staff Comment :
This bill is very similar to SB 666 (Steinberg) which was
previously heard and passed by this Committee. This bill,
however, subjects violating employers to possible suspension
and/or revocation of their business license(s), while SB 666
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 protected right and, in
reaction, the licensee threatens to retaliate or retaliates
based on the employee's citizenship or immigration status.
This bill also extends existing protections against
retaliation to all persons, not just employers. The authors of
both bills may wish to discuss how the relevant provisions
might be in conflict with each other and how to best address
these while complying with the goals of the bills.
5. Proponent Arguments :
According to the author, immigrant workers represent perhaps
the most vulnerable segment of the workforce population in
both the U.S. and California. First, many immigrant workers
are highly-concentrated in low-wage, underground economy
industries such as garment manufacturing, agriculture,
construction, restaurants, domestic, janitorial and/or
building maintenance work. As such, proponents argue, these
workers often work under harsh conditions, earn very low wages
with little or no benefits, risk serious and fatal injuries on
the job, and are susceptible to employer harassment and other
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forms of abuse. Second, immigrant workers are especially
vulnerable to retaliation and often face the additional risk
of unscrupulous employers threatening to report them to
immigration authorities.
Proponents believe that this bill is important because it
protects employees against unfair retaliation by exploiting
their immigrant status. They argue that all employees are
protected by certain rights under California law and that this
bill clarifies that instances of retaliation against immigrant
workers will not be tolerated. Proponents argue that we
cannot rebuild the middle class without ensuring that basic
labor laws protect all workers and then when workers' rights
are violated, they can speak out free from fear. They believe
this bill targets one of the most powerful and effective
weapons employers have to keep workers silent and living in
the shadows.
6. Opponent Arguments :
According to opponents, although they do not condone
improperly using an individual's immigration status to
threaten or retaliate, they believe this bill fails to take
into account any mitigating efforts on behalf of the employer
to address these practices. They pose as an example, a rogue
supervisor who retaliates against a shift of employees based
on their immigration status, without the actual authorization
of the employer. They believe it is unfair to be penalized
even if the employer did not know of the supervisor's conduct.
Additionally, opponents argue that the bill also imposes
significant monetary penalties that are in addition to those
that already exist. They argue that although an employee
should be made whole for any alleged violations, layering
penalties on an employer creates a windfall for the employee,
and potential financial devastation to the employer, thereby
jeopardizing their ability to continue operating. Furthermore,
they argue that this bill also creates new private rights of
action and liability for non-employees. The bill also
precludes any "person or entity" from retaliating against an
employee for reporting an alleged violation of law. The Labor
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Code, they argue, is primarily limited to regulating the
employer/employee relationship, not the relationship between
an employer and member of the public, or any other "person or
entity."
Overall, opponents argue that the harsh penalties under the
bill fail to take into account the good faith actions of the
actual employer upon notice of the unfair immigration
practices. Additionally, they note that suspending the
employer's licenses and losing their ability to conduct
business in CA harms both employers and employees.
7. Double Referral :
This bill has been double referred and, if approved by this
committee, it will be sent to the Senate Judiciary Committee
for a hearing.
8. Prior or Related Legislation :
SB 666 (Steinberg) of 2013: Pending before Assembly Labor and
Employment Committee
SB 666, which is very similar to this bill, is described above
under staff comment.
AB 1236 (Fong) of 2011: Chaptered
AB 1236 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.
SUPPORT
California Labor Federation, AFL-CIO (Sponsor)
California Catholic Conference
California Conference Board of the Amalgamated Transit Union
California Conference of Machinists
California Nurses Association
California Teamsters Public Affairs Council
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Senate Committee on Labor and Industrial Relations
Engineers and Scientist of California
International Longshore and Warehouse Union
National Association of Social Workers - California Chapter
Professional & Technical Engineers, Local 21
UNITE HERE
United Food and Commercial Workers Union, Western States Council
Utility Workers Union of America, Local 132
OPPOSITION
Agricultural Council of California
Associated Builders and Contractors of California
California Association of Winegrape Growers
California Chamber of Commerce
California Chapter of American Fence Association
California Employment Law Council (CELC)
California Farm Bureau Federation
California Fence Contractors' Association
California Grocers Association
California Hotel and Lodging Association
California League of Food Processors
California Manufacturers and Technology Association
California Restaurant Association
Engineering Contractor's Association
Flasher Barricade Association
Marin Builders Association
National Federation of Independent Business
Western Electrical Contractors Association, Inc.
Western Growers Association
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