Amended in Assembly March 28, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 2751

Introduced by begin delete Committee on Labor and Employment (Roger Hernández (Chair), Alejo, Chau, Gomez, and Holden) end delete begin insert Assembly Member Roger end insert begin insert  Hernández end insert

March 13, 2014

An act to amend Section 1019 of the Labor Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

AB 2751, as amended, begin delete Committee on Labor and Employment end delete   begin insert Roger  Hernández end insert . Retaliation: unfair immigration-related practices: suspension of business licenses.

Existing law prohibits an employer or any other person from engaging in, or directing another person to engage in, an unfair immigration-related practice begin delete , as defined, end delete against a person for the purpose of, or with the intent of, retaliating against any person for exercising a right protected under state labor and employment laws or under a local ordinance applicable to employees, as specified. begin insert Existing law defines unfair immigration-related practice to include, among other things, threatening to file or filing a false police report. end insert Existing law creates a rebuttable presumption that an adverse action taken within 90 days of the exercising of a protected right is committed for the purpose of, or with the intent of, retaliation. Existing law authorizes a civil action begin insert for equitable relief and damages or penalties, as specified, end insert by an employee or other person who is the subject of an unfair immigration-related practice. Existing law also authorizes a court to order the appropriate government agencies to suspend certain business licenses held by the violating party for prescribed periods based on the number of violations, and requires the court to consider specified circumstances in determining whether a suspension of all licenses is appropriate.

begin insert

This bill would include in the definition of unfair immigration-related practice the threatening to file or the filing of a false report or complaint with any state or federal agency. The bill would authorize a civil action for equitable relief and any applicable damages or penalties by an employee or other person who is the subject of an unfair immigration-related practice. The bill would further authorize a court to order, upon application by a party or on its own motion, the appropriate government agencies to suspend certain business licenses held by the violating party for prescribed periods based on the number of violations.

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This bill would begin insert also end insert make technical, nonsubstantive changes to these provisions.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 1019 of the Labor Code is amended to
read:

1019.  

(a) It shall be unlawful for an employer or any other
person or entity to engage in, or to direct another person or entity
to engage in, unfair immigration-related practices against any
person for the purpose of, or with the intent of, retaliating against
any person for exercising any right protected under this code or
by any local ordinance applicable to employees. Exercising a right
protected by this code or local ordinance includes the following:

(1) Filing a complaint or informing any person of an employer’s
or other party’s alleged violation of this code or local ordinance,
so long as the complaint or disclosure is made in good faith.

(2) Seeking information regarding whether an employer or other
party is in compliance with this code or local ordinance.

(3) Informing a person of his or her potential rights and remedies
under this code or local ordinance, and assisting him or her in
asserting those rights.

(b) (1) As used in this chapter, “unfair immigration-related
practice” means any of the following practices, when undertaken
for the retaliatory purposes prohibited by subdivision (a):

(A) Requesting more or different documents than are required
under Section 1324a(b) of Title 8 of the United States Code, or a
refusal to honor documents tendered pursuant to that section that
on their face reasonably appear to be 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
required under Section 1324a(b) of Title 8 of the United States
Code, or not authorized under any memorandum of understanding
governing the use of the federal E-Verify system.

(C) Threatening to file or the filing of a false police report begin insert , or
a false report or complaint with any state or federal agency end insert .

(D) Threatening to contact or contacting immigration authorities.

(2) “Unfair immigration-related practice” does not include
conduct undertaken at the express and specific direction or request
of the federal government.

(c) Engaging in an unfair immigration-related practice against
a person within 90 days of the person’s exercise of rights protected
under this code or local ordinance applicable to employees shall
raise a rebuttable presumption of having done so in retaliation for
the exercise of those rights.

(d) (1) An employee or other person who is the subject of an
unfair immigration-related practice prohibited by this section, or
a representative of that employee or person, may bring a civil
action for equitable relief and any begin insert applicable end insert damages or penalties begin delete ,
in accordance with this section end delete .

(2) Upon a finding by a court of applicable jurisdiction of a
violation this section begin insert , upon application by a party or on its own
motion, a court may do the following end insert :

(A) For a first violation, begin delete the court in its discretion, may end delete order
the appropriate government agencies to suspend all licenses begin delete subject
to this chapter end delete that are held by the violating party for a period of
up to 14 days. begin delete For the purposes of this paragraph, the licenses that
are subject to suspension are all licenses held by the violating party
specific to the business location or locations where the unfair
immigration-related practice occurred. In determining whether a
suspension of all licenses is appropriate, the court shall consider
whether the employer knowingly committed an unfair immigration
practice, the good faith efforts of the employer to resolve any
alleged unfair immigration related practice after receiving notice
of the violations, as well as the harm other employees of the
employer, or employees of other employers on a multiemployer
job site, will suffer as a result of the suspension of all licenses. end delete On
receipt of the court’s order and notwithstanding any other law, the
appropriate agencies shall suspend the licenses according to the
court’s order.

(B) For a second violation, begin delete the court, in its discretion, may end delete order
the appropriate government agencies to suspend all licenses that
are held by the violating party begin delete specific to the business location or
locations where the unfair immigration-related practice occurred, end delete
for a period of up to 30 days. begin delete In determining whether a suspension
of all licenses is appropriate, the court shall consider whether the
employer knowingly committed an unfair immigration practice,
the good faith efforts of the employer to resolve any alleged unfair
immigration related practice after receiving notice of the violations,
as well as the harm other employees of the employer, or employees
of other employers on a multiemployer job site, will suffer as a
result of the suspension of all licenses. end delete On receipt of the court’s
order and notwithstanding any other law, the appropriate agencies
shall immediately suspend the licenses.

(C) For a third or subsequent violation, begin delete the court, in its
discretion, may end delete order the appropriate government agencies to
suspend for a period of up to 90 days all licenses that are held by
the violating party begin delete specific to the business location or locations
where the unfair immigration-related practice occurred. In
determining whether a suspension of all licenses is appropriate,
the court shall consider whether the employer knowingly
committed an unfair immigration practice, the good faith efforts
of the employer to resolve any alleged unfair immigration related
practice after receiving notice of the violations, as well as the harm
other employees of the employer, or employees of other employers
on a multiemployer job site, will suffer as a result of the suspension
of all licenses end delete . On receipt of the court’s order and notwithstanding
any other law, the appropriate agencies shall immediately suspend
the licenses.

begin insert

(3) In determining whether a suspension of all licenses is
appropriate under this subdivision, the court shall consider
whether the employer knowingly committed an unfair
immigration-related practice, the good faith efforts of the employer
to resolve any alleged unfair immigration-related practice after
receiving notice of the violations, as well as the harm other
employees of the employer, or employees of other employers on a
multiemployer job site, will suffer as a result of the suspension of
all licenses.

end insert begin delete

(3)

end delete

begin insert (4) end insert  An employee or other person who is the subject of an unfair
begin delete immigration-document end delete begin insert immigration-related end insert practice prohibited
by this section, and who prevails in an action authorized by this
section, shall recover begin delete its end delete begin insert his or her end insert reasonable attorney’s fees and
costs, including any expert witness costs.

(e) As used in this chapter:

(1) “License” means any agency permit, certificate, approval,
registration, or charter that is required by law and that is issued by
any agency for the purposes of operating a business in this state
begin insert and that is end insert begin insert specific to the business location or locations where the
unfair immigration-related practice occurred end insert . “License” does not
include a professional license.

(2) “Violation” means each incident when an unfair begin delete immigration end delete
begin insert immigration-related end insert practice was committed, without reference
to the number of employees involved in the incident.