Amended in Senate May 28, 2014

Amended in Assembly March 28, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 2751

Introduced by Assembly Member Roger Hernández

March 13, 2014

An act to amend begin delete Section 1019 end delete begin insert Sections 98.6, 1019, and 1024.6 end insert of the Labor Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

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

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Existing law prohibits an employer from discharging an employee or in any manner discriminating, retaliating, or taking any adverse action against any employee or applicant for employment because the employee or applicant has engaged in protected conduct, as specified. Existing law provides that an employee who made a bona fide complaint, and was consequently discharged or otherwise suffered an adverse action, is entitled to reinstatement and reimbursement for lost wages. Existing law makes it a misdemeanor for an employer to willfully refuse to reinstate or otherwise restore an employee who is determined by a specified procedure to be eligible for reinstatement. Existing law subjects a person who violates these provisions to a civil penalty of up to $10,000 per violation.

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This bill would require the $10,000 penalty to be awarded to the employee or employees who suffered the violation.

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Existing law prohibits an employer or any other person from engaging in, or directing another person to engage in, an unfair immigration-related practice 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. Existing law defines unfair immigration-related practice to include, among other things, threatening to file or filing a false police report. 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 for equitable relief and damages or penalties, as specified, 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.

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 also make technical, nonsubstantive changes to these provisions.

end delete begin insert

Existing law prohibits an employer from discharging an employee or in any manner discriminating, retaliating, or taking any adverse action against an employee because the employee updates or attempts to update his or her personal information, unless the changes are directly related to the skill set, qualifications, or knowledge required for the job.

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This bill would prohibit an employer from discharging or in any manner discriminating, retaliating, or taking any adverse action against an employee because the employee updates or attempts to update personal information based on a lawful change of name, social security number, or federal employment authorization document. The bill would prohibit an employer’s compliance with these provisions from serving as the basis for a claim of discrimination, including any disparate treatment claim.

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

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

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begin insert SECTION 1. end insert   

end insert

begin insert Section 98.6 of the end insert begin insert Labor Code end insert begin insert is amended to
read: end insert

98.6.  

(a) A person shall not discharge an employee or in any
manner discriminate, retaliate, or take any adverse action 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
that are under the jurisdiction of the Labor Commissioner, made
a written or oral complaint that he or she is owed unpaid wages,
or because the employee has initiated any action or notice pursuant
to Section 2699, or has testified or is about to testify in a
proceeding pursuant to that section, or because of the exercise by
the employee or applicant for employment on behalf of himself,
herself, or others of any rights afforded him or her.

(b) (1) Any employee who is discharged, threatened with
discharge, demoted, suspended, retaliated against, subjected to an
adverse action, 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.

(2) 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.

(3) In addition to other remedies available, an employer who
violates this section is liable for a civil penalty not exceeding ten
thousand dollars ($10,000) per employee for each violation of this
begin delete section. end delete begin insert section, to be awarded to the employee or employees who
suffered the violation. end insert

(c) (1) 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.

(2) This subdivision shall not be construed to invalidate any
collective bargaining agreement that requires an applicant for a
position that is subject to the collective bargaining agreement to
sign a contract that protects either or both of the following as
specified in subparagraphs (A) and (B), nor shall this subdivision
be construed to invalidate any employer requirement of an
applicant for a position that is not subject to a collective bargaining
agreement to sign an employment contract that protects either or
both of the following:

(A) An employer against any conduct that is actually in direct
conflict with the essential enterprise-related interests of the
employer and where breach of that contract would actually
constitute a material and substantial disruption of the employer’s
operation.

(B) A firefighter against any disease that is presumed to arise
in the course and scope of employment, by limiting his or her
consumption of tobacco products on and off the job.

(d) The provisions of this section creating new actions or
remedies that are effective on January 1, 2002, to employees or
applicants for employment do not apply to any state or local law
enforcement agency, any religious association or corporation
specified in subdivision (d) of Section 12926 of the Government
Code, except as provided in Section 12926.2 of the Government
Code, or any person described in Section 1070 of the Evidence
Code.

begin delete SECTION 1. end delete
begin insert SEC. 2. end insert   

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, or
a false report or complaint with any state or federal agency.

(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 applicable damages or penalties.

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

(A) For a first violation, order the appropriate government
agencies to suspend all licenses that are held by the violating party
for a period of up to 14 days. 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, order the appropriate government
agencies to suspend all licenses that are held by the violating party
for a period of up to 30 days. 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, order the appropriate
government agencies to suspend for a period of up to 90 days all
licenses that are held by the violating party. On receipt of the
court’s order and notwithstanding any other law, the appropriate
agencies shall immediately suspend the licenses.

(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.

(4) An employee or other person who is the subject of an unfair
immigration-related practice prohibited by this section, and who
prevails in an action authorized by this section, shall recover his
or her 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
and that is specific to the business location or locations where the
unfair immigration-related practice occurred. “License” does not
include a professional license.

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

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begin insert SEC. 3. end insert   

end insert

begin insert Section 1024.6 of the end insert begin insert Labor Code end insert begin insert is amended to read: end insert

1024.6.  

An employer may not discharge an employee or in any
manner discriminate, retaliate, or take any adverse action against
an employee because the employee updates or attempts to update
his or her personal begin delete information, unless the changes are directly
related to the skill set, qualifications, or knowledge required for
the job. end delete begin insert information based on a lawful change of name, social
security number, or federal employment authorization document.
An employer’s compliance with this section shall not serve as the
basis for a claim of discrimination, including any disparate
treatment claim. end insert