BILL ANALYSIS Ó
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THIRD READING
Bill No: AB 2751
Author: Hernández (D)
Amended: 5/28/14 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-1, 6/10/14
AYES: Jackson, Lara, Leno, Monning, Vidak
NOES: Anderson
NO VOTE RECORDED: Corbett
ASSEMBLY FLOOR : 54-19, 5/15/14 - See last page for vote
SUBJECT : Retaliation
SOURCE : Author
DIGEST : This bill clarifies that the civil penalty of up to
$10,000 against an employer who discriminates, retaliates, or
takes any adverse action against an employee or applicant for
employment, who exercises a right protected under local and
state labor and employment laws, is to be awarded to the
employee or employees who suffered the violation.
ANALYSIS :
1. Existing law prohibits discrimination, retaliation, or taking
any adverse action against any employee or job applicant who
has engaged in prescribed protected conduct relating to the
enforcement of the employee's or applicant's rights, including
initiating an action or testifying in any proceeding thereto,
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delineated under the Labor Code (LAB).
Existing law 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 the employer.
This bill clarifies that civil penalty is to be awarded to the
employee or employees who suffered the violation.
2. 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.
Existing law defines "unfair immigration-related practice" to
mean any of the following practices, when undertaken for
prohibited retaliatory purposes:
Requesting more or different documents than are required
under United States Code (USC) Section 1324a(b) of Title 8,
or refusing to honor documents tendered pursuant to that
section that on their face reasonably appear to be genuine;
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 USC Section 1324a(b) of Title
8, or not authorized under any memorandum of understanding
governing the use of the federal E-Verify system;
Threatening to file or the filing of a false police
report; and
Threatening to contact or contacting immigration
authorities.
Existing law authorizes an employee or other person who is the
subject of an unfair immigration-related practice to bring a
civil action for equitable relief and any applicable damages
or penalties, and upon finding a violation.
Existing law authorizes an employee or other person, who is
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the subject of an unfair immigration-document practice and who
prevails in an action, to recover his/her reasonable
attorney's fees and costs, including any expert witness costs.
Existing law defines "violation" to mean each incident when an
unfair immigration practice was committed, without reference
to the number of employees involved in the incident.
This bill reorganizes existing violation provisions to remove
redundant language and clarifies that, upon application by a
party or on the court's own motion, the court may suspend a
business license.
This bill includes a definition of "unfair immigration-related
practice" that including threatening to file or the filing of
a false report or complaint with any state or federal agency.
This bill clarifies that the definition of "license" is
specific to the business location or locations where the
unfair immigration-related practice occurred.
This bill clarifies that the definition of "violation" applies
to immigration-related practices.
3. 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/her personal
information, unless the changes are directly related to the
skill set, qualifications, or knowledge required for the job.
This bill redefines the personal information provided by the
employee to be based on a lawful change of name, social
security number, or federal employment authorization document.
This bill clarifies that an employer's compliance with the
provision relating to personal information shall not serve as
the basis for a claim of discrimination, including any
disparate treatment claim.
Background
Last year, AB 263 (Hernández, Chapter 732, Statutes of 2013) was
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enacted to address employer retaliation against employees who
assert their rights under LAB and reaffirm the legislative
protections available to all employees, regardless of
citizenship status. It prohibited retaliation against an
employee based on unfair immigration-related practices, as
defined, prohibited an employer from discriminating,
retaliating, or taking adverse action against an employee or
applicant who has engaged in prescribed protected conduct
relating to the enforcement of the employee's or applicant's
rights, provided up to a $10,000 penalty for violations thereof,
and prescribed business license suspensions for first, second,
third, and subsequent violations.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 6/11/14)
California Chamber of Commerce
California Labor Federation, AFL-CIO
California Retailers Association
California Rural Legal Assistance Foundation
ARGUMENTS IN SUPPORT : The author writes:
Last year, AB 263 (Hernández) enacted landmark legislation to
protect immigrant workers against unlawful retaliation.
First, [t]his bill would amend the law to also include
threatening to file or the filing of a false report or
complaint with any state or federal agency. Second, at the
request of the California Chamber of Commerce, [this bill]
would clarify the language in Labor Code Section 1024.6 to
clarify the meaning of an employee's ability to "update his or
her personal information."
Third, at the request of the California Labor Federation,
[this bill] would clarify that the $10,000 civil penalty added
last year to Labor Code [Section] 98.6 for retaliation is
payable to the aggrieved worker. Finally, this bill makes a
number of clarifying and streamlining changes to the law that
were identified by Legislative Counsel.
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ASSEMBLY FLOOR : 54-19, 5/15/14
AYES: Alejo, Ammiano, Bloom, Bocanegra, Bonilla, Bonta,
Bradford, Brown, Buchanan, Ian Calderon, Campos, Chau,
Chesbro, Cooley, Dababneh, Daly, Dickinson, Eggman, Fong,
Frazier, Garcia, Gatto, Gomez, Gonzalez, Gordon, Gray, Hall,
Roger Hernández, Holden, Jones-Sawyer, Levine, Lowenthal,
Medina, Mullin, Muratsuchi, Nazarian, Pan, Perea, John A.
Pérez, V. Manuel Pérez, Quirk, Quirk-Silva, Rendon,
Ridley-Thomas, Rodriguez, Salas, Skinner, Stone, Ting, Weber,
Wieckowski, Williams, Yamada, Atkins
NOES: Achadjian, Allen, Bigelow, Conway, Donnelly, Beth Gaines,
Grove,
Hagman, Harkey, Jones, Logue, Maienschein, Melendez, Nestande,
Olsen, Patterson, Wagner, Waldron, Wilk
NO VOTE RECORDED: Chávez, Dahle, Fox, Gorell, Linder, Mansoor,
Vacancy
AL:k 6/12/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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