Bill Text: CA AB263 | 2013-2014 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Employment: retaliation: immigration-related practices.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2013-10-11 - Chaptered by Secretary of State - Chapter 732, Statutes of 2013. [AB263 Detail]

Download: California-2013-AB263-Amended.html

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BILL NUMBER: AB 263	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  APRIL 11, 2013

INTRODUCED BY   Assembly Member Roger Hernández

                        FEBRUARY 7, 2013

   An act to  amend Sections 98.6, 1102.5, and 1103 of, to 
add Section 1171.7   1024.6  to  , and
to add Chapter 3.1 (commencing with Section 1019) to Part 3 of
Division 2 of,  the Labor Code, relating to employment.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 263, as amended, Roger Hernández. Employment: retaliation:
immigration-related  document  practices. 
   Existing law prohibits an employer from discharging an employee or
in any manner discriminating against any employee or applicant for
employment because the employee or applicant has engaged in
prescribed protected conduct relating to the enforcement of the
employee's or applicant's rights. 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.  
   This bill would also prohibit an employer from retaliating or
taking adverse action against any employee or applicant for
employment because the employee or applicant has engaged in protected
conduct. The bill would provide that an employee who was retaliated
against or otherwise was subjected to an adverse action is entitled
to reinstatement and reimbursement for lost wages. The bill would
subject a person who violates these provisions to a civil penalty of
up to $10,000 per violation. The bill would also provide that it is
not necessary to exhaust administrative remedies or procedures in the
enforcement of these provisions. Because the willful refusal by an
employer to reinstate or reimburse an employee who suffered a
retaliatory action under these provisions would be a misdemeanor, the
bill would expand the scope of a crime and impose a state-mandated
local program. 
   Existing law declares that an individual who has applied for
employment, or who is or has been employed in this state, is entitled
to the protections, rights, and remedies available under state law,
regardless of his or her immigration status. Existing law declares
that an inquiry into a person's immigration status for purposes of
enforcing state labor and employment laws shall not be permitted,
unless a showing is made, by clear and convincing evidence, that the
inquiry is necessary in order to comply with federal immigration law.

   This bill would make it unlawful for an employer or any other
person to engage in, or direct another person to engage in, an unfair
immigration-related  document  practice  , as
defined,  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.    The
bill would also create 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.
 
   The bill would authorize a civil action by an employee or other
person who is the subject of an unfair  immigration-related practice,
and would require a court to order the appropriate government
agencies to suspend for 90 days the business license, as defined, of
a person who violates these provisions for a first violation, as
specified, and to permanently revoke that license for a 2nd or
subsequent violation, as specified. The bill would require the court
to send a copy of its order to the Attorney General, and would
require the Attorney General to maintain these copies and a database
of violations of these provisions, and post copies of the court
orders on the Attorney General's Internet Web site. The bill would
authorize a person who prevails in an action pursuant to these
provisions to recover reasonable attorney's fees and costs. 

   Existing law 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 the employee has reasonable cause to believe that the
information discloses a violation of state or federal statute, or a
violation or noncompliance with a state or federal rule or
regulation. Existing law further prohibits an employer from
retaliating against an employee for that disclosure. Under existing
law, a violation of these provisions by the employer is a
misdemeanor. Existing law additionally subjects an employer that is a
corporation or a limited liability company to a civil penalty not
exceeding $10,000 for each violation of these provisions.  
   This bill would additionally prohibit any person or entity from
making, adopting, or enforcing any rule, regulation, or policy
preventing an employee from disclosing information to a government or
law enforcement agency, as provided, and would prohibit any person
or entity from retaliating against an employee for that disclosure.
This bill would provide that any person or entity that violates these
provisions is guilty of a misdemeanor, and would further subject an
entity that violates these provisions that is a corporation or
limited liability company to a civil penalty of not exceeding $10,000
for each violation of these provisions. By expanding the scope of a
crime, this bill would impose a state-mandated local program. 

   Existing law prohibits an employer or prospective employer, with
the exception of certain financial institutions, from obtaining a
consumer credit report, as defined, for employment purposes unless it
is for a specified position, including, among others, a position in
the state Department of Justice, a managerial position, as defined,
or a position that involves regular access to $10,000 or more of
cash, as specified.  
   This bill would prohibit 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.  
   The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.  
   This bill would provide that no reimbursement is required by this
act for a specified reason. 
   Vote: majority. Appropriation: no. Fiscal committee:  no
  yes  . State-mandated local program:  no
  yes  .


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    The Legislature finds and declares all
of the following:  
   (a) Wage theft is a serious and widespread problem that causes
severe hardship to low-wage workers, their families, and their
communities.  
   (b) When a worker is denied wages or forced to work "off the
clock," there is an immediate and irreparable harm to the worker and
his or her family.  
   (c) Low-wage, often immigrant, workers are the most frequent
victims of wage theft and are also exposed to the greatest hazards at
work.  
   (d) Immigrant workers have the greatest number of work-related
injuries and fatalities.  
   (e) Far too often, when workers come forward to expose unfair,
unsafe, or illegal conditions, they face retaliation from the
employer.  
   (f) Where there are immigrant workers involved, employer
retaliation often involves threats to contact law enforcement
agencies, including immigration enforcement agencies, if a worker
engages in protected conduct.  
   (g) No employee should have to fear adverse action, whether it
involves threats to cut hours, move a worker to night shift, or
contact law enforcement agencies, simply for engaging in rights the
State of California has deemed so important that they are protected
by law.  
   (h) It is in the public policy interest of the State of California
that workers be able to report concerns to their employers without
fear of retaliation or discrimination.  
   (i) It is in the public policy interest of the State of California
for workers to be willing to come forward to expose hazardous,
unsafe, and unfair conditions at their worksites so that local,
state, and federal agencies can effectively enforce the laws. 

   (j) It is essential to the enforcement of this state's labor laws
that we have broad, clear, and effective protections for workers
engaging in conduct protected by law from all forms of employer
retaliation, including prohibiting immigration-related threats. 

   SEC. 2.    Section 98.6 of the   Labor Code
  is amended to read: 
   98.6.  (a)  No   A  person 
shall   may 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,
which are under the jurisdiction of the Labor Commissioner, or
because the employee has initiated any action or notice pursuant to
Section 2699, or has testified or is about to testify in  any
such   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.  Any

    (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
section.  
   (4) In the enforcement of this section, there is no requirement
that an individual exhaust administrative remedies or procedures.

   (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.
   SEC. 3.   Chapter 3.1 (commencing with Section 1019)
is added to Part 3 of Division 2 of the   Labor Code 
 , to read:  
      CHAPTER 3.1.  UNFAIR IMMIGRATION-RELATED PRACTICES


   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, but is not limited to, 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.
   (D) Threatening to contact 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 damages or penalties, in accordance with
this section.
   (2) Upon a finding by a court of applicable jurisdiction of a
violation this section:
   (A) For a first violation, the court shall order the appropriate
government agencies to suspend all licenses subject to this chapter
that are held by the violating party for a period of 90 days. 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. If the violating party does
not hold a license specific to the business location or locations
where the unfair immigration-related practice occurred, but a license
is necessary to operate the violating party's business in general,
the licenses that are subject to suspension under this subdivision
are all licenses that are held by the violating party at the
violating party's primary place of business. 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. The court
shall send a copy of the court's order to the Attorney General.
   (B) For a second or subsequent violation, the court shall order
the appropriate government agencies to revoke permanently all
licenses that are held by the violating party specific to the
business location or locations where the unfair immigration-related
practice occurred. If the violating party does not hold a license
specific to the business location or locations where the unfair
immigration-related practice occurred, but a license is necessary to
operate the violating party's business in general, the court shall
order the appropriate agencies to permanently revoke all licenses
that are held by the violating party at the violating party's primary
place of business. On receipt of the court's order and
notwithstanding any other law, the appropriate agencies shall
immediately revoke the licenses. The court shall send a copy of the
court's order to the Attorney General.
   (3) The Attorney General shall maintain copies of court orders
that are received pursuant to this section, shall maintain a database
of the violating parties and business locations that have violated
this section, and make any applicable court orders available on the
Attorney General's Internet Web site.
   (4) An employee or other person who is the subject of an unfair
immigration-document practice prohibited by this section, and who
prevails in an action authorized by this section, shall recover its
reasonable attorney's fees and costs, including any expert witness
costs.
   (e) (1) As used in this chapter, "license" means 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,
including any of the following:
   (A) Articles of incorporation.
   (B) Certificate of partnership, partnership registration, or
articles of organization.
   (C) Transaction privilege tax license.
   (2) As used in this chapter, "license" does not include a
professional license.
   1019.1.  The provisions of this chapter are severable. If any
provision of this chapter or its application is held invalid, that
invalidity shall not affect other provisions or applications that can
be given effect without the invalid provision or application. 
   SEC. 4.    Section 1024.6 is added to the  
Labor Code   , to read:  
   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 information, unless the changes are directly related to
the skill set, qualifications, or knowledge required for the job.

   SEC. 5.    Section 1102.5 of the   Labor
Code   is amended to read: 
   1102.5.  (a) An employer  or any other person or entity 
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 the employee has reasonable cause to
believe that the information discloses a violation of state or
federal statute, or a violation or noncompliance with a state or
federal rule or regulation.
   (b) An employer  or any other person or entity  may not
retaliate against an employee for disclosing information to a
government or law enforcement agency, where the employee has
reasonable cause to believe that the information discloses a
violation of state or federal statute, or a violation or
noncompliance with a state or federal rule or regulation.
   (c) An employer  or any other person or entity  may not
retaliate against an employee for refusing to participate in an
activity that would result in a violation of state or federal
statute, or a violation or noncompliance with a state or federal rule
or regulation.
   (d) An employer  or any other person or entity  may not
retaliate against an employee for having exercised his or her rights
under subdivision (a), (b), or (c) in any former employment.
   (e) A report made by an employee of a government agency to his or
her employer is a disclosure of information to a government or law
enforcement agency pursuant to subdivisions (a) and (b).
   (f) In addition to other penalties, an employer  or other
entity  that is a corporation or limited liability company is
liable for a civil penalty not exceeding ten thousand dollars
($10,000) for each violation of this section.
   (g) This section does not apply to rules, regulations, or policies
which implement, or to actions by employers against employees who
violate, the confidentiality of the lawyer-client privilege of
Article 3 (commencing with Section 950), the physician-patient
privilege of Article 6 (commencing with Section 990) of Chapter 4 of
Division 8 of the Evidence Code, or trade secret information.
   SEC. 6.    Section 1103 of the   Labor Code
  is amended to read: 
   1103.   Any employer who   An employer or any
other person or entity that  violates this chapter is guilty of
a misdemeanor punishable, in the case of an individual, by
imprisonment in the county jail not to exceed one year or a fine
 of  not to exceed  $1,000  
one thousand dollars ($1,000)  or  both and, 
 both that fine and imprisonment, or,  in the case of a
corporation, by a fine  of  not to exceed 
$5,000   five thousand dollars ($5,000)  .
   SEC. 7.    No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.  
  SECTION 1.    Section 1171.7 is added to the Labor
Code, to read:
   1171.7.  (a) It shall be unlawful for an employer or any other
person to engage in, or to direct another person to engage in, an
unfair immigration-related document practice against a person for the
purpose of, or with the intent of, retaliating against any person
for exercising a right protected under this code or under a local
ordinance applicable to employees.
   (b) "Exercising a right protected under this code or under a local
ordinance" includes, but is not limited to, filing a complaint or
informing a person of an employer's or other party's alleged
violation of this code or that of a local ordinance, so long as the
complaint or disclosure is made in good faith, seeking information
regarding whether an employer or other party is in compliance with
this code or with a local ordinance, and informing a person of his or
her rights and remedies under this code or under a local ordinance,
and assisting him or her in asserting those rights.