This year, California passed several laws related to immigrant workers who seek work in California, in expanded and clarifying legislation.

Last year, California enacted new protections for immigrant workers against discrimination and retaliation based on their immigration status in Labor Code sections 244 and 1019, which prohibit employers from discriminating or retaliating against suspected undocumented employees who exercise certain protected rights under California labor laws.

AB 2751, effective January 1, 2015, was passed to “clean up” and clarify this 2013 legislation by:

  • clarifying that the $10,000 civil penalty (per employee) for each violation should be awarded to the employee, not the State;
  • clarifying that the prohibition against discrimination or retaliation for updating personal information is limited to updates or attempted updates based on a lawful change of name, social security number, or federal employment authorization;
  • prohibiting any threat to file or filing a false report or complaint with any state or federal government agency (not just the police or immigration authorities) about an employee who is suspected to be undocumented;
  • authorizing courts to order the appropriate government agencies to suspend certain business licenses held by the violating company; and
  • clarifying that the business license suspension remedy is limited “to the business location or locations where the unfair immigration-related practice occurred.”

Prior to the passage of AB 2751, there was a growing concern that California amendments which expanded immigrant worker protections, such as Labor Code sections 244 and 1019, were preempted by federal immigration law that prohibits companies from employing unauthorized workers in the U.S.

This summer, in Salas v. Sierra Chemical¸ the California Supreme Court resolved that concern, at least temporarily, by holding that all employees, including employees without work authorization, are entitled to all protections, rights and remedies provided under California employment laws. The plaintiff in Salas brought claims against his employer, Sierra Chemical, for retaliation and failure to accommodate his disability. Through discovery Sierra learned that Salas had provided false employment authorization documents, and so it argued that he could not seek back pay for a period during which he was not authorized to work in the U.S. The Court disagreed and held that federal immigration laws requiring an employer to terminate an employee who is not authorized to work do not bar an employee from recovery of damages under FEHA for the period s/he worked without authorization.

Last year, California also enacted AB 60, which allows the California DMV to issue a driver’s license to undocumented immigrants beginning on January 1, 2015. This year, AB 1660 expands that protection by allowing workers to present employers with a driver’s license acquired under AB 60 without risk of discrimination.   In particular, AB 1660 amends section 12926 of FEHA by expanding the definition of prohibited “national origin discrimination" to include discrimination against an employee because the employee possesses a driver’s license that was obtained without establishing citizenship. The new law also makes driver’s license information obtained by the employer “private and confidential.”

Importantly, the licenses attained under AB 60 cannot be used to establish work eligibility in the U.S. or in completing the Form I-9. Employers are still required under federal law to confirm employee’s identity and legal authorization to work in the US. (The term “federal limits apply” will appear on the front of an AB 60 driver’s license.)

ACTION ITEM

California companies should consult with counsel before taking a potentially adverse employment action against employees who are known or reasonably believed to be undocumented or unauthorized workers. Employers should also review and update immigration-related employment policies, procedures, and training, and be aware of possible future federal preemption.

Human Resources should be trained on which driver’s licenses can be used to complete the Form I-9, what to do if presented with an AB 60 driver’s license for a California worker, and how to avoid conduct that could be construed as discriminatory on the basis of national origin or race against employees who present AB 60 licenses for employment purposes. Employers should also take steps to ensure that this information is treated with the same safeguards as other confidential employee information.