On January 1, 2014 several immigrant-friendly laws went into effect in California. These bills provide significant new rights and protections to undocumented Californians and restrict state and local participation in federal deportation efforts. The newly enacted legislation bars employers from reporting or threatening to report a worker's (or his or her family's) suspected immigration status to the government in retaliation for the worker exercising a right under the California labor code. Employers that violate this law are subject to revocation of their business license.
A separate provision of this law prohibits employers from taking actions otherwise deemed to be lawful if the action is taken in retaliation for an employee's exercise of a right protected under the California labor code. In this context, employers are barred from requesting additional proof of an employee's work authorization, using E-Verify to confirm the employee's work authorization, or contacting immigration authorities about an employee.
The new provisions specify that an employer may not retaliate against an employee for making a complaint about unpaid wages. In this regard, employees who have been victims of unfair immigration-related practices may sue their employers for reinstatement and lost wages without first having to file an administrative claim. Employers that violate this provision are not only liable for attorneys' fees and unpaid wages but also subject to civil fines of up to $10,000 per violation, as well as suspension of their business license.
Finally, the new legislation protects employees who are undocumented at the time of hire but later receive work authorization and social security cards. Employers are prohibited from discriminating, retaliating, or taking any adverse action against employees who update their personal information. This protection is particularly important in California, where nearly 2.6 million undocumented Californians may receive work authorization under comprehensive immigration reform. It remains to be seen how this state legislation squares with other traditional elements of employment law. For example, if an undocumented employee provides false information in an employment application, does this mean that the employee cannot be disciplined and/or terminated for violating the employer's honesty policies? Will an employee be able to use this law as a defense to an otherwise valid termination for cause? What record of the "complaint" will be required? Will it be sufficient for the employee simply to claim that he or she orally complained to someone?
While federal law is the primary source of immigration law, it is important for employers to remember that they also must consider state immigration laws that might apply to their operations. In California, EBG is fortunate to have professionals in our San Francisco and Los Angeles offices who can help guide you through this maze.