In the December 2013/January 2014 issue of the Immigration eAuthority, we reported that California had enacted several new laws that provide California workers, who are seeking to change their personal information, engage in whistleblower activity, or exercise their workplace rights, with expanded protections against adverse employment actions. These laws include specific protections for foreign national employees. The new legislation became effective on January 1, 2014.

In June 2014, California Governor Jerry Brown (D) signed AB 2751 clarifying the retaliation, penalty, and employee information provisions of the current legislation that prohibits employers from retaliating against employees based on their immigration status. The bill is a follow-up bill to AB 263, which bars employers from taking adverse action against employees who attempt to exercise a right under California’s labor laws. AB 2751 will become effective on January 1, 2015.

AB 263 contains a provision that protects employees from discrimination or retaliation if they update their personal information. AB 2751 limits these protections to updates based on a lawful change of name, social security number, or federal employment authorization document. By limiting the scope of the protection and clarifying when adverse action is appropriate, the modification to the original legislation will presumably enable employers to take action against employees who update other types of information, such as educational qualifications or criminal history, because of previous misrepresentations.

The earlier measure is presumably aimed at eliminating unfair immigration-related employment practices and could impact the ability to discharge an employee who presented false documents/information in the I-9 process. The new bill seemingly has no impact on this aspect of the original legislation. Employers are thus strongly advised to consult with experienced legal counsel before taking any adverse employment action in such a circumstance.

Under the original legislation, a court may order the suspension of an employer’s business license if it is found to have engaged in an “unfair immigration-related practice” in retaliation for the exercise of a workplace right. Current law defines an “unfair immigration-related practice” to include:

  • requesting more or different documents than those required under federal I-9 rules during the Form I-9 employment verification process;
  • refusing to honor documents that, on their face, appear to be genuine;
  • using the federal E-Verify system to check work eligibility in a manner not required or authorized under the program;
  • threatening to file or filing a false police report; and
  • threatening to contact or contacting immigration authorities.

Conduct undertaken at the direction or request of the federal government is excluded from the definition.

The new law additionally defines an illegal “unfair immigration-related practice” as threatening to file or filing a false report or complaint with a state or federal agency. AB 2751 also clarifies that the $10,000 penalty levied against an employer for each violation will be awarded to the employees who were subjected to the retaliation.

In light of these recent legislative enactments, it is critical that employers review and update their policies, procedures, and training. Ogletree Deakins has in-depth experience counseling clients in this regard and can assist you in avoiding the serious consequences of non-compliance.