Why it matters

Another group to receive new statutory protections from the State of California: undocumented individuals. In AB 1660, the state legislature amended the Vehicle Code and the Government Code to require the Department of Motor Vehicles (DMV) to issue licenses beginning on January 1, 2015, to undocumented individuals who can submit satisfactory proof of identity and California residency. In addition, the new law broadened the definition of “national origin” under the Fair Employment and Housing Act (FEHA) to include persons who hold or present such licenses, protecting them from discrimination and harassment. The new law does not impact federal documentation requirements, however. Employers should consider the circumstances under which they ask applicants or employees to show their driver’s licenses and review their policies and procedures to ensure compliance with the new law. Importantly, although California law now permits undocumented individuals to obtain driver’s licenses and prohibits discrimination based upon such licenses, employers must continue to fulfill their obligations under federal law to obtain proper documentation which confirms an employee’s ability to work in the United States.

Detailed discussion

Pursuant to AB 1660, the DMV “shall issue an original driver’s license to a person who is unable to submit satisfactory proof that the applicant’s presence in the United States is authorized under federal law if he or she meets all other qualifications for licensure and provides satisfactory proof to the department of his or her identity and California residency.” For employers, the new licenses come into play with regard to documentation requirements.

  • Who is covered: The statute amended the FEHA’s definition of “national origin” discrimination to include “discrimination on the basis of possessing” such a license and made it illegal under the statute “to discriminate against a person because the person holds or presents a driver’s license issued” pursuant to the new law. Further, AB 1660 established that discrimination against a person “because he or she holds or presents a license” issued under the new law violates the Unruh Civil Rights Act.
  • Who is exempt: If possessing a traditional driver’s license is either required by law or required by the employer and the employer’s requirement is otherwise permitted by law, AB 1660 does not apply. “Nothing in this section shall be construed to limit or expand an employer’s authority to require a person to possess a driver’s license,” according to the bill.
  • Intersection with federal law: AB 1660 recognized that “nothing in this section shall be construed to alter an employer’s rights or obligations [under federal law] regarding obtaining documentation evidencing identity and authorization for employment. An action taken by an employer that is required by the federal Immigration and Nationality Act is not a violation of law.”
  • Privacy provisions: Any driver’s license information obtained by an employer must be treated as “private and confidential” and cannot be disclosed to any unauthorized person or used for any purpose other than to establish identity and authorization to drive.

To read AB 1660, click here.