California Governor Jerry Brown recently signed Assembly Bill No. 2751 (AB 2751) to amend a recently-enacted law that prohibits employers from retaliating against undocumented workers who engage in protected activity. AB 2751 amends the recently-enacted Assembly Bill No. 263 (AB 263), which, among other things, restricted employers’ ability to take disciplinary action against employees who had misrepresented their personal information, including their criminal history and immigration status.
Littler Mendelson previously reported on AB 263 in New Law Complicates Terminations of Workers with Fraudulent Social Security Numbers in California, published by Bloomberg BNA Workplace Immigration Report. AB 263 makes it illegal under California law for employers to target an employee’s immigration status simply because the employee exercises a right protected under the state labor code or a local ordinance applicable to employees, for example, filing a complaint for unpaid wages. As just one example, AB 263 prohibits an employer from threatening to contact or contacting immigration authorities because an employee engages in protected activity.
AB 263 also contains a sweeping provision prohibiting employers from discharging or taking any other 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.” Although AB 263 is aimed at protecting workers who notify employers of changes to their work-authorization status, this particular language could also prevent employers from taking disciplinary action against those employees who update other types of information based on prior misrepresentations, such as criminal history.
Among other modifications, AB 2751 limits the scope of AB 263, instead protecting only employees who update or attempt to update personal information “based on a lawful change of name, social security number, or federal employment authorization document.” With this change, AB 2751 provides employers with greater flexibility in disciplining or terminating employees who make false statements separate and apart from their immigration status, but continues to restrict their ability to take action against workers who update their records based on lawful changes to immigration-related information and documents.
Importantly, AB 2751 arguably continues to limit the ability of California employers to discipline or terminate employees who previously lacked work authorization and subsequently present information or documents evidencing that they are now authorized. Therefore, California employers faced with this situation should promptly seek the advice of legal counsel before taking action against such employees.