The California Immigrant Policy Center recently estimated that there are approximately 2.6 million undocumented immigrants working in California. Over the years, their advocates claim employers take advantage of their “illegal” status, e.g., by paying substandard wages. According to the National Employment Law Project, employers threaten to turn over these workers to Immigration and Customs Enforcement (“ICE”), after they try to organize a union or seek the benefits of wage and hour laws. Other acts can include (1) improperly conducting I-9 self-audits after employees filed workplace-based complaints, or in the midst of labor disputes or collective bargaining; (2) the misuse of the federal “E-Verify” system, which matches employees identification information against databases maintained by the Social Security Administration; (3) threatening to report employees’ family members immigration status to ICE; and (4) filing false reports to law enforcement causing review of employees’ immigration status.
Several new California laws protect undocumented workers against retaliation and threats of deportation. These new laws also impede employers’ abilities to discipline, terminate, or even report employees who provide false information to secure a job.
New and Expanded Protections
Beginning January 1, 2014, Assembly Bill 263 added a new provision to California Labor Code section 1024.6, prohibiting an employer from discharging, retaliating, or taking any 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.” This law, for example, prevents employers from taking action against a worker who provides an employer with valid paperwork to replace false information the employee may have provided earlier.
AB 263 also amended and expanded California’s general “whistleblower” statute (Labor Code section 1102.5). The revised law prohibits any person “acting on behalf of the employer” from imposing work rules designed to prevent employees from disclosing information to government or law enforcement agencies. Overruling case law, Senate Bill 496 expanded Labor Code section 1102.5 to protect employees reporting “a local rule or regulation” from retaliation.
SB 666 and AB 524 impose new civil and criminal penalties on employers who threaten to report an employee’s actual or suspected immigration status to law enforcement. SB 666 creates new Labor Code section 244, which makes it an “adverse action” for an employer to report or threaten to report to a government agency the suspected citizenship or immigration status of an employee, former employee, or prospective employee (or that of a family member) because the person had exercised a right under the Labor Code or other laws. Civil penalties include monetary fines (up to $10,000) and revocation of the employer’s business license. Under AB 524, employers could be convicted for criminal “extortion” for threatening to report an employee’s immigration status, even if the employee is actually in the country illegally.
SB 666 also punishes attorneys who report or threaten to report the suspected immigration status of parties or witnesses in litigation. The Legislature addressed what it considered to be a litigation tactic. The statute prohibits lawyers from attempting to intimidate undocumented plaintiffs into dropping their lawsuits, or to discourage witnesses from testifying about employment-related claims by asking about an employee’s immigration status during a deposition. Lawyers engaging in the prohibited conduct now may be suspended and even disbarred.
What Should Employers Do?
Employers (for now) can fire employees for lying about why a previous job ended. But they cannot discharge employees for lying about their eligibility to work in the U.S., if they become eligible and “correct” their false documentation. Employers therefore should exercise caution before taking negative action against employees who submit new documentation (such as a work authorization or social security card) that proves their earlier documents were false. Employers may receive such updated documentation, for example, as undocumented workers receive work authorizations through the Obama administrations Deferred Action for Childhood Arrivals program.
Employers should review employment applications, policies and procedures to ensure they do not contain language that could support a claim for violation of these laws. It is critical that employers’ Human Resources, payroll, and management personnel be educated on these new protections and prohibitions. Employers also must never threaten to report a worker or his family to gain an advantage, or in reprisal for an employee’s engaging in protected activity.