Last year California passed several new bills that extend anti-retaliation protections for all workers, including some measures that are specific to immigrant workers. The expanded legal rights and remedies these laws offer could be strong enough to limit retaliatory incidents in many workplaces where intimidation, threats, or pressure chill employees’ willingness to enforce their rights. Though the exact impact of these measures is difficult to gauge at this early stage, this post offers some predictions about the practical implications of the new bills.
Overview of the Legislation
California, long a leader in establishing worker-friendly policies, passed a trio of bills (AB 263, AB524, and SB 666) in late 2013 to extend workers’ anti-retaliation protections. The new laws, which took effect on January 1, 2014, have multiple components. First, the legislation broadened the grounds for a finding of employer retaliation by prohibiting adverse action against an employee for exercising a California labor right, whistleblowing, participating in political activity or a civil suit against the employer, or even making an oral or written complaint about unpaid wages. The laws also increased the penalties for retaliation to include fines up to $10,000 per employee for each instance, which will be awarded to the employees who suffered the violation. They also limited the “administrative exhaustion” requirements in some categories of cases.
Importantly for immigrant workers, the legislation prescribes penalties for employers that report or threaten to report their employees’ immigration status after they have exercised a labor right. Such prohibited “unfair immigration-related practices” include: requesting more or different documents than the law requires to prove work authorization, using the E-Verify system improperly, and threatening to file a false police report or contact the immigration authorities. Possible penalties include the suspension of the employer’s business license (at the particular site of the violation), sanctions for any attorneys involved in such practices, and the possibility that these practices can constitute criminal extortion, which is punishable by up to one year imprisonment and/or a fine of up to $10,000.
Finally, the laws made it easier for workers to update their personal information (e.g. if and when they acquire legal status) without fear of retaliation for doing so. Employers can no longer take adverse action against employees who update the personal information in their file, unless the changes are related to the “skill set, qualifications, or knowledge required for the job.” This language was clarified by a follow-up bill, which restricted the right to update to only “a lawful change of name, social security number, or federal employment authorization document.” This limitation may have the effect of preserving the employer’s right to terminate for previous misrepresentation of non-immigration-related information (e.g. one’s criminal history or educational background).
The reach of these new laws is difficult to predict, both because they came into effect so recently, and because no litigation has yet been brought to clarify their precise meaning. In part the laws are deterrent-based; they assume that expanding the definition of unfair immigration-related practices and the associated penalties will curb employers’ potential violations. Yet the effectiveness of a deterrent is often contingent on the (perceived) strength of enforcement. Advocates and unions will play an important role in reporting and litigating potential violations of these laws, which should force employers to reconsider their policies in this area.
In some ways, the bigger issue is whether the new protections will be enough to convince fearful (and potentially undocumented) workers to raise these claims and file charges. It’s one thing for a worker fired for updating his SSN to bring charges, since presumably that worker now has legal status. But it’s quite another for an undocumented worker fired for making a wage complaint to speak up—even with the law’s new remedies—since the personal risk to him is still very high. Time will tell if the increased legal protections will be enough to break the current silence surrounding many of these violations.
The landscape is furthered complicated by preemption concerns. At first glance, it might seem that the new anti-retaliation laws are preempted by the Immigration Reform and Control Act (IRCA), which prohibits the employment of unauthorized workers. After all, the new laws explicitly aim to equalize the rights of authorized and unauthorized workers with respect to retaliation, while adding new penalties onto the federal scheme.
Yet preemption concerns may be quieted, at least for the moment, in wake of the California Supreme Court’s recent decision in Salas v. Sierra Chemical (2014). In that case, the Court held that a California law that extended state law employment protections and remedies to “all workers, regardless of immigration status,” was not preempted by IRCA, except to the extent that it required backpay for periods after an employer discovers an employee’s inability to work in the US (see Hoffman Plastic). Salas does not automatically decide the preemption validity of the anti-retaliation laws, as different state statutes are involved, and because the Supreme Court could still assert jurisdiction to review the case. (Indeed, federal courts may pose the greatest preemption risk to the new laws.) Yet it is at least telling that for now, California courts will be hesitant to find that California’s employment laws are necessarily trumped by federal law.
One unintended consequence of the Salas decision in relation to the new laws may simply be the confusion generated vis-à-vis the obligations of employers. Some situations seem relatively clear under the new laws: employers may not terminate workers who update their file with a valid SSN, but may terminate those who update with a false SSN (given the prohibition on knowingly hiring undocumented workers). Yet other situations are more ambiguous, such as when the employer learns of the false SSN from a third-party, or for terminations that are governed by collective bargaining agreements. It is also unclear whether a termination for “honesty” reasons (i.e. for correcting and therefore admitting previously false information in one’s file) can be an essential “job qualification” as specified by the statute, which would vindicate the employer. These doubts have already led some analysts to urge caution and legal consultation before employers terminate anyone for a potential immigration-related reason. Even if the other enforcement mechanisms in the new laws are ineffective, simply forcing employers to think twice before instinctively firing immigrant workers could have a substantial effect on the number of retaliatory incidents.
Over time, the adequacy of enforcement and the clarification from future litigation will play a large role in shaping the ultimate effectiveness of California’s new laws.
Several provisions of these bills were modified by AB 2751, passed in June 2014 to clarify several sections of the earlier legislation. This post considers the totality of this legislation, as amended by AB 2751.