Bill Text: CA AB2751 | 2013-2014 | Regular Session | Chaptered
Bill Title: Retaliation.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2014-06-28 - Chaptered by Secretary of State - Chapter 79, Statutes of 2014. [AB2751 Detail]
Download: California-2013-AB2751-Chaptered.html
BILL NUMBER: AB 2751 CHAPTERED
BILL TEXT
CHAPTER 79
FILED WITH SECRETARY OF STATE JUNE 28, 2014
APPROVED BY GOVERNOR JUNE 28, 2014
PASSED THE SENATE JUNE 19, 2014
PASSED THE ASSEMBLY JUNE 23, 2014
AMENDED IN SENATE MAY 28, 2014
AMENDED IN ASSEMBLY MARCH 28, 2014
INTRODUCED BY Assembly Member Roger Hernández
MARCH 13, 2014
An act to amend Sections 98.6, 1019, and 1024.6 of the Labor Code,
relating to employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 2751, Roger Hernández. Retaliation.
Existing law prohibits an employer from discharging an employee or
in any manner discriminating, retaliating, or taking any adverse
action against any employee or applicant for employment because the
employee or applicant has engaged in protected conduct, as specified.
Existing law provides that an employee who made a bona fide
complaint, and was consequently discharged or otherwise suffered an
adverse action, is entitled to reinstatement and reimbursement for
lost wages. Existing law makes it a misdemeanor for an employer to
willfully refuse to reinstate or otherwise restore an employee who is
determined by a specified procedure to be eligible for
reinstatement. Existing law subjects a person who violates these
provisions to a civil penalty of up to $10,000 per violation.
This bill would require the $10,000 penalty to be awarded to the
employee or employees who suffered the violation.
Existing law prohibits an employer or any other person from
engaging in, or directing another person to engage in, an unfair
immigration-related practice against a person for the purpose of, or
with the intent of, retaliating against any person for exercising a
right protected under state labor and employment laws or under a
local ordinance applicable to employees, as specified. Existing law
defines unfair immigration-related practice to include, among other
things, threatening to file or filing a false police report. Existing
law creates a rebuttable presumption that an adverse action taken
within 90 days of the exercising of a protected right is committed
for the purpose of, or with the intent of, retaliation. Existing law
authorizes a civil action for equitable relief and damages or
penalties, as specified, by an employee or other person who is the
subject of an unfair immigration-related practice. Existing law also
authorizes a court to order the appropriate government agencies to
suspend certain business licenses held by the violating party for
prescribed periods based on the number of violations, and requires
the court to consider specified circumstances in determining whether
a suspension of all licenses is appropriate.
This bill would include in the definition of unfair
immigration-related practice the threatening to file or the filing of
a false report or complaint with any state or federal agency. The
bill would authorize a civil action for equitable relief and any
applicable damages or penalties by an employee or other person who is
the subject of an unfair immigration-related practice. The bill
would further authorize a court to order, upon application by a party
or on its own motion, the appropriate government agencies to suspend
certain business licenses held by the violating party for prescribed
periods based on the number of violations.
Existing law prohibits an employer from discharging an employee or
in any manner discriminating, 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 bill would prohibit an employer from discharging or in any
manner discriminating, retaliating, or taking any adverse action
against an employee because the employee updates or attempts to
update personal information based on a lawful change of name, social
security number, or federal employment authorization document. The
bill would prohibit an employer's compliance with these provisions
from serving as the basis for a claim of discrimination, including
any disparate treatment claim.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 98.6 of the Labor Code is amended to read:
98.6. (a) A person shall not discharge an employee or in any
manner discriminate, retaliate, or take any adverse action against
any employee or applicant for employment because the employee or
applicant engaged in any conduct delineated in this chapter,
including the conduct described in subdivision (k) of Section 96, and
Chapter 5 (commencing with Section 1101) of Part 3 of Division 2, or
because the employee or applicant for employment has filed a bona
fide complaint or claim or instituted or caused to be instituted any
proceeding under or relating to his or her rights that are under the
jurisdiction of the Labor Commissioner, made a written or oral
complaint that he or she is owed unpaid wages, or because the
employee has initiated any action or notice pursuant to Section 2699,
or has testified or is about to testify in a proceeding pursuant to
that section, or because of the exercise by the employee or applicant
for employment on behalf of himself, herself, or others of any
rights afforded him or her.
(b) (1) Any employee who is discharged, threatened with discharge,
demoted, suspended, retaliated against, subjected to an adverse
action, or in any other manner discriminated against in the terms and
conditions of his or her employment because the employee engaged in
any conduct delineated in this chapter, including the conduct
described in subdivision (k) of Section 96, and Chapter 5 (commencing
with Section 1101) of Part 3 of Division 2, or because the employee
has made a bona fide complaint or claim to the division pursuant to
this part, or because the employee has initiated any action or notice
pursuant to Section 2699 shall be entitled to reinstatement and
reimbursement for lost wages and work benefits caused by those acts
of the employer.
(2) An employer who willfully refuses to hire, promote, or
otherwise restore an employee or former employee who has been
determined to be eligible for rehiring or promotion by a grievance
procedure, arbitration, or hearing authorized by law, is guilty of a
misdemeanor.
(3) In addition to other remedies available, an employer who
violates this section is liable for a civil penalty not exceeding ten
thousand dollars ($10,000) per employee for each violation of this
section, to be awarded to the employee or employees who suffered the
violation.
(c) (1) Any applicant for employment who is refused employment,
who is not selected for a training program leading to employment, or
who in any other manner is discriminated against in the terms and
conditions of any offer of employment because the applicant engaged
in any conduct delineated in this chapter, including the conduct
described in subdivision (k) of Section 96, and Chapter 5 (commencing
with Section 1101) of Part 3 of Division 2, or because the applicant
has made a bona fide complaint or claim to the division pursuant to
this part, or because the employee has initiated any action or notice
pursuant to Section 2699 shall be entitled to employment and
reimbursement for lost wages and work benefits caused by the acts of
the prospective employer.
(2) This subdivision shall not be construed to invalidate any
collective bargaining agreement that requires an applicant for a
position that is subject to the collective bargaining agreement to
sign a contract that protects either or both of the following as
specified in subparagraphs (A) and (B), nor shall this subdivision be
construed to invalidate any employer requirement of an applicant for
a position that is not subject to a collective bargaining agreement
to sign an employment contract that protects either or both of the
following:
(A) An employer against any conduct that is actually in direct
conflict with the essential enterprise-related interests of the
employer and where breach of that contract would actually constitute
a material and substantial disruption of the employer's operation.
(B) A firefighter against any disease that is presumed to arise in
the course and scope of employment, by limiting his or her
consumption of tobacco products on and off the job.
(d) The provisions of this section creating new actions or
remedies that are effective on January 1, 2002, to employees or
applicants for employment do not apply to any state or local law
enforcement agency, any religious association or corporation
specified in subdivision (d) of Section 12926 of the Government Code,
except as provided in Section 12926.2 of the Government Code, or any
person described in Section 1070 of the Evidence Code.
SEC. 2. Section 1019 of the Labor Code is amended to read:
1019. (a) It shall be unlawful for an employer or any other
person or entity to engage in, or to direct another person or entity
to engage in, unfair immigration-related practices against any person
for the purpose of, or with the intent of, retaliating against any
person for exercising any right protected under this code or by any
local ordinance applicable to employees. Exercising a right protected
by this code or local ordinance includes the following:
(1) Filing a complaint or informing any person of an employer's or
other party's alleged violation of this code or local ordinance, so
long as the complaint or disclosure is made in good faith.
(2) Seeking information regarding whether an employer or other
party is in compliance with this code or local ordinance.
(3) Informing a person of his or her potential rights and remedies
under this code or local ordinance, and assisting him or her in
asserting those rights.
(b) (1) As used in this chapter, "unfair immigration-related
practice" means any of the following practices, when undertaken for
the retaliatory purposes prohibited by subdivision (a):
(A) Requesting more or different documents than are required under
Section 1324a(b) of Title 8 of the United States Code, or a refusal
to honor documents tendered pursuant to that section that on their
face reasonably appear to be genuine.
(B) Using the federal E-Verify system to check the employment
authorization status of a person at a time or in a manner not
required under Section 1324a(b) of Title 8 of the United States Code,
or not authorized under any memorandum of understanding governing
the use of the federal E-Verify system.
(C) Threatening to file or the filing of a false police report, or
a false report or complaint with any state or federal agency.
(D) Threatening to contact or contacting immigration authorities.
(2) "Unfair immigration-related practice" does not include conduct
undertaken at the express and specific direction or request of the
federal government.
(c) Engaging in an unfair immigration-related practice against a
person within 90 days of the person's exercise of rights protected
under this code or local ordinance applicable to employees shall
raise a rebuttable presumption of having done so in retaliation for
the exercise of those rights.
(d) (1) An employee or other person who is the subject of an
unfair immigration-related practice prohibited by this section, or a
representative of that employee or person, may bring a civil action
for equitable relief and any applicable damages or penalties.
(2) Upon a finding by a court of applicable jurisdiction of a
violation this section, upon application by a party or on its own
motion, a court may do the following:
(A) For a first violation, order the appropriate government
agencies to suspend all licenses that are held by the violating party
for a period of up to 14 days. On receipt of the court's order and
notwithstanding any other law, the appropriate agencies shall suspend
the licenses according to the court's order.
(B) For a second violation, order the appropriate government
agencies to suspend all licenses that are held by the violating party
for a period of up to 30 days. On receipt of the court's order and
notwithstanding any other law, the appropriate agencies shall
immediately suspend the licenses.
(C) For a third or subsequent violation, order the appropriate
government agencies to suspend for a period of up to 90 days all
licenses that are held by the violating party. On receipt of the
court's order and notwithstanding any other law, the appropriate
agencies shall immediately suspend the licenses.
(3) In determining whether a suspension of all licenses is
appropriate under this subdivision, the court shall consider whether
the employer knowingly committed an unfair immigration-related
practice, the good faith efforts of the employer to resolve any
alleged unfair immigration-related practice after receiving notice of
the violations, as well as the harm other employees of the employer,
or employees of other employers on a multiemployer job site, will
suffer as a result of the suspension of all licenses.
(4) An employee or other person who is the subject of an unfair
immigration-related practice prohibited by this section, and who
prevails in an action authorized by this section, shall recover his
or her reasonable attorney's fees and costs, including any expert
witness costs.
(e) As used in this chapter:
(1) "License" means any agency permit, certificate, approval,
registration, or charter that is required by law and that is issued
by any agency for the purposes of operating a business in this state
and that is specific to the business location or locations where the
unfair immigration-related practice occurred. "License" does not
include a professional license.
(2) "Violation" means each incident when an unfair
immigration-related practice was committed, without reference to the
number of employees involved in the incident.
SEC. 3. Section 1024.6 of the Labor Code is amended to read:
1024.6. An employer may not discharge an employee or in any
manner discriminate, retaliate, or take any adverse action against an
employee because the employee updates or attempts to update his or
her personal information based on a lawful change of name, social
security number, or federal employment authorization document. An
employer's compliance with this section shall not serve as the basis
for a claim of discrimination, including any disparate treatment
claim.
