New Protections for Undocumented Workers in California
New Protections for Undocumented Workers Put California at Vanguard of Progressive Trend in State Legislation
The idea that states and localities can-or should-force undocumented immigrants to self-deport by making it impossible for them to work seems to be falling out of favor at last. In California, home to a quarter of the country’s undocumented immigrants, recently enacted legislation penalizes employers who engage in immigration-status-based forms of retaliation against their employees.
Last year, the United States Supreme Court struck down large portions of Arizona’s infamous SB 1070, including a provision that made it a crime for undocumented immigrants to work or solicit work. In July, the Third Circuit Court of Appeals ruled that a Hazleton, Pennsylvania city ordinance making it unlawful to hire an undocumented immigrant was preempted by federal law. And just two weeks ago, Alabama announced a settlement in which it acknowledged that large portions of its SB 1070-copycat law, HB 56, were unconstitutional-including provisions that made it a crime for undocumented immigrants to work or solicit work.
Meanwhile, many state and local governments, recognizing the benefits of integrating undocumented immigrants into society and frustrated at the slow pace of federal reform efforts, are moving in the opposite direction.
The New Laws
California, where undocumented immigrants comprise nearly one in ten workers, recently placed itself at the vanguard of this new wave of immigrant-friendly legislation. In October, Governor Jerry Brown signed into law a bundle of bills providing significant new rights and protections to undocumented California residents and limiting state and local participation in the federal government’s deportation efforts. Although they have not been as widely reported as the bills permitting undocumented immigrants to apply for drivers’ licenses, in-state tuition, and membership in the California state bar, AB 263, AB 524, and SB 666 provide undocumented immigrants significant new protections in the employment context.
The newly enacted legislation prohibits employers from reporting, or threatening to report, a worker’s (or the worker’s family member’s) immigration status or suspected immigration status to a government official because the worker exercised a right under the California Labor Code. Employers who violate this new provision face possible revocation of their business licenses.
A separate provision prohibits employers from engaging in “unfair immigration-related practices.” The prohibited practices encompass otherwise lawful actions when taken in retaliation for an employee’s exercise of a right protected under the Labor Code. These actions include, among others, requesting additional proof of an employee’s work authorization, using the federal E-Verify system to confirm the employee’s eligibility to work, and contacting immigration authorities about an employee. Employers that take such actions within 90 days of an employee’s exercise of a right protected under the Labor Code face a presumption of retaliation.
Studies show that immigration-status-based retaliation happens at least as frequently as other forms of retaliation against workers who exercise their rights, and undocumented immigrant workers are far more likely than other workers to experience Labor Code violations, such as not being paid for all hours worked. The new provisions specify that an employer may not retaliate against an employee for making a written or oral complaint about unpaid wages.
Employees who have been victims of unfair immigration-related practices may sue their employers for reinstatement and lost wages without first having to file an administrative claim. In addition to liability for unpaid wages and attorneys’ fees, employers found to engage in such practices face civil fines of up to $10,000 per violation and suspension of their business licenses.
Employers also may be subject to criminal penalties. It is a misdemeanor for an employer to refuse to reinstate or reimburse an employee found to be entitled to reinstatement or reimbursement. And the new legislation clarifies that threatening to report a worker’s immigration status in order to gain something of value may constitute criminal extortion.
Immigration-Status-Based Intimidation by Attorneys
Another provision protects undocumented immigrants from immigration-status-based intimidation by attorneys representing their employers. The Legal Aid Society-Employment Law Center and California Rural Legal Assistance recently filed suit against a dairy and its attorney. The attorney reported the plaintiff, a former employee of the dairy, to U.S. Immigration and Customs Enforcement after he filed a complaint alleging the dairy failed to pay him for all the hours he worked. Under the new provision, lawyers may have their bar cards suspended or revoked if they report or threaten to report the suspected immigration status of a party or witness for exercising employment-related rights.
Employees in the Process of Receiving Documentation
Finally, the new legislation protects employees who are undocumented at the time of hire, but later receive work permits and social security cards by making it unlawful for employers to discriminate, retaliate, or take any adverse action against employees who update their personal information. This protection is particularly important to the thousands of young Californians who have recently received, or are in the process of applying for, work authorization through the Obama administration’s Deferred Action for Childhood Arrivals program and could be vital to the 2.6 million undocumented Californians who may receive work authorization if comprehensive immigration reform is enacted.
The new provisions are set to go into effect on January 1, 2014. In signing them into law, Governor Brown stated, “While Washington waffles on immigration, California’s forging ahead.” Hopefully, California’s action signals a new trend among state governments toward recognizing that protecting undocumented immigrants’ rights in the workplace is important to the economic security of immigrants and non-immigrants alike.