Posted by Alison Kosinski on November 12, 2014

California employees who lack work authorization are more vulnerable than other workers to wage theft and to unlawful retaliation.  Last year, California took action and passed AB 263, which made it unlawful for employers to target employees without work authorization who assert their rights. 

Under AB 263, employers are now prohibited from engaging in unfair immigration-related practices in retaliation for an employee exercising rights under the California Labor Code.  Examples of exercising a right include filing a wage claim, informing other employees of their rights, or inquiring as to whether an employer is complying with wage laws.  An employer commits an unfair immigration-related practice when it:

• Requests additional or different documents from an employee to complete the Form I-9 upon hiring;
• E-verifies an employee’s work authorization when not required to do so;
• Threatens to file or files a false police report; and
• Threatens to contact or contacts immigration authorities.

AB 263 also provides that:

• An employee who is subject to an unfair immigration-related practice may sue the employer and collect attorneys’ fees;
• A court may suspend a business license or permit of an employer as punishment for the employer’s unfair immigration-related practice; and
• Employers who retaliate against employees for exercising their rights under the Labor Code are subject to a $10,000 penalty per violation.

While a step in the right direction, AB 263 left some protections incomplete.  Therefore, this year, Governor Brown signed into law AB 2751.  This bill received less press than some other employment-related bills, but nonetheless cleans up important gaps in the already-existing laws to protect immigrants in the workplace.

The new bill expands the definition of “unfair immigration-related practice” to include when an employer threatens to file or files a false report or complaint with any state or federal agency—not just with a police department.  The bill also clarifies that the $10,000 penalty against the employer shall be awarded to the employee.  Lastly, the bill extends the durations for the bans on business permits, based on the number of employer violations.  AB 2751 takes effect on January 1, 2015.

These clean up provisions of AB 2751, combined with this year’s California Supreme Court decision in Salas v. Sierra Chemical Company, provide encouragement that the rights of all California employees, including those who lack work authorization, will be protected through the law.