New for 2014

While employers are barred by federal law from knowingly employing unauthorized immigrants, companies are also barred from treating any immigrant unfairly, whether or not authorized to work in the U.S. New California laws for 2014 provide the strongest anti-retaliation protections for immigrant workers in the country. This legislation penalizes employers who threaten to report immigration status of an employee in retaliation for his/her exercising rights to complain over workplace conditions:

• Labor Code 98.6 confirms an employee’s right to make a written or oral complaint over unpaid wages without employer retaliation. That statute now directs that an employer can be liable for a civil penalty, up to $10,000 per violation.
• New Labor Code 1019 prohibits an employer from engaging in “unfair immigration-related practices” in retaliation for the exercising of any right protected under the Labor Code or local ordinances. These rights include filing good faith complaints over the employer’s labor practices, seeking information on whether the employer is in compliance with workplace laws, and informing another person of his/her employment rights. “Unfair practices” under this new law include: (a) requesting more or different documents than required by the federal I-9 form; (b) refusing to honor any I-9 listed documents that reasonably appear to be genuine; (c) misusing the federal E-Verify system to check employment status in a manner not required by law; (d) threatening to file or filing a false police report; and (d) threatening to contact or contacting immigration authorities except if and as required by federal authorities.
• Labor Code 1019 authorizes an employee subjected to such unfair immigration-related practice to file suit against the employer for damages, penalties, attorney fees and costs.
• This new law also establishes a three-tier license suspension scheme. An employer who commits “unfair immigration-related practices” can have its business or professional license(s) suspended for periods of up to 14 days for a first violation, 30 days for a repeat violation, or 90 days for any violation thereafter.
• Similarly, new Labor Code 244 prohibits an employer from reporting or threatening to report an employee’s (or former or prospective employee’s) suspected citizenship or immigration status (or the status of the person’s family member) because that person exercised his/her rights to complain about workplace conditions, including claimed illegal discrimination or harassment.

Employers should of course ensure their required I-9 procedures are in place. These new laws establish that businesses are prohibited from attempting to “leverage” any immigration or citizenship status to thwart a worker from complaining about wages or other workplace practices or conditions or to punish an employee for having done so. Worker complaints over such practices or conditions should be fielded and resolved thoroughly and professionally. Employers should ensure supervisors refrain from making any threats to use a worker’s immigration status against him or her.

For more information concerning an employer’s obligations under California or federal employment laws, contact one of our attorneys Tim Bowles or Cindy Bamforth.