Anti-Retaliation Laws Expanded, Including a Prohibition of Unfair Immigration Related Practices

Existing Law

Existing law prohibits employers from discharging an employee or in any manner discriminating against any employee or applicant for employment because the employee or applicant has engaged in protected conduct relating to the enforcement of the employee's or applicant's employment and civil rights, such as being paid all wages due and being free from discrimination or harassment based on their membership in a protected class. Existing law also prohibits an employer from making, adopting, or enforcing any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation. Existing law further prohibits an employer from retaliating against an employee for such a disclosure. Existing law entitles employees to reinstatement and reimbursement for lost wages, as well as penalizing employers for retaliating against employees for engaging in these protected activities.

Expansion of Prohibited Conduct

Assembly Bill 263 and Senate Bill 666 expand the prohibitions against an employer from retaliating or taking adverse action against any employee or applicant for employment because the employee or applicant has engaged in protected conduct. One of the significant protections provided is codified in Labor Code section 1019, which prohibits employers 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 engaging in any of the following protected activities: (1) filing a complaint of an employer's alleged violation of state labor and employment laws or a local ordinance applicable to employees, or informing a person of his/her rights under these laws and ordinances; (2) assisting others in asserting their rights; and (3) seeking information on whether an employer has complied with state labor and employment laws. An example of such an unfair immigration-related practice is where an employer threatens to contact, or contacts, immigration authorities because an employee complained that he/she was paid less than the minimum wage.

Under this provision, there is 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.

Senate Bill 666 adds Sections 494.6 and 6103.7 to the Business and Professions Code and amends Sections 98.6 and 1102.5 of the Labor Code and adds Section 244 to the Labor Code. As a result of these amendments and additions, (1) it is considered an adverse action for employers to report or threaten to report an employee's, former employee's, or prospective employee's (or any family member of the foregoing) suspected citizenship or immigration status to a federal, state, or local agency because the employee, former employee, or prospective employee exercises a right related to his or her employment; (2) it unlawful for an employer to retaliate against employees who submit a written or oral complaint that he or she is owed unpaid wages; and (3) any person acting on behalf of an employer is prohibited from making, adopting, or enforcing any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, as provided, and would extend those prohibitions to preventing an employee from, or retaliating against an employee for, providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry.

Likewise, attorneys who are a members of the State Bar can be suspended, disbarred, or otherwise disciplined if they report suspected immigration status or threaten to report suspected immigration status of a witness or party to a civil or administrative action or his or her family member to a federal, state, or local agency because the witness or party exercises or has exercised a right related to his or her employment.

Section 1024.6 of the Labor Code was also added and 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.

Expansion of Penalties

Various penalties are authorized against employers that engage in unfair immigration-related practices, including a private right of action for equitable relief and damages or penalties, and the suspension of certain business licenses held by the violating party for prescribed periods based on the number of violations.

Violations of Sections 98.6, 98.7, 244, and 1102.5 of the Labor Code can result in the assessment of a penalty of $10,000 per violation. Additionally, an aggrieved employee could be entitled to reinstatement and reimbursement for lost wages. Moreover, the law has been expanded such that it is no longer necessary for an employee to exhaust administrative remedies or procedures with the Labor Commissioner in the enforcement of specified provisions before filing a lawsuit against an employer for any violation of law over which the Labor Commissioner has jurisdiction.