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Thursday, October 17, 2013

What all Employers Need to Know about the New Unfair Immigration-Related Practices Laws in California

As of January 1, 2014, laws addressing unfair immigration-related practices go into effect.  The laws are broad and far reaching and portions involve all employers, not just employers with immigrant workers.  While the bulk of the new legislation deals with unfair immigration-related practices, Labor Code 1102.5, California’s whistleblower statute, was also amended to expand the types of situations in which a private right of action can be brought against employers.

 

Here is a summary of what employers need to know about unfair immigration-related practices:

 

- If an employee engages in protected conduct, including a written or oral complaint that the employee is owed wages, it is unlawful for the employer to retaliate against the employee by engaging in an “unfair immigration-related practice.”  (New Labor Code 1019)

 

- “Unfair immigration-related practices” include asking for special documentation of immigration status, refusing to honor specific documents, using E-Verify at a time or in a manner not required or authorized by government, threatening to file a false police report, and threatening to contact or contacting immigration authorities. (New Labor Code 1019 (b))

 

- If an employer engages in an unfair immigration-related practice within 90 days of an employee engaging in protected activity the law will presume the employer retaliated.  Instead of the employee proving retaliation the employer will need to provide evidence that it did not retaliate.  (New Labor Code 1019 (c)

 

- Employees will have a private right of action against the employer to seek reinstatement, reimbursement of lost wages, penalties and attorneys’ fees. (Labor Code 1019 (d))

 

- If an employer is found to have violated these laws the court may order the suspension of all licenses held by the employer under the Department of Consumer Affairs. (Labor Code 1019 (d) (2))

 

- Under the new law it will also be unlawful for an employer to discharge 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, unless the changes are directly related to the skill set, qualifications, or knowledge required for the job.  (New Labor Code 1024.6)

 

Here is a summary of what all employers need to know about the amendments to the whistleblower statute:

 

- The whistleblower statute, Labor Code 1102.5, has been expanded.  Current law allows a private right of action for employees who claim to have been retaliated against for filing a complaint with a governmental or law enforcement agency about a violation of law or regulation.  The new law allows such actions when an employer, or someone acting on behalf of the employer, retaliates against an employee for making an internal complaint or disclosing information to his or her employer, or anyone with authority over the employee or to another employee with authority to investigate or discover the violation or noncompliance.  It even allows a private right of action when the employee claims that the employer retaliated against the employee because the employer believed the employee may have so complained or disclosed.

 

This is a summary review of some of the provisions that will go into effect next year.  For a more detailed look of the laws and how they might affect your business please contact your legal counsel or DP&F at jphillips@dpf-law.com

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