California Expands Definition of “Unfair Immigration-Related Employment Practice”

California Labor Code § 1019, regarding engaging in unfair immigration-related practices in retaliation for the exercise of protected rights, was amended by 2014 Cal. Legis. Serv. Ch. 79 (A.B. 2751) (June 28, 2014) to expand the definition of an “unfair immigration-related practice” in § 1019(b)(1)(C) to include threatening to file or the filing of a false report or complaint with any state or federal agency (as well as threatening to file or the filing of a false police report). In addition, § 1019(d) and (e) were amended to provide as follows:

(d)(1) An employee or other person who is the subject of an unfair immigration-related practice prohibited by this section, or a representative of that employee or person, may bring a civil action for equitable relief and any applicable damages or penalties.

            (2) Upon a finding by a court of applicable jurisdiction of a violation [of] this section, upon application by a party or on its own motion, a court may do the following:

            (A) For a first violation, order the appropriate government agencies to suspend all licenses that are held by the violating party for a period of up to 14 days. On receipt of the court’s order and notwithstanding any other law, the appropriate agencies shall suspend the licenses according to the court’s order.

            (B) For a second violation, order the appropriate government agencies to suspend all licenses that are held by the violating party for a period of up to 30 days. On receipt of the court’s order and notwithstanding any other law, the appropriate agencies shall immediately suspend the licenses.

            (C) For a third or subsequent violation, order the appropriate government agencies to suspend for a period of up to 90 days all licenses that are held by the violating party. On receipt of the court’s order and notwithstanding any other law, the appropriate agencies shall immediately suspend the licenses.

            (3) In determining whether a suspension of all licenses is appropriate under this subdivision, the court shall consider whether the employer knowingly committed an unfair immigration-related practice, the good faith efforts of the employer to resolve any alleged unfair immigration-related practice after receiving notice of the violations, as well as the harm other employees of the employer, or employees of other employers on a multiemployer job site, will suffer as a result of the suspension of all licenses.

            (4) An employee or other person who is the subject of an unfair immigration-related practice prohibited by this section, and who prevails in an action authorized by this section, shall recover his or her reasonable attorney’s fees and costs, including any expert witness costs.

            (e) As used in this chapter:

            (1) “License” means any agency permit, certificate, approval, registration, or charter that is required by law and that is issued by any agency for the purposes of operating a business in this state and that is specific to the business location or locations where the unfair immigration-related practice occurred. “License” does not include a professional license.

            (2) “Violation” means each incident when an unfair immigration-related practice was committed, without reference to the number of employees involved in the incident.

California Labor Code § 1024.6 was amended to provide: “An employer may not discharge an employee 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 based on a lawful change of name, social security number, or federal employment authorization document. An employer’s compliance with this section shall not serve as the basis for a claim of discrimination, including any disparate treatment claim.”

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