New Immigration Laws for California Employers

By XobeeAdmin on April 6, 2015 in Legal Update

On September 17, 2014, Governor Brown signed into law Assembly Bill Number 1660 (“AB 1660”).  In connection with AB 1660, Assembly Bill Number 60 (“AB 60”) became effective January 01, 2015.  Both of these laws were enacted by the State of California and relate to discrimination of an employee or individual on the basis of immigration status by an employer or other entity or individual.  At the same time that AB 60 was passed, on January 01, 2015, California Labor Code section 1019 was enacted.  The effect of this law was to define and make unlawful “unfair immigration-related practices” in the work place.

AB 60

AB 60 was passed for the purpose of allowing immigrants who cannot prove their eligibility to be in the United States to legally to obtain a California driver’s license.  This license is limited to enabling the individual to drive legally.  These licenses are distinguishable from other California driver’s licenses because of a statement on the front of it which reads, “Federal limits apply,” and another on the back that reads, “Not valid for official federal purposes.”  Federal purposes here include anything regarding immigration status or employment authorization.

AB 1660

AB 1660 was enacted to prepare the way for AB 60.  The purpose of this law is to make it a violation of the California Fair Employment and Housing Act for an employer to discriminate against a person/employee on the basis that he or she has a driver’s license under AB 60.  It is also unlawful discrimination under this law to require a person/employee to present a driver’s license, unless possessing a driver’s license is required by law or is a lawful requirement of the employer.  However, because immigration is almost universally a federal matter, an exception was placed in AB 1660 so that any action taken by the employer that is required by the Federal Immigration and Nationality Act is not a violation of the law.

The Practical Effect of AB 60 and AB 1660

So what do AB 60 and AB 1660 mean for employers?  Employers cannot discriminate in any form against immigrants that have AB 60 licenses.  This includes asking for proof of a driver’s license when it is not required by law, or when it is not a requirement of the employer for some lawful purpose.  However, employers have an ongoing obligation to ensure that their employees have authorization to work in the United States.  Therefore, it is permissible for an employer to ask an employee for a driver’s license in connection with work authorization or as part of the documentation needed to obtain work authorization for that employee.  Since, the AB 60 license is not valid for federal purposes, the employer cannot accept it as valid documentation for work authorization or I-9 forms.  In such an instance, it is not discriminatory for the employer to ask the employee for another form of identification.

Because the law is new there are still some kinks to work out. One question left to be answered is, what happens when other states don’t accept the AB 60 license as a valid driver’s license? California passed AB 1660 to ensure that no discrimination would take place as a result of someone possessing this new license.  But this does not affect how other states view the AB 60 license and the federal government has made it clear that for now it is not going to allow the license for “official federal purposes.” As a result of the “federal limits”, the AB 60 is also invalid as a form of identification for commercial air travel which is regulated by the Transportation Security Administration, a federal agency.

Employers need to be aware of these potential issues but not threaten those employees who possess the AB 60 license different because of them.

California Labor Code section 1019

Another recent immigration law passed in California was Labor Code section 1019 (“section 1019”) which specifically makes it unlawful for an employer to engage in “unfair immigration-related practices” against any person/employee for the purpose or intent of retaliating against any person/employee for exercising any right protected under the California Labor Code. Section 1019 defines “unfair immigration-related practices” as any of the following when done for retaliatory purposes:
– Requesting more or different documents than are required under federal regulations for employments authorization verification.
– Using the federal E-Verify system to check authorization for employment at a time or in manner not required under federal regulations for employment authorization verification.
– Threatening to file or the filing of a false police report, or false report or complaint with any state or federal agency.
– Threatening to contact or contacting immigration authorities.

“Unfair immigration-related practices” do not include action taken at the express or specific direction or request of the federal government. As used in section 1019, “exercising any protected right” includes:
– Filing a good faith complaint or informing any person of an employer’s or other party’s alleged violation of the labor code.
– Seeking information regarding whether an employer or other party is in compliance with the labor code or local ordinance.
– Informing a person of his or her potential rights and remedies under the labor code or local ordinance, and assisting him or her in asserting those rights.

Engaging in “unfair immigration-related practices” within 90 days of an employee “exercising any protected right” under the labor code or local ordinance, raises a rebuttable presumption that the unfair immigration-related practice was done for the purpose of retaliating against the employee for exercising his or her rights.

As employers look at these laws it’s important to recognize that there are exceptions laid out for employers to comply with federal immigration requirements. This is the key to understanding what to do and not do given these new laws. Proper training of management in employee rights will go a long way towards this as well.