Erick Becker
#5 Unfair Immigration Practices
In the remaining weeks of 2013, we will be counting down the most important changes to California employment law for 2014. The first change we are highlighting is an entirely new addition to the Labor Code prohibiting employers from committing “unfair immigration related practices,” creating another potential cause of action for enterprising plaintiff lawyers to pursue.
Current law already prohibits employers from retaliating against employees who file a wage and hour claim. Retaliation, however, is defined as taking some employment related action, such as discharge or demotion. Under the new provisions, retaliating against an employee by taking an immigration-related action constitutes an unfair practice. Such actions could include subjecting the employee to an E-Verify check that is not required or authorized by federal law, refusing to honor documents submitted to establish eligibility to work in the U.S. that are reasonably genuine on their face, or threatening to contact the police or immigration authorities.
If the employer takes any of the actions described above within 90 days of the employee filing a wage claim or exercising any other protected rights under the Labor Code, the employer is deemed to have done so for retaliatory purposes and must prove that its reasons for taking action were not motivated by retaliation.
Most alarmingly, the new law creates a new right to sue for the employee to seek damages and penalties, which could also include attorney’s fees and expert witness costs. There are also provisions authorizing the court to order suspension of any government licenses held by the employer – in the case of multiple offenses, for up to 90 days.
In a related change contained in the legislation, it is also deemed unlawful to retaliate against any employee who submits a change in personal information not related to their skills or job knowledge. This is designed to prohibit employers from taking action against employees who submit a different name or surname after a no-match letter is received from the Social Security Administration.
After January, employers must be very cautious in dealing with employees who have complained or inquired about wage and hour practices and subsequently have issues related to their immigration status. It will be critical to document all reasons for seeking additional immigration related information from such employees, particularly if the issues arise within 90 days after a wage claim or complaint is filed.
