weinberg, roger & rosenfeld (c) protecting workers in california

Weinberg, Roger & Rosenfeld (c)

PROTECTING WORKERS

IN CALIFORNIA

Topics Covered

Immigration Retaliationin Organizing Drives

Need for Reform CA Worker Laws Tips for Worker Advocates


Retaliation During Organizing

Warehouse Workers Organizing Campaign and Retaliation

Immigration-related retaliation during organizing campaigns


Retaliation During Organizing

How to Respond? Change the Laws?


New California Laws

AB263 Retaliation: Immigration-Related Practices

SB666 Employment: Retaliation SB496 Whistleblower Protections AB524 Immigrants: Extortion


New California Laws

When did these laws go into effect?


New California Worker Protection Laws

Effective January 1, 2014


Protection Against Retaliation

Chapter 3.1, Labor Code Section 1019: Unfair Immigration-Related Employment Practice

Labor Code Section 1024.6: Protects against retaliation for updating personal information


Protection Against Retaliation & Expanding Rights

Labor Code Section 244: Exhaustion of remedies & Reports to Immigration

Business and Professions Code Section 494.6: Suspension of business licenses

Business and Professions Code Section 6103.7: Suspension of Lawyers’ license


Unfair Immigration-Related Practices Lab. Code 1019

Unlawful for employer to Commit unfair immigration-related practices With purpose or intent to retaliate against a

worker who Exercises ANY right protected under the

Labor Code or ANY local ordinance


Lab. Code 1019 Exercising a right means???


Lab. Code 1019 Exercising a right means?

Including, but not limited to: Filing a complaint or informing any

person of the alleged violation, so long as made in good faith

Seeking information about whether an employer or other party is in compliance with labor code or local ordinance


Lab. Code 1019 Exercising a right means?

Informing a person of his or her potential rights and remedies under this code or local ordinance,* and

Assisting him or her in asserting those rights*


What are . . .


Unfair Immigration-Related Practices?

Unfair Immigration Related Practices

Practices when undertaken with the purpose of

retaliating . . .


What are Unfair Immigration-Related Practices?

Requesting more or different documents than required by federal immigration law for verification of work authorization, or

Refusal to honor documents that on their face appear to be genuine


What are Unfair Immigration-Related Practices?

Threatening to call or contacting immigration authorities;

Threatening to file or filing a false police report


Example of Unfair Immigration-Related Practice Carlos files a claim

with the Labor Commissioner for unpaid overtime

Carlos’ work permit expires

He presents a new work permit to his boss

Carlos’ new work permit satisfies the List A documents of the I-9 Form

Carlos’ Boss refuses to accept the work permit and demands a Cal. Id and Social Security Card


Example of Unfair Immigration-Related Practice Delia complains to her

supervisor that she was not paid for one day of work

Supervisor says will take care of it

Two weeks later, still no pay

Delia files a claim with the Labor Commissioner

Supervisor calls the police and accuses Delia of theft

Or, Supervisor threatens to call ICE


Unfair Immigration-Related Employment Practices

Using E-Verify to check the employment authorization status of a worker

at a time or in a mannernot required by federalimmigration law.


Labor Code 1019 “Rebuttable Presumption”

If employer fires a worker, or takes any action against a worker, within 90 days of that working having complained about owed wages, the court or agency will presume that the employer engaged in retaliation


Labor Code 1019 Rebuttable Presumption?

But, the employer can present evidence to contradict the presumption, i.e. to show that the firing, or other adverse action, was not retaliation


Unfair Immigration Related-Practice Labor Code 1019

Not unfair immigration practice: conduct taken by an employer at the “express or specific” direction or request of the federal government

Eg. I-9 Audit


Unfair Immigration-Related Practice = License Suspension

1st violation = suspension of business license for a period of up to 14 days

2nd violation = suspension of business license for a period of up to 30 days

3rd violation = suspension of business license for a period of up to 90 days


Labor Code Section 1024.6

Employer may not: discharge, discriminate, retaliate, or take

any adverse action against an employee because the employee updates or

attempts to update his or her personal information


Labor Code Section 1024.6 “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.


Updating personal information

How to enforce law? What should an employer do in

response to request to update information?

Is Reverification of documents permitted?


Updating personal information

Existing CBA language? Reverification permitted, completion of

new I-9 form attached to old I-9 form USCIS Handbook for Employers

(pp. 23-24) http://www.uscis.gov/files/form/m-274.pdf


http://www.uscis.gov/files/form/m-274.pdf

Expanding Retaliation Protections in Labor Code Section 98.6

Labor Code 98.6 prohibits discharge of an employee or discrimination against an employee for filing claims with the Labor Commissioner


Expanding Retaliation Protections in Labor Code Section 98.6

Expands worker protections prohibiting discharge, discrimination, retaliation, or any adverse action to include oral or written complaints that the worker is owed unpaid wages. Lab. Code 98.6(a)


Enhanced Employer Penalty for Retaliation Under Lab. Code 98.6

Employer who violates Section 98.6 is liable for a civil penalty of $10,000 per employee for each violation of Section 98.6. (Lab. Code Sec. 98.6(b)(3))

Penalty PAID TO EMPLOYEE


Enforcing Retaliation Claims Under Lab. Code 98.7

Clarifies that a worker who suffers discrimination or retaliation need not exhaust administrative remedies. Lab. Code Sec. 98.7(g)


Expanding Rights For Workers to Enforce California Labor Laws

Labor Code Sec. 244(a): Does not require a worker to exhaust administrative remedies before filing a lawsuit

Unless the section expressly requires administrative exhaustion


NEW! Labor Code Section 244(b) Reporting or threatening to report an

employee’s or family member’s suspected citizenship or immigration status

Because the employee exercises a right under the Labor Code, Government Code or Civil Code . . .


NEW! Labor Code Section 244 constitutes an adverse action for

purposes of establishing a violation of an employee’s rights

Family member means: spouse, parent, sibling, child, uncle, aunt, niece, nephew, cousin, grandparent, or grandchild related by blood, adoption, marriage or domestic partnership


Business License Revocation For Worker Retaliation

Violation of Section 244(b),i.e. reported or threatened to report an employee’s citizenship or immigration status = business license suspension or revocation


Suspension of License to Practice Law for Worker Retaliation

Section 6103.7 to the Business & Professions Code NEW!

Lawyer can be suspended, disbarred or disciplined if he reports or threatens to report immigration status or suspected immigration status of . . .


Suspension of License to Practice Law for Worker Retaliation

A witness or party to a civil lawsuit or administrative action or his/her family member to a federal, state or local agency

Because the witness or party exercises a righted related to his/her employment

Bus. & Prof. Code 6103.7


Crime for employers to induce fear by threatening to report workers’ immigration status or suspected immigration status

Constitutes Extortion: wrongful use of physical force or fear to obtain the property of another


Immigrants: Extortion

Extortion Qualifies for U Visa What is a U visa? Visa for victims of certain enumerated

crimes. INA Sec. 101(a)(15)(U)


Expanding Whistleblower Protections

Expands whistleblower protections in Labor Code 1102.5

Amends Labor Code 1102.5



Protecting whistleblowers who report suspected illegal behavior to a person with “authority over the employee” or with the authority to “investigate, discover, or correct” the reported violations;

Or . . .



Reporting externally to any “public body conducting an investigation, hearing, or inquiry”


Where to File Complaints?

Department of Labor Standards Enforcement

Discrimination Complaint http://www.dir.ca.gov/dlse/howtofilediscrimina

tioncomplaint.htm 6 months to file a complaint


http://www.dir.ca.gov/dlse/howtofilediscriminationcomplaint.htm

http://www.dir.ca.gov/dlse/howtofilediscriminationcomplaint.htm

QUESTIONS???


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