Depending on your view of the world, California legislators have either implemented much-needed protections for California’s immigrant workforce, or they have given the legislative equivalent of a “gift” to dishonest employees this holiday season. Starting January 1, 2014, workers will have immunity from disciplinary action for providing updated “personal information” to their employer, including, for example, a new social security number. Assembly Bill 263 and Senate Bill 666 are purportedly aimed at eliminating unfair immigration-related practices in employment. However, while they may be well-intentioned, these legislative enactments will effectively hamstring employers’ rights to discipline, terminate or (in some cases) report employees who provided false information in order to secure the job in the first place.
AB 263 adds a new provision to California’s Labor Code (section 1024.6) prohibiting an employer from discharging, retaliating, or taking any adverse action against an employee because an 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.” Similarly, SB 666 creates new Labor Code section 244, which makes it an “adverse action” for an employer to report or threaten to report to a government agency the suspected citizenship or immigration status of an employee, former employee, or prospective employee because the person has exercised a right under the Labor Code or other laws.
So what does this mean? It means that employees who are undocumented at the time of hire, but later receive work permits and social security cards, can provide “corrected” information to their employers, who are prohibited from taking any adverse action against the employee for seemingly providing false documentation before. As thousands of young Californians apply for and receive work authorization through the Obama administration’s Deferred Action for Childhood Arrivals program, employers should expect to receive more and more such updates, or “corrections.” It is therefore vital that your HR, payroll and management personnel be apprised of these new protections and prohibitions. Also, when an employee has recently engaged in protected activity, such as complaining about unpaid wages or reporting a suspected safety violation, employers should be cautious about reporting that employee’s immigration or citizenship status to any government agency for any reason in order to avoid even the inference of retaliation under Labor Code section 244.
Employers should be aware this legislation is coming so they can respond to employee inquiries, know effective dates of the legislation, and prepare to modify current systems and policies to ensure necessary changes are made. If you are interested in learning more, please contact us and ask about our “California Peculiarities” full-length publication and if you would like to discuss strategies for effectively complying with the new laws, please contact a Seyfarth Shaw attorney.
We will be talking about these new legislative enactments and more at our upcoming free Webinar on December 11, 2013, “New California Employment Legislative Updates — Are You Ready for 2014?” Sign up here.
Also, keep an eye on http://www.nationofimmigrators.com/, the immigration-policy blog of Seyfarth Shaw’s Angelo Paparelli, for more information regarding how state laws of this type and related federal immigration developments may affect you and your business. Early next week, he’ll be addressing federal preemption of new state immigration provisions, the duty of employers to investigate discrepant employee information, union-related issues, and other immigration topics of interest. Stay tuned!