Did you know that California law currently allows employers in certain circumstances to give preferential treatment to candidates who aren’t “aliens”? No, you didn’t miss the new Independence Day movie (what took so long?) or yet another landing at Roswell. A 1937 statute, codified in California Labor Code section 1725, has for almost 80 years defined “alien” to mean “any person who is not a born or fully naturalized citizen of the United States.” And Labor Code section 2015 currently creates a three-fold order of preference for certain California public-works applicants: California “citizens,” U.S. “citizens,” and “aliens who are within the State at the time of making application.” So current law contemplates an employment situation where non-citizens authorized to work in the United States could be cast aside in favor of naturalized or native-born citizens.
All this will change, as of January 1, 2016, because of a bill that Governor Brown signed into law on August 10, 2015. The bill repeals preferential treatment for citizens and removes from the Labor Code the characterization of foreign-born workers as science fiction characters. Senator Mendoza, who authored SB 432, recognized the term “alien” is outdated and considered derogatory to immigrant workers, and wanted to remove unfair treatment of non-citizen workers. Senator Mendoza further noted the current law is inconsistent with California laws prohibiting national origin and ancestry discrimination.
The bill’s repeal of a preference for citizen hiring is part of California’s pattern of strengthening protections for immigrant workers. Other recent examples include the law prohibiting discrimination against individuals with the type of driver’s license provided to those who cannot prove their presence in the United States is authorized, and the law prohibiting discrimination against individuals who update their personal information based on a lawful change in name, social security number, or federal employment authorization document.
As of January 1, 2016, be mindful that employers, even on public works projects, should not be using a citizens preference system in screening applicants. You must disregard citizenship status, just as you would in hiring for any other position, so long as the applicant is authorized to work in the United States. The new law does not, however, require that you hire actual aliens, regardless of their home planet or whether they come in peace.
If you have any questions regarding SB 432, or any other new employment laws, please reach out to your favorite Seyfarth attorney.