Immigration and Retaliation-Related Bills Signed Into Law
We recently reported on several employment bills that were passed by the California Legislature and sent to the Governor for approval. Most of those bills are still pending the Governor’s review, but he has already signed two bills into law. Those two bills, which relate to the subjects of immigration and retaliation, are as follows:
AB 450 (Immigration Worksite Enforcement Actions): Effective January 1, 2018, this new law prohibits California employers (both public and private) from complying with requests of federal immigration enforcement officials to enter non-public areas of the employer’s premises or to inspect the employer’s records in the absence of a judicial warrant or subpoena and/or a notice of inspection of I-9 records. It also requires employers to give written notice to employees of any official inspection of the employer’s I-9 records, along with the results of any such inspection. Finally, this new law prohibits employers from reverifying the employment eligibility of a current employee in a manner not required by federal law. The Labor Commissioner’s office is tasked with creating a template notice for employers to use. The new law imposes penalties of between $2,000 to $10,000 per violation. Similar to the new law making California a “sanctuary state,” this new workplace law is part of California’s pushback against the Trump administration’s immigration policy and related actions. Unfortunately, this new law puts California employers in the crosshairs between cooperating with federal immigration officials and complying with California law restricting such cooperation on threat of monetary penalties. To be clear, if a federal immigration official has a warrant or judicial subpoena, a California employer may cooperate with covered inquiries. However, California law now prohibits “voluntary” consent to inquiries that are not supported by warrant or subpoena. The full text of the new law is available here.
SB 306 (Retaliation Claims; Labor Commissioner): Effective January 1, 2018, this new law expands the Labor Commissioner’s authority by allowing the Labor Commissioner’s office to investigate suspected instances of retaliation even where no employee complaint has been filed, such as where the Labor Commissioner’s suspicion arises during the course of a field inspection or wage adjudication. The new law also authorizes the Labor Commissioner’s office to petition a court (prior to any actual finding of retaliation) for temporary or preliminary injunctive relief to protect an employee who the Labor Commissioner reasonably believes is the victim of retaliation. A court is required to grant the injunctive relief upon a showing of reasonable cause to believe that retaliation has occurred. Any temporary injunctive relief remains in effect until the Labor Commissioner’s office completes its investigation and/or until such time as the court orders. If the Labor Commissioner’s office determines that retaliation has occurred, it may issue a cease and desist order to the employer and order the employer to take any action deemed appropriate to remedy the violation, including rehiring, reinstatement, an award of backpay to the employee, penalties, and even attorneys’ fees. If the employer does not comply with the order, the Labor Commissioner’s office may file an action in court and is entitled to reasonable attorneys’ fees if they prevail. In addition to giving the Labor Commissioner broader rights, the new law also allows employees who believe they have been the victim of retaliation in violation of Labor Code section 1102.5 to seek temporary or prelimiinary injunctive relief from a court, upon a showing of reasonable cause to believe a violation has occurred. Notably, if the court issues injunctive relief, the new law provides that the injunction will not be stayed during the pendency of any appeal by the employer. The full text of this new law is available here.
The Governor has until October 15 to decide whether to sign or veto the remaining employment bills pending before him. We will keep you posted with further developments.