Weinberg, Roger & Rosenfeld (c) PROTECTING WORKERS IN CALIFORNIA

Topics Covered  Immigration Retaliation in Organizing Drives  Need for Reform  CA Worker Laws  Tips for Worker Advocates Weinberg, Roger & Rosenfeld (c)

Retaliation During Organizing  Warehouse Workers Organizing Campaign and Retaliation  Immigration-related retaliation during organizing campaigns Weinberg, Roger & Rosenfeld (c)

Retaliation During Organizing  How to Respond?  Change the Laws? Weinberg, Roger & Rosenfeld (c)

New California Laws  AB263 Retaliation: Immigration- Related Practices  SB666 Employment: Retaliation  SB496 Whistleblower Protections  AB524 Immigrants: Extortion Weinberg, Roger & Rosenfeld (c)

New California Laws When did these laws go into effect? Weinberg, Roger & Rosenfeld (c)

New California Worker Protection Laws Effective January 1, 2014 Weinberg, Roger & Rosenfeld (c)

Protection Against Retaliation  Chapter 3.1, Labor Code Section 1019: Unfair Immigration-Related Employment Practice  Labor Code Section : Protects against retaliation for updating personal information Weinberg, Roger & Rosenfeld (c)

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 : Suspension of Lawyers’ license Weinberg, Roger & Rosenfeld (c)

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 Weinberg, Roger & Rosenfeld (c)

Lab. Code 1019 Exercising a right means??? Weinberg, Roger & Rosenfeld (c)

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 Weinberg, Roger & Rosenfeld (c)

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* Weinberg, Roger & Rosenfeld (c)

What are... Weinberg, Roger & Rosenfeld (c) Unfair Immigration- Related Practices?

Unfair Immigration Related Practices Practices when undertaken with the purpose of retaliating... Weinberg, Roger & Rosenfeld (c)

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 Weinberg, Roger & Rosenfeld (c)

What are Unfair Immigration- Related Practices?  Threatening to call or contacting immigration authorities;  Threatening to file or filing a false police report Weinberg, Roger & Rosenfeld (c)

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 Weinberg, Roger & Rosenfeld (c)

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 Weinberg, Roger & Rosenfeld (c)

Unfair Immigration-Related Employment Practices  Using E-Verify to check the employment authorization status of a worker  at a time or in a manner not required by federal immigration law. Weinberg, Roger & Rosenfeld (c)

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 Weinberg, Roger & Rosenfeld (c)

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 Weinberg, Roger & Rosenfeld (c)

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 Weinberg, Roger & Rosenfeld (c)

Unfair Immigration-Related Practice = License Suspension  1 st violation = suspension of business license for a period of up to 14 days  2 nd violation = suspension of business license for a period of up to 30 days  3 rd violation = suspension of business license for a period of up to 90 days Weinberg, Roger & Rosenfeld (c)

Labor Code Section  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 Weinberg, Roger & Rosenfeld (c)

Labor Code Section  “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. Weinberg, Roger & Rosenfeld (c)

Updating personal information  How to enforce law?  What should an employer do in response to request to update information?  Is Reverification of documents permitted? Weinberg, Roger & Rosenfeld (c)

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 )  Weinberg, Roger & Rosenfeld (c)

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 Weinberg, Roger & Rosenfeld (c)

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) Weinberg, Roger & Rosenfeld (c)

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 (Lab. Code Sec. 98.6(b)(3))  Penalty PAID TO EMPLOYEE Weinberg, Roger & Rosenfeld (c)

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) Weinberg, Roger & Rosenfeld (c)

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 Weinberg, Roger & Rosenfeld (c)

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... Weinberg, Roger & Rosenfeld (c)

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 Weinberg, Roger & Rosenfeld (c)

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 Weinberg, Roger & Rosenfeld (c)

Susp ension of License to Practice Law for Worker Retaliation  Section 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... Weinberg, Roger & Rosenfeld (c)

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 Weinberg, Roger & Rosenfeld (c)

 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 Weinberg, Roger & Rosenfeld (c) 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) Weinberg, Roger & Rosenfeld (c)

Expanding Whistleblower Protections  Expands whistleblower protections in Labor Code  Amends Labor Code Weinberg, Roger & Rosenfeld (c)

Expanding Whistleblower Protections  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... Weinberg, Roger & Rosenfeld (c)

Expanding Whistleblower Protections  Reporting externally to any “public body conducting an investigation, hearing, or inquiry” Weinberg, Roger & Rosenfeld (c)

Where to File Complaints?  Department of Labor Standards Enforcement  Discrimination Complaint  tioncomplaint.htm tioncomplaint.htm  6 months to file a complaint Weinberg, Roger & Rosenfeld (c)

QUESTIONS??? Weinberg, Roger & Rosenfeld (c)