Code Section Group

Labor Code - LAB

DIVISION 2. EMPLOYMENT REGULATION AND SUPERVISION [200 - 2699.5]

  ( Division 2 enacted by Stats. 1937, Ch. 90. )

PART 3. PRIVILEGES AND IMMUNITIES [920 - 1138.5]

  ( Part 3 enacted by Stats. 1937, Ch. 90. )

CHAPTER 3.1. Unfair Immigration-Related Practices [1019 - 1019.4]
  ( Chapter 3.1 added by Stats. 2013, Ch. 732, Sec. 4. )

1019.
  

(a) It is unlawful for an employer or any other person or entity to engage in, or to direct another person or entity to engage in, unfair immigration-related practices against any person for the purpose of, or with the intent of, retaliating against any person for exercising any right protected under this code or by any local ordinance applicable to employees. Exercising a right protected by this code or local ordinance includes the following:

(1) Filing a complaint or informing any person of an employer’s or other party’s alleged violation of this code or local ordinance, so long as the complaint or disclosure is made in good faith.

(2) Seeking information regarding whether an employer or other party is in compliance with this code or local ordinance.

(3) 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.

(b) (1) As used in this chapter, “unfair immigration-related practice” means any of the following practices, when undertaken for the retaliatory purposes prohibited by subdivision (a):

(A) Requesting more or different documents than are required under Section 1324a(b) of Title 8 of the United States Code, or a refusal to honor documents tendered pursuant to that section that on their face reasonably appear to be genuine.

(B) Using the federal E-Verify system to check the employment authorization status of a person at a time or in a manner not required under Section 1324a(b) of Title 8 of the United States Code, or not authorized under any memorandum of understanding governing the use of the federal E-Verify system.

(C) Threatening to file or the filing of a false police report, or a false report or complaint with any state or federal agency.

(D) Threatening to contact or contacting immigration authorities.

(2) “Unfair immigration-related practice” does not include conduct undertaken at the express and specific direction or request of the federal government.

(c) Engaging in an unfair immigration-related practice against a person within 90 days of the person’s exercise of rights protected under this code or local ordinance applicable to employees shall raise a rebuttable presumption of having done so in retaliation for the exercise of those rights.

(d) (1) An employee or other person who is the subject of an unfair immigration-related practice prohibited by this section, or a representative of that employee or person, may bring a civil action for equitable relief and any applicable damages or penalties.

(2) Upon a finding by a court of applicable jurisdiction of a violation of this section, upon application by a party or on its own motion, a court may do the following:

(A) For a first violation, order the appropriate government agencies to suspend all licenses that are held by the violating party for a period of up to 14 days. On receipt of the court’s order and notwithstanding any other law, the appropriate agencies shall suspend the licenses according to the court’s order.

(B) For a second violation, order the appropriate government agencies to suspend all licenses that are held by the violating party for a period of up to 30 days. On receipt of the court’s order and notwithstanding any other law, the appropriate agencies shall immediately suspend the licenses.

(C) For a third or subsequent violation, order the appropriate government agencies to suspend for a period of up to 90 days all licenses that are held by the violating party. On receipt of the court’s order and notwithstanding any other law, the appropriate agencies shall immediately suspend the licenses.

(3) In determining whether a suspension of all licenses is appropriate under this subdivision, the court shall consider whether the employer knowingly committed an unfair immigration-related practice, the good faith efforts of the employer to resolve any alleged unfair immigration-related practice after receiving notice of the violations, as well as the harm other employees of the employer, or employees of other employers on a multiemployer job site, will suffer as a result of the suspension of all licenses.

(4) An employee or other person who is the subject of an unfair immigration-related practice prohibited by this section, and who prevails in an action authorized by this section, shall recover his or her reasonable attorney’s fees and costs, including any expert witness costs.

(e) As used in this chapter:

(1) “License” means any agency permit, certificate, approval, registration, or charter that is required by law and that is issued by any agency for the purposes of operating a business in this state and that is specific to the business location or locations where the unfair immigration-related practice occurred. “License” does not include a professional license.

(2) “Violation” means each incident when an unfair immigration-related practice was committed, without reference to the number of employees involved in the incident.

(Amended by Stats. 2015, Ch. 303, Sec. 375. (AB 731) Effective January 1, 2016.)

1019.1.
  

(a) It is unlawful for an employer, in the course of satisfying the requirements of Section 1324a(b) of Title 8 of the United States Code, to do any of the following:

(1) Request more or different documents than are required under Section 1324a(b) of Title 8 of the United States Code.

(2) Refuse to honor documents tendered that on their face reasonably appear to be genuine.

(3) Refuse to honor documents or work authorization based upon the specific status or term of status that accompanies the authorization to work.

(4) Attempt to reinvestigate or reverify an incumbent employee’s authorization to work using an unfair immigration-related practice.

(b) (1) Any person who violates this section shall be subject to a penalty imposed by the Labor Commissioner and liability for equitable relief.

(2) An applicant for employment or an employee who is subject to an unlawful act that is prohibited by this section, or a representative of that applicant for employment or employee, may file a complaint with the Division of Labor Standards Enforcement pursuant to Section 98.7.

(3) The penalty recoverable by the applicant or employee, or by the Labor Commissioner, for a violation of this section shall not exceed ten thousand dollars ($10,000) per violation.

(Added by Stats. 2016, Ch. 782, Sec. 1. (SB 1001) Effective January 1, 2017.)

1019.2.
  

(a) Except as otherwise required by federal law, a public or private employer, or a person acting on behalf of a public or private employer, shall not reverify the employment eligibility of a current employee at a time or in a manner not required by Section 1324a(b) of Title 8 of the United States Code.

(b) (1) Except as provided in paragraph (2), an employer who violates subdivision (a) shall be subject to a civil penalty of up to ten thousand dollars ($10,000). The penalty shall be recoverable by the Labor Commissioner.

(2) The actions of an employer that violate subdivision (a) and result in a civil penalty under paragraph (1) shall not also form the basis for liability or penalty under Section 1019.1.

(c) Subdivision (a) shall be interpreted and applied consistent with federal law and regulations. This section does not prohibit an employer from doing any of the following:

(1) Reverifying an employees’ employment authorization in a time and manner consistent with Section 274a.2(b)(1)(vii) of Title 8 of the Code of Federal Regulations.

(2) Taking any lawful action to review the employment authorization of an employee upon knowing that the employee is, or has become, unauthorized to be employed in the United States, consistent with Section 1324a(a)(2) of Title 8 of the United States Code, including in response to specific and detailed information from any agency within the United States Department of Homeland Security indicating that an employee is not authorized to be employed in the United States.

(3) Reminding an employee, at least 90 days before the date reverification is required, that the employee will be required to present a document identified in List A or a combination of one document from List B and one document from List C, as required by the I-9 Employment Eligibility Verification Form, showing continued employment authorization on the date that their current employment authorization will expire or on the date that their current documentation will expire, whichever date is sooner.

(4) Taking any lawful action to correct errors or omissions in a missing or incomplete I-9 Employment Eligibility Verification Form.

(d) In accordance with state and federal law, nothing in this chapter shall be interpreted, construed, or applied to restrict or limit an employer’s compliance with a memorandum of understanding governing the use of the federal E-Verify system.

(e) For purposes of this section, the term “knowing” is defined as set forth in Section 274a.1(l) of Title 8 of the Code of Federal Regulations and as interpreted by applicable federal rules, regulations, and controlling federal case law. The term “knowing” includes not only actual knowledge, but also knowledge that may fairly be inferred through notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about a certain condition. Constructive knowledge may be found under the circumstances described in Section 274a.1(l)(2) of Title 8 of the Code of Federal Regulations and may not be inferred from an employee’s foreign appearance or accent.

(Amended by Stats. 2019, Ch. 364, Sec. 10. (SB 112) Effective September 27, 2019.)

1019.4.
  

For purposes of this chapter, the terms “reverify” or “reverifying” mean the actions described in Section 274a.2(b)(1)(vii) of Title 8 of the Code of Federal Regulations. These terms shall be interpreted consistently with any applicable federal rules, regulations, and controlling federal case law.

(Added by Stats. 2019, Ch. 364, Sec. 11. (SB 112) Effective September 27, 2019.)

LABLabor Code - LAB