The California legislature has added a new provision to the Labor Code expanding protections from “unfair immigration-related practices” (originally passed in 2013) beyond the retaliation context and extending protections to any employee or applicant, regardless of whether they have ever made a complaint. The law also specifies that it shall be unlawful for any employer to:
- request more or different documents than required under federal law to verify eligibility;
- refuse to honor documents that on their face reasonably appear to be genuine;
- refuse to honor documents or work authorizations based on the specific status or term of status included in the work authorization; or
- attempt to reinvestigate or re-verify an incumbent employee’s authorization to work using an “unfair immigration practice.”
Employees or applicants who feel their rights have been violated may file a complaint with the Division of Labor Standards Enforcement (DLSE) or may file a claim under state law. The Labor Commissioner is authorized to award a penalty of up to $10,000, as well as other equitable relief.
Immigration-related abuses have been a legislative priority in California for the past several years. In 2016, the legislature enacted a new $10,000 penalty for E-Verify violations. In 2014, the legislature amended the Fair Employment and Housing Act (FEHA), making it unlawful to discriminate against a person who holds a driver’s license issued under § 12801.9 of the Vehicle Code and prohibiting employers from requiring an employee to hold or present such a driver’s license, except where possession is required by state or federal law or by the employer under circumstances which are permitted by law. Indeed, a policy requiring applicants or employees to present or hold a driver’s license may be evidence of a FEHA violation if not uniformly applied and consistent with legitimate business reasons (i.e., is the license needed to perform the essential job functions).