California Extends Protections For Whistleblowing Employees

As relayed a year ago in California’s Expanded Immigration-Related Protections, this state provides the most stringent retaliation protections for immigrant workers in the country. Effective January 1, 2015, California employer obligations in this area are increased again.

Labor Code section 1019 has prohibited any California business from engaging in “unfair immigration-related practices” in retaliation for a worker’s exercise of certain rights, including employee submission of a good faith complaint over his/her employer’s labor practices, seeking information on whether the employer is in compliance with workplace laws, and informing another person of his/her employment rights.

Under that original code section, such “unfair practices” included: (a) requesting more or different documents than required by the federal I-9 form; (b) refusing to honor any I-9 listed documents that reasonably appear to be genuine; (c) misusing the federal E-Verify system to check employment status in a manner not required by law; and (d) threatening to contact or contacting immigration authorities except if and as required by federal authorities. That original law also barred an employer from threatening to file or filing a false police report.

Assembly Bill (AB) 2751, effective January 1, 2015, expands Labor Code 1019 to bar an employer threat to file — or an actual employer filing of — a false report or complaint to any state or federal agency. Section 1019 also now enables an employee subject to unfair immigration-related practices to bring a civil suit against the alleged offending employer and to collect damages and attorney fees if successful.

Labor Code section 1024.6 had previously prohibited businesses from discriminating or retaliating against an employee for having updated or attempting to update “his or her personal information” unrelated to the person’s job skills or qualifications. However, that statute did not specify just what sort of “personal information” was protected. AB 2751 will now clearly transform 1024.6 into an unfair immigration practices statute, barring employers from terminating, discriminating against or retaliating against an employee for having updated or attempting to update “his or her personal information based on a lawful change of name, social security number, or federal employment authorization document.”

These laws do not absolve employers from ensuring all required I-9 procedures are in place to confirm and document each worker’s authority to work within the United States. However, in California at any rate, companies are barred from seeking to penalize or intimidate a worker for speaking out about workplace practices through employer actions or threats aimed at that worker’s immigration or citizenship status.

For more information concerning an employer’s obligations under California or federal employment laws, contact attorney Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles, December 31, 2014