The Effect of an “Undocumented” Driver’s License On Workplace Policy and Procedure is Touchy

In 2013, Assembly Bill [AB] 60 created Vehicle Code section 12801.9 authorizing the California Department of Motor Vehicles (DMV) to provide driver’s licenses to undocumented individuals. AB 60 thus directs the DMV to accept alternative satisfactory forms of proof of identity and California residency other than a federally issued green card. DMV will start issuing so-called “AB 60 Driver’s Licenses” in January, 2015. By regulation, the department will now accept, for example, a California identification card (issued October, 2000 or after) or a valid, approved and verifiable foreign passport as valid ID to qualify the applicant for such a license. AB 60-Proof of Identity and California Residency.

These new licenses will require employers to handle applicants and employees who present them very deliberately.

On the one hand, and also effective January 1, 2015, AB 1660 amends the California Fair Employment and Housing Act (FEHA) to prohibit employers from discriminating against individuals for holding or presenting an “AB 60 Driver’s License.”

AB 1660(v) amends California Government Code section 12926(v) with an additional sentence: “’National origin’ discrimination includes, but is not limited to, discrimination on the basis of possessing a driver’s license granted under Section 12801.9 of the Vehicle Code.”

California Vehicle Code section 12801.9(h) is also amended. It will now be a FEHA violation for an employer “to discriminate against a person because the person holds or presents a driver’s license issued pursuant to this section, or for an employer…to require a person to present a driver’s license, unless possessing a driver’s license is required by law or is required by the employer and the employer’s requirement is otherwise permitted by law.” AB 1660(h)(2)(A).

AB 1660 also states any driver’s license information obtained must be treated as private and confidential and may not be disclosed to any unauthorized person or used for any purpose other than to establish identity and authorization to drive.

On the other hand, AB 1660 specifies that these discrimination protections shall not be construed to alter an employer’s rights or obligations to obtain documentation evidencing identity and authorization for employment as required by the federal Immigration and Nationality Act. Accordingly, any “AB 60 Driver’s License” will notate that it is not acceptable for federal purposes, such as verifying employment eligibility.

AB 1660 underscores the need for employers to understand how they may use an applicant’s or employee’s AB 60 driver’s license and how they may not. Obviously, an AB 60 license presents a potential red flag on an individual’s authorization to work in the U.S. since that person did not have to show a valid green card to obtain it. Yet, AB 1660 directs that terminating that person solely for his or her possession of an AB 60 license would be discriminatory. Thus, when faced with such a license, an employer might well be on notice that it must inquire further to confirm the person’s authorization under federal law to work in this country.

Just how these potentially competing rights and obligations will balance against each other in specific situations will likely be matters for the courts to decide. Regardless, an employer who is presented with an AB 60 license should probably consult with legal counsel to assist on any decision concerning the affected person’s subsequent job status.

If you need further information, please feel free to contact any of our attorneys – Tim Bowles, Cindy Bamforth, and Helena Kobrin.