Unfair Immigration-Related Practices under the Labor Code

California’s Labor Code prohibits certain “unfair immigration-related practices” under Chapter 3.1 of Part 3 of Division 2. Chapter 3.1 was added in 2013 by Chapter 732. Section 1019 makes it 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.

The phrase “unfair immigration-related practice” is defined extensively. Engaging in an unfair immigration-related practice against a person within 90 days of the person’s exercise of rights protected under the Labor Code or local ordinance applicable to employees will raise a rebuttable presumption of having done so in retaliation for the exercise of those rights.

Any 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. A court make impose different sanctions against an employer for repeat violations of this section, including a suspension of any licenses. This section also defines the terms “license” and “violation.”

Section 1019.1 makes it unlawful for an employer, in the course of satisfying the requirements of federal law, to:

• Request more or different documents than are required by federal law.
• Refuse to honor documents tendered that on their face reasonably appear to be genuine.
• Refuse to honor documents or work authorization based upon the specific status or term of status that accompanies the authorization to work.
• Attempt to reinvestigate or reverify an incumbent employee’s authorization to work using an unfair immigration-related practice.

Any person who violates this section is subject to a penalty imposed by the Labor Commissioner and liability for equitable relief. An individual may file a complaint with the Division of Labor Standards Enforcement. The penalty recoverable for a violation of this section may not exceed $10,000.

Section 1019.2 specifies that a public or private employer, or a person acting on behalf of a public or private employer, is prohibited from reverifying the employment eligibility of a current employee at a time or in a manner not required by applicable federal law. An employer who violates this section is subject to up to a $10,000 civil penalty payable to the Labor Commissioner.

However, this section does not prohibit an employer from:

• Reverifying an employe’s employment authorization in a time and manner consistent with federal law.
• 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.
• Reminding an employee, at least 90 days before the date re-verification is required, that the employee will be required to present a document identified in the Employment Eligibility Verification Form.
• Taking any lawful action to correct errors or omissions in a missing or incomplete I-9 Employment Eligibility Verification Form.

Section 1019.4 defines the term “reverify” and “reverifying.”