The struggle to help immigrant workers enforce their basic labor rights recently gained a major boost in California with the passage of new employment laws. Two laws are intended to help workers assert their rights by prohibiting retaliation, including threats of deportation. Another law makes it a crime for employers or their attorneys to use threats of deportation to exploit immigrant workers.
California lawmakers recognize that wage theft is a serious and widespread problem that causes severe hardship to workers and their families. Immigrant workers are the most frequent victims of wage theft and are also exposed to the greatest hazards at work. When they come forward to expose unfair, unsafe, or illegal conditions, they face retaliation from the employer, often involving threats to contact the police or immigration enforcement agencies.
Starting January 1, 2014, it will be unlawful for an employer to engage in unfair immigration-related practices against any employee in order to retaliate against the employee's exercise of a legal right. An employee's exercise of a right may include:
Filing a complaint or informing any person of an employer's alleged violation of a law, so long as the complaint or disclosure is made in good faith.
Seeking information regarding whether an employer is in compliance with the law.
Informing other employees of their potential rights and remedies under the law, and helping them assert those rights.
“Unfair immigration-related practice” means any of the following practices, when undertaken for the retaliatory purposes prohibited by law:
- Requesting more or different documents than are required by law, or refusing to honor required documents provided that reasonably appear to be genuine.
- Misusing the federal E-Verify system to check the employment authorization status of a person.
- Threatening to file or filing a false police report.
- Threatening to contact or contacting immigration authorities.
If an employer engages in an unfair immigration-related practice against an employee within 90 days of the employee's exercise of rights protected under the law, the employer is presumed to have done so in retaliation for the exercise of those rights, unless the employer can prove otherwise.
Employees who experience illegal immigration -related practices may be entitled to reinstatement and reimbursement for lost wages and any damages or penalties, as provided by law. The employer may also be liable for a civil penalty of up to $10,000 per violation.
In addition, the employers' attorneys are also prohibited from reporting suspected immigration status or threatening to report suspected immigration status of employees or their witnesses (or family members) simply because these persons exercised their employment rights. Attorneys who threaten to report an employee's immigration status or suspected immigration status may be guilty of extortion, and may be disbarred, suspended, or disciplined by the California State Bar.