Weinberg, Roger & Rosenfeld (c) PROTECTING WORKERS IN CALIFORNIA.
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Transcript of Weinberg, Roger & Rosenfeld (c) PROTECTING WORKERS IN CALIFORNIA.
Weinberg, Roger & Rosenfeld (c)
PROTECTING WORKERS
IN CALIFORNIA
Topics Covered
Immigration Retaliationin Organizing Drives
Need for Reform CA Worker Laws Tips for Worker Advocates
Weinberg, Roger & Rosenfeld (c)
Retaliation During Organizing
Warehouse Workers Organizing Campaign and Retaliation
Immigration-related retaliation during organizing campaigns
Weinberg, Roger & Rosenfeld (c)
Retaliation During Organizing
How to Respond? Change the Laws?
Weinberg, Roger & Rosenfeld (c)
New California Laws
AB263 Retaliation: Immigration-Related Practices
SB666 Employment: Retaliation SB496 Whistleblower Protections AB524 Immigrants: Extortion
Weinberg, Roger & Rosenfeld (c)
New California Laws
When did these laws go into effect?
Weinberg, Roger & Rosenfeld (c)
New California Worker Protection Laws
Effective January 1, 2014
Weinberg, Roger & Rosenfeld (c)
Protection Against Retaliation
Chapter 3.1, Labor Code Section 1019: Unfair Immigration-Related Employment Practice
Labor Code Section 1024.6: Protects against retaliation for updating personal information
Weinberg, Roger & Rosenfeld (c)
Protection Against Retaliation & Expanding Rights
Labor Code Section 244: Exhaustion of remedies & Reports to Immigration
Business and Professions Code Section 494.6: Suspension of business licenses
Business and Professions Code Section 6103.7: Suspension of Lawyers’ license
Weinberg, Roger & Rosenfeld (c)
Unfair Immigration-Related Practices Lab. Code 1019
Unlawful for employer to Commit unfair immigration-related practices With purpose or intent to retaliate against a
worker who Exercises ANY right protected under the
Labor Code or ANY local ordinance
Weinberg, Roger & Rosenfeld (c)
Lab. Code 1019 Exercising a right means???
Weinberg, Roger & Rosenfeld (c)
Lab. Code 1019 Exercising a right means?
Including, but not limited to: Filing a complaint or informing any
person of the alleged violation, so long as made in good faith
Seeking information about whether an employer or other party is in compliance with labor code or local ordinance
Weinberg, Roger & Rosenfeld (c)
Lab. Code 1019 Exercising a right means?
Informing a person of his or her potential rights and remedies under this code or local ordinance,* and
Assisting him or her in asserting those rights*
Weinberg, Roger & Rosenfeld (c)
What are . . .
Weinberg, Roger & Rosenfeld (c)
Unfair Immigration-Related Practices?
Unfair Immigration Related Practices
Practices when undertaken with the purpose of
retaliating . . .
Weinberg, Roger & Rosenfeld (c)
What are Unfair Immigration-Related Practices?
Requesting more or different documents than required by federal immigration law for verification of work authorization, or
Refusal to honor documents that on their face appear to be genuine
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What are Unfair Immigration-Related Practices?
Threatening to call or contacting immigration authorities;
Threatening to file or filing a false police report
Weinberg, Roger & Rosenfeld (c)
Example of Unfair Immigration-Related Practice Carlos files a claim
with the Labor Commissioner for unpaid overtime
Carlos’ work permit expires
He presents a new work permit to his boss
Carlos’ new work permit satisfies the List A documents of the I-9 Form
Carlos’ Boss refuses to accept the work permit and demands a Cal. Id and Social Security Card
Weinberg, Roger & Rosenfeld (c)
Example of Unfair Immigration-Related Practice Delia complains to her
supervisor that she was not paid for one day of work
Supervisor says will take care of it
Two weeks later, still no pay
Delia files a claim with the Labor Commissioner
Supervisor calls the police and accuses Delia of theft
Or, Supervisor threatens to call ICE
Weinberg, Roger & Rosenfeld (c)
Unfair Immigration-Related Employment Practices
Using E-Verify to check the employment authorization status of a worker
at a time or in a mannernot required by federalimmigration law.
Weinberg, Roger & Rosenfeld (c)
Labor Code 1019 “Rebuttable Presumption”
If employer fires a worker, or takes any action against a worker, within 90 days of that working having complained about owed wages, the court or agency will presume that the employer engaged in retaliation
Weinberg, Roger & Rosenfeld (c)
Labor Code 1019 Rebuttable Presumption?
But, the employer can present evidence to contradict the presumption, i.e. to show that the firing, or other adverse action, was not retaliation
Weinberg, Roger & Rosenfeld (c)
Unfair Immigration Related-Practice Labor Code 1019
Not unfair immigration practice: conduct taken by an employer at the “express or specific” direction or request of the federal government
Eg. I-9 Audit
Weinberg, Roger & Rosenfeld (c)
Unfair Immigration-Related Practice = License Suspension
1st violation = suspension of business license for a period of up to 14 days
2nd violation = suspension of business license for a period of up to 30 days
3rd violation = suspension of business license for a period of up to 90 days
Weinberg, Roger & Rosenfeld (c)
Labor Code Section 1024.6
Employer may not: discharge, discriminate, retaliate, or take
any adverse action against an employee because the employee updates or
attempts to update his or her personal information
Weinberg, Roger & Rosenfeld (c)
Labor Code Section 1024.6 “based on a lawful change of name,
social security number, or federal employment authorization document.”
An employer's compliance with this section shall not serve as the basis for a claim of discrimination, including any disparate treatment claim.
Weinberg, Roger & Rosenfeld (c)
Updating personal information
How to enforce law? What should an employer do in
response to request to update information?
Is Reverification of documents permitted?
Weinberg, Roger & Rosenfeld (c)
Updating personal information
Existing CBA language? Reverification permitted, completion of
new I-9 form attached to old I-9 form USCIS Handbook for Employers
(pp. 23-24) http://www.uscis.gov/files/form/m-274.pdf
Weinberg, Roger & Rosenfeld (c)
Expanding Retaliation Protections in Labor Code Section 98.6
Labor Code 98.6 prohibits discharge of an employee or discrimination against an employee for filing claims with the Labor Commissioner
Weinberg, Roger & Rosenfeld (c)
Expanding Retaliation Protections in Labor Code Section 98.6
Expands worker protections prohibiting discharge, discrimination, retaliation, or any adverse action to include oral or written complaints that the worker is owed unpaid wages. Lab. Code 98.6(a)
Weinberg, Roger & Rosenfeld (c)
Enhanced Employer Penalty for Retaliation Under Lab. Code 98.6
Employer who violates Section 98.6 is liable for a civil penalty of $10,000 per employee for each violation of Section 98.6. (Lab. Code Sec. 98.6(b)(3))
Penalty PAID TO EMPLOYEE
Weinberg, Roger & Rosenfeld (c)
Enforcing Retaliation Claims Under Lab. Code 98.7
Clarifies that a worker who suffers discrimination or retaliation need not exhaust administrative remedies. Lab. Code Sec. 98.7(g)
Weinberg, Roger & Rosenfeld (c)
Expanding Rights For Workers to Enforce California Labor Laws
Labor Code Sec. 244(a): Does not require a worker to exhaust administrative remedies before filing a lawsuit
Unless the section expressly requires administrative exhaustion
Weinberg, Roger & Rosenfeld (c)
NEW! Labor Code Section 244(b) Reporting or threatening to report an
employee’s or family member’s suspected citizenship or immigration status
Because the employee exercises a right under the Labor Code, Government Code or Civil Code . . .
Weinberg, Roger & Rosenfeld (c)
NEW! Labor Code Section 244 constitutes an adverse action for
purposes of establishing a violation of an employee’s rights
Family member means: spouse, parent, sibling, child, uncle, aunt, niece, nephew, cousin, grandparent, or grandchild related by blood, adoption, marriage or domestic partnership
Weinberg, Roger & Rosenfeld (c)
Business License Revocation For Worker Retaliation
Violation of Section 244(b),i.e. reported or threatened to report an employee’s citizenship or immigration status = business license suspension or revocation
Weinberg, Roger & Rosenfeld (c)
Suspension of License to Practice Law for Worker Retaliation
Section 6103.7 to the Business & Professions Code NEW!
Lawyer can be suspended, disbarred or disciplined if he reports or threatens to report immigration status or suspected immigration status of . . .
Weinberg, Roger & Rosenfeld (c)
Suspension of License to Practice Law for Worker Retaliation
A witness or party to a civil lawsuit or administrative action or his/her family member to a federal, state or local agency
Because the witness or party exercises a righted related to his/her employment
Bus. & Prof. Code 6103.7
Weinberg, Roger & Rosenfeld (c)
Crime for employers to induce fear by threatening to report workers’ immigration status or suspected immigration status
Constitutes Extortion: wrongful use of physical force or fear to obtain the property of another
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Immigrants: Extortion
Extortion Qualifies for U Visa What is a U visa? Visa for victims of certain enumerated
crimes. INA Sec. 101(a)(15)(U)
Weinberg, Roger & Rosenfeld (c)
Expanding Whistleblower Protections
Expands whistleblower protections in Labor Code 1102.5
Amends Labor Code 1102.5
Weinberg, Roger & Rosenfeld (c)
Expanding Whistleblower Protections
Protecting whistleblowers who report suspected illegal behavior to a person with “authority over the employee” or with the authority to “investigate, discover, or correct” the reported violations;
Or . . .
Weinberg, Roger & Rosenfeld (c)
Expanding Whistleblower Protections
Reporting externally to any “public body conducting an investigation, hearing, or inquiry”
Weinberg, Roger & Rosenfeld (c)
Where to File Complaints?
Department of Labor Standards Enforcement
Discrimination Complaint http://www.dir.ca.gov/dlse/howtofilediscrimina
tioncomplaint.htm 6 months to file a complaint
Weinberg, Roger & Rosenfeld (c)
QUESTIONS???
Weinberg, Roger & Rosenfeld (c)