Reminder for California Employers: Immigration Status Protection

At a Glance

• Employers are legally required to comply with notice provisions informing employees of immigration enforcement actions at the workplace and must notify their authorized representatives of the activity and outcome.
• An employer must not retaliate against a worker for filing a claim or complaint with the California Labor Commissioner’s Office or otherwise asserting their rights under California labor laws.
• An employer who reverifies the employment eligibility of a current employee in a manner not required by federal immigration law may face a civil penalty of $10,000.

The California Labor Commissioner’s Office has recently reminded California employers of protections available to workers regardless of their immigration status. California workers are protected from unfair immigration-related practices, and it is unlawful for any employer to retaliate against a worker for exercising these protections. It is also unlawful for an employer to fail to comply with notice requirements about immigration enforcement actions at worksites. Violations of these laws may subject an employer to penalties of up to $10,000 per violation, under California Labor Code Sections 90.2, 1019, 1019.1 and 1019.2.

Under California’s unfair immigration laws, employers are prohibited from:

• Requesting more or different documents than required by federal law
• Refusing to accept documents that reasonably appear to be genuine on their face
• Using the federal E-Verify system to check the work authorization status of a person in a manner not required by federal immigration law
• Filing or threatening to file a false report with a government agency
• Threatening to contact or contacting immigration authorities

In addition, employers are legally required to comply with notice provisions informing employees of immigration enforcement actions at the workplace and must notify their authorized representatives of the activity and outcome.

Below is a summary of California laws that prohibit discrimination and retaliation based on immigration status.

Labor Code Section 90.2

An employer must provide notice to current employees of any immigration enforcement actions, such as an inspection of the Form I-9 or other employment records conducted by an immigration agency within 72 hours of receiving a notice of the inspection. The notice must include the name of the agency conducting the inspection, the date the employer received notice of the inspection, the nature of the inspection and a copy of the agency’s actual notice. Except as otherwise required by federal law, an employer is required to provide each affected employee time to correct any potential deficiencies identified through the agency’s inspection. Violation of Labor Code section 90.2 imposes civil penalties from $2,000 to $5,000 for a first violation, and from $5,000 to $10,000 for each subsequent violation.

Labor Code Section 98.6

An employer must not retaliate against a worker for filing a claim or complaint with the California Labor Commissioner’s Office or otherwise asserting their rights under California labor laws, which includes reporting “unfair immigration-related practices.”

Labor Code Section 244

Reporting or threatening to report the immigration or citizenship status of an employee, former employee, prospective employee or a family member (defined as spouse, parent, sibling, child, uncle, aunt, niece, nephew, cousin, grandparent or grandchild related by blood, adoption, marriage or domestic partnership) because the employee exercised a right under the Labor Code, Government Code or Civil Code constitutes an “adverse action” for purposes of establishing a violation of the rights of an employee, former employee or prospective employee.

Labor Code Section 1019

An employer must not commit “unfair immigration-related practices” against any person for the purpose of retaliating against that person for exercising their rights under the Labor Code or local ordinances.

Labor Code Section 1019.1

An employer who violates Labor Code section 1019 may face a civil penalty of up to $10,000 per violation.

Labor Code Section 1019.2

An employer who reverifies the employment eligibility of a current employee in a manner not required by federal immigration law may face a civil penalty of $10,000. As a reminder, employers are required to reverify the work authorization of an employee who presented documentation reflecting temporary work authorization on Form I-9. It is a violation of federal immigration law for employers to reverify work authorization documents presented by U.S. citizens, permanent residents, and some asylees and refugees.

Labor Code Section 1024.6

An employer is prohibited from discharging or retaliating against an employee who updates or attempts to update their personal information based on a lawful change of name, Social Security number or federal work authorization document.

Labor Code Section 1171.5

Workers are entitled to all protections available under state law, regardless of immigration status.