2015 Legislative Developments: Discrimination & Retaliation Laws

The California Legislature has enacted a number of new laws that will impact employers and employees in 2016. In eight installments, Kronick will provide you with helpful summaries by category. The third installment covers Discrimination and Retaliation Laws. 

III. Discrimination & Retaliation Laws

A. AB 622 (Hernández): Prohibited Use of E-Verify System

This bill adds section 2814 to the Labor Code.

Except as required by federal law or as a condition for receiving federal funds, employers are prohibited from using the federal government’s E-Verify system to check the employment authorization status of an existing employee or an applicant who has not been offered employment. It also prohibits an employer from using the E-Verify system at a time or in a manner not required by federal law or authorized under a federal-state memorandum of understanding.

The new statute does not prohibit an employer from using the E-Verify system for an applicant once that applicant has been offered employment.

If upon proper use of the E-Verify system, the employer receives a tentative nonconfirmation issued by the Social Security Administration, the employer must comply with the required employee notification procedures under the federal-state memorandum of understanding.

The bill imposes civil penalties of up to $10,000 and states it is designed to prevent discrimination in employment rather than sanctioning potential hires of unauthorized persons.

B. AB 987 (Levine): Anti-retaliation for Seeking Religion or Disability Accommodations

In Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, the Second District Court of Appeal held a mere request—or even repeated requests—for an accommodation, without more, did not constitute a protected activity sufficient to support a claim for retaliation in violation of Fair Employment and Housing Act.

This bill legislatively overrules this holding by amending Government Code section 12940 to provide that a request for religious or disability accommodation constitutes protected activity and an employee may not be retaliated against for requesting such an accommodation.

C. AB 1509 (Hernández): Employer Retaliation Liability

This bill amends Labor Code sections 98.6, 1102.5, 2810.3, and 6310 of the Labor Code.

The bill extends the anti-retaliation provisions of the Unfair Immigration Practices Act to an employee who is a family member of a person who has, or is perceived to have, engaged in protected activity under that law.

The bill also provides that the liability imposed on employers for certain unlawful activities by labor contractors does not extend to employers authorized to operate as a household goods carrier under the Household Goods Carriers Act.

D. SB 600 (Pan). Expansion of Unruh Civil Rights Act

This bill amends Civil Code section 51.

This bill expands the protections of the Unruh Civil Rights Act, which mandates full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever regardless of race or national origin, among other protected classifications, to individuals regardless of their primary language or immigration status.

The bill clarifies that its requirements do not mandate the provision of services in a language other than English unless otherwise required by law.

The bill states the amendments to the Unruh Civil Rights Act are declarative of existing law meaning those changes have retroactive application.