Immigration-Related Employee Protections in California: What Restaurants Need to Know
California law includes numerous immigration-related protections for employees as well as significant sanctions for non-complying employers. To avoid violations, California Restaurant Association members should ensure that their employment practices comply with both current California law and federal immigration law.
A restaurant or other employer in California is barred by federal immigration law from employing a person if the employer knows or should have known that the person is an undocumented immigrant – that is, a non-U.S. citizen or national who is not lawfully admitted for permanent residence or authorized to work in the United States.
At the same time, California labor and employment laws protect all employees and job applicants, including immigrants authorized to work in the United States and undocumented immigrants. The enacting legislation has stated that immigrant workers are the most frequent victims of wage theft and working conditions that are unsafe, unfair, and illegal, and that complaints by immigrant workers can result in retaliation against them and their families.
In the recent Salas v. Sierra Chemical decision, which involved an undocumented immigrant employee who had used a false social security number and card to obtain his job, the California Supreme Court ruled that California’s employment discrimination and other worker protection statutes are for the most part not preempted by federal immigration law. The Salas court affirmed that all employees, including undocumented immigrants using false documents, are entitled to the rights and remedies of California’s labor and employment laws.
California continues to expand legal protections for immigrant workers, regardless of their immigration status. As a result, there is a complex mix of state and federal requirements with which restaurants and other employers must comply. Here is a current checklist of do’s and don’ts:
Don’t Fire or Take Other Adverse Actions against Employees If They Seek to Change Names, Social Security Numbers, or Federal Employment Authorization Documents
Under California law, a restaurant or other employer cannot fire, discriminate, retaliate, or take any adverse action against an employee who updates or tries to update his or her personal information based on a lawful change of name, social security number, or federal employment authorization document. This protection extends to undocumented immigrant employees who come forward to disclose their real identities based on lawful changes to their immigration information/documentation, such as with the new California AB 60 driver’s licenses (discussed below).
Depending on the facts surrounding such updated information provided by an employee, an employer may need to update the employee’s existing federal I-9 Employment Eligibility Verification form (Form I-9).
Don’t Fire or Take Other Adverse Actions Against Employees Who Seek Unpaid Wages or Retaliate against Employees Who Disclose Information or Raise Occupational Safety Issues
Unpaid Wages. Under California law, a restaurant or other employer cannot fire, discriminate, retaliate, or take any adverse action against any employee (or job applicant) because that person made a written or oral complaint for unpaid wages, engaged in political activity or whistleblowing or lawful conduct outside of work, filed or participated in a complaint before the California Labor Commissioner (Labor Commissioner) or in proceedings seeking California Labor Code (Labor Code) enforcement, or exercised or assisted another person in the exercise of any rights afforded him or her. As of January 1, 2016, an employer cannot retaliate against an employee who is a family member of the person who engaged or is perceived to have engaged in these or related protected legal activities.
A restaurant or other employer that violates the foregoing law can be liable, among other things, for reinstatement and reimbursement for lost wages and work benefits, and a civil penalty not exceeding $10,000 per employee for each violation.
Disclosures of Information. Under California law, a restaurant or other employer cannot prevent an employee from disclosing information to a government agency, law enforcement agency, person with authority over the employee, employee with power to correct violations, or a public investigative body if the employee reasonably believes that the information discloses activities in violation of federal or California law or in violation or noncompliance with federal, state, or local rules or regulations. An employer cannot retaliate against an employee who engages in such protected conduct or who refuses to participate in such activities. As of January 1, 2016, an employer cannot retaliate against an employee who is a family member of the person who engaged or is perceived to have engaged in these protected legal activities.
A restaurant or other employer that prevents or retaliates against such disclosures can be liable, among other things, for damages and a civil penalty of up to $10,000 per violation for corporate or limited liability company employers.
Occupational Safety. Under California law, a restaurant or other employer cannot fire or discriminate in any way against any employee because that person made a written or oral complaint relating to occupational safety or health, or filed or participated in proceedings or committees relating to occupational safety or health. As of January 1, 2016, an employer cannot retaliate against an employee who is a family member of the person who engaged or is perceived to have engaged in these protected legal activities.
A restaurant or other employer that violates the foregoing law can be liable, among other things, for reinstatement and reimbursement for lost wages and work benefits
Don’t Report or Threaten to Report the Citizenship or Immigration Status of Current, Former, or Prospective Employees or their Family Members
If a current, former, or prospective employee exercises a statutory right under the Labor Code or certain other California laws, and as a result his or her employer reports or threatens to report the suspected citizenship or immigration status of such current, former, or prospective employee (or of his or her family member) to a federal, state, or local agency, under California law the employer has taken an “adverse action” which can establish a violation of the rights of such current, former, or prospective employee.
A restaurant or other employer found to have violated a current, former, or prospective employee’s rights in this manner risks having its business license suspended or revoked by the Labor Commissioner or a court. However, an employer does not risk license suspension or revocation for requiring that a prospective or current employee submit a Form I-9 within three business days of starting paid employment.
Do Be Aware of the Scope of “Unfair Immigration-Related Practices” and Prohibitions Against Retaliation
A restaurant or other employer is prohibited under California law from engaging in “unfair immigration-related practices” against any employee (or any other person) in retaliation for his or her exercise of any right protected under the Labor Code or a local ordinance applicable to employees. The employee’s exercise of rights includes but is not limited to his or her making a filing or disclosure in good faith alleging Labor Code/local ordinance violations, seeking information about an employer’s compliance with the Labor Code/local ordinance, or providing information to a person about his or her rights and remedies under the Labor Code/local ordinance and helping that person to assert those rights.
An “unfair immigration-related practice” by an employer is any of the following actions if it is undertaken for a prohibited retaliatory purpose:
Requesting more or different documents than are required under federal immigration law for employment verification purposes, or refusing to honor documents submitted for that purpose that on their face reasonably appear to be genuine;
Using the free online federal E-Verify system (discussed below) to check a person’s employment authorization status at a time or in a manner not required either under relevant federal immigration law or under the E-Verify Memorandum of Understanding (“MOU”), which is the standard agreement accepted and signed by an employer to enroll in E-Verify;
Threatening to file or filing a false police report, or a false report or complaint with any state or federal agency;
Threatening to contact or contacting immigration authorities.
Conduct that is undertaken by a restaurant or other employer at the express and specific direction or request of federal authorities is not an “unfair immigration-related practice.”
A restaurant or other employer engaging in an “unfair immigration-related practice” within 90 days of an employee’s exercise of protected rights, as described above, is subject to a rebuttable presumption that the unfair practice was done in retaliation for the employee’s exercise of those rights.
If a restaurant or other employer commits an “unfair immigration-related practice,” an employee or other person subjected to the unfair practice or their representative may bring a civil lawsuit against such employer for equitable relief, damages, or penalties. A court can order up to a 90-day suspension of all business licenses held by the employer specific to the location(s) where the unfair practice occurred, depending on the number of violations committed and the surrounding circumstances.
Don’t Discriminate against Holders of New Driver’s Licenses Issued under AB 60
On January 1, 2015, under a law passed in 2013 (AB 60), the California Department of Motor Vehicles (DMV) began issuing driver’s licenses (AB 60 Driver’s License(s)) to people who cannot prove their eligibility to be in the United States legally. An AB 60 Driver’s License may be issued to an applicant who meets the license requirements and can provide documents, satisfactory under the DMV’s regulations, to establish his or her identity and California residency.
An AB 60 Driver’s License contains a photograph of the individual and name, address, and date of birth information, with a notation that “federal limits apply.” It also includes the following notice on the back: “This card is not acceptable for official federal purposes. This license is issued only as a license to drive a motor vehicle. It does not establish eligibility for employment, voter registration, or public benefits.”
A driver’s license cannot be required by a restaurant or other employer unless a driver’s license is a legal job requirement or is a legitimate requirement of the employer. An employer must keep AB 60 Driver’s License information private and confidential, and cannot disclose it to any unauthorized person or use it for any purpose other than to establish identity and authorization to drive.
Both federal and California law prohibit a restaurant or other employer from refusing to hire, discharging, or otherwise discriminating against a person on the basis of his or her national origin. In California, unlawful national origin discrimination by an employer includes discrimination against a person because he or she possesses an AB 60 Driver’s License.
6.Do Treat an AB 60 Driver’s License as a List B Document for Form I-9 Purposes
A restaurant or other employer must ensure that each employee (whether or not a United States citizen) hired in the United States completes Section 1 of the Form I-9 no later than their first day of paid employment. In Section 1, the employee must provide information about his or her identity, and attest to his or her employment authorization (a social security number is optional, unless an employer uses E-Verify as discussed below).
An employee lacking a single document that shows both identity and employment authorization must provide the employer with one unexpired identity document of his or her own choosing from List B of the Form I-9’s Lists of Acceptable Documents (LAD), such as a state driver’s license or identification card with a photograph or identifying information such as name, address, and date of birth. The employee also must provide the employer with one unexpired document of his or her own choosing from List C of the LAD to establish employment authorization, such as a social security account number card (without employment restrictions), an official birth certificate showing birth in the United States, or other permissible documents.
Within three business days of such an individual beginning paid employment, the employer must complete Section 2 of the Form I-9. The employer’s task is to determine that the employee’s List B and List C documents reasonably appear to be genuine and relate to the individual presenting them, and to record the document information in Section 2 of the Form I-9.
According to the United States Citizenship and Immigration Services (USCIS) as of May 22, 2015, an AB 60 Driver’s License can be used by an employee as a List B identity document if it reasonably appears to be genuine, relates to the individual who presents it, and contains a photograph or other identifying information in conformance with the LAD’s requirements for a List B document. As noted above, an AB 60 Driver’s License contains a photograph of the individual to whom it is issued, as well as identifying information.
Employment is prohibited under federal immigration law if the employer either has actual knowledge that the employee is an undocumented immigrant or constructive knowledge of it — that is, if the employer has positive information of the employee’s undocumented status, such as notice from federal authorities that the employee lacks authorization to work in the United States, or the continued employment of an employee after his or her employment authorization document expires. Upon an employer’s discovery that a worker is an undocumented immigrant, termination is required under federal immigration law.
According to the USCIS as of May 22, 2015, an employer that accepts an AB 60 Driver’s License as a List B identity document from an employee is not presumed, simply based on the AB 60 Driver’s License, to have actual or constructive knowledge that the employee is not authorized to work in the United States. Rather, such knowledge is based upon all the facts and variables in an individual case. In the view of the USCIS, constructive knowledge may be fairly inferred through notice of facts and circumstances (other than an employee’s foreign appearance or accent) which would lead an employer through the exercise of reasonable care to know that an employee is not employment authorized.
Do Properly Evaluate a Separate Employment Authorization List C Document for Form I-9 Purposes
A restaurant or other employer must comply with federal Form I-9 procedures in all circumstances; an employer enrolled in the federal E-Verify system uses E-Verify to verify employment authorization after completion of the Form I-9.
There is movement in the United States Congress to require E-Verify to be used by all employers in the United States. Private employers in California may voluntarily enroll in E-Verify. Under California law, neither the state nor its cities and counties may require a private employer to use E-Verify.
Method One: Employer Completes Form I-9
An employee presenting an AB 60 Driver’s License as a List B identity document for Form I-9 purposes, as set forth above, must still submit a List C employment authorization document such as a social security account number card (without employment restrictions) in order to be employed. As noted above, within three business days of such an individual beginning paid employment, the employer must record the List B and List C document information in Section 2 of the Form I-9.
A restaurant or other employer must verify the employee’s List C employment authorization document by determining if it reasonably appears to be genuine and relates to the employee. The employer must not have actual or constructive knowledge that the employee is an undocumented immigrant, as discussed above.
A restaurant or other employer is not expected to be an expert at identifying and examining documents submitted by employees, and is not required to further investigate documents that do not appear to be false. Rather, when evaluating a List C document such as a social security account number card (without employment restrictions), an employer satisfies its verification obligation if it reasonably appears to the employer that the document on its face is valid. Satisfaction of a verification obligation in this manner can protect against an allegation of constructive knowledge of an employee’s undocumented status.
An employer should be wary of taking extra steps to verify employment authorization documents only for new employees who present AB 60 Driver’s Licenses. Such steps could, as discussed above, lead to allegations of prohibited national origin discrimination.
Method 2: Employer Completes Form I-9 and Opens a Case in E-Verify
After the Form I-9 is completed as described above, no later than the third day after an employee begins work, a restaurant or other employer using E-Verify inputs the information from the employee’s List B and List C documents into an E-Verify case for the employee. Use of E-Verify routinely requires a social security number for the employee. E-Verify compares the information from the List B and List C documents against records available to the federal Social Security Administration (SSA) and/or Department of Homeland Security (DHS).
E-Verify promptly informs the restaurant or other employer that (i) the employee is employment authorized, (ii) the case has been referred to DHS for further verification, or (iii) there is a tentative nonconfirmation (TNC) of the employee’s authorization to work from SSA or DHS, which may include a photo mismatch. Under the current MOU for employers (revision date 6/1/13), an employer is required to provide to the employee a copy of the TNC notice and any letter containing information specific to the employee’s E-Verify case (E-Verify may combine them into a “Further Action Notice”).
The employee decides whether or not to contest the TNC. If the employee does not contest, the employer can terminate the employee as not employment authorized. If the employee decides to contest, the employer must refer the employee to SSA or DHS, and give the employee eight federal work days to contact the agency. An employer may not terminate or take other adverse action against an employee because of an employee’s decision to contest a TNC until the employer receives a final nonconfirmation of employment eligibility (FNC) through E-Verify.
A restaurant or other employer enrolling in E-Verify must have adequate computer equipment, software, and Internet access. Staff must be trained to use E-Verify, which includes the TNC resolution procedures, the protection of employee rights, and privacy safeguards. E-Verify must be used for each new employee. Pre-screening of applicants and screening of existing employees (unless required by a federal contract) is prohibited. An employer must notify each job applicant of its use of E-Verify, and clearly display “Notice of E-Verify Participation” and “Right to Work” posters in English and Spanish.
Under the MOU, use of E-Verify to confirm identity and employment eligibility establishes a rebuttable presumption that an employer has not knowingly hired an undocumented immigrant in violation of federal law. There is no civil or criminal liability for employers for actions taken in good faith on the basis of information provided by E-Verify. Misuse of E-Verify can be the basis for a claim of national origin discrimination under federal law.
As discussed above, a restaurant or other employer in California cannot engage in an “unfair immigration-related practice” -- which includes use of E-Verify to check a person’s employment authorization status at a time or in a manner not required under federal immigration law or a MOU -- in retaliation for a person’s exercise of Labor Code/local ordinance rights. In addition, under newly-enacted AB 622 (approved by Governor Brown on October 9, 2015) misuse of E-Verify is deemed an unlawful business practice. Effective January 1, 2016:
Except as required by federal law or as a condition for federal funding, it is unlawful for an employer to use E-Verify to check the employment authorization status of an existing employee or of an applicant who has not been offered employment at a time or in a manner not required under federal immigration law or a MOU;
Upon receipt of a TNC, an employer using E-Verify must comply with the applicable employee notification procedures in any MOU. The employer must furnish to an employee as soon as practicable any TNC or any notification issued by the SSA or DHS containing information specific to the employee’s E-Verify case;
Each unlawful use of E-Verify constitutes a separate violation of California law. In addition to other remedies, an employer who violates the new law’s prohibitions will be liable for a civil penalty of up to $10,000 per violation.
It remains legal under AB 622 for a restaurant or other employer to use E-Verify in accordance with federal law to check the employment authorization status of a person who has been offered employment. However, an employer that fails to comply with the terms of E-Verify not only violates its obligations under federal law, but faces additional scrutiny under California law as of January 1, 2016.
The federal government has proposed changes to E-Verify. The proposed changes would keep both the employee and the employer apprised of the TNC process by email, allow employees to formally contest FNCs, require re-verification of employees with expired work authorizations, and update previously signed MOUs. Should these proposed changes become final, their impact under current California law will need to be considered.
Do Minimize Risks by Reviewing Procedures, Training Staff, Contacting Employment Counsel When Necessary, and Staying Up-to-Date
With California’s strong immigration-related employee protections, its significant sanctions for non-complying employers (including penalties and business license suspensions), and the California Supreme Court’s Salas v. Sierra Chemical decision upholding employment safeguards for undocumented immigrants, restaurants should take the time to review their immigration-related employment practices and update them if necessary. Human resources personnel should be trained to implement such employment practices in conformance with current California law and federal immigration law.
Depending on the circumstances, a consultation with knowledgeable legal counsel should be considered before a potentially adverse employment decision is taken against an employee who is or reasonably may be a non-U.S. citizen or national. In light of the pending effectiveness of AB 622 and potential changes to E-Verify, restaurants enrolled in E-Verify should review their E-Verify procedures, compliance and documentation, and should seek legal guidance to resolve any questions about proper use of E-Verify.
This area of the law is rapidly evolving, and every effort should be made to ascertain current legal authority at the time of any decision-making. This report should not be viewed as legal advice or as a legal opinion of any kind.
Find quick answers to your questions about the CRA and navigating calrest.org.