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SB1001 on Unfair Immigration Practices: An Alert for California Employers

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California Senate Bill 1001 on Unfair Immigration-Related Practices was signed by Governor Jerry Brown and goes into effect on Jan 1, 2017.  California employers, and employers who hire workers in the state of California, should take notice of SB1001.

The text of SB1001 emphasizes the need for employers to be mindful of the rules regarding what type of documents to accept from foreign employees when verifying employment during the I-9 process.  If employment documents appear to be genuine, employers should not request additional documentation.  Employment documents should also not be rejected on the type of employment classification, or based on an impending future expiration of the employment document.

SB1001 also codifies these rules, along with penalties for violations, under a new California Labor Code subsection 1019.1.  Violations may be lodged by a job applicant or an employee, or their representative.  The California Labor Commissioner may impose a penalty of up to $10,000 per violation.

The bill arose from concerns raised by public interest groups that employees who presented an Employment Authorization Document “EAD” based on the Deferred Action for Childhood Arrivals (DACA) program were disparately treated during the I-9 process by employers.

As a rule of thumb, rejecting job applicants because they will need an employer to sponsor a visa (such as an H-1B visa) is permissible, according to the Office of Special Counsel “OSC” for Immigration-Related Unfair Employment Practices.  An employer may choose not to employ individuals who will require employer-sponsorship of a work visa.  Employers may even prefer certain classes of non-immigrant workers over other non-immigrant classes of workers (e.g.: preferring F-1 OPT STEM over an F-1 OPT without STEM).

On the other hand, the OSC has warned that employers should be careful to avoid causing confusion from its pre-employment questioning.

Asking job applicants detailed questions about their immigration or citizenship status may deter individuals who are protected from citizenship status discrimination, such as refugees and asylees, from applying [for the job] due to a misunderstanding about their eligibility for the position.

Additionally, employers should be mindful of whether or not their hiring practices, in general, might appear to prefer candidates or employees based on the candidates’ country of origin.  This is especially a tricky area for employers who are vetting candidates who have an EAD, since EADs are issued based on numerous classifications ranging from asylee/refugee status, to Temporary Protected Status (TPS) and DACA.  Some individuals who receive an EAD may fall under the “protected class” of individuals under immigration anti-discrimination laws.

Therefore, the types of permissible questions employers may ask during pre-employment screening should be carefully evaluated prior to deployment.  Employers should consult with an experienced immigration attorney to help design a hiring policy that is in compliance with both federal and California rules.

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