Hotel Business selected our firm principal, Jeffrey S. Horton Thomas, to explain the legal complexities of employing immigrants in California.
“California Hoteliers Must Keep Up With Immigration Labor Laws”
By Nicole Carlino
June 21, 2015 | p. 35
It’s no secret that immigrant employees make up a significant portion of the workforce in the hospitality industry. But, with ever-changing and expanding policies in this state, Californian hoteliers risk major repercussions if proper guidelines aren’t followed.
“Immigrants are a pretty dominant part of the workforce in the hotel industry,” said Jeffrey S. Thomas, principal of Thomas Employment Law Advocates, based here. “The challenge isn’t just that we have so many immigrants employed in the industry; it’s, in particular, the kinds of positions they’re in: kitchen, restaurant, housekeeping, maintenance, grounds, etc. From a legal perspective, those are almost all going to be nonexempt or hourly jobs, and it’s the nonexempt employees who make the wage and hour claims that are such an epidemic in the employment law world right now … The fact that they’re making these claims raises risks of alleged retaliation on the grounds that they are immigrants.”
Thomas noted that this can be especially risky in California. “While the federal government is very aggressive about trying to ensure immigrants who don’t have the right to work here aren’t hired, California is on the other end of the spectrum,”‘ he said, pointing to AB 60 driver’s licenses, which came into effect Jan. 1 of this year. “California is now issuing driver’s licenses to immigrants even if they can’t prove they are in the U.S. lawfully,” he explained, noting the only proof a person needs is name and residency. A foreign driver’s license or electoral photo card suffices for the first requirement, while a utility bill is sufficient for the second.
However, the AB 60 license looks different than a traditional California state license. “The AB 60 license has some language on the back of the card that says the license is not good for federal purposes and doesn’t prove the right to work in the U.S.,” said Thomas. In addition, California state driver’s license numbers begin with DL, while AB 60 cards start with DP. “When an applicant or employee gives or shows an AB 60 drivers license to a hotel employer or prospective employer, the applicant or employee is putting the employer on notice that he or she may be undocumented and does not have the right to work here,” explained Thomas.
This raises an issue for employers. ”Any exposure to a claim or liability for discrimination or retaliation always turns on the employer’s knowledge. If the employer doesn’t know I’m Jewish, it’s hard for me to prove the employer is discriminating against me because I’m Jewish,” said Thomas. “Likewise, there are so many Mexican residents, citizens and employees in California that just having skin of a certain color and accent isn’t enough to credibly say they knew I was here illegally. But, if you present an AB 60 license, t hat’s something different. In a few different ways, employees and applicants showing these can put employers in a bit of a pickle.”
Thomas noted that, for many employers, the first instinct is to reject the AB 60 license as part of the Employee Eligibility Verification (I-9) process. However, the federal government recognizes it as a form of identification. As long as it’s issued by a state and has a photograph or name, date of birth, gender, height, eye color and address, a document can be used for purposes of identity in the I-9 process. “The first thing employers need to do is be trained on that question. If they- out of ignorance- wrongly reject it, they may be facing a claim of discrimination on grounds of national origin,” said Thomas.
Thomas also noted that there are times when employers receive documents, like social security cards, where they’re unsure if something is amiss. “If the employee includes an AB 60 license, it almost tips the employer off that there might be an issue wit h the other documents presented,” he said. “Those are situations where employers are almost left to guess if they don’t call for some help with it.”
For instance, many employers might have employees that used fake or stolen driver’s licenses for years and then lawfully obtain an AB 60 license. “A common reaction by employers is: Are we in for trouble from the federal government when they come in to audit us? Let’s go through the I-9 process with everybody, or just the drivers or, worse, just the people we think are illegal,” said Thomas. “That re-verification process can lead to claims of selective enforcement or discrimination on grounds of nation of origin. In California, it would lead to a claim of discrimination against these people on the grounds that they have AB 60 driver’s licenses. That’s now illegal under our fair employment and housing act.
“The tension between federal and California immigration law is horrific, and employers are right in the middle of it. It’s a daily problem and untrained managers often make mistakes,” said Thomas, noting that California’s Labor Code 1019, related to unfair immigration-related practices, was expanded this past January. “The law protects employees from retaliation by using against them their actual or suspected immigration status;” said Thomas. When an employee docs anything protected by the California labor code-such as file a claim for unpaid wages with the state, organizing in the workplace or informing coworkers of their rights- the law makes illegal to do things like use the federal e-verify system to check into that employee’s status; threatening to file a false complaint with any state or federal agency about that person; threatening or actually contacting immigration authorities; or retaliating within the I-9 process by reverifying documents, said Thomas.
However, he added, what’s unusual about this law is the consequences it subjects the employer to. “If an employer engages in this kind of retaliation against an immigrant, the court can and is directed to suspend all of that employer’s licenses issued by any government agency; that’s an alcohol license, business permit, resale license,” he said. “If you engage in this kind of retaliation, it’s not just an award of monetary damages in emotional distress compensation and attorneys’ fees; the court can shut down the business.” For instance, after a first violation, the court, at its discretion, may order the appropriate government agencies to suspend all licenses at the place of business where the violation took place for 14 days. After a second violation, the term is 30 days and, after a third, it’s 90 days. (In determining whether suspension is appropriate, the court is directed to take into account whether the employer knowingly committed an unfair immigration practice; efforts to resolve any alleged unfair practices after receiving notice of the violations; and the potential harm to other employees if a suspension occurs.)
Thomas noted that no other group has that kind of protection. “Can the court shut you down if you’re found liable for child labor under federal or state law? The answer is no. And, it’s no if the court finds race or religious discrimination,” he said. “It’s a unique level of protection afforded immigrants in California.”
In order to mitigate risks, Thomas stressed the importance of training. “Mistakes are going to be made if managers haven’t been given all of this information. Training is the most important thing,” he said. “Secondly, keep your policy manuals up to date. The law in California on immigrants changes every year, and employee manuals should be the first place your managers look for guidance. If the manual is out of date, they’re going to get bad guidance. As a defense litigation firm, it’s hard to defend an employer and say my client did not engage in discrimination or retaliation when he or she didn’t even have the right policy in the manual.”
Thomas added that the training and manual maintenance isn’t expensive as long as the hotel has a good relationship with knowledgeable employment counsel. “We send out bulletins to keep our clients up to date throughout the year-all the good firms do-and most of that’s free. But, you’ve got to have a relationship with somebody and sit down with him or her once a year. The in-person meeting is really helpful because you can then talk it out,” he concluded.