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Will California Non-Discrimination Bill 1660 Conflict with Federal Law?

Assembly Bill 1660, sponsored by Assemblyman Alejo (D-Salinas) was signed into law by Governor Brown, signaling the end of the 2014 legislative session. The Bill gives protections from discrimination to immigrant workers that have heretofore been unseen in the United States.

With the federal government and the Obama administration dithering around over immigration reforms, the California legislature has ventured forward, hoping to provide an example to the Nation by offering protections to the more than 10 million immigrant workers in the state.

This Bill comes on the heels of AB 60, which was adopted last year. That Bill required the Department of Motor Vehicles (DMV) to issue a driver’s license to a person who can prove California residency and pass the requisite driving, written and visual tests, even if that person cannot submit satisfactory proof that his or her presence in the United States is authorized under federal law. In other words, the law requires the DMV to issue driver’s licenses to illegal aliens/undocumented workers who are otherwise qualified for a license.

Giving undocumented aliens the right to apply for driver’s licenses was simply a first step in protecting the state’s immigrant workers from discrimination.

AB 1660 adds additional protections for those same workers. The Bill adds protections to the Fair Employment and Housing Act (FEHA) making it a violation for an employer to discriminate against an individual because he or she holds a driver’s license issued without showing proof that he or she is a registered, documented alien. The FEHA prohibits employers from discriminating against employees or prospective employees on the basis of protected characteristics, such as race, color, national origin, sex, sexual orientation, religion, and others. Here, AB 1660 adds a subsection to the definitions of certain terms of the FEHA to provide expressly that “national origin” discrimination includes discrimination on the basis of the employee possessing a driver’s license even if that person is not legally authorized to be in the United States.

In Conflict with Federal Law?

Under federal law, employers are required to confirm an employee or prospective employee’s eligibility to work in the United States. That eligibility is withheld from undocumented, or illegal aliens.

In most instances, employees, or prospective employees are required to produce a driver’s license, along with some other form of documentation (generally a Social Security Card). Oddly enough, the Internal Revenue Service has been at the forefront of the campaign to ensure that employers are following the guidelines, pouring through employer records to determine whether I-9 forms are properly completed for every employee, and issuing penalties and fines when violations are uncovered.

Some opponents to the law have said that the inclusion of denying a prospective employee employment based upon the failure of that employee to present a driver’s license supported by proper proof of citizenship, or presence in the country, may conflict with federal law requiring employers to ensure that their workers are eligible to work here. They say that employers are put into an impossible situation, either discriminating against employees who can’t show a properly supported driver’s license, or running afoul of federal work eligibility requirements.

On the contrary, the Bill itself excuses an employer who takes action based upon federal mandates. It specifically states that any action an employer takes that is required by the federal Immigration and Nationality Act is not a violation of the new law. However, taking action against an employee based on that employee’s ability to provide documentation when he or she applied for the license would be considered discrimination.

While it remains to be seen how this new Bill will fit into the federal immigration scheme, and whether the federal government itself will move in this direction, one thing is clear. If you are an undocumented worker in California and you have been denied employment based upon your driver’s license and/or the lack of supporting documentation when applying for it, you may have a claim against that employer.

Are you an undocumented worker in California? Have you applied for a job and been denied based upon your driver’s license? Contact the Law Offices of Stephen Danz & Associates, California’s premiere Employment Law Attorneys at (877) 789-9707, or use the Contact Form on our website to schedule a FREE CONSULTATION today. Stephen Danz has over thirty years of experience as an employment lawyer, defending the rights of employees across the state and around the world. He is the clear choice for anyone seeking advice or representation on employment law matters in California, including discrimination, harassment, wage and hour or meal break violations, retaliation, unlawful termination, or whistleblower activity.