GSBE Weekly Update 07/11/2018
Governor Signs Bill Protecting Victims/ Employers from Serial Harassers
Governor Edmund G. Brown Jr. yesterday signed a bill that protects sexual harassment victims and employers from being sued for defamation.
AB 2770 (Irwin; D-Thousand Oaks) codifies case law to ensure victims of sexual harassment and employers are not sued for defamation by the alleged harasser when a complaint of sexual harassment is made and the employer conducts its internal investigation. This bill also provides additional protections to employers by expressly allowing employers to inform potential employers about the sexual harassment investigation and findings. The bill has been tagged as a job creator because reducing the cost of frivolous litigation allows an employer to utilize these financial resources to grow its workforce.
AB 2770 passed the Legislature with unanimous bipartisan support.
Alleged harassers are not only suing victims, but also filing suit against employers for defamation. Such lawsuits put employers in an impossible position as they have an affirmative duty to take reasonable steps to prevent and promptly correct harassment.
Even worse, if the alleged harasser’s employment is then terminated, or the alleged harasser resigns, employers are put in an even more difficult position. The company has knowledge of the harassing activity and yet its hands are tied. If the company tells a potential employer that the employee was accused of harassing conduct, the company is on the hook for a defamation claim. If the company stays silent, the harasser is then free to victimize more individuals at his/her next job without anyone at the new company ever knowing about the unacceptable behavior.
AB 2770 will protect employers and allow them to warn potential employers about an individual’s harassing conduct during a reference check without the threat of a defamation lawsuit.
Court Puts Parts of California’s New Workplace Immigration Law on “ICE”
California’s Immigrant Worker Protection Act (AB 450) provides California workers with certain protections from immigration enforcement while on the job. This law went into effect on January 1, 2018, but the federal Department of Justice challenged the law, plus several other California “sanctuary state” laws.
On July 5, a federal district judge generally allowed most of California’s sanctuary state laws to survive but granted a preliminary injunction blocking the state from fining employers who voluntarily grant U.S. Immigration and Customs Enforcement (ICE) access to their worksite or employee records.
Consent to Workplace Access
AB 450 placed various requirements on employers for workplace immigration enforcement actions. Since January 1, employers have been prohibited from voluntarily allowing immigration agents workplace access. Employers could not voluntarily allow a federal immigration enforcement agency to:
- Enter nonpublic work areas without a warrant; or
- Access, review or obtain company records without a subpoena or judicial warrant.
Employers who violated these provisions could be fined up to $10,000.
The federal district court issued a preliminary injunction blocking these two provisions from being enforced against private sector employers.
The court held that the Department of Justice is likely to succeed on its federal constitutional challenge to these provisions, writing:
The Court finds that a law which imposes monetary penalties on an employer solely because that employer voluntarily consents to federal immigration enforcement’s entry into nonpublic areas of their place of business or access to their employment records impermissibly discriminates against those who choose to deal with the Federal Government.
For now, private sector employers can’t be fined for voluntarily allowing ICE to enter nonpublic work areas or for voluntarily allowing ICE access to employee records.
Reverification of Employment Eligibility
The court also blocked a portion of AB 450 that limits an employer’s ability to reverify the employment eligibility of current employees in a time or manner not allowed by federal law. But employers should be aware that federal law also places limits on reverification of employment eligibility, and those limits still stand.
Notice Obligations Upheld
Importantly, the court upheld the notice obligations found in AB 450. Under AB 450, employers:
- Must give notice to employees of any inspection of Forms I-9 or other employer records within 72 hours of receiving a Notice of Inspection.
- Have notice obligations once the inspection is over. Within 72 hours of receiving the inspection results, employers must give each “affected employee” a copy of the results and a written notice of the employer’s and employee’s obligations arising from the inspection.
The court found that the notice provisions simply provide employees an opportunity to cure deficiencies in their paperwork or eligibility, and that nothing in federal law indicates Congress intended for employees “to be kept in the dark.” Providing the “courtesy” of notice to employees does not thwart federal immigration goals.
In other words, California employers must continue providing both pre- and post-inspection notice to employees.
The battle over California sanctuary state laws, including AB 450, is probably not over as this is only a preliminary injunction and future appeals are likely. In the interim, California employers should continue to comply with AB 450’s notice requirements and consult legal counsel with any questions about how to respond to an ICE visit or request for documents.