[COLUMN] Employees do not have to disclose immigration status in court

California lawmakers voted unanimously this month to pass Senate Bill 836, which reenacts and expands the provisions of an existing law (SB 785) signed by former Gov. Jerry Brown in 2018. That law prohibits the disclosure of a person’s immigration status in open court unless the judge determines (in a private hearing) that the immigration status is relevant to the case.

SB 785 expired on January 1, 2022. After being signed into law by Governor Gavin, SB 836 reinstates its provisions, removes the expiration date, and is set to take effect immediately.

The law is meant to safeguard undocumented immigrants as they take part in the justice system. Lawmakers were especially concerned that victims or witnesses to a crime would be unwilling to come forward to report a crime or to testify as witnesses to a crime for fear that their participation or presence in court will get them deported. And if undocumented persons do report or give testimonies, lawmakers wished to ensure that their immigration status, when it’s not relevant to a case, is not used to intimidate or silence them.

No less than California’s Supreme Court Chief Justice Tani G. Cantil-Sakauye expressed concerns about immigration agents who are staking out courthouses and “stalking undocumented immigrants” to arrest them.

In California, where a large immigrant community contributes to the state’s successful economy, protecting vulnerable immigrant workers makes sense. Under California laws, all workers, regardless of immigration status, have the right to the prevailing minimum wage, overtime pay for working more than 8 hours per day or 40 hours per week, meal breaks and rest breaks, a safe and healthy work environment, and protection against employer retaliation. California law specifically provides that in enforcing state labor and employment laws, a person’s immigration status is irrelevant to the issue of employer liability.

In 2013, California enacted a law that made employer threats of deportation illegal. It became illegal for an employer (and their attorneys) to threaten to contact immigration authorities for the purpose of retaliating against an employee’s exercise of a legal right, such as claiming overtime wages or reporting safety violations at work.  Employees who suffer from an unfair immigration-related practice are entitled to recover damages and penalties. The employer may also be liable for a civil penalty of up to $10,000 per violation.

In 2014, it became unlawful for an employer to engage in unfair immigration-related practices against any employee in order to retaliate against the employee’s exercise of a protected right. “Unfair immigration-related practice” means any conduct undertaken for the retaliatory reasons such as threatening to file or filing a false police report, or threatening to contact or contacting immigration authorities, among others. In addition, the employers’ attorneys are also prohibited from reporting or threatening to report suspected immigration status of employees or their witnesses (or family members) simply because these persons exercised their employment rights.

In 2017, California employers are prohibited from voluntarily allowing an ICE agent access, review, or acquisition of the employer’s employee records without a subpoena or judicial warrant. The employer is allowed to challenge the validity of a subpoena or judicial warrant in court. If the employer received notice that ICE agents will be conducting a “workplace raid,” the employer must notify its employees within 72 hours of receiving the notice.

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The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect the opinions, beliefs and viewpoints of the Asian Journal, its management, editorial board and staff.

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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [For more than 25 years, C. Joe Sayas, Jr., Esq. successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is a past Presidential Awardee for Outstanding Filipino Overseas.]

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