Employment Impact of the Imminent Issuance of Drivers Licenses to Persons Whose Presence in the U.S. is NOT Authorized by Federal Law
When the California Legislature chose to go its own way on immigration reform in 2013, it pulled employers in California into the middle of the immigration debate and a potentially very high stakes enforcement game. The constitutional issues with California’s choice can be left for another day and another forum. We deal here, today, with what is. Among the seemingly more innocuous non-employment laws passed last year was AB 60, which directed California DMV to begin issuing documentation authorizing persons who are not authorized to be in the United States under federal law, to nonetheless be authorized to operate a motor vehicle in California.
The first issue which involved design of the new license was fought to a draw between DMV and U.S. Homeland Security. Sidestepping the politics as much as possible, Homeland Security wanted the distinction between the new licenses (which, signals an immigration issue) to be as pronounced as reasonably possible. DMV wanted the distinction to be as inconspicuous as possible. The cease fire was signaled when DMV added the phrase “Federal Limits Apply” on the front and a small print statement that the license may not be used for federal purposes on the back. One, and perhaps the sole, beneficial outcome for our purposes is an acronym for the license: FLAL (Federal Limits Apply License). Homeland did not officially approve of the new design formally and did not officially concede its earlier demand for a different color. DMV nonetheless takes that position as authority to move forward. For those curious about how DMV will vet applicants for a FLAL, this DMV flow chart may prove instructive. Note that one method is a relatively discretionary secondary review within DMV. The FLAL will not indicate on what basis it was issued.
As for why this matters to employers within and outside of California, consider a few scenarios to describe the use of the documents:
New applicant in a non-California state presents an I-9 and offers a FLAL to prove identity;
New Applicant in California presents an I-9 and offers a FLAL to prove identity;
Existing Employee qualifies for position as driver and for the first time tenders a FLAL as part of the onboarding process; and
ICE audits your facility.
As you consider the federal implications (perhaps particularly as either a federal government contractor or a U.S. Department of Transportation regulated entity), hold those thoughts a moment as the California legislature added more considerations.
AB 1660 was enacted to clarify that national origin discrimination under the California Fair Employment and Housing Act (FEHA) includes but is not limited to discrimination on the basis of possessing a FLAL or presenting it to an employer. California’s FEHA statute carries with it, of course, an opportunity for uncapped employment distress damages and punitive damages.
AB 2751 purports to be cleanup legislation as to the other immigration related bills passed last year. Among the clarifications is that the civil penalty of up to $10,000 is payable to the employee or employees who suffered the violation. Similarly, the definition of unfair immigration-related practices was expanded to include filing or threatening to file a false report with a state or federal agency. It also adds to the list of prohibited acts, retaliation for attempts to update information based on a lawful change of name, Social Security number, or federal employment authorization document. Moreover among the remedies in the court case is the potential that the court can order governmental agencies to revoke various business licenses.
These two new laws increase both the decision making complexity and the risk/liability exposure, while at the same time providing additional incentives for challenging whatever choices the employer makes.