California lawmakers have yet again passed a novel law. No one knows how it will be applied or whether it will catch on in other states.
*“An employer may not discharge an employee or in any manner discriminate, retaliate, or take any adverse action against an employee because the employee updates or attempts to update his or
her personal information, unless the changes are directly related to the skill set, qualifications, or knowledge required for the job.”
To summarize, California Labor Code 1024.6 prohibits employers from taking any adverse action against an employee who has updated, or attempted to update, their personal information. The code does not define the terms “update”, “attempt to update” or “personal information”. Nor have there been any court cases to provide clarification. Accordingly, we can presume that the terms will be construed broadly and in a manner favorable to the employee.
Potential Impact of 1024.6:
An employer’s policies and procedures relating to the handling of immigration related documents and employees’ attempt to “change” such documents will be the area most likely to be impacted by this provision.
Employee provided a driver’s license upon hire. Six months later the employee wants to “update” the license. The employer notices that the name and date of birth on the “updated” license are different from that originally provided to the employer. What should the employer do? Can the employer question the employee about the discrepancies? Can the employer fire the employee for being untruthful at the time of hire?
The employer is in between a rock and a hard place. If the employer takes any action against the employee because the employee was untruthful at the time of hire, or untruthful now, then the employer potentially violates section 1024.6. What if the employer does nothing? Equally bad result. Continuing to employ an individual when the employer “knows” that the person is not permitted to lawfully work in the US violates Federal immigration laws.
Section 1024.6 does contain limited exceptions that permit the employer to take an adverse action. The section does not apply where “the changes are directly related to the skill set, qualifications, or knowledge required for the job.” Are any of these exceptions applicable in the above example? Possibly. Arguably the ability to lawfully work in the US is a “qualification” of the job. Again, the code is silent as to the meaning of “qualification.” Regardless, could an employer prove that the employee has falsified the documentation, if the employer isn’t able to investigate for fear that the investigation itself will be construed as discrimination or an adverse action?
*California Labor Code Section 1024.6