Question:

Question:  I recently learned that undocumented persons may legally obtain a driver’s license in California, even if the person is not authorized to work in the United States. What are my duties and responsibilities as an employer if an employee presents a driver’s license issued under this new rule?

Answer:

Answer:  In 2013, California Assembly Bill 60 created Vehicle Code section 12801.9 authorizing the Department of Motor Vehicles to issue an original driver’s license to a person who is unable to submit satisfactory proof that the applicant’s presence in the United States is authorized under federal law. This bill also made it a violation of the Unruh Civil Rights Act to discriminate against an individual because he or she holds or presents such a driver’s license. The Unruh Civil Rights Act states that all persons are entitled to full and equal accommodations, advantages, facilities, privileges, or services in all business establishments, including both private and public entities. AB 60 will take effect on January 1, 2015.
Driver’s licenses issued pursuant to Vehicle Code section 12801.9 will have a distinctive design or color and will have language on their face referencing their limitations for official federal purposes.
In September 2014, California passed Assembly Bill 1660 (“AB 1660”) which provides new protections in the employment context for individuals possessing such driver’s licenses. Some of the provisions of AB 1660 include:

  • Prohibiting an employer from discriminating against an individual because he or she holds or presents a driver’s license issued under Vehicle Code section 12801.9;
  • Prohibiting an employer from requiring a person to present a driver’s license, unless possessing a driver’s license is required by the employer and the employer’s requirement is otherwise permitted by law.
  • Establishing that driver’s license information obtained by an employer is private and confidential, exempt from disclosure under the California Public Records Act, and shall not be disclosed except to establish identity and authorization to drive.
  • Prohibiting using a license issued pursuant to Vehicle Code section 12801.9 to consider an individual’s citizenship or immigration status, or as a basis for an investigation, arrest, citation or defense.

The new driver’s licenses issued under Vehicle Code section 12801.9 will not be acceptable for official federal purposes and will not establish eligibility for employment.   These new laws do not change employers’ rights or obligations to obtain information required under federal law to determine an employee’s authorization to work. Employers will still need to require employees to provide documentation and follow the federal I-9 process to determine employees’ authorization to work. Actions taken by an employer that are required by the federal Immigration and Nationality Act will not violate these new laws.
From an employment perspective, these new laws mean that employers will need to exercise caution in requiring an employee to provide a valid driver’s license, and in responding to an employee who presents a driver’s license issued under Vehicle Code section 12801.9. Employers should not require presentation of a driver’s license unless possession of a driver’s license is an otherwise lawful requirement of employment. If an employer learns that an employee possesses a driver’s license issue under Vehicle Code section 12801.9 the employer must keep that information confidential, may not discriminate against the employee on the basis of the license, and may not use the license to consider an individual’s citizenship or immigration status, or as a basis for an investigation.