Question: I recently heard that there are new California laws removing the word “alien” from the Labor Code and providing Workers’ Compensation benefits to undocumented workers.  Will these laws require employers to make changes in their policies and practices related to immigrant or undocumented workers?
Answer: In 1937, the state Legislature enacted various provisions regarding the employment of “aliens,” defined as any person who is not born in or a fully naturalized citizen of the United States.  The Legislature repealed most of these Labor Code sections in 1970.  However, the definition for “alien” remained as part of the Labor Code.
Since that time, many bills have been signed into law that have strengthened labor law protections for immigrant workers.  Under California law, all employment protections, rights, and remedies available under state law, except as prohibited by federal law, are available to all individuals regardless of immigration status.  Moreover, employers are prohibited from engaging in unfair immigration-related practices for the purpose of retaliating against any person for exercising any right protected under the Labor Code or by any local ordinance.  Employers remain obligated under federal law to verify authorization to work in the United States for all new hires.
As of January 1, 2016, Senate Bill 432 deletes the definition of “alien” from the Labor Code.  Given the historic development of the law in this respect, this change will have little substantive effect on employer responsibilities or employee rights.  It is a largely symbolic change aimed at modernizing the Labor Code to remove a term that is now seen by many as a derogatory term for a foreign-born person.  SB 432 also eliminates a provision of the Labor Code calling for preference for non-alien workers on public works projects.
Employers should review their policies and handbooks to ensure compliance with existing laws related to immigrant and undocumented workers and consider removing the term “alien” if it appears in policies or handbooks.
California’s Workers’ Compensation law requires an employer to compensate an employee for an injury sustained by the employee if the injury arose out of, and in the course of, employment. If an employer fails to pay required compensation, an injured employee may apply for recovery from the Uninsured Employers Benefits or the Subsequent Injuries Benefits Trust Fund.
Prior to the passage of Senate Bill 623, certain California regulations prohibited undocumented workers from receiving workers’ compensation benefits due to their citizenship or immigration status.  These regulations, while remaining on the books, were contrary to California laws granting protections of labor and employment laws to undocumented employees.  Accordingly, the regulations were not enforced, and undocumented employees have been receiving workers’ compensation benefits notwithstanding these regulations.  Senate Bill 623, effective January 1, 2016, provides that a person shall not be excluded from receiving workers’ compensation benefits from the Uninsured Employers Fund and the Subsequent Injuries Benefits Trust Fund solely based on citizenship or immigration status.  Because this bill formalizes an existing practice, it will have little substantive effect on employers and employees.
More information about Senate Bill 432 or Senate Bill 623 is available at www.legislature.ca.gov.