At the recent close of the 2014 legislative session, Governor Brown signed into law AB 1660, which makes it unlawful for an employer to discriminate against an employee because of his or her driver’s license.

Background

Existing law requires the Department of Motor Vehicles (DMV) to issue a driver’s license to a person who can prove California residency and pass the requisite driving, written and visual tests, even if that person cannot submit satisfactory proof that his or her presence in the United States is authorized under federal law.  In other words, the law requires the DMV to issue driver’s licenses to illegal aliens/undocumented workers who are otherwise qualified for a license.

AB 1660

AB 1660 makes it a violation of the California Fair Employment and Housing Act (FEHA) for an employer to discriminate against an individual because he or she holds a driver’s license issued under the circumstances above.  The FEHA prohibits employers from discriminating against for protected characteristics, such as race, color, national origin, sex, sexual orientation, religion, and others.  Here, AB 1660 adds a subsection to the definitions of certain terms of the FEHA to provide expressly that “national origin” discrimination includes discrimination on the basis of the employee possessing a driver’s license even if that person is not legally authorized to be in the United States.

Catch-22

The catch-22 is that federal law requires employers to confirm an employee’s eligibility to work in the United States.  As all employers are aware, this is often done with the employee presenting a driver’s license and some other document (often a Social Security card).  In the past few years, the IRS has taken a keen interest in examining employers’ compliance with this process, including auditing personnel records to ensure I-9 forms are properly completed for each employee, and issuing penalties when violations are discovered.  AB 1660 puts employers in the precarious position of complying with federal law to confirm an employee’s eligibility to work, while at the same time not discriminating against an employee on the basis of his national origin because he has a driver’s license that is not proof of that eligibility.  AB 1660 attempts to alleviate this issue by stating that any action an employer takes that is required by the federal Immigration and Nationality Act is not a violation of the new law.  That said, employers beware:  taking action against an employee because he has a valid driver’s license that was obtained without providing the DMV proof that his presence is lawful in the United States may lead to allegations of national origin discrimination under the new law.