Pettit Kohn’s Christine Mueller Quoted in The Daily Transcript During Law Week

New Undocumented Driver’s License Law Tests Employers
By Lyle Moran, The Daily Transcript
April 24, 2015

A California law prohibiting discrimination against those possessing AB 60 licenses — driver’s licenses for undocumented persons — has created some confusion and challenges for employers.

The law, AB 1660, went into effect in early January, which is when the new driver’s licenses started being issued.

Christine Mueller, senior counsel at Pettit Kohn Ingrassia & Lutz in San Diego, said the statute has created several misconceptions employers are struggling with.

The top incorrect belief is that the new licenses grant eligibility for employment, she said.

Job applicants can use the licenses as a form of identification during the federal I-9 employment eligibility verification process, but the licenses cannot be used to establish the ability to legally work in the United States, Mueller said.

Employers can deny employment if an applicant solely presents that type of license to try to establish they are authorized to work in the country, she said.

However, some people who hold an AB 60 license may still be eligible to work based on other documentation. The E-Verify system can help employers in making that determination, Mueller said.

“During the application process, employers need an increased level of due diligence because of this new law,” Mueller said. “Employers should not assume someone is undocumented because they have an AB 60 license.”

Meagan Garland, a founding partner at Cara & Garland in San Diego, said she has also advised clients that a license for undocumented persons by itself does not qualify an applicant for employment.

The state law spells out that that an employer does not violate California law if it takes action required to comply with federal I-9 verification requirements under federal law.

But Garland has warned employers that if they discover an employee has an AB 60 license outside of the I-9 process, and take a personnel action based on that information, the greater legal risk they take.

“The only area that is safe for an employer to take an action regarding an employee or prospective employee is in the context of I-9 process or in compliance with another federal law,” Garland said.

Jennifer Rubin, a partner at Mintz Levin Cohn Ferris Glovsky and Popeo PC, said the law places the biggest burden on employers who handle the I-9 process.

If a prospective employee presents only an AB 60 license to demonstrate his or her ability to work, an employer must clearly document why they are not offering that person a job, she said.

“There is going to have to be more care taken,” said Rubin, who is based in Mintz Levin’s San Diego office.

Garland expects litigation based on the law granting AB 60 license holders’ non-discrimination protections through California’s Fair Employment and Housing Act will ensue at some point in the not-too-distant future because of the popularity of the new documents.

The Department of Motor Vehicles announced in early April that it had received nearly 500,000 applicants for the new licenses.

“Until things are sorted out in the courts, employers are left to strike a delicate balance” between trying to comply with both state and federal law, Garland said.

Jim Fessenden, a partner in Fisher & Phillips’ San Diego office, said he agrees the AB 1660 asks employers to walk a tightrope, but he thinks it should be a manageable one.

He said in light of the new statute, employers need to remember it is illegal for them to request to see an employee’s driver’s license if one is not required by law for employment.

“If a job does not require driving, there is no basis for requesting a driver’s license in the first place,” Fessenden said.

The law also requires employers to treat any information they obtain about employees’ driver’s licenses as private and confidential.

Fessenden recommends employers make sure their human resources personnel are aware of that change, as well as the rest of AB 1660’s various impacts.

*This article first appeared online in The Daily Transcriptopens in a new window on April 24, 2015.