BILL NUMBER: AB 1544 AMENDED BILL TEXT AMENDED IN ASSEMBLY APRIL 23, 2012 AMENDED IN ASSEMBLY MARCH 27, 2012 INTRODUCED BY AssemblyMembersV. Manuel Pérezand HaldermanMember V. Manuel Pérez ( Coauthors: Assembly Members Cedillo and Perea ) ( Coauthor: Senator Rubio ) JANUARY 25, 2012 An act to add Chapter 8 (commencing with Section 11050) to Part 1 of Division 3 of the Unemployment Insurance Code, relating to undocumented workers. LEGISLATIVE COUNSEL'S DIGEST AB 1544, as amended, V. Manuel Pérez. Undocumented workers: California Agricultural Jobs and Industry Stabilization Program. Existing provisions of federal law regulate immigration. Under federal law, state laws regulating immigration are preempted. This bill would, upon the state receiving the necessary authority under federal law, require the Employment Development Department to administer a California Agricultural Jobs and Industry Stabilization Program. This bill would require the Employment Development Department to certify that there are not enough legal residents of California to fill all open agricultural and service industry jobs in California. Once the department makes that certification, this bill would authorize the department to issue permits to undocumented aliens to work in the agricultural and service industries and who meet specified criteria. This bill would also authorize the department to issue permits to reside in California to the immediate family members, as defined, of an undocumented alien permitted as a worker under the program. This bill would require, prior to the issuance of a permit, an undocumented alien to pay a fee to the department and would require those fees to be deposited into the California Agricultural Jobs and Industry Stabilization Program Fund, established by this bill. This bill would also require the department, in conjunction with the Legislative Analyst's Office, to annually publish a report analyzing whether the program has caused the displacement of employable legal residents of California in the agricultural and service industries. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. This act shall be known, and may be cited, as the California Agricultural Jobs and Industry Stabilization Act of 2012. SEC. 2. The Legislature finds and declares all of the following: (a) Since 2007, California's agricultural industry has experienced the highest agricultural sales recorded to date ($36,300,000,000 in 2007, $38,400,000,000 in 2008, $34,800,000,000 in 2009, and $37,500,000,000 in 2010) and continues to lead the nation in agricultural cash receipts.(b) The expansion of fruit, vegetable, and horticulture commodity production, the ability to secure labor, and the industry's dependency on labor from outside of California and the nation are principal factors for this economic success.(c) The United States Department of Labor estimates that half of the total agricultural workforce is comprised of unauthorized workers, while agricultural growers contend that the percentage of unauthorized workers exceeds 75 percent.(d) Studies have found that foreign born workers in agriculture do not displace employment hours worked by workers born in the United States. However, in 2011 Alabama and Georgia passed laws to prohibit the employment of unauthorized workers, contending that this would provide employment opportunities to its unemployed workers born in the United States.(e) Agricultural employers in Alabama and Georgia have attempted to fill open agricultural jobs with United States born workers. Despite various hiring incentives and initiatives, United States born workers have not filled the significant labor shortages in agriculture in these states. By October 2011, Georgia had suffered a $74,900,000 loss to its farming industry, while Alabama experienced a farm labor shortage of 11,000 workers during the spring and summer harvest.(f) In June 2011, the United Farm Workers launched the "Take Our Jobs Campaign" designed to match United States born workers and legal residents in agriculture. While 8,600 people filled out the online application, as of September 2011, only seven individuals had accepted employment.(g) E-verify, a program that requires employers to verify whether workers are United States citizens or legal residents, has spurred criticism by the United States agricultural industry, which argues it will eliminate a significant portion of the existing agricultural workforce with no certainty that these vacancies will be filled by workers born in the United States or legal residents.(h) The federal H-2A guest worker program has also been proposed as a means of securing an adequate workforce. However, most growers in the United States agricultural industry do not consider this program viable to secure workers on a timely basis.(b) California's agricultural industry is dependent on immigrant labor. One recent study of 13 California counties gathered information from 2,300 farmworkers. The profile data reported in this study suggests that 95 percent of California agricultural workers were born outside the United States and 91 percent in Mexico. On average they have been in the United States 11.1 years. Twenty-two percent have been in the United States two years or less, 10 percent are United States citizens, 33 percent have green cards, and 57 percent are unauthorized. Of the newcomers who have been here less than two years, 99 percent are unauthorized. (c) Immigration policies that seek to deport unauthorized farmworkers or force them to abandon their jobs in agriculture would wreak swift and substantial damage to the agricultural industry in California. California agriculture would lose much of its experienced work force that has made it the most productive agricultural area in the world. At the same time these policies would impose a substantial human cost on hundreds of thousands of farmworkers and their children, most of whom are United States citizens. (d) The federal employment-based immigration system is broken. The programs for admitting foreign workers for temporary and permanent jobs are rigid, cumbersome, inefficient, do little to protect the wages and working conditions of foreign and domestic workers, do not respond very well to employers' needs, and give almost no attention to adapting the number and characteristics of foreign workers to domestic labor shortages. (e) Nevertheless, Congress has repeatedly failed to pass comprehensive immigration reform including the Agricultural Job Opportunity, Benefits, and Security Act. Instead Congress is considering making the E-Verify program mandatory for all employers. Requiring agricultural employers to verify whether workers are employment-authorized would eliminate a significant portion of the existing agricultural workforce with no certainty that these vacancies will be filled by legal residents.(i)(f) Due to the serious economic consequences caused by other states' immigration initiatives, the absence of federal action on comprehensive immigration reform, the counterproductive results of E-verify, and the unworkable framework of the federal H-2A guest worker program, agricultural interests in Oklahoma and Utah have introduced legislation creating state guest worker programs and several other states are considering the introduction of similar state initiatives.(j) In California's service industry, similar workforce dynamics have been documented among businesses that provide domestic services, janitorial or building maintenance services, food preparation services, and housekeeping services, whereby these employers rely heavily on unauthorized workers as a sustainable labor supply.(g) The large unauthorized workforce in California has produced an underground economy, without basic protections afforded to United States workers. Adjusting the status of unauthorized workers will give them full rights in the workplace. Thus, an inclusive, practical, and swift adjustment-of-status program will raise labor standards for all workers and avoid major economic dislocations in the affected industries.(k)(h) Among California's key economic industry sectors, the hospitality and tourism sector plays a central role in stimulating California's sluggish economy. In 2011, the leisure and hospitality industry accounted for over 100 billion dollars in travel-related spending. According to state records, more than two million employees, or 14 percent of all employees in California, work in leisure, hospitality, and other services. These workers serve as a foundational workforce for the state's 1.8-trillion-dollar economy.(l) Historical trends and patterns of employment suggest that the labor supply for California's agricultural and service industries will continue to be dependent on workers from outside of the state and nation in order to maintain economic production and revenues.(m) Recognizing the significant contribution of California's agricultural and service industries to the state's economy, and understanding that the state's success is highly dependent on the unauthorized workforce, it is imperative that state policy be created to assist business in these industries by providing a safe and legal way for their employees to work legally in California.(i) Recognizing the significant contributions that unauthorized workers make to California's economy and the need to bring these workers out of the shadows in order to improve worker conditions and at the same time provide a legal workforce for the agricultural and service industries, it is imperative that state policy create an adjustment-of-status program for current unauthorized workers in these industries. SEC. 3. Chapter 8 (commencing with Section 11050) is added to Part 1 of Division 3 of the Unemployment Insurance Code, to read: CHAPTER 8. CALIFORNIA AGRICULTURAL JOBS AND INDUSTRY STABILIZATION PROGRAM 11050. As used in this chapter: (a) "Employee" means an agricultural employee, as defined in Section 1140.4 of the Labor Code, and a person employed to provide domestic services, janitorial or building maintenance services, food preparation services, or housekeeping services. (b) "Employer" means an agricultural employer, as defined in Section 1140.4 of the Labor Code, and a service industry employer. (c) "Immediate family member" means a spouse or child under 18 years of age. (d) "Program" means the California Agricultural Jobs and Industry Stabilization Program. (e) "Service industry employer" means a person who employs 25 or more employees who provide domestic services, janitorial or building maintenance services, food preparation services, or housekeeping services. (f) "Undocumented person" means a person who is an unauthorized alien as defined in Section 1324a(h)(3) of Title 8 of the United States Code. 11051. The California Agricultural Jobs and Industry Stabilization Program is hereby created and shall be administered by the Employment Development Department. 11052. Upon certification by the department that there are not enough legal residents of California to fill all open agricultural and service industry jobs in California, the department shall issue permits authorizing an undocumented person who meets all of the following criteria to reside and work as an employee in California:(a) The person is 18 years of age or older.(b) The person lives in California.(c) The person has performed agricultural or service industry employment in the United States for at least 863 hours or 150 workdays during the 24-month period ending on December 31, 2008, or earned at least seven thousand five hundred dollars ($7,500) from agricultural or service industry employment in the United States, and maintains agricultural or service industry employment for 431 hours or 75 workdays, or earns three thousand seven hundred fifty dollars ($3,750) from that employment, on an annual basis after receiving the permit.(d) The person passes an English proficiency exam, as developed by the department, or submits evidence of ongoing efforts to become proficient in the English language.(e) The person submits to a fingerprinted criminal history background check.(f) The person has never been convicted of a serious or violent felony, as confirmed by the fingerprinted criminal history background check.(g) The person pays a fee to the department to pay for the department's costs in administering the program.(a) The undocumented person has established that he or she was present in California before January 25, 2012, and has been continuously in California since that date. (b) (1) The undocumented person has established that he or she was employed in California, whether full time, part time, seasonally, or self-employed, as an agricultural or service industry worker before January 25, 2012. (2) An undocumented person may conclusively establish employment status by submitting to the department any of the following records demonstrating the employment: (A) Records maintained by any of the following: (i) The Social Security Administration, Internal Revenue Service, or any other federal, state, or local government agency. (ii) An employer. (iii) A labor union, day labor center, or an organization that assists workers in matters related to employment. (B) Itemized wage statements issued to the employee pursuant to Section 226 of the Labor Code. (3) An undocumented person who is unable to submit a document described in paragraph (2) may satisfy the requirement in paragraph (1) by submitting to the department at least two other types of reliable documents that provide evidence of employment, including any of the following: (A) Bank records. (B) Business records. (C) Sworn affidavits from nonrelatives who have direct knowledge of the undocumented person's work. (D) Remittance records. (4) It is the intent of the Legislature that the requirements in this subdivision be interpreted and implemented in a manner that recognizes and takes into account the difficulties encountered by an undocumented person in obtaining evidence of employment due to the person's undocumented status. (5) An undocumented person has the burden of proving by a preponderance of the evidence that he or she has satisfied the requirements of this subdivision. An undocumented person may meet this burden of proof by producing sufficient evidence to demonstrate the employment as a matter of reasonable inference. (c) The undocumented person has paid a fee to the department to pay for the department's cost in administering the program. (d) As verified pursuant to Section 11052.5, the undocumented person has not been convicted of a felony or misdemeanor an element of which involves bodily injury, threat of serious bodily injury, or property damage in excess of five hundred dollars ($500). 11052.5. (a) The department shall not grant a permit to an undocumented person under Section 11052 or 11053 unless the undocumented person submits fingerprints in accordance with procedures established by the department. (b) The department shall utilize fingerprints and other data provided by the undocumented person to conduct a background check of the undocumented person relating to criminal, national security, or other law enforcement actions that would render the undocumented person ineligible as described in Section 11052 or 11053. 11053. The department shall issue permits authorizing an undocumented person who is an immediate family member of a person to whom the department issued a permit pursuant to Section 11052 and who meets all the following criteria to reside in California: (a) The immediate family member resides with the undocumented person to whom a permit was issued.(b) The immediate family member passes an English proficiency exam, as developed by the department, or submits evidence of ongoing efforts to become proficient in the English language.(c) The immediate family member submits to a fingerprinted criminal history background check.(d) The immediate family member has never been convicted of a serious or violent felony, as confirmed by the fingerprinted criminal history background check.(b) As verified pursuant to Section 11052.5, the immediate family member has not been convicted of a felony or misdemeanor an element of which involves bodily injury, threat of serious bodily injury, or property damage in excess of five hundred dollars ($500).(e)(c) The immediate family memberpayshas paid a fee to the department to pay for the department' s costs in administering the program. 11054. Within 90 days of the implementation date of this chapter, an employer shall not employ an undocumented person who does not have a permit issued pursuant to Section 11052. 11055. An employer of a person permitted to work in this state pursuant to this chapter shall provide a written record of employment to the employee issued a permit, and shall provide a copy to the department. This record shall include information demonstrating the hours worked and wages paid to the employee. 11056. (a) An employee permitted to work in this state pursuant to this chapter is entitled to all the same wage and hour and working conditions protections under existing law provided to an employee who is a legal resident of California. (b)An employee permitted to work in this state pursuant to this chapter may be employed by multiple employers.A permit issued pursuant to Section 11052 does not limit an employee to a single employer or occupation. 11057. (a) Beginning the third year after the department makes the certification required in Section 11052, the department, in conjunction with the Legislative Analyst's Office, shall annually publish a report analyzing whether the California Agricultural Jobs and Industry Stabilization Program has caused the displacement of employable legal residents of California in the agricultural and service industries. (b) The department shall request the federal Governmental Accountability Office to also comply with subdivision (a). 11058. The program created pursuant to this chapter is not intended to confer legal status in a manner that would restrict the enactment of superseding federal legislation that seeks to alter that status. 11059. (a) There is hereby created in the General Fund the California Agricultural Jobs and Industry Stabilization Program Fund. The fees collected by the department pursuant to this chapter shall be deposited in the California Agricultural Jobs and Industry Stabilization Program Fund and shall only be used to pay for the department's costs to administer the program, upon appropriation by the Legislature. (b) The department shall only be required to administer the program and the program shall only continue in existence to the extent the funds in the California Agricultural Jobs and Industry Stabilization Program Fund and any appropriation made by the Legislature for the purpose of funding the program cover the department's costs to administer the program. 11059.5. (a) By May 1, 2013, the Director of Employment Development shall submit a formal request to the federal government to receive the necessary authority to administer the provisions of this chapter. (b) This chapter, except this section, shall not be implemented unless the Director of Employment Development receives the necessary authority, consistent with federal law, to administer this chapter.