BILL NUMBER: AB 2014 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 28, 2014
INTRODUCED BY Assembly Member Alejo
FEBRUARY 20, 2014
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 2014, as amended, Alejo. Undocumented workers: work
permits. California Agricultural and Service Worker
Act.
Federal law regulates immigration and state laws that regulate
immigration are preempted. Existing state law, the
Alatorre-Zenovich-Dunlap-Berman Agricultural Labor Relations Act of
1975, grants agricultural employees the right to form and join labor
organizations and engage in collective bargaining with respect to
wages, terms of employment, and other employment conditions.
This bill would require the Employment Development Department and
the Department of Food and Agriculture to convene a working group to
consult with the United States Department of Homeland Security and
the United States Department of Justice in order to determine the
legal roles and responsibilities of federal and state agencies in
implementing a program to provide undocumented persons who are
agricultural or service industry employees with a permit to work and
live in California. The bill would require the working group to
create a report expressing its recommendations, which would be
required to incorporate specified provisions describing a model
program, and the bill would require the report to be submitted to the
Legislature and the Governor. The bill would require the Governor,
using the report, to either make a formal request to the federal
government to implement a program to provide undocumented persons who
are agricultural or service industry employees with a permit to work
and live in California or issue an explanation as to why a formal
request was not made and make recommendations to the Legislature for
how a program to provide undocumented persons who are agricultural or
service industry employees with a permit to work and live in
California should be structured.
Existing provisions of federal law regulate immigration, including
the employment of aliens. Under federal law, state laws regulating
immigration are generally preempted.
This bill would declare the intent of the Legislature to enact
legislation that would require the Employment Development Department
to administer a work permit program for undocumented persons, upon
the state receiving the necessary authority under federal law.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. 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 AND SERVICE WORKER PROGRAM
Article 1. General Provisions
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, a farm labor contractor, and a
service industry employer.
(c) "Farm labor contractor" means a contractor, as defined in
Section 1682 of the Labor Code.
(d) "Farm labor organization" means a labor organization, as
defined in Section 1117 of the Labor Code, that represents employees
rendering personal services in connection with the production of
agricultural products.
(e) "Immediate family member" means a spouse or child under 18
years of age or 18 years or older if the child is enrolled in an
accredited program as described in paragraph (1) of subdivision (c)
of Section 11056.
(f) "Service industry employer" means a person who is
self-employed for the purpose of, or who employs others to, provide
domestic services, janitorial or building maintenance services, food
preparation services, or housekeeping services.
(g) "Service labor organization" means a labor organization, as
defined in Section 1117 of the Labor Code, that represents employees
rendering personal services in connection with the production of
service industry products.
(h) "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. (a) No later than February 1, 2016, the Employment
Development Department and the Department of Food and Agriculture
shall convene a working group to consult with the United States
Department of Homeland Security and the United States Department of
Justice to determine the legal roles and responsibilities of federal
and state agencies in implementing a program to provide undocumented
persons who are agricultural or service industry employees with a
permit to work and live in California.
(b) The working group shall consist of representatives from the
Employment Development Department, the Department of Food and
Agriculture, the Attorney General, two Members of the Senate, two
Members of the Assembly, and stakeholders, including, but not limited
to, agricultural and service industry employers, farm labor
contractors, farm labor organizations, and service labor
organizations.
(c) Issues to be addressed by the working group shall include the
following:
(1) Qualifying criteria for undocumented persons to apply for the
program.
(2) Documentation requirements for applicants.
(3) A determination of which agency will issue the permits.
(4) Ensuring security, including through the development of
non-tamper-proof work authorization documentation or security
procedures and protocols, or all of these methods.
(5) A determination of the process and the agency that shall
conduct background and security checks and the extent background and
security checks shall be required.
(6) A determination regarding the payment that shall be required
for the submission and review of applications and background and
security checks.
(7) Protocols regarding tracking of employees under the program.
(8) Consideration of a renewal process for the work permit.
(9) Consideration of the extent to which employees will be allowed
to travel out of the country and the requirements for that travel.
(10) Determination of a fee structure to cover the costs of the
program, including who will pay and how often the fee shall be
assessed to cover costs of the program.
(11) Determination of the costs involved in receiving, processing,
and issuing work permits.
(12) Any other procedures and legal requirements associated with
the implementation of the program required by the federal government
to ensure the proper role and responsibilities of the State of
California.
(d) The working group shall create a report expressing its
recommendations, which shall incorporate the model program described
in Article 2 (commencing with Section 11055). This report shall be
submitted to the Legislature and the Governor no later than July 1,
2016.
(e) By August 1, 2016, the Governor, using the report described in
subdivision (d), shall either make a formal request to the federal
government to implement a program to provide undocumented persons who
are agricultural or service industry employees with a permit to work
and live in California, or issue an explanation as to why a formal
request was not made and make recommendations to the Legislature for
how a program to provide undocumented persons who are agricultural or
service industry employees with a permit to work and live in
California shall be structured.
(f) If the federal government approves or adopts a program to
provide undocumented persons who are agricultural or service industry
employees with a permit to work and live in California, it is the
intent of the Legislature to enact necessary implementing
legislation.
Article 2. Model Program Requirements
11055. It is the intent of the Legislature that the provisions of
this article provide a model and framework for a program to provide
undocumented persons who are agricultural or service industry
employees with a permit to work and live in California.
11056. (a) The program shall not be implemented until:
(1) The federal authorization necessary for its lawful application
is received.
(2) A certification is made that not enough legal residents in
California will fill all open agricultural and service industry jobs
in California.
(b) The program shall be limited to undocumented persons who meet
all of the following criteria:
(1) The undocumented person shall be 18 years of age or older.
(2) The undocumented person shall live in California.
(3) (A) The undocumented person shall have 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 January
25, 2016, or earned at least seven thousand five hundred dollars
($7,500) from agricultural or service industry employment in the
United States, and shall have maintained agricultural or service
industry employment for 431 hours or 75 workdays, or earned three
thousand seven hundred fifty dollars ($3,750) from that employment,
on an annual basis after receiving the permit.
(B) An undocumented person shall be allowed to conclusively
establish employment status by submitting any of the following
records demonstrating the employment:
(i) Records maintained by the Social Security Administration,
Internal Revenue Service, or any other federal, state, or local
government agency, an employer, a labor organization, service labor
organization, or day labor center.
(ii) Itemized wage statements issued to the employee pursuant to
Section 226 of the Labor Code.
(C) An undocumented person who is unable to submit a document
described in subparagraph (B) shall be allowed to satisfy the
requirement in subparagraph (A) by submitting at least two other
types of reliable documents that provide evidence of employment,
including any of the following:
(i) Bank records.
(ii) Business records.
(iii) Remittance records.
(D) The program shall be 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, including the crediting of work in
cases in which an undocumented person has been employed under an
assumed name.
(4) The undocumented person shall submit to a fingerprinted
criminal history background check.
(5) The undocumented person shall never have been convicted of a
felony, or three or more misdemeanors, as confirmed by the
fingerprinted criminal history background check.
(6) The undocumented person shall pay a fee to cover the costs of
administering the program.
(c) The program shall extend to an undocumented person who is an
immediate family member of a person to whom a work permit has been
issued. The immediate family member shall be required to meet all of
the following:
(1) The immediate family member shall reside with the undocumented
person to whom a permit was issued or be enrolled in an accredited
two- or four-year college or graduate program in California.
(2) The immediate family member shall submit to a fingerprinted
criminal history background check.
(3) The immediate family member shall never have been convicted of
a felony, or three or more misdemeanors, as confirmed by the
fingerprinted criminal history background check.
(4) The immediate family member shall pay a fee to cover the costs
of administering the program.
11057. Once the program becomes authorized and operational, the
following requirements shall apply:
(a) (1) An official or employee of the state government shall not
do any of the following:
(A) Use information furnished by an applicant for purposes of
applying for a permit under the program or any information provided
by an employer or former employer for any purpose other than to make
a determination on the application.
(B) Make any publication in which the information furnished by any
particular individual can be identified.
(C) Permit a person other than a sworn officer or employee of the
state to examine individual applications.
(2) Information furnished by an applicant shall be provided to
both of the following:
(A) A duly recognized state law enforcement entity in connection
with a criminal investigation or a prosecution, if the information is
requested in writing by the entity.
(B) An official coroner, for purposes of affirmatively identifying
a deceased individual, whether or not the death of the individual
resulted from a crime.
(3) Any person who files an application under the program and
knowingly and willfully falsifies, conceals, or covers up a material
fact or makes any false, fictitious, or fraudulent statements or
representations, or makes or uses any false writing or document
knowing that it contains any false, fictitious, or fraudulent
statement or entry shall be disqualified from applying under the
program.
(b) The entities administering the program shall ensure that
employers employing workers authorized under the program make each of
the following assurances:
(1) That the job opportunity for which an employer employs an
undocumented person authorized under the program is not vacant
because a worker is involved in a strike, lockout, or because of a
work stoppage in the course of a labor dispute involving the job
opportunity at the same place of employment.
(2) That the wages and benefits provided to undocumented persons
working under a permit issued under the program are comparable to the
wages and benefits provided to legal residents, but in no case less
than the state minimum wage.
(3) That an employer participating in the program shall comply
with all applicable federal, state, and local labor laws, including
laws affecting migrant and seasonal agricultural workers, with
respect to all United States workers and undocumented workers.
(c) An employer of a person permitted to work in this state under
the program shall provide a written record of employment,
demonstrating the hours worked and wages paid, to the employee issued
a permit, and provide a copy of the record to the state.
11058. (a) An employee permitted to work in this state under the
program shall be entitled to the same wage, hour, and working
condition protections provided to an employee who is a legal resident
of California.
(b) A permit issued under the program shall not limit an employee
to a single employer or occupation.
11059. Not later than three years after the program is
implemented, the administering entities shall prepare and transmit to
the Assembly Committee on Labor and Employment and the Senate
Committee on Labor and Industrial Relations a report, consistent with
the requirements Section 9795 of the Government Code, describing the
results of a review of the implementation of, and compliance with,
the requirements of the program. The report shall address and provide
information as to all the following:
(a) Whether the program ensured an adequate and timely supply of
qualified, eligible workers at the time and place needed by
employers.
(b) Whether the program ensured that undocumented persons
authorized to work under the program did not displace eligible,
qualified United States workers or diminished the wages and other
terms and conditions of employment of eligible United States workers.
(c) Recommendations for improving the operation of the program for
the benefit of participating employers, eligible United States
workers, participating undocumented workers, and governmental
agencies involved in the administration of the program.
(d) Recommendations for the continuation or termination of the
program.
SECTION 1. It is the intent of the Legislature
to enact legislation that would require the Employment Development
Department to administer a work permit program for undocumented
persons in California, upon the state receiving the necessary federal
authority.