Amended in Assembly April 30, 2015

Amended in Assembly March 26, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 20

Introduced by Assembly Member Alejo

December 1, 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 20, as amended, Alejo. Undocumented workers: California Agricultural Act.

Existing provisions of federal law regulate immigration. Under federal law, state law regulating immigration is preempted.

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 employees with a permit to work and live in California. 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 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 employees with a permit to work and live in California should be structured.

The bill would also describe a framework for a program to provide undocumented persons who are agricultural employees a permit to work and live in California if such a program were to be authorized by federal law.

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 Act.

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,
$37,500,000,000 in 2010, $43,500,000,000 in 2011,
$44,300,000,000 in 2012, and $46,400,000,000 in 2013) and
continues to lead the nation in gross agricultural cash receipts.

(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. begin delete Instead end delete begin insert Instead, end insert 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.

(f) Due to 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.

(g) 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
industry, it is imperative that a program be created for current
unauthorized workers in these industries.

SEC. 3.  

It is the intent of the Legislature that the executive and
legislative branches of the federal government give the highest
priority to enacting comprehensive immigration reform legislation
that would confer legal status to reside in the United States to
persons who would participate in the program described in this
act.

SEC. 4.  

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 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.

(b) “Employer” means an agricultural employer, as defined in
Section 1140.4 of the Labor Code or a farm labor contractor.

(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) “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, 2017, 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
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 employers, farm labor contractors, and
farm labor organizations. The legislative members of the working
group shall be nonvoting ex-officio members.

(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 should
conduct background and security checks and the extent background
and security checks should be required.

(6) A determination regarding the payment that should 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 should 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 implementation of the program required by the federal
government to ensure the proper role and responsibilities of the
State of California.

(d) (1) The working group shall create a report expressing its
recommendations, which shall begin delete incorporate end delete begin insert be based upon end insert 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, 2017.

(2) A report to be submitted pursuant to paragraph (1) shall be
submitted in compliance with Section 9795 of the Government
Code.

(e) By August 1, 2017, 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 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 employees with a permit to work and live in
California should be structured.

(f) If the federal government approves or adopts a program to
provide undocumented persons who are agricultural 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 employees
with a permit to work and live in California.

11056.  

(a) The program begin delete should end delete begin insert shall end insert not be implemented until
a certification is made by begin delete a designated entity end delete begin insert an entity, designated
by the working group, end insert that not enough legal residents in California
will fill all open agricultural jobs in California.

(b) The program begin delete should end delete begin insert shall end insert be limited to an undocumented
person 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 has performed agricultural
employment in the United States for at least 863 hours or 150
workdays during the 24-month period ending on January 26, 2015,
or earned seven thousand five hundred dollars ($7,500) or more
from agricultural industry employment in the United States, and
has maintained agricultural employment for 431 hours or 75
workdays, or earned three thousand seven hundred fifty dollars
($3,750) or more 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, 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) should 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 has not 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 may
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 should 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 may not limit an
employee to a single employer or occupation.

11059.  

No 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
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.

(e) A report to be submitted pursuant to subdivision (a) shall
be submitted in compliance with Section 9795 of the Government
Code.