BILL ANALYSIS Ó
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Date of Hearing: April 22, 2015
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hernández, Chair
AB 20
(Alejo) - As Amended March 26, 2015
SUBJECT: Undocumented workers: California Agricultural Act
SUMMARY: Enacts a framework work permit program for
undocumented individuals who are agricultural employees, as
specified. Specifically, this bill:
1)Requires the Employment Development Department (EDD) and the
Department of Food and Agriculture, no later than February 1,
2017, to 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.
2)Provides that the working group shall consist of
representatives from EDD, 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.
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3)Specifies issues to be addressed by the working group.
4)Requires the working group to create a report expressing its
recommendations to be submitted to the Legislature and the
Governor no later than July 1, 2017.
5)Requires the Governor, by August 1, 2017 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.
6)Provides that 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.
7)Outlines model program requirements as follows:
a) The program should not be implemented until a
certification is made by a designated entity that not
enough legal residents in California will fill all open
agricultural jobs in California.
b) The program should be limited to undocumented persons
who are 18 years of age and older, live in California and
have performed agricultural employment in the United States
for at least 863 hours or 150 workdays during the 24-month
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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.
c) An undocumented person shall be allowed to conclusively
establish employment status by submitting specified records
demonstrating the employment.
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.
e) The undocumented person shall submit to a fingerprinted
criminal history background check.
f) The undocumented person has not been convicted of a
felony, or three or more misdemeanors, as confirmed by the
fingerprinted criminal history background check.
g) The undocumented person shall pay a fee to cover the
costs of administering the program.
h) 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
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be required to meet specified criteria.
8)Provides that once the program becomes authorized and
operational, specified requirements including, but not limited
to the following apply:
a) An official or employee of the state government may
engage in specified activities.
b) 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.
c) The entities administering the program shall ensure that
employers employing workers authorized under the program
make each of the following assurances:
i) 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.
ii) 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.
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iii) 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.
d) 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.
9)Provides that 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.
10)Provides that a permit issued under the program may not limit
an employee to a single employer or occupation.
11)Provides that 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, including specified information.
12)Makes related changes.
13)Contains legislative findings and declarations.
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FISCAL EFFECT: Unknown
COMMENTS: This bill proposes to enact the California
Agricultural Act to 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.
The bill's legislative findings and declarations state the
following:
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.
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.
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
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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.
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.
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.
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.
Recognizing the significant contributions that
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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.
PREVIOUS EFFORTS AT FEDERAL "AgJOBS" LEGISLATION:
For several years, bipartisan legislation was introduced with
broad support in Congress. This legislation has generally been
referred to as the Agricultural Job Opportunities, Benefits and
Security Act (or "AgJOBS"). The "AgJOBS" compromise was
carefully negotiated by employee groups such as the United Farm
Workers and major agribusiness employers after years of intense
conflict. AgJOBS has traditionally been endorsed by major labor
and management representatives, as well as a broad spectrum of
organizations, including community leaders, civil rights
organizations, religious groups and farmworkers themselves.
"AgJOBS" represented a major compromise between farmworker
advocates and major agricultural employers to address the
agricultural immigration crisis.
The federal proposals have generally contained two main parts:
(1) An "earned legalization" program enabling many
undocumented farmworkers and H-2A guest workers to earn a
"blue card" temporary immigration status with the
possibility of becoming permanent residents of the U.S.
by continuing to work in agriculture and by meeting
additional requirements; and
(2) Revisions to the existing H-2A temporary foreign
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agricultural worker program.
In 2003, the first "AgJOBS" bill was introduced in Congress when
United States Senators Larry Craig (R-ID) and Edward M. Kennedy
(D-MA) and Representatives Chris Cannon (R-UT) and Howard Berman
(D-CA) introduced the federal immigration reform bill.<1>
On May 14, 2009, Senator Dianne Feinstein (D-CA) and
Representatives Berman (D-CA) and Putnam (R-FL) introduced
"AgJOBS" in the 111th Congress.
In 2011, "AgJOBS" was included in the comprehensive immigration
reform bill introduced in the Senate by Senators Menendez
(D-NJ), Leahy (D-VT), Durbin (D-IL), Schumer (D-NY), Kerry (
D-MA), and Gillibrand (D-NY) known as the Comprehensive
Immigration Reform Act of 2011.
FEDERAL PREEMPTION
Aside from policy rationale, a fundamental issue concerning this
bill is whether or not it is preempted by federal immigration
law.
Under the Supremacy Clause of the United States Constitution
(Article VI, Clause 2), federal law may either expressly or
implicitly preempt state or local law. See Hillsborough County
v. Auomated Med. Labs., 471 U.S. 707, 713 (1985). In cases of
express preemption, Congress "ma[kes] its intent known through
---------------------------
<1> In 2006, AJR 20 (Nunez) was introduced to demonstrate the
California State Legislature's support of the immigration reform
bill known as the Agricultural Job Opportunity, Benefits, and
Security Act (AgJOBS) introduced by Members of Congress. AJR 20
passed the Assembly Committee on Labor and Employment but was
moved to the Inactive File on the Assembly Floor.
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explicit statutory language. English v. Gen. Elec. Co.< 496
U.S. 72, 78-79 (1990). Implied preemption, on the other hand,
arises in one of two circumstances. Field preemption occurs
when a state or municipality purports to "regulate conduct in a
field that Congress intended the Federal Government to occupy
exclusively." Id. Conflict preemption can occur "where state
law stands as an obstacle to the accomplishment and execution of
the full purposes and objectives of Congress." Id.
Federal preemption carries particular force in the context of
immigration because regulation of immigration and immigrants,
legal and illegal, is "unquestionably exclusively a federal
power." De Cana v. Bica, 424 U.S. 351, 354 (1976).
Federal Law
"Congress shall have the Power? To regulate Commerce with
foreign Nations, and among the several States, and with the
Indian Tribes? To establish an uniform Rule of
Naturalization?throughout the United States?" U.S. Const. Art. I
§ 8 cl. 3, 4.
"This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof; and all Treaties made, or
which shall be made, under the Authority of the United States,
shall be the supreme Law of the Land; and the Judges in every
State shall be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding." U.S. Const.
Art. VI cl. 2.
In 1986, Congress passed the Immigration Reform and Control Act
(IRCA) in order to make "combatting the employment of illegal
aliens" the central approach to immigration policy. Hoffman
Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002). IRCA
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makes it unlawful for an employer to knowingly employ an
unauthorized alien. 8 U.S.C. § 1324(a)(1) (2006). Section
(h)(3) defines 'unauthorized alien' with respect to the
employment of an alien to mean that "at a particular time, that
the alien is not at that time either (A) an alien lawfully
admitted for permanent residence, or (B) authorized to be so
employed by this Act or by the Attorney General." Section
(h)(2) states that " [T]he provisions of this section preempt
any State or local law imposing civil or criminal sanctions ?
upon those who employ, or recruit or refer for a fee for
employment, unauthorized aliens."
An employer can confirm an employee's authorization to work by
reviewing the employee's United States passport, resident alien
card, alien registration card, or other document approved by the
Attorney General; or by reviewing a combination of other
documents such as a driver's license and social security card. §
1324a(b)(1)(B)-(D). The employer must attest under penalty of
perjury on Department of Homeland Security Form I-9 that he "has
verified that the individual is not an unauthorized alien" by
reviewing these documents. § 1324a(b)(1)(A). Employers that
violate IRCA may be subject to both civil and criminal
sanctions. Immigration and Customs Enforcement, an entity
within the Department of Homeland Security, is authorized to
bring charges against a noncompliant employer under § 1324a(e).
Depending on the circumstances of the violation, a civil fine
ranging from $250 to $16,000 per unauthorized worker may be
imposed. § 1324a(e)(4)(A); 73 Fed.Reg. 10136 (2008).
Federal Preemption Doctrines
The federal preemption doctrine has been divided into the three
following categories by the U.S. Supreme court: express
preemption, field preemption, and conflict preemption. Express
preemption is when the scheme of federal regulation is so
pervasive as to make reasonable the inference that Congress left
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no room for the states to supplement it. Wisconsin Public
Intervenor v. Mortier, 501 U.S. 597 (1991). Field preemption is
when a federal statute touches a field in which the federal
interest is so dominant that the federal system must be assumed
to preclude enforcement of state laws on the same subject. PA.
v. Nelson, 350 U.S. 497 (1956). And, conflict preemption is when
enforcement of the state statute presents a serious danger of
conflict with the administration of a federal program. Id.; see
also People v. Giese, 408 N.Y. S.2d 693 (1979).
The standard for the federal preemption doctrine is not based on
fairness to the parties, but instead is determined by
Congressional intent. In re MTBE Products Liability Litigation,
739 F. Supp. 2d 576 (S.D. N.Y. 2010). Courts do not have to
decide whether preemption applies solely based on express
preemption language in a statute. Jones v. Rath Packing Co., 430
U.S. 519 (1977). In fact, in the absence of express preemptive
language, Congressional intent to preempt state law in a
particular area may be inferred when the scheme of federal
regulation is sufficiently comprehensive to make the reasonable
inference that Congress did not leave room for supplementary
state regulation. Id. However, finding preemption is
inappropriate without clear evidence that federal policy and
state law are in sharp conflict or that it would have been
physically impossible to comply with both federal and state
requirements. Id. However, preemption may be inferred if the
scope of statute indicates that Congress intended federal law to
occupy the legislative field, or if there is actual conflict
between state and federal law. See In re Garrett, 435 B.R. 434
(Bankr. S.D. Tex. 2010).
In Plyer v. Doe, the US Supreme Court agreed that states "might
have an interest in mitigating the potentially harsh economic
effects of sudden shifts in population", and thereby concluded
that States sometimes do have the power to regulate rights
afforded to undocumented aliens when these rights have "a
discernible impact on "traditional state concerns" 457 U.S. at
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228 (1982). However, in the actual process of excluding or
including undocumented aliens under the protection of U.S. laws,
courts have consistently held that this remains the purview of
the federal government. See State v. Patel, 770 P.2d 390, 393
(Ariz. Ct. App. 1989).
As discussed above, in 1986 Congress passed the Immigration
Reform and Control Act (IRCA). IRCA criminalized knowingly
hiring undocumented workers, by imposing a heavy fine and a
short prison sentence on employers who knowingly continue to
employ undocumented aliens. 8 U.S.C. § 1324a (a)(1), (f)(1).
However, under the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA) or 1996, only the federal government
is required to use the E-verify system, the electronic system
used to verify the legal status of an employee. Pub. L. No.
104-208; 8 U.S.C. § 402(a). In the perceived absence of proper
enforcement since its passage in 1986, several states including
Arizona, Alabama, South Carolina and Utah have passed a series
of immigration statutes that prohibit undocumented aliens from
performing a variety of activities such as living in public
housing, securing employment, applying for driver's licenses or
attending publically funded schools and universities.
One such bill, Act 69, was approved by the South Carolina
General Assembly in June 2011, which among other things, imposes
employer sanctions and mandates to local law enforcement
regarding the identification and apprehension of persons
unlawfully present in the United States. U.S. v. South Carolina,
2011 WL 6973241, 1 (D.S.C. 2011). During a Senate floor debate,
proponents of Act 69 stated that rather than attempting to enter
into a 287(g) agreement (a written agreement with the federal
government regarding immigration enforcement) with the federal
government as expressly authorized by the Immigration and
Nationality Act, 8 U.S.C. § 1357(g)(1), the State elected to go
forward with its own immigration bill because it was "really
important" to have State "control." Id. at 1. Supporters of the
bill also voiced the hope that "the Act would encourage persons
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unlawfully present in South Carolina to find "a different state
to go to." Id. at 2. Supporters also stated their expectation
that the Act would make the federal government's "phone ring?off
the hook." Id. Section 8-14 of the final Act 69 established an
elaborate scheme of employer licenses and making it unlawful for
an employer to knowingly employ "an unauthorized alien." Id.
In addition to challenging four specific sections of the Act,
not including the employer licensing section, the United States
made a preemption challenge to the Act in its entirety. Id. at
3. In deciding whether preemption applies here, the court
stated that "a court should start preemption analysis with a
presumption against preemption. Id. at 3. The presumption
against presumption only applies when the federal government is
legislating in traditionally state controlled areas. Id.
However, the court notes that when a state legislates in a
traditionally federally controlled area, the presumption against
presumption does not apply. Id. The court then cites to
numerous recent decisions involving state immigration statutes
where "courts have generally declined to apply a presumption
against preemption because the field of immigration has
traditionally been a responsibility of the federal government
and not the states. Id.; See also U.S. v. Arizona, 641 F.3d
339, 348 (2011); Ga. Latino Alliance for Human Rights, 793
F.Supp.2d 1317, 1330 (2011); U.S. v. Alabama, 2011 WL 4863957,
12, 30, 39 (2011).
RECENT LEGISLATION IN OTHER STATES:
As mentioned above, the legislative findings and declaration in
this bill note that "agricultural interests in Oklahoma and Utah
have introduced legislation creating state guest worker programs
and several other states are considering the introduction of
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similar state initiatives."
In 2011, Utah enacted a package of immigration legislation that
has some bearing on the preemption issues applicable to this
bill.
HB 116 or the Guest Worker Act was proposed by Utah
Representative Bill Wright and sponsored on the Utah Senate
floor by Senator Stuart Reid in 2011. The Act listed a
procedure for workers to obtain permits to work in agriculture
or service related sectors. Utah Code Annotated § 35A-8-201 (1)
(a)-(c) (2011). Furthermore, the Act contained a list of
requirements that are to be met by each applicant for such a
permit, and allows for immediate family members of the
permit-holder to reside in the state for the duration of the
permit. Utah Code Annotated § 35A-8-301-303. Finally, the Act
requires the state government to petition the Department of
Justice to receive permission to carry out the guest worker
program. Id. The Utah bill also compels the state government to
coordinate with the FBI and the Department of Homeland Security
to ensure that the guest worker applicants do not pose a threat
to national security. Utah Code Annotated § 76-8-1505 (1)
(2011).
HB 116 and HB 467 (a bill similar to Arizona's S.B. 1070), were
signed into law by Governor Herbert on March 15th, 2011. Between
March and November, the Department of Justice (DOJ) engaged in
talks with Utah state officials. However, in November 2011, the
DOJ filed a lawsuit in Utah's District Court claiming that HB
467's attempts to regulate immigration on a state level is
clearly preempted by federal law. The DOJ's press release
stated that the "federal government has the ultimate authority
to enforce federal immigration laws and the Constitution does
not permit a patchwork of local immigration policies. A state
setting its own immigration policy interferes with the federal
government's enforcement efforts." Attorney General Eric Holder
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also emphasized that "patchwork of immigration laws is not the
answer and will only create further problems in our immigration
system. The federal government is the chief enforcer of
immigration laws and while we appreciate cooperation from
states, which remains important, it is clearly unconstitutional
for a state to set its own immigration policy."
With regards to HB 116 however, the DOJ did not immediately file
suit. In fact, in November 2011 the DOJ said that it has
notified state officials that Utah's Immigration Guest Worker
statute is clearly preempted by federal law. However, given
that the provisions of HB 116 were not to take effect until
2013, the DOJ opted to continue exploring resolutions short of
litigation with state officials. The DOJ statement noted that if
"Utah fails to comply with federal law in this area, the
department will not hesitate to take the legal action necessary
to vindicate the important federal interests in this matter
before these laws go into effect."
Since the Utah statute was predicated on the federal government
granting Utah a waiver to proceed, the Utah Legislature has
extended the effective date twice. With little action occurring
at the federal level, some have called on lawmakers to repeal
the statute in its entirety.
In 2011 and 2012, Oklahoma State Senator Harry Coates introduced
legislation to create a state-administered guest worker program.
The proposals would have allowed undocumented adults to stay in
the state legally if they purchased a guest worker permit fee
for $1,000 and found a program sponsor who would agree to hire
them and provide basic health insurance coverage. It does not
appear that those proposals passed the Oklahoma Legislature.
PRIOR LEGISLATION:
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This bill is similar, but not identical, to AB 1544 (V. Manuel
Perez) from 2012. While this bill applies only to agricultural
employees, AB 1544 defined "employee" to mean an agricultural
employee and a person employed to provide domestic services,
janitorial or building maintenance services, food preparation
services, or housekeeping services.
AB 1544 was moved to the Inactive File on the Assembly Floor.
Subsequently, similar language was amended into AB 916 (V.
Manuel Perez) of 2012 in the Senate. However, AB 916 was held
in the Senate Rules Committee without further action.
ARGUMENTS IN SUPPORT
According to the author:
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"Since 2007, California's agricultural industry has generated
the highest agricultural sales ever recorded in the nation,
with 2013 reporting a record $46.4 billion. A key factor
making this economic success has been the industry's access to
workers from outside of the U.S.
The U.S. Department of Labor estimates that half of the
agricultural work force in the U.S. is comprised of
unauthorized workers, while the agricultural industry believes
the number to exceed 75 percent.
While programs such as the federal H-2A guest worker program
and E-verify have been highlighted as options to protect jobs
for U.S. citizens and legal residents, most growers in the
U.S. agriculture industry argue that these programs threaten
the viability and sustainability of their businesses.
According to state agricultural industry leaders, media
reports, and recent studies, California farmers have been
experiencing a farm labor shortage of approximately 20%-25%
less workers than in 2010. The current agricultural worker
shortage poses a real threat to the ability of California
farmers to produce many of the global market's popular
labor-intensive crops including, but not limited to,
strawberries, leafy greens, blueberries, raspberries,
asparagus, broccoli, cauliflowers, fresh tomatoes, artichokes,
and melons.
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In the absence of federal comprehensive immigration reform,
the state of Utah has passed legislation creating a state
guest worker program. In addition, the states of Oklahoma,
Kansas, New Mexico, and Texas have introduced legislation
creating state guest worker programs and other states have
studies or are considering the introduction of such state
initiatives."
In addition, a coalition of agricultural employer groups
supports this measure, stating, "Our organizations share your
frustration with the lack of action at the Federal level to
address labor shortages and ensure long-term labor security. We
have promoted Comprehensive Immigration Reform for the past few
years to no avail. [This bill] seeks to build upon consensus
language found in past versions of the Federal AgJobs
legislation. We believe using this language as a model will
send an important message to Congress about California's
interest in making something happen in this area, even if
Washington, DC is not able to act."
REGISTERED SUPPORT / OPPOSITION:
Support
American Federation of State, County and Municipal Employees
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CalChamber
California Association of Nurseries and Garden Centers
California Citrus Mutual
California Cotton Ginners Association
California Cotton Growers Association
California Farm Bureau Federation
California Fresh Fruit Association
Western Agricultural Processors Association
Western Growers Association
Opposition
None on file.
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Analysis Prepared by:Benjamin Ebbink / L. & E. / (916) 319-2091