BILL ANALYSIS Ó
AB 20
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Date of Hearing: April 28, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 20
(Alejo) - As Amended March 26, 2015
As Proposed to be Amended
SUBJECT: UNDOCUMENTED WORKERS: CALIFORNIA AGRICULTURAL ACT
KEY ISSUE: TO ADDRESS A LACK OF FEDERAL RESPONSE TO FARM LABOR
SHORTAGES AND THE NEED FOR COMPREHENSIVE IMMIGRATION REFORM,
should CALIFORNIA TAKE STEPS TO DEVELOP a model program to
ENABLE resident undocumented agricultural workers to LEGALLY
work and live in california?
SYNOPSIS
According to the author, recent data shows that California
farmers have been experiencing a farm labor shortage of
approximately 20%-25% fewer workers as compared to 2010, just
five years ago. This shortage in agricultural workers, the
author contends, poses a real threat to the ability of
California farmers to produce many key crops for the global
market, and the lack of comprehensive federal immigration reform
compounds these problems for farmers who rely on the labor of
undocumented workers in California. As a result, the author
believes it appropriate for the state to step forward and begin
to act more proactively to address these issues.
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Accordingly, this bill authorizes the state, upon receiving
necessary authority from the federal government, to develop a
model program for enabling resident undocumented agricultural
workers to legally work and live in California. First, the bill
specifies a number of model requirements for such a work permit
program in California, including eligibility criteria and
minimal documentation requirements for applicants. Second, the
bill establishes a working group of stakeholders comprised of
executive and legislative branch officials and stakeholders
representing both agricultural employers and workers. The bill
directs the working group to make recommendations for a model
program based on the framework, and outlines a process for the
governor to formally request permission from the federal
government to establish the model program in California.
Because federal approval would be required before any state law
changes could be implemented and because the bill only proposes
model principles to guide the working group, rather than
directly establishing any program, the author reasonably
contends that the bill is not preempted by federal law. The
bill is supported by Cal Chamber, AFSCME, and farm labor
advocates and has no known opposition. It previously passed the
Assembly Labor and Employment Committee by a 6-1 vote.
SUMMARY: Authorizes the Employment Development Department
(EDD), upon receiving necessary authority from the federal
government, to establish a state resident worker program,
modeled after principles outlined in this bill, to issue work
permits to agricultural employees who are currently in the
state, enabling them to live and work legally in California.
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
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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.
3)Specifies 12 key issues to be addressed by the working group,
and requires the working group to create a final report
expressing its recommendations to be submitted to the
Legislature and the Governor no later than July 1, 2017.
4)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 such a
program should be structured.
5)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.
6)Outlines model program requirements as follows:
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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
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, and shall not have been
convicted of a felony or three or more misdemeanors, as
confirmed by the background check.
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f) The undocumented person shall pay a fee to cover the
costs of administering the program.
g) 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 specified criteria.
7)Establishes other requirements and conditions should the
program be authorized and become operational, including, but
not limited to, the following:
a) Prohibits state officials or employees from using an
applicant's information for any other purpose other than
making a decision on the application, and from publishing
any identifying information about the applicant.
b) Disqualifies from applying to the program any person who
files a program application 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.
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
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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.
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.
8)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.
9)Provides that a permit issued under the program may not limit
an employee to a single employer or occupation.
10)Provides that no later than three years after the program is
implemented, the administering entities shall prepare and
transmit to the Legislature a report describing the results of
a review of the implementation of, and compliance with, the
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requirements of the program.
11)Makes legislative findings and declarations regarding the
need for California to take action, in the absence of federal
comprehensive immigration reform, to create a program for
current unauthorized agricultural workers to become part of a
legal workforce in this industry in California.
EXISTING LAW:
1)Provides, generally, for the regulation of immigration
exclusively by the federal government. (E.g., LULAC v. Wilson
(C.D. Cal. 1995) 908 F. Supp. 755, 786-87.)
2)Provides that any alien who seeks to enter the United States
for the purpose of performing skilled or unskilled labor is
inadmissible, unless the Secretary of Labor has determined and
certified to the Secretary of State and the Attorney General
that:
a) There are not sufficient workers who are able, willing,
qualified and available at the time of application for a
visa and admission to the United States and at the place
where the alien is to perform such skilled or unskilled
labor; and
b) The employment of such alien will not adversely affect
the wages and working conditions of workers in the United
States similarly employed. (8 USCA § 1182(a)(5)(A).)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
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COMMENTS: This bill authorizes the state, upon receiving
necessary authority from the federal government, to develop a
model program for enabling resident undocumented agricultural
workers to legally work and live in California. First, the bill
specifies a number of model requirements for such a work permit
program in California, including eligibility criteria and
minimal documentation requirements for applicants. Second, the
bill establishes a working group of stakeholders comprised of
executive and legislative branch officials and stakeholders
representing both agricultural employers and workers. The bill
directs the working group to make recommendations for a model
program based on the framework, and outlines a process for the
Governor to formally request permission from the federal
government to establish the model program in California. If the
federal government were to approve the model program proposal,
then this bill would state the Legislature's intent to enact
necessary implementing language at that time.
Stated Need for the Bill. According to figures provided by the
author, California's agricultural industry generates the highest
agricultural sales in the nation, with 2013 reported revenues of
a record $46.4 billion. However, a key factor for this economic
success is the industry's access to workers from outside of the
U.S. The author cites recent estimates that California farmers
have been experiencing a farm labor shortage of approximately
20%-25% fewer workers as compared to 2010, just five years ago.
This shortage in agricultural workers, the author contends,
poses a threat to the ability of California farmers to produce
many key crops for the global market, particularly the more
labor-intensive crops.
According to the author, the lack of comprehensive federal
immigration reform compounds these problems. As reflected in
the Legislative findings and declarations of this bill, the
author explains the bill is needed because:
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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 . . . 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 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 (in this
state.)
Model program requirements established by this bill. The bill
creates the California Agricultural Worker Program under the
auspices of the Employment Development Department (EDD), and
outlines a model and framework for a state resident worker
program that would provide undocumented agricultural workers in
California a way to obtain a permit to continue to live and work
in the state. The model program described in this bill reflects
selected provisions from the AgJOBS Act of 2011, which was part
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of the comprehensive immigration reform bill (S.1258) introduced
in the U.S. Senate in 2011. The AgJOBS Act of 2011, like its
two predecessors in 2009 and 2003, was the result of careful
negotiation between agricultural employers and farmworker
advocates, and has traditionally been endorsed by major labor
and management representatives, in addition to enjoying
bipartisan support in Congress. According to the author, the
model program in this bill seeks to embrace principles that have
a track record of bipartisan support.
For example, like the AgJOBS Act of 2011, the model program in
this bill would enable undocumented agricultural workers to stay
in California if they continue to work in agriculture and meet
specified qualifications, such as having performed agricultural
employment in the U.S. for at least 863 hours or 150 workdays
during the previous 24-month period. The model program also
calls for unauthorized workers to be at least 18 years old, live
in California, undergo a criminal background check and not be
convicted of a felony, or more than three misdemeanors. Like
AgJOBS, this model program would allow permits to be issued to
the immediate family members of a permitted resident worker,
provided that the family members met specified criteria,
enabling family units to stay intact within California.
Finally, the model program calls for workers in the program to
be entitled to all the same wage, hour and working condition
protections in California law for other workers and would seek
to prohibit the government from disclosing information submitted
by workers for any purpose, other than for making a
determination on the application.
There are at least two key differences between the model program
and AgJOBS. First, unlike the AgJOBS Act which creates a guest
agricultural worker program, the model program under this bill
would be restricted to providing relief to resident agricultural
workers-workers who already live and work in California, rather
than guest workers who under AgJOBS legislation would be able to
come from out of state in order to work in the state. Secondly,
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the model program in this bill cannot provide for official
adjustment of status for workers, as the AgJOBS Act does in
enabling workers to obtain legal permanent resident status
through the program. As mentioned, however, the program
proposed in the bill seeks to allow the state to issue permits
for the worker to keep working in agriculture in California, and
for workers' families to stay intact.
Working group; Process for adopting model program
recommendations. Under this bill, the Employment Development
Department (EDD) and the Department of Food and Agriculture
(DFA) are required to initially 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 resident agricultural worker program. The
bill specifies that the working group shall consist of
representatives from EDD, the DFA, 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 bill provides a list of twelve broad issues to be addressed
by the working group, among them: (1) qualifying criteria for
undocumented persons to apply for the program; (2) documentation
requirements for applicants; and (3) determination of which
agency will issue the permits.
The bill requires the working group to create a report
expressing its recommendations "which shall incorporate the
model program described" in the bill (proposed Article 2,
commencing with Section 11055) and requires this report to be
submitted to the Legislature and the Governor no later than July
1, 2017. By August 1, 2017, the bill would require the
Governor, using the working group's 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
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explanation as to why a formal request was not made and make
recommendations to the Legislature for how such a program should
be structured. Finally, the bill provides that it is the intent
of the Legislature to enact necessary implementing legislation
if the federal government approves or adopts such a program.
Author's clarifying amendments. Although the model program
provisions are in most cases worded very specifically (e.g. "The
undocumented person shall be 18 years of age or older"),
according to the author, the model program is intended to
articulate principles and guidance upon which the working group
will be basing its recommendations to the Legislature and
Governor for later possible action. The author states that
these model program provisions are not necessarily required to
be adopted as-is by the working group, and that it is the
author's intent to allow the working group discretion to develop
the final proposal to be submitted to the Legislature and
Governor. In order to clarify his intent in this respect, the
author proposes the following amendment:
On page 6, line 2, strike "incorporate" and insert "be
based upon"
Furthermore, to alleviate potential confusion caused by
inconsistent use of the words "shall" and "should" with respect
to certain provisions in the model program, the author proposes
to make the following technical amendments:
On page 6, line 29, strike "should" and insert "shall"
On page 6, line 33, strike "should" and insert "shall"
Finally, the bill currently in print provides that a model
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.
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The author now proposes to amend the bill to make clear that the
"designated entity" charged with this certification is not
identified in this bill, but rather, an entity to be designated
by the working group. The amendment is:
On page 6, line 29, strike "a designated entity" and insert
"an entity, designated by the working group pursuant to
Section 11051,"
Federal Preemption Doctrine. It is well-established that the
regulation of immigration and immigrants, legal and illegal, is
"unquestionably exclusively a federal power." De Cana v. Bica,
424 U.S. 351, 354 (1976). Because of this maxim, there may be
serious questions as to whether this bill is preempted by
federal law.
The federal preemption doctrine has been divided into the three
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 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
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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 U.S. 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
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).
This bill appears to avoid federal preemption to the extent that
it does not actually require any changes to state law that
conflict with federal immigration law. As previously discussed,
the bill outlines a model and framework for a state resident
worker program to provide undocumented agricultural workers in
California a way to obtain a permit to continue to live and work
in the state. If the bill were to actually establish such a
resident work permit program in the state, it would likely be
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preempted under more than one theory of preemption (and possibly
all three.) Instead, as the author correctly notes, the bill
only outlines a framework for such a program, which the
designated working group is to use as a model for developing
final recommendations to be submitted to the Legislature and
Governor. Author's proposed amendments clarify that the final
recommendations are to "be based upon" the model program, but
need not "incorporate" it. Therefore it cannot be said for
certain that the final recommended program arising from this
bill is subject to federal preemption or not, although an
argument could be made that any final program based on the
principles outlined in this bill may be subject to field
preemption or conflict preemption, depending on how the program
seeks to carry out its objective.
As described above, the bill prescribes a process by which the
working group develops final recommendations for a worker
program that is submitted to the Governor, and requires the
Governor to make a formal request to the federal government for
implementation. Under the process described by this bill, no
plan would be implemented by legislation unless the federal
government approves or adopts such a program. According to the
author, this bill is less subject to preemption challenge
because no change to state law would be implemented without
federal approval, which presumably would not be given if the
final plan was thought to conflict with federal law or otherwise
be preempted.
Previous related legislation. AB 1544 (V.M. Perez) is similar
to this bill and would have established the California
Agricultural Jobs and Industry Stabilization Program, a program
authorizing the EDD to issue permits to undocumented aliens to
work in the agricultural and service industries and who meet
specified criteria. The bill was held in the Assembly Inactive
file and died before making it to the Senate.
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ARGUMENTS IN SUPPORT: The bill is supported by Cal Chamber, the
Western Growers Association, and a number of other farmworker
advocates, who in their joint letter to the Committee state:
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. AB 20 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
(AFSCME)
Cal Chamber
California Association of Nurseries and Garden Centers
California Citrus Mutual
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California Cotton Ginners Association
California Cotton Growers Association
California Farm Bureau Federation
California Fresh Fruit Association
California Tax Reform Association
Western Agricultural Processors Association
Western Growers Association
Opposition
None on file
Analysis Prepared by:Anthony Lew / JUD. / (916) 319-2334
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