BILL ANALYSIS Ó
SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS
Senator Tony Mendoza, Chair
2015 - 2016 Regular
Bill No: AB 20 Hearing Date: June 24,
2015
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|Author: |Alejo |
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|Version: |June 2, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Alma Perez-Schwab |
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Subject: Undocumented workers: California Agricultural Act.
KEY ISSUES
Should the Legislature establish, and administer, [with federal
authority] a work permit program that provides undocumented
individuals who are agricultural employees with a permit to
legally work and live in California?
Should the Legislature require that the Governor either make a
formal request to the federal government to implement such a
program or issue an explanation as to why a formal request was
not made?
Should the Legislature require that the Employment Development
Department and the Department of Food and Agriculture convene a
working group to consult with the U.S. Department of Homeland
Security and the U.S. Department of Justice to determine the
legal roles and responsibilities of federal and state agencies
in implementing such a program?
ANALYSIS
Under existing law, it is illegal for a person or other entity
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to "knowingly" hire, recruit, or refer for employment an
unauthorized individual or any individual without complying with
specified employment verification procedures. Among other
things, the law requires employers to verify that every new hire
is either a U.S. citizen or authorized to work in the United
States by completing form I-9, Employment Eligibility
Verification, upon hire and submitting necessary documentation
for verification. Additionally, the E-Verify Program (of the
U.S. Department of Homeland Security) is an internet-based
system operated by the USCIS in partnership with the SSA which
enables participating employers to, on a voluntary basis, verify
that the employees they hire are authorized to work in the
United States.
Existing provisions of federal law regulate immigration. Under
federal law, state law regulating immigration is preempted.
Under existing California law , all protections, rights, and
remedies available under state law, except any reinstatement
remedy prohibited by federal law, are available to all
individuals regardless of immigration status who have applied
for employment, or who are or have been employed in the state.
(Labor Code §1019 and §1171.5; Civic Code §3339; Health and
Safety Code §24000; Government Code §7285)
This Bill would enact the California Agriculture Act to
establish a model and framework for a work permit program that
provides undocumented individuals who are agricultural employees
with a permit to legally work and live in California, 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 U.S.
Department of Homeland Security and the U.S. Department of
Justice to determine the legal roles and responsibilities of
federal and state agencies in implementing a program to
provide undocumented 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,
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two Members of the Assembly, and stakeholders, including, but
not limited to, agricultural employers, farm labor
contractors, and farm labor organizations.
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 such a
program, or issue an explanation as to why it was not made and
make recommendations to the Legislature on how a program
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 shall not be implemented until a
certification is made that not enough legal residents in
California will fill all open agricultural jobs in
California.
b) The program shall 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 U.S., and has maintained
agricultural employment for 431 hours or 75 workdays, or
earned three thousand seven hundred fifty dollars ($3,750)
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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
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, shall apply:
a) An official or employee of the state government may not
engage in specified activities regarding the misuse of
information submitted by the applicant.
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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.
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 U.S. 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.
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9)Provides that an employee permitted to work under the program
shall be entitled to the same wage, hour, and working
condition protections provided to any legal employee 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 program
implementation, 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 program, and
compliance with, the requirements of the program, as
specified.
12)Contains legislative findings and declarations regarding
immigrant contributions to the agricultural industry and
states the intent of the Legislature that the federal
government gives the highest priority to enacting
comprehensive immigration reform.
COMMENTS
1. Contributions of Immigrant Farmworkers:
According to a 2011 report, California is home to nearly 10
million immigrants, more than one quarter of the state's
population. Of those, 2.7 million are undocumented, and the
vast majority of them have been living in the United States
for more than 10 years. ("Revitalizing the Golden State: What
Legalization over Deportation Could Mean to CA and LA County,"
Center for American Progress and the Immigration Policy
Center) The report found that as a whole, immigrant workers
added $492 billion to California's gross state product and the
undocumented workforce by itself accounted for $158 billion of
this GSP. Additionally, these workers are not only producing
important goods and services but also earning money that is
spent in the state contributing to economic growth and job
creation and is also taxed contributing to the state treasury.
The reports finds immigrant contributions in personal, income
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and property taxes estimated at $95 billion in taxes in 2008
while undocumented immigrants paid approximately $26 billion.
According to the report, when undocumented workers are taken
out of the economy, the jobs they support through their labor,
their consumption, and their tax payments disappear as well.
The report found that legalization of the undocumented
workforce would yield significant economic benefits based on
the historical results of the last legalization program under
the Immigration Reform and Control Act of 1986. A similar
program would increase wages not only for immigrants but also
for their native-born co-workers generating more tax revenue
and more consumer and business spending, supporting additional
jobs throughout the state. Specifically, the report found
that this method would add 633,000 jobs, increase labor income
by $26.9 billion and increase tax revenues by $5.3 billion.
2. Immigration Laws: Federal Preemption
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 makes it unlawful for an employer to knowingly
employ an 'unauthorized alien,' meaning 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."
IRCA further states, " [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."
Employer responsibilities and sanctions further changed with
the passage of the Immigration Act of 1990 and the Immigration
Reform and Immigrant Responsibility Act (IIRIRA) of 1996.
Employers are required to verify an employee's authorization
to work by reviewing the his/her 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. The employer must attest under penalty
of perjury on Form I-9 that he "has verified that the
individual is not an unauthorized alien" by reviewing these
documents. Employers that violate IRCA may be subject to both
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civil and criminal sanctions. Depending on the circumstances
of the violation, a civil fine ranging from $250 to $16,000
per unauthorized worker may be imposed.
Aside from policy rationale, a fundamental issue concerning
this bill is whether or not it is preempted by federal
immigration law. Federal preemption carries particular force
in this context because the regulation of immigration, legal
and illegal, is "unquestionably exclusively a federal power."
De Cana v. Bica, 424 U.S. 351, 354 (1976) However, In Plyer v.
Doe, the US Supreme Court decided 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)
In the perceived absence of proper enforcement of the
Immigration Reform and Immigrant Responsibility Act (IIRIRA),
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.
3. The Agricultural Job Opportunities, Benefits and Security Act
(AgJOBS)
In the absence of comprehensive immigration reform, but the
need for a stable, legal labor force within the agricultural
industry, bipartisan legislation has been proposed in Congress
to enable many undocumented farmworkers to gain legal
temporary residency to work in the United States. For several
years, bipartisan legislation was introduced with broad
support in Congress. Generally referred to as the Agricultural
Job Opportunities, Benefits and Security Act (or AgJOBS), the
legislation was carefully negotiated by employee groups such
as the United Farm Workers and major agribusiness employers
and represents a major compromise to address the agricultural
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immigration crisis. 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. This program would provide agricultural employers
with a stable, legal labor force while protecting farmworkers
from exploitative working conditions.
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
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. In 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. In
2015, AgJOBS was again introduced in the 109th Congress by
bipartisan authorship.
4. Need for this bill?
According to the California Farm Bureau, California farmers
have been experiencing a farm labor shortage of approximately
20%-25% less workers than in 2010. California's agriculture
sector contributes significantly to the state's economic
success. This industry relies heavily on unauthorized workers
from outside of the U.S. to maintain its economic production
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and revenues. According to the author, 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.
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. However, creation of
this program would be contingent on California receiving
authority from the federal government.
5. Recent Legislation in Other States :
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 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. Finally, the Act requires the state government to
petition the Department of Justice to receive permission to
carry out the guest worker program. 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.
HB 116 and HB 467 (a bill similar to Arizona's S.B. 1070),
were signed into law in 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
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Holder 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 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.
6. Proponent Arguments :
According to the author, 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
author cites 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. In the absence of federal
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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 that they share the author's
frustration with the lack of action at the Federal level to
address labor shortages and ensure long-term labor security.
They argue that 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.
7. Opponent Arguments :
None received.
8. Double Referral :
This bill has been double referred to this Committee and the
Senate Agriculture Committee. Should the bill be approved
today, it will be sent to Senate Agriculture for a hearing.
9. Prior Legislation :
AB 1544 (V.M. Perez) of 2012: Died in Assembly Inactive File
This bill is similar, but not identical, to AB 1544. While
this bill applies only to agricultural employees, AB 1544
included 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.
SUPPORT
American Federation of State, County & Municipal Employees
California Association of Nurseries and Garden Centers
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California Cattlemen's Association
California Chamber of Commerce
California Citrus Mutual
California Communities United Institute
California Cotton Ginners Association
California Cotton Growers Association
California Farm Bureau Federation
California Fresh Fruit Association
California Tax Reform Association
Family Winemakers of California
Western Agricultural Processors Association
Western Growers Association
OPPOSITION
None received
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