BILL ANALYSIS Ó
SENATE COMMITTEE ON AGRICULTURE
Senator Cathleen Galgiani, Chair
2015 - 2016 Regular
Bill No: AB 20 Hearing Date: 7/7/15
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|Author: |Alejo |
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|Version: |7/1/15 Amended |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Anne Megaro |
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Subject: Undocumented workers: California Agricultural Act.
SUMMARY :
This bill would enact the California Agricultural Act to create
a model program to provide undocumented agricultural employees
with a permit to work and live in California, and to direct the
state Employment Development Department and the California
Department of Food and Agriculture to convene a working group to
consult with the federal government and other stakeholders on
how to best implement this program.
BACKGROUND AND EXISTING
LAW :
Existing state law provides all protections, rights, and
remedies available under state law, except any reinstatement
remedy prohibited by federal law, to all individuals regardless
of immigration status who have applied for employment, or who
are or have been employed, in California (Civil Code §3339;
Government Code §7285; Health and Safety Code §24000; Labor Code
§1171.5).
Existing federal law states that it is illegal for a person or
other entity to knowingly hire or recruit an undocumented person
or to hire an individual without examining specified documents
establishing both employment authorization and identity (8 U.S.
Code § 1324a).
Under federal law, it is unconstitutional for a state to enact
its own immigration policy. The federal government is
responsible for enacting immigration laws and regulations, which
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preempt state laws.
PROPOSED
LAW :
This bill:
1) Makes findings and declarations related to California's
agricultural industry, immigrant labor, and the lack of
effective immigration policies on the federal level.
2) Defines "employee," "employer," "farm labor contractor,"
"farm labor organization," "immediate family member," and
"undocumented person."
3) Requires the state Employment Development Department
(EDD) and the California Department of Food and Agriculture
(CDFA) to, no later than February 1, 2017, convene a
working group consisting of representatives of EDD, CDFA,
the attorney general, the legislature, and various
stakeholders.
4) Requires the working group to consult with the U.S.
Department of Homeland Security and U.S. Department of
Justice to determine the legal roles and responsibilities
of state and federal governments in implementing a state
model program to provide undocumented agricultural
employees a permit to work and live in California.
5) Directs the working group to address the following:
a. Qualifying criteria for undocumented persons
to apply for the program.
b. Documentation requirements for applicants.
c. Determination of the state agency to issue
work permits and conduct background and security
checks.
d. Development of security measures such as
tamper-proof work authorization documents.
e. Program application fees and fee structure to
cover the ongoing costs of the program.
f. Protocols to track and monitor employees under
the program.
g. Renewal process for the work permit.
h. Considerations for applicants to travel out of
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the country.
i. Any other procedures and legal requirements
associated with implementing this program as required
by the federal government.
6) Requires the working group to submit its recommendations
to the legislature and the governor no later than July 1,
2017.
7) Requires the governor, by August 1, 2017, to make a
formal request to the federal government to implement this
program or explain why the request was not made and provide
recommendations on how the program should be structured.
8) Requires the legislature to enact legislation in order
to implement this program should the federal government
approve or adopt the program.
9) Provides model program requirements and limits program
eligibility to undocumented persons who meet all of the
following criteria:
a. 18 years of age or older.
b. Resident of California.
c. Worked in the agricultural industry for at
least 863 hours or 150 workdays over the previous two
years or earned $7,500 or more from agricultural
employment, and maintained employment for 431 hours or
75 workdays or earned $3,750 or more on an annual
basis after receiving the permit.
d. Ability to establish employment by submitting
specified wage and income documents or, if these are
unavailable, at least two other types of reliable
documents including bank, business, or remittance
records.
e. Submits to a fingerprinted criminal history
background check.
f. Has not been convicted of a felony or three or
more misdemeanors.
g. Pays a fee to cover costs of administering the
program.
10) Extends the program to immediate family members of the
undocumented person as long as those members live with the
person or are enrolled in specified educational programs,
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submit to a fingerprinted background check, have never
been convicted of a felony or three or more misdemeanors,
and pay a fee to cover costs of administering the program.
11) Prohibits an official or employee of state government to
use information provided for the permit application for any
other purpose than to determine eligibility for the
program. Prohibits them from publicizing the information
or allowing anyone other than a sworn officer or state
employee to examine individual applicants.
12) Requires information provided by the applicant to be
shared with a state law enforcement entity in connection
with a criminal investigation or prosecution or a coroner
to identify a deceased individual.
13) Disqualifies any person from the program if the person
knowingly files false, fictitious, or fraudulent
information.
14) Requires program administrators to ensure that employers
hiring persons permitted under this program are not filling
a vacant position due to a strike or other work dispute,
that wages and benefits are comparable to those provided to
legal residents, and that the employer complies with all
labor laws.
15) Requires an employer to provide to the permitted
employee and the state a written record of employment that
includes hours worked and wages paid.
16) Entitles permitted employees to the same working
protections provided to legal residents.
17) Requires program administrators to provide a review of
the program to the Assembly and Senate labor committees
that shall address program performance, impact on other
workers not permitted by the program, and recommendations
for improvement, continuation, or termination of the
program.
ARGUMENTS IN SUPPORT:
According to the author, "As California's farmers enter the
summer harvest season, they'll continue struggling with an
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ongoing labor shortage and a devastating drought. We cannot
simply hope for things to get better. In Washington D.C., the
talks revolving around comprehensive immigration reform have
stalled, and the President's Executive Action is blocked. If
California wants change in immigration policy, we as state
officials must stand up and lead. California led the way with
the passage of AB 60, which has already provided over 230,000
undocumented Californians with drivers licenses so they can
legally and safely drive to work in California. These are
hardworking individuals who are very much a key part in our
economy and our society. Let's also find a way to allow
employees of our local farmers to legally work in California as
well. AB 20 will do just that - allow skilled, trained, and
trusted farmworkers to legally stay and work on California's
farms."
According to the UFCW Wester States Council, this bill, "would
not only offer dignity to those who are working in California,
but reform would also result in additional revenue for the state
and offer an opportunity for these immigrants to continue to
contribute to their communities and families without fear
associated with 'coming out of the shadows.'"
COMMENTS :
Undocumented farmworkers. According to the Public Policy
Institute of California, there are more than 10 million
immigrants in California of which 27% are undocumented.
Specific to the agricultural immigrant workforce, the USDA
Economic Research Service reports data from the U.S. Department
of Labor's National Agricultural Workers Survey (NAWS) that the
number of crop farmworkers not legally authorized to work in the
U.S. increased from 15% in 1989 to almost 55% in 1999 and has
since maintained that level. This data, however, does not
include livestock farmworkers.
Current work permits. The federal government provides an H-2A
agricultural guest-worker visa to allow non-citizens to do
seasonal or temporary work and maintains the E-Verify program to
help employers determine employees' status to work in the U.S.
However, these programs have not been adequately robust or
effective to provide the necessary skilled labor in a timely
manner to fill labor shortages in the agricultural industry.
Longstanding criticisms and frustrations with these programs
have led the agricultural industry, both employer and employee
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organizations, to push for federal legislation that would allow
additional or reformed guest-worker visas or permits.
Value of immigrant farmworkers. A survey conducted by the
American Farm Bureau Federation found that 71% of tree fruit
growers and 80% of raisin and berry growers were unable to find
enough employees to manage their crops. The National Council of
Agricultural Employers further state that "Denials of H-2A
applications have increased dramatically. 72 % of growers
reported that workers arrived after the "date of need", on
average 22 days late. Growers seeking access to a legal
workforce suffer $320,000,000 in economic harm due to h-2a
program rules and administration. Employers reported
$150,408,000 of economic loss due to the inability to get the
workers they needed in 2010 and an additional $169,763,000 of
loss because the workers they did get were not available at the
time they were needed." This bill would address these issues by
permitting undocumented persons to work in the agricultural
industry as long as specified criteria are met and it can be
shown that these workers will not displace jobs from legal
residents.
Agricultural Job Opportunities, Benefits and Security Act
(AgJOBS). Immigration reform has been a major issue of concern
at the federal level for over a decade and multiple bills have
been introduced over the past several years (H.R. 1773 and S.
744 of the 113th Congress; S. 1258 of the 112th Congress; H.R.
2414 of the 111th Congress, among others). These bills have
generally sought to achieve the same goal, that being to provide
legal working status to immigrant agricultural farmworkers.
Specifically, proposals have included the creation of a "blue
card" or reform of the H-2A visa. Although some proposals have
passed through their respective committees and houses, none has
been signed into law.
Other state initiatives. Due to the lack of movement at the
federal level, some states have taken action to create state
programs that would increase the number of authorized immigrant
farmworkers in their state. Specifically, Utah enacted two
bills in 2011: H.B. 497, which enacts the state's own
immigration policy; and H.B. 116, which, upon permission from
the federal government, develops a state guest-worker program to
issue work permits to undocumented individuals.
The U.S. departments of Justice, Homeland Security, and State
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filed a lawsuit challenging the constitutionality of H.B. 497.
In the Department of Justice's press release dated November 22,
2011, Attorney General Eric Holder stated, "A patchwork of
immigration laws is not the answer and will only create further
problems in our immigrations 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."
United Farm Workers. The UFW has a position of support if
amended, and their proposed amendments would include:
1) Remove references to the H-2A program since this bill
does not seek to replace it.
2) Provide equal representation of agricultural employers
and employees in the stakeholder group.
3) Remove specific requirements for program eligibility
such as the number of days worked, etc.
Note. This analysis covers agricultural aspects of this bill.
For additional labor considerations, please see the analysis by
the Senate Committee on Labor and Industrial Relations dated
June 24, 2015.
RELATED
LEGISLATION :
AB 1544 (V.M. Pérez et al.) of 2012. Would have created the
California Agricultural Jobs and Industry Stabilization Act of
2012 to create a program to provide undocumented persons with a
permit to work in the agricultural and service industries. Died
on the Assembly Inactive File.
SB 1818 (Romero), Chapter 1071, Statutes of 2002. Finds that
all protections, rights, and remedies available under state law,
except as prohibited by federal law, are available to
individuals regardless of immigration status.
PRIOR
ACTIONS :
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|Assembly Floor: |69 - 2 |
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|Assembly Appropriations Committee: |13 - 0 |
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|Assembly Labor and Employment |6 - 1 |
|Committee: | |
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SUPPORT :
American Federation of State, County and Municipal Employees,
AFL-CIO
California Association of Nurseries and Garden Centers
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
UFCW Western States Council
SUPPORT IF AMENDED:
United Farm Workers
OPPOSITION :
None received
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