BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
AB 20 (Alejo) - Undocumented workers: California Agricultural
Act.
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|Version: August 17, 2015 |Policy Vote: L. & I.R. 5 - 0, |
| | AGRI. 3 - 0, AGRI. 5 |
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|Urgency: No |Mandate: No |
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|Hearing Date: August 17, 2015 |Consultant: Robert Ingenito |
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This bill meets the criteria for referral to the Suspense File.
Bill
Summary: AB 20 would (1) create a program to provide
undocumented agricultural employees with a permit to work and
live in California, as specified, and (2) direct the Labor and
Workforce Development Agency (LWDA) and the California
Department of Food and Agriculture (CDFA) to convene a working
group to consult with the federal government and other
stakeholders on how to best implement this program.
Fiscal
Impact:
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This bill would result in one-time General Fund
administrative costs of in the range of $200,000 (General
Fund), starting July 1, 2017, for LWDA to convene a working
group. These costs include staffing, travel and other
administrative expenses. CDFA and the Department of Justice
would likely incur minor and absorbable costs to
participate in the working group.
The bill also would result in a cost pressure,
potentially in the tens of millions of dollars annually, to
the extent a model program is ultimately established to
provide undocumented persons who are agricultural employees
with a permit to work and live in California.
Background: Current law precludes a person or other entity from "knowingly"
hiring, recruiting, or referring for employment an unauthorized
individual or any individual without complying with specified
employment verification procedures. Specifically, among other
things, current law requires employers to verify that every new
hire is either a (1) U.S. citizen, or (2) 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 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; it is
unconstitutional for a state to enact its own immigration
policy. However, current state law provides that 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.
Proposed Law:
This bill would do, among other things, the following:
Require LWDA and CDFA to, no later than February 1,
2017, convene a working group consisting of representatives
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of themselves, the attorney general, the legislature, and
various stakeholders. The bill specifies that industry
stakeholders would be equally represented on the working
group.
Require 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.
Direct the working group to address specified topics,
including the following:
o Qualifying criteria for undocumented persons
to apply for the program.
o Documentation requirements for applicants.
o Determination of the state agency to issue
work permits and conduct background and security
checks.
o Development of security measures such as
tamper-proof work authorization documents.
o Program application fees and fee structure to
cover the ongoing costs of the program.
o Protocols to track and monitor employees under
the program.
o Renewal process for the work permit.
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o Considerations for applicants to travel out of
the country.
o Any other procedures and legal requirements
associated with implementing this program as required
by the federal government.
Require the working group to submit its recommendations
to the Legislature and the Governor no later than July 1,
2017.
Require 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.
State that it is the intent of the Legislature to enact
legislation in order to implement this program should the
federal government approve or adopt the program.
Provide model program requirements and limit program
eligibility to undocumented persons who meet specified
criteria.
Extend 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,
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.
Prohibit 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
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employee to examine individual applicants.
Require 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.
Disqualify any person from the program if the person
knowingly files false, fictitious, or fraudulent
information.
Require 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.
Related
Legislation: AB 1544 (V.M. Pérez et al, 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. The bill died on the Assembly Inactive
File.
Staff
Comments: This bill would 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. Other states' attempts in
this area in response to the lack of progress at the federal
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level have not proved successful.
In 2011, Utah enacted two bills in this area: HB 497, which
enacts the state's own immigration policy; and HB 116, which,
upon permission from the federal government, develops a state
guest-worker program to issue work permits to undocumented
individuals. In November 2011, the United States Department of
Justice 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.
With respect to HB 116, however, DOJ did not immediately file
suit. 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.
As noted earlier, the bill would require LWFA and CDFA to
convene a workgroup to consult with the United States Department
of Homeland Security and Department of Justice to determine the
legal roles and responsibilities of federal and state agencies
in implementing a program to provide undocumented agricultural
or service industry employees with a permit to work and live in
California.
LWDA would likely require one new full-time position plus travel
expenses from the date of enactment through July 1, 2017.
Depending on the specific responsibilities of AB 20, costs could
be significantly higher. For instance, if LWDA is required to
convene and host meetings, develop a report, coordinate with
federal agencies, or add more staff, the costs could exceed one
full time position.
If the bill is enacted, and the proposed plan is approved at the
federal level and subsequently enacted through new implementing
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legislation, then the costs to the State to implement the
program would be quite significant. It would require the
development of whole new permitting system infrastructure,
fingerprinting, background checks, staffing, equipment, and
offices. These costs could reach the tens of millions of dollars
annually, with some offset by fee revenue.
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