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  |
          |                                |          - 0, AGRI. 5 - 0      |
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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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