BILL ANALYSIS Ó SENATE COMMITTEE ON APPROPRIATIONS Senator Ricardo Lara, Chair 2015 - 2016 Regular Session AB 20 (Alejo) - Undocumented workers: California Agricultural Act. ----------------------------------------------------------------- | | | | | | ----------------------------------------------------------------- |--------------------------------+--------------------------------| | | | |Version: August 17, 2015 |Policy Vote: L. & I.R. 5 - 0, | | | AGRI. 3 - 0, AGRI. 5 | | | - 0, AGRI. 5 - 0 | | | | |--------------------------------+--------------------------------| | | | |Urgency: No |Mandate: No | | | | |--------------------------------+--------------------------------| | | | |Hearing Date: August 17, 2015 |Consultant: Robert Ingenito | | | | ----------------------------------------------------------------- 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: AB 20 (Alejo) Page 1 of ? 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 AB 20 (Alejo) Page 2 of ? 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. AB 20 (Alejo) Page 3 of ? 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 AB 20 (Alejo) Page 4 of ? 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 AB 20 (Alejo) Page 5 of ? 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 AB 20 (Alejo) Page 6 of ? 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. -- END --