BILL ANALYSIS Ó
AB 1065
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Date of Hearing: April 22, 2015
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hernández, Chair
AB 1065
(Chiu) - As Amended April 15, 2015
SUBJECT: Employment: unfair practices
SUMMARY: Makes specified employer practices related to
employment verification unlawful under the Fair Employment and
Housing Act (FEHA). Specifically, this bill makes it an
unlawful employment practice under FEHA for an employer to:
1)Request more or different documents than are required under
existing federal law for verifying employment authorization of
an individual.
2)Refuse to honor documents tendered that on their face
reasonably appear to be genuine.
3)Discriminate against an immigrant with authorization to work
based upon the specific status or term of status that
accompanies the authorization to work.
4)Attempt to reinvestigate or re-verify an incumbent employee's
authorization to work unless required to do so by federal law
or authority.
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EXISTING LAW:
1)Defines and prohibits various discriminatory employment
practices to protect and safeguard the right and opportunity
of all persons to seek, obtain, and hold employment without
discrimination, abridgment, or harassment on account of race,
religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, genetic
information, marital status, sex, gender, gender identity,
gender expression, age, sexual orientation, or military and
veteran status. (Labor Code Section 2812).
2)Prohibits an employer or any other person or entity from
engaging in unfair immigration-related practices, as defined,
against any person for the purpose of retaliating against the
person for exercising specified rights. (Labor Code Section
1019).
3)Includes within the definition of "unfair immigration
related-practices" for retaliation purposes requesting more or
different documents than are required under federal law or
refusing to honor documents tendered that on their face that
reasonably appear to be genuine. (Labor Code Section
1019(b)(1)(A).
4)Prohibits an employer from taking adverse employment action
against an employee because the employee updates or attempts
to update his or her personal information based on a lawful
change or name, social security number or federal employment
authorization document. (Labor Code Section 1024.6).
5)Prohibits the state, or a city, county, city and county, or
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special district, from requiring an employer, other than one
of those government entities, to use an electronic employment
verification system, including E-Verify, except when required
by federal law or as a condition of receiving federal funds.
FISCAL EFFECT: Unknown
COMMENTS: According to the author, this bill will help
immigrants who seek to work by prohibiting employers from
requesting extraneous documentation from potential employees - a
practice known as document abuse.
Background on "Document Abuse"
According to a summary paper<1> prepared by the Employment Law
Center of the Legal Aid Society of San Francisco:
"Employers are required by the Immigration Reform and Control
Act (IRCA) to verify the identity and employment eligibility
of their workers. To do this, they must complete an Employment
Eligibility Verification Form, also known as a "Form I-9,"
within three business days after an employee is hired. This
process requires employees to present the employer with any
one of many possible combinations of documents that prove that
they are authorized to work in the United States. As just a
few examples, a worker can show a U.S. Passport (expired or
unexpired), or a Permanent Resident Card (more commonly known
as a Green Card), or an unexpired Employment Authorization
Document with a photograph, or a state identification card
together with an "unrestricted" Social Security card. The
various types of documents that are acceptable are listed on
--------------------------
<1> "Document Abuse (Identifying Documents at Work): Things You
Should Know About Proving Your Work Status to Your Employer."
Employment Law Center, Legal Aid Society of San Francisco.
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the Form I-9.
Document abuse occurs when an employer does not permit a
worker to use any documents that are legally acceptable but,
instead, specifies which documents s/he must use, or requires
more documents than are legally required by the Form I-9.
Therefore, if an employer refuses to accept legally acceptable
documents that appear genuine on their face from a
work-authorized immigrant worker with the intent that the
worker be prevented from working until s/he has complied, the
employer has committed document abuse?
?Document abuse also may occur when an employer demands that
you present documents showing your ability to work in the
United States, even after you have been hired and already
successfully completed the I-9 process.
There are only a limited number of circumstances under which
an employer can lawfully "re-verify" a worker's employment
eligibility - that is, require the worker to present I-9
documents again after s/he has already done so. These
situations include the following: when an employment
authorization document that has been presented to complete the
Form I-9 has expired or is about to expire; when the employer
has been informed by Immigration and Citizenship Enforcement
(ICE) that there are problems with its workers' documents; or
when the employer has "constructive knowledge" that the worker
is not work authorized."
These forms of discrimination are made unlawful under federal
IRCA. (8 U.S.C. § 1324b). The anti-discrimination provisions
of IRCA forbid unfair immigration-related employment practices
and establishes procedures to enforce these prohibitions.
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If an employer has committed document abuse, and individual may
file charges of discrimination with the U.S. Department of
Justice's Office of Special Counsel for Immigration Related
Unfair Employment Practices (OSC) within 180 days of the act of
discrimination. OSC may investigate claims for up to 210 days
after receipt of a charge. If OSC finds there is reasonable
cause to believe that immigration-related unfair employment
practices may have occurred, OSC may file an administrative
complaint against the employer. An administrative law judge
(ALJ) hears the complaint. If OSC has not made a determination
within 120 days of receipt of the charge, it must notify the
parties, and the charging party then has the right to file
his/her own complaint before an ALJ within the following 90
days. OSC may also initiate independent investigations to
investigate whether the company has engaged in a pattern or
practice of discrimination.
There are several remedies that may result from an OSC
investigation. These include back pay awards, reinstatement or
hiring, imposition of injunctive relief, and civil penalties
against violating employers.
Recent Examples Highlight Need for the Bill?
This bill is sponsored by the Mexican American Legal Defense and
Education Fund (MALDEF). They state that in 2011, Pomona
College engaged in a broad re-verification of work authorization
for dining hall workers in response to a third-party complaint.
This re-verification coincided with active attempts to organize
the workers. More recently, in 2014 MALDEF joined in
representing a plaintiff who was a recipient of Deferred Action
for Childhood Arrivals (DACA), challenging Northwestern Mutual
Life Insurance Company, which had a nationwide policy of only
contracting with citizens and lawful permanent residents as
insurance agents.
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In addition, a 2013 report<2> by the National Employment Law
Project highlighted the following additional examples of
document abuse in the car wash industry:
"Carwash workers at Star Carwash in El Monte,
California, began to worry when their paychecks began to
bounce. Their employer had filed for bankruptcy, and
workers found that they had difficulty changing checks when
they repeatedly came back with insufficient funds. In
November 2012, eight workers of twelve at the company began
to organize to work for better conditions with the support
of the CLEAN Carwash Campaign, a partnership of unions,
community groups, and religious groups. Instead of ensuring
that the workers received their pay, management at Star
Carwash began to intimidate workers by threatening to cut
their hours and fire them. The managers told the workers
that they would need to refile their I-9 employment forms
to re-verify their work authorization. When the workers
refused, the manager brought Maria Flores, one of the
worker leaders, into his office. The manager told Maria
that she had to fill out new employment papers so that he
could show it to the local police department to check her
identity, or she could choose to quit. When Maria refused,
her employer cut her hours down to 2-3 hours per week."
"Half of the car wash workers at Robertson Carwash in
Los Angeles, California, received no wages from their
employer. Although the employer charged customers for each
car wash, the employer did not pay the workers at all.
Instead, these workers earned only the tips provided by
customers after they cleaned the cars. One of the workers,
Felipe Martinez, earned so little that he often slept in
the car wash bathroom at night to avoid living on the
streets. In 2010, after workers reached out to the CLEAN
Carwash Campaign, which organized a boycott of the carwash,
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<2> Cho, Eunice. "Workers' Rights on ICE: How Immigration
Reform Can Stop Retaliation and Advance Labor Rights: California
Report." National Employment Law Project (February 2013).
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the employer fired all of the workers who had worked only
for tips. After the campaign filed unfair labor practice
charges with the NLRB, the employer settled. When Felipe
tried to return to work, his employer told him that he
would have to reapply and fill out a new I-9 form. Felipe
declined, and did not return to his job."
PRIOR LEGISLATION
AB 1236 (Fong) of 2011 enacted provisions of law that prohibit
state and local entities from requiring an employer, other than
one of those government entities, to use an electronic
employment verification system, including E-Verify, except when
required by federal law or as a condition of receiving federal
funds.
AB 263 (Roger Hernández) of 2013 prohibits an employer or any
other person or entity from engaging in unfair
immigration-related practices, as defined, against any person
for the purpose of retaliating against the person for exercising
specified rights. Included within the definition of "unfair
immigration related-practices" for retaliation purposes is
requesting more or different documents than are required under
federal law or refusing to honor documents tendered that on
their face that reasonably appear to be genuine. AB 263 also
defined "unfair immigration-related practice" to include using
E-Verify to check the employment authorization status at a time
or in a manner not required under federal law or authorized
under a federal memorandum of understanding. Finally, AB 263
prohibited an employer from taking adverse employment action
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against an employee because the employee updates or attempts to
update his or her personal information based on a lawful change
or name, social security number or federal employment
authorization document.
ARGUMENTS IN SUPPORT
According to the author, federal law currently provides
protection against document abuse, but these protections must be
enforced through an overly cumbersome process which makes it
extremely difficult for potential workers to avail themselves of
this remedy. This bill would create a state remedy for this
unfair labor practice and would provide protections for workers
who have obtained work authorization under new programs created
by the President.
In November 2014, President Barack Obama announced an expansion
of the existing Deferred Action for Childhood Arrivals (DACA) by
removing the age cap as well as creating a new program called
the Deferred Action for Parents of Americans (DAPA). Individuals
who came to the United States as children and meet
DACA-eligibility guidelines may qualify for deferred action, and
may also obtain work authorization.
Additionally, under the newly created DAPA program, parents of
American citizens and lawful permanent residents may be provided
administrative relief. While this program provides deportation
relief and the legal right to work for thousands of families in
California, some employers may use this newfound status to
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discourage or create challenges for potential job applicants.
While existing state law prohibits document abuse if it is
retaliatory in nature, there is no protection against document
abuse at the initial point of an individual's application for
employment. Recently, the Mexican American Legal Defense and
Education Fund (MALDEF) filed a discrimination challenge against
one large employer, and MALDEF is prepared to challenge another
large employer. This alarming practice highlights a loophole in
state law that this bill seeks to close.
REGISTERED SUPPORT / OPPOSITION:
Support
California Employment Lawyers Association
California Immigrant Policy Center
California Rural Legal Assistance Foundation
Coalition for Humane Immigrant Rights of Los Angeles
Consumer Attorneys of California
Equality California
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Mexican American Legal Defense and Educational Fund (sponsor)
National Association of Social Workers, CA Chapter
PolicyLink
SEIU California
Services, Immigrant Rights & Education Network
Worksafe
Opposition
None on file.
Analysis Prepared by:Ben Ebbink / L. & E. / (916) 319-2091
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