BILL ANALYSIS Ó
SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS
Senator Tony Mendoza, Chair
2015 - 2016 Regular
Bill No: AB 2532 Hearing Date: June 8,
2016
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|Author: |Chiu |
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|Version: |February 19, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Brandon Seto |
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Subject: Employment services: verification
KEY ISSUE
Should the Legislature repeal the requirement to verify an
individual's legal status or authorization to work prior to them
receiving employment services from state or local government
agencies or any private contracting agencies?
ANALYSIS
Existing law
Requires each state or local government agency or
community action agency, or any private organization
contracting with them, that provides employment services
such as job training, retraining, or placement, to verify
an individual's legal status or authorization to work prior
to providing those services to that individual
(Unemployment Insurance Code §9601.5).
Specifies that proof of legal status or authorization to
work includes a social security card, immigration visa,
birth certificate or passport, among others (Unemployment
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Insurance Code §9601.5).
Requires the agencies or organizations described above
that provide specified employment services to post a notice
in the workplace stating that only citizens or those
persons legally authorized to work in the United States
will be permitted to use the agency's or organization's
employment services that are funded by the federal or state
government (Unemployment Insurance Code §9601.7).
This Bill
Repeals the requirement to verify an individual's legal
status or authorization to work prior to them receiving
employment services from state or local government agencies
or any private contracting agencies.
Repeals the associated workplace posting requirement
that informs workers that only citizens or those legally
authorized to work in the U.S. can use employment services
being provided by these agencies.
COMMENTS
1. Brief Background on the Immigration Reform and Control Act of
1986 (IRCA)
IRCA was enacted into U.S. law as an attempt to control and
deter unlawful immigration to the United States. Its major
provisions called for the legalization of undocumented persons
who had been continuously present in the U.S. since 1982, the
legalization of certain agricultural workers, sanctions for
employers who knowingly hire undocumented workers, and
increased enforcement at U.S. borders.
IRCA required employers to attest to their employees'
immigration status, through the establishment of the I-9 Form,
and made it illegal to hire or recruit undocumented workers
knowingly, among other things. IRCA also states that in terms
of employment in the United States, it is unlawful for a
person or other entity knowingly to recruit or refer for a fee
an unauthorized person, or to ignore the verification
requirements for providing these services.
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2. Need for this bill?
SB 733 (Russell, 1993) added §9601.5 and 9601.7 to the
Unemployment Insurance (UI) Code (see "Existing law" section
above). The author argues that the law was always of
questionable constitutionality because federal law already
regulates those employment agents who "recruit or refer for a
fee" or in other words, provide employment services, under the
Immigration Reform and Control Act. This law expressly
preempts "any State or local law imposing civil or criminal
sanctions (other than through licensing and similar laws) upon
those who employ, or recruit or refer for a fee for
employment, unauthorized aliens." 8 U.S.C. § 1324a (h)(2).
In short, the author argues that the sections of the UI Code
in question are not necessary and burdensome because they
already fall under the purview of federal law. In this case,
the IRCA prohibits state preemptions or interference with
federal law on this issue. The author states that AB 2532
repeals these sections and eliminates a problematic and
discriminatory redundancy with federal law.
3. Proponent Arguments :
Proponents state that this bill would remove two provisions of
California law sponsored by the nativist organization
Federation for American Immigration Reform (FAIR). California
UI Code §9601.5 and 9601.7 were enacted two decades ago in an
era of heightened anti- immigrant lawmaking in the state.
Proponents assert that these two UI Code sections are
preempted by federal law and that their continued enforcement
would subject California to potential legal action.
Proponents add that the United States Supreme Court recently
held that federal law, since the 1986 enactment of IRCA,
provides a "comprehensive framework" to address the employment
of unauthorized immigrants and does not permit state
legislation within the area addressed by the framework.
Because UI Code §9601.5 and 9601.7 could result in civil
sanctions for a violation, the two provisions are expressly
preempted under IRCA so far as they apply to employment
services agencies that charge to recruit or refer. Moreover,
to the extent the provisions apply to agencies that provide
services for free, they are impliedly preempted because
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Congress, in enacting IRCA, decided not to regulate such free
services as part of its comprehensive framework. Also
proponents believe that the notice-posting obligation in UI
Code §9601.7 exacerbates these legal concerns and imposes
unnecessary added costs on businesses.
Finally, proponents contend that AB 2532 would do nothing to
change immigrant eligibility for any government services,
which is regulated by other provisions of federal and state
law. Nor would the bill change the federal obligation that
employers face with respect to employment of authorized
workers and the duty to check the work authorization of new
hires.
4. Opponent Arguments :
None received.
5. Prior Legislation :
SB 733 (Russell) Chapter 819, Statutes of 1993 - Added the
requirement for state or local government or community action
agencies, or any private organization contracting with them to
verify an individual's legal status or authorization to work
in the United States before providing them with employment
services. Also requires these agencies and organizations to
post a notice in the workplace stating that only citizens or
those persons legally authorized to work in the U.S. will be
permitted to use the employment services that these entities
provide.
SUPPORT
Mexican American Legal Defense Education Fund (Sponsor)
American Civil Liberties Union of California
California Immigrant Policy Center
Worksafe
OPPOSITION
None on file.
-- END --
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