BILL ANALYSIS                                                                                                                                                                                                    ”



                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          SB 1001 (Mitchell)
          Version: March 28, 2016
          Hearing Date: April 5, 2016
          Fiscal: Yes
          Urgency: No
          TMW


                                        SUBJECT
                                           
                            Employment:  unfair practices

                                      DESCRIPTION  

          This bill would prohibit an employer or any other person or  
          entity from engaging in unfair immigration-related practices, as  
          defined, against an applicant for employment or employee.  This  
          bill would also prohibit an employer from reinvestigating or  
          reverifying an incumbent employee's authorization to work unless  
          required to do so by federal law or authority, and prohibit  
          discrimination against an applicant or employee with  
          authorization to work based upon the specific status or term of  
          status that accompanies the authorization to work.  This bill  
          would authorize a private right of action for equitable relief,  
          damages, and penalties by an applicant or employee against an  
          employer or any other person or entity who engages in unfair  
          immigration-related practices. 

                                      BACKGROUND  

          A recent study noted that there are approximately 2.6 million  
          undocumented individuals in California.  (Cho and Smith,  
          Workers' Rights on ICE:  How Immigration Reform Can Stop  
          Retaliation and Advance Labor Rights, National Employment Law  
          Project (Feb. 2013)  
           [as of Mar. 18, 2016],  
          p. 2.)  The study also noted that "[m]ost undocumented  
          immigrants work in traditionally low-wage occupations such as  
          agriculture, construction, manufacturing, and service  
          industries, where workers face the greatest risk for  
          exploitation.  Undocumented workers are far more likely to  
          experience violations of wage and hour laws."  (Ibid.)  The  
          study states that many undocumented workers do not file claims  







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          against their employers out of fear of "'getting in trouble' or  
          being fired."  (Ibid.)  The study also found that "[w]hile  
          threats of job loss have an especially serious consequence in  
          this job market, an employer's threat to alert immigration or  
          local law enforcement of an undocumented immigrant worker's  
          status carries added force.  Such action is at least as frequent  
          as other forms of retaliation."  (Id. at pp. 2-3.)

          According to a 2011 research project, California has by far the  
          largest unauthorized-immigrant population (2.55 million), which  
          accounts for 6.8 percent of the state's population, and is among  
          the states where unauthorized immigrants constitute the largest  
          shares of the overall populations.  (Passel and Cohn,  
          Unauthorized Immigrant Population:  National and State Trends,  
          2010 (Feb. 1, 2011)  [as of Mar. 23,  
          2016].)  Further, unauthorized workers constitute roughly 10  
          percent of California's labor force and are especially likely to  
          hold low-skilled jobs.  (See Pew Hispanic Center, A Portrait of  
          Unauthorized Immigrants in the United States (Apr. 14, 2009)  
           [as of Mar. 23, 2016].)

          In 2012, the Department of Homeland Security issued a directive  
          referred to as the Deferred Action for Childhood Arrivals  
          (DACA), which provides certain undocumented individuals relief  
          from removal from the United States or from entering into  
          removal proceedings for a period of up to two years, subject to  
          renewal, and eligibility to apply for work authorization.  Yet,  
          deportations have reached a record level of 2 million, rising to  
          an annual average of 400,000 since 2009.  (Lopez, As  
          Deportations Rise to Record Levels, Most Latinos Oppose Obama's  
          Policy (Dec. 28, 2011)  [as of June 4, 2014].)  According to the  
          National Immigration Law Center, more than 1,000 immigrants are  
          separated from their families and communities each day.

          On November 20, 2014, the President announced a series of  
          executive actions that he stated were intended to crack down on  
          illegal immigration at the border, prioritize deporting felons  
          rather than families, and require certain undocumented  
          immigrants to pass a criminal background check and pay taxes in  








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          order to temporarily stay in the U.S. without fear of  
          deportation.  One of the initiatives in that series allowed  
          parents of U.S. citizens and lawful permanent residents to  
          request deferred action and employment authorization for three  
          years in a new Deferred Action for Parents of Americans and  
          Lawful Permanent Residents program (DAPA), provided they have  
          lived in the United States continuously since January 1, 2010,  
          and pass required background checks.

          Existing law provides protections, rights, and remedies  
          available under state law to all individuals, regardless of  
          immigration status, who have applied for employment, or who are  
          or who have been employed, in this state.  Further, California's  
          labor laws provide anti-retaliation protection for employees who  
          make claims against their employers for violations of labor  
          laws.

          To provide protection for undocumented workers laying claims  
          against their employers for wage and hour violations, AB 263  
          (HernŠndez, Chapter 732, Statutes of 2013) prohibited an  
          employer or any other person or entity from engaging in unfair  
          immigration-related practices, as defined, for the purpose of  
          retaliation against any person who exercises any rights under  
          the Labor Code.  That same year, SB 666 (Steinberg, Chapter 577,  
          Statutes of 2013), among other things, specified that an  
          individual is not required to exhaust administrative remedies or  
          procedures in order to bring a civil action under the Labor  
          Code, unless expressly required to do so, and prohibited an  
          employer from reporting or threatening to report a job  
          applicant's, employee's, or former employee's, or family  
          member's, as specified, suspected citizenship or immigration  
          status because the person exercised a right under state law.

          The next year, AB 2751 (HernŠndez, Chapter 79, Statutes of 2014)  
          clarified the award of a civil penalty of up to $10,000 against  
          an employer who discriminates, retaliates, or takes any adverse  
          action against an employee or applicant for employment, who  
          exercises a right protected under local and state labor and  
          employment laws, including employers who unlawfully engage in  
          unfair-immigration-related employment practices in retaliation  
          against an employee exercising his or her rights under the Labor  
          Code.

          Last year, AB 1065 (Chiu, 2015) was introduced to provide  








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          protection under the Fair Employment and Housing Act against  
          employers who refuse to honor documents or discriminate against  
          an immigrant with authorization to work based upon the specific  
          statutes or term of status that accompanies the authorization to  
          work.  The introduced version of this bill was substantially  
          similar to AB 1065, which was held on suspense in the Assembly  
          Appropriations Committee.

          This bill, as recently amended, would prohibit, under the Labor  
          Code, an employer or any other person or entity from  
          discriminating against or engaging in unfair immigration-related  
          practices, as defined, against an applicant or employee or from  
          reinvestigating or reverifying an incumbent employee's  
          authorization to work unless required to do so by federal law or  
          authority.

                                CHANGES TO EXISTING LAW
           
           Existing federal law  , the Immigration and Nationality Act (INA),  
          requires an employer to verify, through examination of specified  
          documents, that an individual is not unauthorized to work in the  
          United States.  (8 U.S.C. Sec. 1324a(b).)  Existing federal law  
          provides that a person or entity has complied with this  
          requirement with respect to examination of a document if the  
          document reasonably appears on its face to be genuine. (8 U.S.C.  
          Sec. 1324a(b)(1)(A).)  If an individual provides a document or  
          combination of documents that reasonably appears on its face to  
          be genuine and that is sufficient to meet the requirements, then  
          federal law does not require the person or entity to solicit the  
          production of any other document or require the individual to  
          produce another document.  (Id.)

           Existing federal law  makes it an unfair immigration-related  
          employment practice for a person or other entity to discriminate  
          against any individual (other than an unauthorized immigrant, as  
          specified) with respect to the hiring, or recruitment or  
          referral for a fee, of the individual for employment or the  
          discharging of the individual from employment.  (8 U.S.C. Sec.  
          1324b(a)(1).)  Existing federal law makes it an unfair  
          immigration-related employment practice for a person or other  
          entity to request more or different documents than are required  
          or refusing to honor documents tendered that on their face  
          reasonably appear to be genuine if made for the purpose or with  
          the intent of discriminating against an individual.  (8 U.S.C.  








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          Sec. 1324b(a)(6).)

           Existing 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 who have been employed, in this state.  
           For purposes of enforcing state labor and employment laws,  
          existing law provides that a person's immigration status is  
          irrelevant to the issue of liability, and in proceedings or  
          discovery undertaken to enforce those state laws, no inquiry  
          shall be permitted into a person's immigration status except  
          where the person seeking to make this inquiry has shown by clear  
          and convincing evidence that the inquiry is necessary in order  
          to comply with federal immigration law.  (Lab. Code Sec. 1171.5;  
          Civ. Code Sec. 3339; Gov. Code Sec. 7285; Health & Saf. Code  
          Sec. 24000.)

           Existing law  prohibits discrimination against an employee or job  
          applicant who has engaged in prescribed protected conduct  
          relating to the enforcement of the employee's or applicant's  
          rights, including initiating an action or testifying in any  
          proceeding thereto, delineated under the Labor Code.  (Lab. Code  
          Sec. 98.6.)
           
          Existing law  makes it unlawful for an employer or any other  
          person or entity to engage in, or to direct another person or  
          entity to engage in, unfair immigration-related practices, as  
          specified, against any person for the purpose of, or with the  
          intent of, retaliating against any person for exercising any  
          right protected, including:
           filing a complaint or informing any person of an employer's or  
            other party's alleged violation of this code or local  
            ordinance, so long as the complaint or disclosure is made in  
            good faith; 
           seeking information regarding whether an employer or other  
            party is in compliance with the Labor Code or local ordinance;  
            and
           informing a person of his or her potential rights and remedies  
            under the Labor Code or local ordinance, and assisting him or  
            her in asserting those rights.  (Lab. Code Sec. 1019(a).)

           Existing law  provides that, other than conduct undertaken at the  
          express and specific direction or request of the federal  








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          government, an "unfair immigration-related practice" means any  
          of the following practices, when undertaken for retaliatory  
          purposes:
           requesting more or different documents than are required under  
            federal law, or a refusal to honor documents tendered pursuant  
            to federal law that on their face reasonably appear to be  
            genuine;
           using the federal E-Verify system to check the employment  
            authorization status of a person at a time or in a manner not  
            required under federal law, or not authorized under any  
            memorandum of understanding governing the use of the federal  
            E-Verify system;
           threatening to file or the filing of a false police report, or  
            a false report or complaint with any state or federal agency;  
            and
           threatening to contact or contacting immigration authorities.   
            (Lab. Code Sec. 1019(c).)

           Existing law  provides that engaging in an unfair  
          immigration-related practice against a person within 90 days of  
          the person's exercise of rights protected under the Labor Code  
          or local ordinance applicable to employees raises a rebuttable  
          presumption of having done so in retaliation for the exercise of  
          those rights.  (Lab. Code Sec. 1019(c).)

           Existing law  authorizes an employee or other person who is the  
          subject of an unfair immigration-related practice, or a  
          representative of that employee or person, to bring a civil  
          action for equitable relief and any applicable damages or  
          penalties, and, upon finding a violation, authorizes a court to  
          do the following:
           for a first violation, order the appropriate government  
            agencies to suspend all licenses that are held by the  
            violating party for a period of up to 14 days;
           for a second violation, order the appropriate government  
            agencies to suspend all licenses that are held by the  
            violating party for a period of up to 30 days; and
           for a third or subsequent violation, order the appropriate  
            government agencies to suspend for a period of up to 90 days  
            all licenses that are held by the violating party; and
           on receipt of the court's order and notwithstanding any other  
            law, the appropriate agencies are required to suspend the  
            licenses according to the court's order.  (Lab. Code Sec.  
            1019(d)(1)-(2).)








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          Existing law  , in determining whether a suspension of all  
          licenses is appropriate, requires the court to consider whether  
          the employer knowingly committed an unfair immigration-related  
          practice, the good faith efforts of the employer to resolve any  
          alleged unfair immigration-related practice after receiving  
          notice of the violations, as well as the harm other employees of  
          the employer, or employees of other employers on a multiemployer  
          job site, will suffer as a result of the suspension of all  
          licenses.  (Lab. Code Sec. 1019(d)(3).)

           Existing law  authorizes a prevailing employee or other person  
          who is the subject of an unfair immigration-related practice to  
          recover his or her reasonable attorney's fees and costs,  
          including any expert witness costs.  (Lab. Code Sec.  
          1019(d)(4).)

           Existing law  defines "license" to mean any agency permit,  
          certificate, approval, registration, or charter that is required  
          by law and that is issued by any agency for the purposes of  
          operating a business in this state and that is specific to the  
          business location or locations where the unfair  
          immigration-related practice occurred, but "license" does not  
          include a professional license.  (Lab. Code Sec. 1019(e)(1).)

           Existing law  defines "violation" to mean each incident when an  
          unfair immigration-related practice was committed, without  
          reference to the number of employees involved in the incident.   
          (Lab Code Sec. 1019(e)(2).)

           This bill  would make it unlawful and an unfair  
          immigration-related practice for an employer or any other person  
          or entity to request, or to direct another person or entity to  
          request, that an applicant for employment, or an employee,  
          provide more or different documents than are required under the  
          INA.

           This bill  would make it unlawful and an unfair  
          immigration-related practice for an employer or any other person  
          or entity to attempt, or to direct another person or entity to  
          attempt, to reinvestigate or reverify an incumbent employee's  
          authorization to work unless required to do so by federal law or  
          authority.









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           This bill  would make it unlawful and an unfair  
          immigration-related practice for an employer or any other person  
          or entity, or to direct another person, to discriminate against  
          an applicant for employment or employee with authorization to  
          work based upon the specific status or term of status that  
          accompanies the authorization to work.

           This bill  would authorize an applicant for employment, employee,  
          or other person who is the subject of an unfair  
          immigration-related practice, or a representative of that  
          employee or person, to bring a civil action for equitable relief  
          and any applicable damages or penalties.

           This bill  would authorize an applicant for employment or  
          employee who is the subject of an unfair immigration-related  
          practice, and who prevails in that action, to recover his or her  
          reasonable attorney's fees and costs, including any expert  
          witness costs.

                                        COMMENT
           
          1.  Stated need for the bill  
          
          The author writes:
          
            Currently, federal law 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  








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            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 discourage or create challenges for  
            potential job applicants. 

            SB 1001 would address the unlawful practice of document abuse.  
             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.  SB 1001 also states  
            that it is an unlawful employment practice to deny documents  
            that appear to be genuine, or attempt to re-verify or  
            re-investigate an employee's authorization to work.

          The California Immigrant Policy Center (CIPC), co-sponsor,  
          writes:  "In 2013, Governor Brown signed into law AB 263  
          (Hernandez) that provides various protections against  
          retaliation including the unlawful practice of document abuse,  
          only when employed as a retaliation tool against workers who  
          exercise their workplace rights.  SB 1001 would fortify those  
          protections and strengthen enforcement against the continued and  
          prevalent practice of document abuse by providing a state remedy  
          for workers who are victims of this unlawful discriminatory  
          practice outside of the retaliation context, and more  
          specifically at the point of hire."  

          2.  Extending protections against unlawful and unfair  
            immigration-related practices  

          Federal law, the Immigration and Nationality Act (INA), requires  
          all employers to verify both the identity and employment  
          eligibility of all regular, temporary employees, temporary  
          agency personnel, and student employees hired after November 6,  
          1986, and complete and retain a one-page form (INS Form I-9)  
          documenting this verification.  (8 U.S.C. Sec. 1324a.)  The INA  
          also protects undocumented workers against unfair  
          immigration-related employment practices by which an employer or  








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          other entity requests more or different documents than are  
          required or refusing to honor documents tendered that on their  
          face reasonably appear to be genuine if made for the purpose or  
          with the intent of discriminating against an individual.  (8  
          U.S.C. Sec. 1324b(a)(6).)  State law protects undocumented  
          workers from retaliation against the individual through unfair  
          immigration-related employment practices.  (Lab. Code Sec.  
          1019.)  This bill would extend those protections under state law  
          to protect an applicant or employee from document abuse when an  
          employer or other entity requests more or different documents  
          than those required under the INA.

          The author argues that while 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.  Further, the author argues that  
          although federal law provides protection against document abuse,  
          these protections must be enforced through an overly cumbersome  
          process making it extremely difficult for potential workers to  
          avail themselves of this remedy.

          The author provides the following examples of document abuse:

                 A prospective employer demands to see a worker's U.S.  
               passport.
                 A prospective employer asks for an Employment  
               Authorization Document although the worker has already  
               shown a state identification card and an "unrestricted"  
               Social Security card.
                 A prospective employer refuses to accept an Employment  
               Authorization Document because it has a future expiration  
               date.
                 An employer asks to re-verify the work documents of a  
               worker who had presented a Green Card at the time of hire.
                 An employer demands to see a worker's renewed driver's  
               license because the license that the worker originally used  
                       for the I-9 has expired. 

          CIPC argues that immigrant workers make up more than one-third  
          of our labor force, and California must ensure that California's  
          immigrant workforce has in-state protections and a clear  
          mechanism to seek justice against discriminatory practices such  
          as document abuse.  CIPC states that this bill will further  
          protect immigrant workers and uphold responsible business  








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          practices.

          The author notes that individuals applying for work or currently  
          working under the DACA or DAPA programs need protection against  
          employers who discourage or create unlawful challenges through  
          document abuse.  Accordingly, this bill seeks to protect  
          immigrant workers such as those authorized under the DACA and  
          DAPA programs from discrimination by employers through the use  
          of document abuse.

          3.  Private right of action and remedies relating to unfair  
            immigration-related practices
           
          Existing law provides that an employee who is the subject of an  
          unfair immigration-related practice and is retaliated against  
          for exercising his or her rights under the Labor Code or any  
          local ordinance may bring a civil action for equitable relief  
          and any damages or penalties, and, upon prevailing, recover  
          reasonable attorney's fees and costs, including any expert  
          witness costs.  (Lab. Code Sec. 1019.)  This bill would mirror  
          these provisions and provide judicial enforcement for an  
          applicant for employment or employee if an employer refuses to  
          accept legally acceptable documents that appear genuine on their  
          face or attempts to re-verify or re-investigate an employee's  
          authorization to work.

          Further, this bill would require the court to award reasonable  
          attorney's fees to the prevailing applicant or employee, which  
          would encourage attorneys to take on cases for individuals who  
          could not otherwise afford an attorney, thus, facilitating the  
          enforcement of these Labor Code violations.

          4.  If approved, this bill should be sent back to the Senate  
            Rules Committee  

          The Senate Rules Committee has requested that, should this bill  
          be approved by this Committee, it should be sent back to the  
          Rules Committee for consideration of a request by the Senate  
          Labor Committee to hear the bill. 


           Support  :  American Civil Liberties Union of California; Asian  
          Americans Advancing Justice - California; Asian Americans  
          Advancing Justice - Los Angeles; California Council of Churches  








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          IMPACT; California Employment Lawyers Association; California  
          Immigrant Youth Justice Alliance; California Labor Federation,  
          AFL-CIO; California Rural Legal Assistance Foundation;  
          California Teamsters Public Affairs Council; Consumer Attorneys  
          of California; Instituto de Educacion Popular del Sur de  
          California; Pomona Economic Opportunity Center; Southeast Asia  
          Resource Action Center; One Individual

           Opposition  :  None Known

                                        HISTORY
           
           Source  :  California Immigrant Policy Center; Mexican American  
          Legal Defense and Education Fund

           Related Pending Legislation  :  None Known

           Prior Legislation  :

          AB 1065 (Chiu, 2015) See Background.

          AB 731 (Gallagher, Chapter 303, Statutes of 2015), the  
          Maintenance of the Codes bill, made technical corrections to the  
          statute enacted by AB 263.

          AB 2751 (HernŠndez, Chapter 79, Statutes of 2014) See  
          Background.

          SB 666 (Steinberg, Chapter 577, Statutes of 2013) See  
          Background.

          AB 263 (HernŠndez, Chapter 732, Statutes of 2013) See  
          Background.

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