BILL ANALYSIS Ó
SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS
Senator Tony Mendoza, Chair
2015 - 2016 Regular
Bill No: SB 1001 Hearing Date: April 13,
2016
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|Author: |Mitchell |
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|Version: |March 28, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Alma Perez-Schwab |
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Subject: Employment: unfair practices
KEY ISSUES
Should the legislature prohibit an employer from requesting
employment verification documents that are different than those
required under federal immigration law?
Should the legislature prohibit an employer from discriminating
against an employee by attempting to reinvestigate or reverify
work authorization unless required by federal law?
Should an applicant or incumbent employee who is the subject of
an unfair immigration-related practice be authorized to bring a
civil action for equitable relief against the employer?
ANALYSIS
Existing federal law:
1. Under the Immigration and Nationality Act, existing
federal law requires employers to verify, through
examination of specified documents, that every new hire is
either a U.S. citizen or legally authorized to work in the
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United States.
2. Provides that a person or entity has complied with this
verification requirement if the document or combination of
documents reasonably appears on its face to be genuine and
that meet the federal requirements, then the law does not
require the person or entity to solicit the production of
any other document or require the applicant to produce
other documents. [8 U.S.C. Sec. 1324a(b)(1)(A)]
3. Makes it an unfair immigration-related employment
practice for a person or other entity to discriminate
against any individual with respect to the hiring, or
recruitment or referral for a fee, of the individual or the
discharging of the individual from employment.
4. 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. Sec. 1324b(a)(6).)
Existing state law:
1. 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.)
2. Makes it unlawful for an employer or any other person or
entity to engage in, or to direct another person or entity
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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 protected right, including filing of
complains or seeking information regarding employer
compliance with state law (Labor Code §1019).
3. Provides that, other than conduct undertaken at the
express and specific direction or request of the federal
government, an "unfair immigration-related practice" means
any of the following, when undertaken for retaliatory
purposes:
a. 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;
b. 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 its use;
c. threatening to file or the filing of a false
police report, or a false report or complaint with any
state or federal agency; and
d. threatening to contact or contacting
immigration authorities.
4. 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. (Labor Code §1019)
5. 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:
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
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days;
b. 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
c. third or subsequent violation, order the
appropriate government agencies to suspend for up to
90 days all licenses that are held by the violating
party; and
d. 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.
This Bill would expand on what constitutes an unfair
immigration-related practice by making it unlawful for an
employer or any other person or entity to do, or direct another
person or entity to do, the following:
1. Request that an employee or applicant for employment
provide more or different work authorization documents than
are required under federal law.
2. Attempt to reinvestigate or reverify an incumbent
employee's authorization to work unless required to do so
by federal law
3. Discriminate against an applicant for employment or
incumbent employee with authorization to work based upon
the specific status, or term of status, that accompanies
the work authorization.
This Bill would authorize an applicant or employee, or his or
her representative, who is the subject of an unfair
immigration-related practice to bring a civil action for
equitable relief and any applicable damages or penalties in
addition to recovering his or her reasonable attorney's fees and
costs, including any expert witness costs if he or she prevails
in the action.
COMMENTS
1. Background on California's Immigrant Workforce:
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Immigrant workers, both documented and undocumented have a
significant impact in California's workplace and economy.
According to a National Employment Law Project (NELP) report,
in 2010, 23.1 million foreign-born persons participated in the
civilian labor force. Of these workers, 5.2 percent (about
eight million) form part of the U.S. undocumented labor force.
An estimated 2.6 million undocumented immigrants reside in
California- approximately seven percent of the State's total
population and one-fourth of the population of undocumented
immigrants nationwide. ("Workers' Rights on ICE: How
Immigration Reform Can Stop Retaliation and Advance Labor
Rights," NELP, February 2013)
Most undocumented immigrants work in traditionally low-wage
occupations such as agriculture, construction, manufacturing,
and service industries, where workers face the greatest risk
for exploitation and are more likely to experience violations
of wage and hour laws. A landmark study of low-wage workers in
Los Angeles ("Wage Theft and Workplace Violations in LA: The
Failure of Employment and Labor Law for Low-Wage Workers,"
UCLA 2010) found that almost 76 percent of undocumented
workers had worked off-the-clock without pay and over 85
percent had not received overtime pay. The study also found
that undocumented workers experienced these violations at
rates higher than their native-born counterparts. Moreover,
immigrant workers are more likely to be injured or killed on
the job.
The NELP report found that employers and their agents have far
too frequently shown that they will use immigration status as
a tool against worker exercising their employment rights.
On November 20, 2014, President Obama 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 order to temporarily stay in the U.S. without fear of
deportation. The executive action had two key components:
1. It would offer a legal reprieve to the undocumented
parents, Deferred Action for Parents of Americans (DAPA)
of U.S. citizens and permanent residents who have resided
in the country for at least five years removing the
constant threat of deportation. Many could also receive
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work permits.
2. It would expand the 2012 Deferred Action for
Childhood Arrivals (DACA) program that allowed young
immigrants who arrived as children to apply for a
deportation deferral and obtain work authorization.
Obama's executive actions have been challenged by more than
two dozen states, claiming an abuse of executive authority,
and are currently pending before the United States Supreme
Court with a decision expected sometime in the summer of 2016.
2. Background on Unfair Immigration-Related Practices:
Under existing law, it is illegal for a person or other entity
to "knowingly" hire, recruit, or refer for employment any
individual without complying with specified employment
verification procedures. Among other things, the law requires
employers to verify that every new hire is either a U.S.
citizen or authorized to work in the United States. All
employers are required to have new employees complete form
I-9, Employment Eligibility Verification, upon hire and within
three days, a new employee must show their employers
documentation establishing identity and eligibility to work in
the U.S. The I-9 form contains a list of acceptable documents
to meet this requirement and includes, among others, a U.S.
passport, permanent resident card, employment authorization
document, or social security card.
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. Over the last couple of years,
several measures have been passed and signed by the Governor
reinforcing these rights and protections for all workers.
In 2013, AB 263 (Hernandez, Chapter 732) was passed in order
to protect undocumented workers with claims for wage and hour
violations against their employer by prohibiting an employer
or any other person or entity from engaging in unfair
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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), 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 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 following year, AB 2751 (Hernández, Chapter 79) extended
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) was introduced to
provide 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. AB 1065 was held on suspense in
the Assembly Appropriations Committee.
3. Need for this bill?
Although existing law has been amended over the last several
years to emphasize the state's policy 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," fear and
threats of job loss appear to be constant challenges for
workers. According to the author, while existing 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. Additionally, the
author states that the federal law that provides protection
against document abuse must be enforced through an overly
cumbersome process which makes it extremely difficult for
potential workers to avail themselves of this remedy.
Examples of document abuse include an employer asking to
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reverify a worker's authorization to work even after
presenting a valid permanent resident card at the time of
hire; a prospective employer asks for an employment
authorization card even though the worker has already provided
the allowed 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. Immigrant workers who have been granted a
temporary legal status under the President's executive orders
(DAPA and DACA programs) are eligible to apply for work
authorization for a specified number of years; the work
authorization document would include an expiration date.
This bill amends the Labor Code to explicitly state that it is
an unlawful employment practice to request more or different
documents than required by federal law as a prerequisite for
employment. This bill would mirror existing provisions related
to unfair immigration-related practices and would provide
judicial enforcement for an applicant for employment or
employee if an employer refuses to accept legally acceptable
documents or attempts to re-verify or re-investigate an
employee's authorization to work, unless required by federal
law.
4. Double Referral :
This bill was double referred and was previously heard by the
Senate Judiciary Committee where it passed on a 5-1 vote.
5. Proponent Arguments :
According to the author and proponents, immigrant workers make
up more than one-third of our labor force, and California must
ensure that our immigrant workforce has in-state protections
and a clear mechanism to seek justice against discriminatory
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. According to proponents, it
has been found that a large number of employers are asking
employees for extraneous documents to show proof of identity
and/or work authorization or are not accepting legally
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acceptable documents, especially for immigrant workers.
Accordingly, proponents believe that this bill would protect
immigrant workers and uphold responsible business practices by
fortifying existing protections and strengthening enforcement
against the prevalent practice of document abuse.
6. Opponent Arguments :
None received.
7. Prior Legislation :
AB 622(Hernandez) of 2015, Chaptered: this bill expanded the
definition of an unlawful employment practice to prohibit the
use of the E-Verify system at a time or in a manner not
required by federal law to check the employment authorization
status of an existing employee or an applicant for employment.
AB 1065(Chiu) of 2015: described above.
AB 2751(Hernandez) of 2014, Chaptered: described above.
SB 666(Steinberg) of 2013, Chaptered: described above.
AB 263(Hernandez) of 2013, Chaptered: described above.
SUPPORT
California Immigrant Policy Center (Sponsor)
Coalition for Humane Immigrant Rights of Los Angeles
OPPOSITION
None received
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