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

                                      -- END --