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 ----------------------------------------------------------------- |Author: |Mitchell | |-----------+-----------------------------------------------------| |Version: |March 28, 2016 | ----------------------------------------------------------------- ----------------------------------------------------------------- |Urgency: |No |Fiscal: |Yes | ----------------------------------------------------------------- ----------------------------------------------------------------- |Consultant:|Alma Perez-Schwab | | | | ----------------------------------------------------------------- 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 SB 1001 (Mitchell) Page 2 of ? 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 SB 1001 (Mitchell) Page 3 of ? 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 SB 1001 (Mitchell) Page 4 of ? 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: SB 1001 (Mitchell) Page 5 of ? 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 SB 1001 (Mitchell) Page 6 of ? 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 SB 1001 (Mitchell) Page 7 of ? 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 SB 1001 (Mitchell) Page 8 of ? 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 SB 1001 (Mitchell) Page 9 of ? 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 --