BILL ANALYSIS                                                                                                                                                                                                    ”






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          |SENATE RULES COMMITTEE            |                       SB 1001|
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                                   THIRD READING 


          Bill No:  SB 1001
          Author:   Mitchell (D), et al.
          Amended:  3/28/16  
          Vote:     21 

           SENATE JUDICIARY COMMITTEE:  5-1, 4/5/16
           AYES:  Jackson, Hertzberg, Leno, Monning, Wieckowski
           NOES:  Anderson
           NO VOTE RECORDED:  Moorlach

           SENATE LABOR & IND. REL. COMMITTEE:  4-1, 4/13/16
           AYES:  Mendoza, Jackson, Leno, Mitchell
           NOES:  Stone

           SENATE APPROPRIATIONS COMMITTEE:  5-2, 5/27/16
           AYES:  Lara, Beall, Hill, McGuire, Mendoza
           NOES:  Bates, Nielsen

           SUBJECT:   Employment:  unfair practices


          SOURCE:    California Immigrant Policy Center 
                     Mexican American Legal Defense and Education Fund 

          DIGEST:   This bill prohibits 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.


          ANALYSIS:  








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          Existing law:


           1) 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 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.)


           2) 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 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).)


           3) 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  







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             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.


           4) 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. 


           5) 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 Labor  
                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.  


           1) 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 practices, when undertaken for retaliatory  
             purposes:


                   Requesting more or different documents than are  







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                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. 


           1) 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.  


           2) 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; 

                   For a third or subsequent violation, order the  
                appropriate government agencies to suspend for a period of  







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                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.  


           1) Provides, in determining whether a suspension of all  
             licenses is appropriate, 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. 


           2) 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.  


           3) 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.  


           4) 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.  


          This bill:


           1) Makes it unlawful and an unfair immigration-related practice  
             for an employer or any other person or entity to request, or  







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             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 Immigration  
             and Nationality Act.


           2) Makes 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; or

                   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.


           1) Authorizes 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.


           2) Authorizes 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.


          Background


          There are approximately 2.6 million undocumented Californians.   
          (Cho and Smith, Workers' Rights on ICE:  How Immigration Reform  
          Can Stop Retaliation and Advance Labor Rights, National  
          Employment Law Project (Feb. 2013)  
           
                                                                    Page  7


          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.)  Many  
          undocumented workers do not file claims 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.)


          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 two 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)  
                                                                    Page  8


          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  
          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.







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          This bill, prohibits, 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.


          Comments


          As stated by the author:


            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  
            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. 









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            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.




          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   No

          According to the Senate Appropriation Committee, the Department  
          of Industrial Relations indicates that it would incur costs of  
          up to $473,000 annually (special funds) to implement the  
          provisions of this bill. 


          SUPPORT:   (Verified5/27/16)


          California Immigrant Policy Center (co-source)
          Mexican American Legal Defense and Education Fund (co-source)
          American Civil Liberties Union of California
          Asian Americans Advancing Justice - California
          Asian Americans Advancing Justice - Los Angeles
          Asian Law Alliance
          California Council of Churches 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
          Central American Resource Center-Los Angeles 







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          Clergy and Laity United for Economic Justice
          Consumer Attorneys of California
          Garment Worker Center
          Instituto de Educacion Popular del Sur de California
          Interfaith Center for Worker Justice of San Diego County
          Latino Coalition for a Healthy California
          Mujeres Unidas y Activas
          National Network for Immigrant and Refugee Rights 
          Our Family Coalition
          Pomona Economic Opportunity Center
          Service Employees International Union California
          Services, Immigrant Rights, & Education Network 
          Southeast Asia Resource Action Center
          Worksafe
          One individual


          OPPOSITION:   (Verified5/27/16)


          None received

          ARGUMENTS IN SUPPORT:  The California Immigrant Policy Center,  
          co-sponsor, writes:  "In 2013, Governor Brown signed into law  
          ?various protections against retaliation ?. 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."  

          Prepared by:Margie Estrada / JUD. / (916) 651-4113,  Tara Welch  
          / JUD. / (916) 651-4113
          5/28/16 16:50:10


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