BILL ANALYSIS Ó
-----------------------------------------------------------------
|SENATE RULES COMMITTEE | SB 1001|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
-----------------------------------------------------------------
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:
SB 1001
Page 2
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
SB 1001
Page 3
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
SB 1001
Page 4
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
SB 1001
Page 5
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
SB 1001
Page 6
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
(Hernández, 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 (Hernández, 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.
SB 1001
Page 9
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.
SB 1001
Page 10
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
SB 1001
Page 11
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
**** END ****
SB 1001
Page 12