BILL ANALYSIS Ó
SB 1001
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Date of Hearing: June 22, 2016
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hernández, Chair
SB
1001 (Mitchell) - As Amended March 28, 2016
SENATE VOTE: 29-10
SUBJECT: Employment: unfair practices
SUMMARY: Enacts specifies provisions of law related to "unfair
immigration-related practices." Specifically, this bill:
1)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, an "unfair immigration-related practice" against an
applicant for employment or an employee.
2)Makes it unlawful 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 using an "unfair immigration-related
practice."
3)Provides that it is unlawful and an "unfair
immigration-related practice" for an employer or any other
person or entity to, or to direct another person to,
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discriminate against an applicant for employment or an
employee with authorization to work based upon the specific
status, or term of status, that accompanies the authorization
to work.
4)Provides that an applicant for employment or an employee, who
is subject to an unfair immigration-related practice that is
prohibited by this bill, or their representative, may bring a
civil action for equitable relief and any applicable damages
or penalties. An applicant or employee who prevails shall
recover reasonable attorney's fees and costs.
EXISTING LAW:
1)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:
a) 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.
b) Seeking information regarding whether an employer or
other party is in compliance with the Labor Code or local
ordinance.
c) 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.
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2)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:
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 the use of
the federal E-Verify system.
c) Threatening to file or the filing of a false police
report, or a false report or complaint with any state or
federal agency.
d) Threatening to contact or contacting immigration
authorities.
3)Prohibits an employer or any other person or entity from using
the E-Verify system at a time or in a manner not required by a
specified federal law or not authorized by a federal agency
memorandum of understanding to check the employment
authorization status of an existing employee or an applicant
who has not received an offer of employment, except as
required by federal law or as a condition of receiving federal
funds.
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4)Requires an employer that uses the E-Verify system to provide
to the affected employee any notification issued by the Social
Security Administration or the United States Department of
Homeland Security containing information specific to the
employee's E-Verify case or any tentative nonconfirmation
notice.
FISCAL EFFECT: 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.
COMMENTS:
Brief Background on Recent Legislation
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.
To provide protection for undocumented workers laying claims
against their employers for wage and hour violations, AB 263
(Roger Hernández) 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.
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The following year, in 2014, AB 2751 (Roger Hernández) 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 622 (Roger Hernández) was enacted to prohibit an
employer or any other person or entity from using the E-Verify
system at a time or in a manner not required by federal law or
not authorized by a federal agency memorandum of understanding
to check the employment authorization status of an existing
employee or an applicant who has not received an offer of
employment, as specified. The bill provided for a civil penalty
of $10,000 for each violation of its provisions.
Provisions of This Bill
As discussed above, state law protects undocumented workers from
retaliation against the individual through unfair
immigration-related employment practices. (Lab. Code Sec.
1019.) This bill would extend those protections under state law
to protect an applicant or employee from document abuse when an
employer or other entity requests more or different documents
than those required under federal law.
Specifically, this bill would prohibit 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
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so by federal law or authority.
The author argues that while state 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. Further, the author argues that
although federal law provides protection against document abuse,
these protections must be enforced through an overly cumbersome
process making it extremely difficult for potential workers to
avail themselves of this remedy.
The author provides the following examples of document abuse:
A prospective employer demands to see a worker's U.S.
passport.
A prospective employer asks for an Employment
Authorization Document although the worker has already
shown a 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.
An employer asks to re-verify the work documents of a
worker who had presented a Green Card at the time of hire.
An employer demands to see a worker's renewed driver's
license because the license that the worker originally used
for the I-9 has expired.
Arguments in Support
According to 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
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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.
[This bill] 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. [This bill] 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."
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The California Immigrant Policy Center, co-sponsor, writes: "In
2013, Governor Brown signed into law ?various protections
against retaliation ?. [this bill] 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."
Prior Legislation
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 to work. The
introduced version of this bill was substantially similar to AB
1065, which was held on suspense in the Assembly Appropriations
Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
American Civil Liberties Union of California
American Federation of State, County & Municipal Employees
Asian Americans Advancing Justice - California
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Asian Americans Advancing Justice - Los Angeles
Asian Law Alliance
California Council of Churches IMPACT
California Employment Lawyers Association
California Immigrant Policy Center (co-sponsor)
California Immigrant Youth Justice Alliance
California Labor Federation, AFL-CIO
California Rural Legal Assistance Foundation
California Teachers Association
California Teamsters Public Affairs Council
Central American Resource Center-Los Angeles
Clergy and Laity United for Economic Justice
Coalition for Humane Immigrant Rights of Los Angeles
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Consumer Attorneys of California
East Bay Alliance for a Sustainable Economy
Garment Worker Center
Immigrant Legal Resource Center
Inland Coalition for Immigrant Justice
Instituto de Educacion Popular del Sur de California
Interfaith Center for Worker Justice of San Diego County
Latino Coalition for a Healthy California
Mexican American Legal Defense and Education Fund (co-sponsor)
Mujeres Unidas y Activas
National Association of Social Workers, CA Chapter
National Immigration Law Center
National Network for Immigrant and Refugee Rights
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One individual
Our Family Coalition
Pomona Economic Opportunity Center
Santa Clara County Board of Supervisors
Service Employees International Union California
Services, Immigrant Rights, & Education Network
Southeast Asia Resource Action Center
Worksafe
Opposition
None on file.
Analysis Prepared by:Ben Ebbink / L. & E. / (916)
319-2091
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