BILL ANALYSIS                                                                                                                                                                                                    ”



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          Date of Hearing:  June 22, 2016


                     ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT


                               Roger HernŠndez, 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 HernŠndez) 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 HernŠndez) 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 HernŠndez) 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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