BILL ANALYSIS Ó SB 1001 Page 1 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, SB 1001 Page 2 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. SB 1001 Page 3 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. SB 1001 Page 4 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. SB 1001 Page 5 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 SB 1001 Page 6 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 SB 1001 Page 7 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." SB 1001 Page 8 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 SB 1001 Page 9 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 SB 1001 Page 10 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 SB 1001 Page 11 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 SB 1001 Page 12