BILL ANALYSIS Ó
SB 1001
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Date of Hearing: June 28, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SB
1001 (Mitchell) - As Amended March 28, 2016
SENATE VOTE: 29-10
SUBJECT: Employment: unfair practices
KEY ISSUE: should existing statutory rights and remedies that
protect immigrant workers from certain unfair practices be
extended to applicants for employment, and should incumbent
employees have a state law remedy against unlawful attempts to
make them Re-Verify their work authorization status?
SYNOPSIS
This bill strengthens and reinforces existing federal and state
laws that prohibit an employer from engaging in "unfair
immigration-related practices," including requiring more
documentation than is necessary to establish an immigrant's work
authorization under federal law, threatening to report an
employee to immigration or other authorities, or retaliating
against a worker for exercising any right afforded to him or her
under state or local laws. This bill enhances these existing
protections in three important ways. First, this bill extends
existing protections to "applicants" for employment as well as
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employees. Second, this bill would prohibit an employer from
attempting to reinvestigate or reverify the work status of an
incumbent employee unless requested or directed to do so by the
federal government. Third, the bill would permit an applicant
or employee subjected to an unfair immigration practice to bring
a civil action for equitable relief or damages, if any, and
entitles a prevailing applicant or employee to recover
reasonable attorney's fees. Existing state law also permits a
victim of the unfair practice to bring a civil action, but that
remedy only applies where the "unfair immigration-related
practice" was done for retaliatory purposes. This bill is
co-sponsored by MALDEF and the California Immigrant Policy
Center. There is no opposition to this sensible and logical
enhancement of existing law.
SUMMARY: Prohibits an employer from engaging in an unfair
immigration-related practice against an applicant or employee,
or attempting to reinvestigate or reverify an incumbent
employee's authorization, and permits a person subject to an
unfair immigration-related practice to a civil remedy.
Specifically, this bill:
1)Prohibits an employer or any other person from engaging in, or
directing others to engage in, an unfair immigration-related
practice against either an applicant for employment or an
employee. Defines "unfair immigration-related practice," in
accord with existing state law, to mean any of the following:
a) Requesting more or different documents than are required
by federal law or refusing to honor required documents that
on their face 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 or authorized by federal law.
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c) Threatening to file or filing a false police report,
threatening to file or filing a false report or complaint
with any state or federal agency, or threatening to contact
or contacting immigration authorities.
2)Prohibits an employer or any other person from attempting, or
directing another person to attempt, to reinvestigate or
reverify an incumbent employee's authorization to work.
3)Prohibits an employer or any other person from discriminating,
or direct another person to, discriminate, against an
applicant for employment or an employee with authorization to
work based upon the specific status that accompanies the
authorization to work.
4)Permits an applicant or employee who is subject to an unfair
immigration-related practice, or a representative of that
applicant or employee, to bring a civil action for equitable
relief and any applicable damages or penalties, and specifies
that an applicant or employee who prevails shall recover his
or her reasonable attorney's fees.
EXISTING LAW:
1)Requires an employer to verify, through examination of
specified documents, whether or not an individual is
authorized to work in the United States. Specifies that if
the document is presented and reasonably appears on its face
to be genuine, then the employer has complied with this
requirement and is not required to solicit or demand any other
document. (8 USC Section 1324a (b).)
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2)Makes it an unfair immigration-related employment practice for
any person or entity to do any of the following:
a) Discriminate against any individual, except as provided,
with respect to the hiring, recruitment, or referral of the
individual for employment or the discharging of the
individual from employment.
b) Request, with the intent of discriminating against an
individual, more or different documents than are required
under law or refuse to honor documents tendered which, on
their face, reasonably appear to be genuine. (8 USC
Section 1342a (a)(1)-(6).)
3)Prohibits an employer or any other person or entity from
engaging in, or directing another person or entity to engage
in, an unfair immigration-related practice against any person
for the purpose of retaliating against that person for
exercising his or her rights under state or local labor law.
These protected rights include the following:
a) Filing a complaint or informing any person of an
employer's or other party's alleged violation of a state or
local labor law, 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 state or local labor law.
c) Informing a person of his or her potential rights and
remedies under state or local labor law, or assisting him
or her in asserting those rights. (Labor Code Section 1019
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(a).)
4)Defines "unfair immigration-related practice," for purposes of
state law, to mean any of the following practices when
undertaken for retaliatory purposes, and not at the direction
or request of the federal government:
a) Requesting more or different documents than are required
by federal law or refusing to honor required documents that
on their face 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 or authorized by federal law.
c) Threatening to file or filing of a false police report,
threatening to file or filing a false report or complaint
with any state or federal agency, or threatening to contact
or contacting immigration authorities. (Labor Code Section
1019 (b).)
1)Specifies that engaging in an unfair immigration-related
practice against a person within 90 days of the person's
exercise of a protected right shall raise a rebuttable
presumption of having done so in retaliation for the exercise
of those rights. (Labor Code Section 1019 (c).)
2)Permits an employee or any other person who is subject to an
unfair immigration-related practice, where the unfair practice
is retaliatory in nature, to bring a civil action for
equitable relief and any applicable damages or penalties, and
specifies that an employee or other person who prevails shall
recover his or her reasonable attorney's fees. (Labor Code
Section 1019 (d) (1).)
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3)Permits a court, upon finding a violation of any of the above
state law provisions, to take specified actions, including
suspending any licenses of the violating party for a specified
period of time depending upon the number of past offenses of
the violating party. (Labor Code Section 1019 (d) (2).)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: This bill would provide important protections and
legal remedies to the immigrant employees who make up a critical
and growing proportion of the California workforce.
Specifically, this bill strengthens and reinforces existing
federal and state laws that prohibit an employer from engaging
in "unfair immigration-related practices," including requiring
more documentation than is required to establish an immigrant's
authorization (i.e. "document abuse"); threatening to report an
employee to immigration or other authorities; or retaliating
against a worker for exercising any right afforded to him or her
under state or local laws. SB 1001 will enhance these existing
protections in three important ways. First, the bill expands
existing protections to "applicants for employment," as well as
employees. Second, the bill would prohibit an employer from
attempting to reinvestigate or reverify the status of an
incumbent employee unless requested or directed to do so by the
federal government. Third, the bill would permit a person,
whether an applicant or employee, who is subjected to an unfair
immigration practice to bring a civil action for equitable
relief, damages, and, if the applicant or employee prevails,
reasonable attorney's fees.
Existing Federal and State Law: The federal Immigration Reform
and Control Act (IRCA) of 1986 required, among other things,
that an employer verify, through the inspection of specified
documents, whether or not an individual is authorized to work in
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the United States upon hiring that individual. So long as the
document or documents appear genuine on their face, the employer
may presume that the individual is authorized to work and need
not take any further action. Indeed, subsequent amendments to
IRCA made it an "unfair immigrant-related employment practice"
to discriminate against an individual applicant or employee by
requiring more or different documents than is required by law.
It is also deemed an unfair practice under IRCA to refuse to
honor documents that, on their face, appear to be genuine and
valid. Federal immigration form I-9 sets forth lists of
acceptable documents - some of which establish identity, some of
which establish work authorization, and some of which establish
both identity and work authorization. Form I-9 makes it clear
that it is up to the employee to choose which of the acceptable
documents to present, so long as the document or combination of
documents presented establishes both identity and work
authorization. For example, if an employee elects to present
one of the several acceptable documents to establish identify
(e.g. a driver's license) the employer cannot insist that the
employee present one of other acceptable documents from the list
(e.g. a voter registration card of U.S. Military
identification). In short, employers are required to demand
documentary evidence that establishes a person's identity and
work authorization; but the employer cannot go beyond that by
demanding more than is required or refusing to honor documents
that meet the requirement, so long as the documents reasonably
appear to be what they purport to be. (8 USC Sections 1324b
(a)-(b); see also Department of Homeland Security. U.S.
Citizenship and Immigration Service. "Instructions for
Employment Eligibility Verification (Form I-9).)
California law supplements federal law in various ways. Most
generally, California's major civil rights statutes - the Unruh
Civil Rights Act and the Fair Employment and Housing Act (FEHA)
- prohibit employment discrimination on the grounds of a
person's immigrant status, so long as the person is otherwise
authorized to work in the United States under federal law.
California law also protects immigrant employees from "document
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abuse" and other "unfair immigrant-related practices" in ways
that closely track federal law. For example, California deems
it an unfair immigrant-related practice to retaliate against an
employee who has exercised his or her rights under law by doing
any of the following: requesting more or different documents
than are required by federal law or refusing to honor required
documents that on their face 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 or
authorized by federal law; or threatening to file false reports
or complaints to law enforcement authorities or threatening to
contact immigration authorities. Existing law also makes it an
unfair immigration-related practice to retaliate against an
employee for exercising his or her rights under state or local
labor laws. Any person who is subjected to an unfair
immigration-related practice may bring an action against an
employer or other person for injunctive relief, damages, and
attorney's fees, but only where the unfair practice was engaged
in for a retaliatory purpose.
Limitation of Existing Law and Remedies: According to the
author and sponsors of this bill, existing federal and state law
remedies are inadequate in a number of ways. In particular, the
right to bring a civil action is effectively limited to current
employees and requires that the employer engaged in the unfair
practice for retaliatory purposes. Moreover, existing law
defines "retaliatory" and "retaliation" only in terms of an
adverse action against an employee who has attempted to exercise
a right afforded by state statute or local ordinance. Not only
does proving that an action was retaliatory in nature present a
high bar, the existing remedy completely ignores discrimination
against applicants and employees that might not have sought to
exercise a protected right. This bill would address these
deficiencies in a number of ways. First, the bill would extend
existing protections against "document abuse" to include
applicants for employment, as well as incumbent employees.
Second, this bill would make it an unfair practice for the
employer to reinvestigate an incumbent employee's work
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authorization status or require an employee to reverify his or
her status, unless the employer was required or directed to do
so by the federal government. Finally, this bill would allow an
individual that is subject to any an unfair immigration-related
practice to bring a civil action, but without the requirement in
existing law that the unfair practice was retaliatory in nature.
Existing law, that is, provides no remedy for an applicant for
employment or for an existing employee who has not taken some
action to exercise a protected right. This bill will correct
that significant limitation.
Extent of the Problem: According to the co-sponsors, immigrant
workers make up about one-third of the California labor force;
yet there are many documented cases of immigrants being
subjected to unfair labor practices without enjoying any
adequate state law remedy for relief. For example, the
co-sponsors have provided the Committee with several examples of
"document abuse" in California based on settlement agreements
reached by the Office of Special Counsel (OSC) for
Immigration-Related Unfair Employment Practices, the office
within the United States Department of Justice that is charged
with enforcing federal law in this area. (8 USC Section 1324b.)
However, these cases represent only the tip of the iceberg.
Presumably, for every instance of abuse that results in a
complaint filed with the federal OSC and results in a recorded
settlement, it seems likely that many, many, more are never
filed. As proponents of this bill point out, the process of
initiating and carrying a complaint through this federal process
can be cumbersome and difficult to navigate. While state law
provides a less cumbersome civil remedy, that remedy only
applies when the unfair practices are used as a tool of
retaliation against an employee who has exercised a right, and
as such provides no protection for an applicant for employment
or an employee who has never taken a formal action to exercise
his or her rights. Because document inspection almost by
definition takes place just prior to or at the point of hire,
the lack of protection for applicants is particularly
noteworthy.
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ARGUMENTS IN SUPPORT: According to California Immigration
Policy Center (CIPC), one of the co-sponsors of SB 1001, this
measure will "protect immigrant workers by prohibiting employers
from requesting specific documentation not required by the I-9
form or refusing to accept legally acceptable documents at the
time of hiring - a discriminatory practice known as 'document
abuse.'" In its work with the state's immigrants and their
families, CIPC has found that "a large number of employers are
asking employees for extraneous documents to show proof of
identity and/or work authorization or are not accepting legally
acceptable documents, especially for immigrant workers." CIPC
notes that while employees are protected from document abuse by
federal law, "the enforcement of such protections involves a
cumbersome administrative process through the Office of the
Special Counsel for Immigration-Related Unfair Employment
Practices, followed by the review by an administrative judge,
and potential review by the Court of Appeals. This is a complex
and often inaccessible option, particular for low wage workers."
CIPC also notes that existing state law (enacted by AB 263 in
2013) offered important protections, but only when the unfair
practices were used "as a retaliation tool against workers who
exercise their workplace rights." CIPC believes that SB 1001
will "fortify those protections and strengthen enforcement . . .
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." Finally,
CIPC notes that immigrants make up more than one-third of the
California workforce, and therefore California "must ensure that
California's immigrant workforce has in-state protections and
clear mechanism to seek justice against this discriminatory
practice." With this bill "California will further protect
immigrant workers and uphold responsible business practices."
Several other civil rights, labor, and immigrant rights
organizations support this bill for substantially the same
reasons as those articulated by CIPC.
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REGISTERED SUPPORT / OPPOSITION:
Support
California Immigrant Policy Center (co-sponsor)
Mexican American Legal Defense and Education Fund (co-sponsor)
American Civil Liberties Union of California
American Federation of State, County & Municipal Employees
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
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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
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
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Interfaith Center for Worker Justice of San Diego County
Latino Coalition for a Healthy California
Mujeres Unidas y Activas
National Association of Social Workers, CA Chapter
National Immigration Law Center
National Network for Immigrant and Refugee Rights
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
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Worksafe
Opposition
None on file
Analysis Prepared by:Thomas Clark / JUD. / (916)
319-2334