BILL ANALYSIS                                                                                                                                                                                                    



                                                                    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