BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 1001|
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UNFINISHED BUSINESS
Bill No: SB 1001
Author: Mitchell (D), et al.
Amended: 8/18/16
Vote: 21
SENATE JUDICIARY COMMITTEE: 5-1, 4/5/16
AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski
NOES: Anderson
NO VOTE RECORDED: Moorlach
SENATE LABOR & IND. REL. COMMITTEE: 4-1, 4/13/16
AYES: Mendoza, Jackson, Leno, Mitchell
NOES: Stone
SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/27/16
AYES: Lara, Beall, Hill, McGuire, Mendoza
NOES: Bates, Nielsen
SENATE FLOOR: 29-10, 5/31/16
AYES: Allen, Beall, Block, Cannella, De León, Galgiani,
Glazer, Hall, Hancock, Hernandez, Hertzberg, Hill, Hueso,
Jackson, Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell,
Monning, Nguyen, Pan, Pavley, Roth, Vidak, Wieckowski, Wolk
NOES: Anderson, Bates, Berryhill, Fuller, Gaines, Huff,
Moorlach, Morrell, Nielsen, Stone
NO VOTE RECORDED: Runner
ASSEMBLY FLOOR: 67-12, 8/24/16 - See last page for vote
SUBJECT: Employment: unfair practices
SOURCE: California Immigrant Policy Center
Mexican American Legal Defense and Education Fund
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DIGEST: This bill prohibits an employer from requesting more or
different employment authorization documents than are required
under federal law, refusing to honor documents tendered,
refusing to honor documents or work authorization based upon the
specific status or the term of status accompanying the
authorization, or reinvestigating or reverifying an incumbent
employee's authorization to work. Violation of these provisions
could result in a civil penalty of not more than $10,000 imposed
by the Labor Commissioner.
Assembly Amendments revise and rephrase the provisions of the
bill as well as remove the right to a civil action by an
aggrieved applicant to instead give the applicant, or his/her
representative, a right to file a complaint with the Division of
Labor Standards Enforcement. Amendments also add a penalty
assessment for a violation of these provisions.
ANALYSIS:
Existing law:
1) Requires an employer to verify, through examination of
specified documents, that an individual is not unauthorized
to work in the United States. (8 U.S.C. Sec. 1324a(b).)
Existing law provides that a person or entity has complied
with this requirement with respect to examination of a
document if the document reasonably appears on its face to be
genuine. (8 U.S.C. Sec. 1324a(b)(1)(A).) If an individual
provides a document or combination of documents that
reasonably appears on its face to be genuine and that is
sufficient to meet the requirements, then federal law does
not require the person or entity to solicit the production of
any other document or require the individual to produce
another document. (Id.)
2) Makes it an unfair immigration-related employment practice
for a person or other entity to discriminate against any
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individual (other than an unauthorized immigrant, as
specified) with respect to the hiring, or recruitment or
referral for a fee, of the individual for employment or the
discharging of the individual from employment. (8 U.S.C.
Sec. 1324b(a)(1).) Existing law makes it an unfair
immigration-related employment practice for a person or other
entity to request more or different documents than are
required or refusing to honor documents tendered that on
their face reasonably appear to be genuine if made for the
purpose or with the intent of discriminating against an
individual. (8 U.S.C. Sec. 1324b(a)(6).)
3) Provides that all protections, rights, and remedies
available under state law, except any reinstatement remedy
prohibited by federal law, are available to all individuals
regardless of immigration status who have applied for
employment, or who are or who have been employed, in this
state. For purposes of enforcing state labor and employment
laws, existing law provides that a person's immigration
status is irrelevant to the issue of liability, and in
proceedings or discovery undertaken to enforce those state
laws, no inquiry shall be permitted into a person's
immigration status except where the person seeking to make
this inquiry has shown by clear and convincing evidence that
the inquiry is necessary in order to comply with federal
immigration law.
4) Prohibits discrimination against an employee or job
applicant who has engaged in prescribed protected conduct
relating to the enforcement of the employee's or applicant's
rights, including initiating an action or testifying in any
proceeding thereto, delineated under the Labor Code.
5) 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:
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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;
Seeking information regarding whether an employer or
other party is in compliance with the Labor Code or local
ordinance; and
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.
1) 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:
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;
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;
Threatening to file or the filing of a false police
report, or a false report or complaint with any state or
federal agency; and
Threatening to contact or contacting immigration
authorities.
1) Provides that engaging in an unfair immigration-related
practice against a person within 90 days of the person's
exercise of rights protected under the Labor Code or local
ordinance applicable to employees raises a rebuttable
presumption of having done so in retaliation for the exercise
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of those rights.
2) Authorizes an employee or other person who is the subject of
an unfair immigration-related practice, or a representative
of that employee or person, to bring a civil action for
equitable relief and any applicable damages or penalties,
and, upon finding a violation, authorizes a court to do the
following:
For a first violation, order the appropriate
government agencies to suspend all licenses that are held
by the violating party for a period of up to 14 days;
For a second violation, order the appropriate
government agencies to suspend all licenses that are held
by the violating party for a period of up to 30 days;
For a third or subsequent violation, order the
appropriate government agencies to suspend for a period of
up to 90 days all licenses that are held by the violating
party; and
On receipt of the court's order and notwithstanding
any other law, the appropriate agencies are required to
suspend the licenses according to the court's order.
1) Provides, in determining whether a suspension of all
licenses is appropriate, the court to consider whether the
employer knowingly committed an unfair immigration-related
practice, the good faith efforts of the employer to resolve
any alleged unfair immigration-related practice after
receiving notice of the violations, as well as the harm other
employees of the employer, or employees of other employers on
a multiemployer job site, will suffer as a result of the
suspension of all licenses.
2) Authorizes a prevailing employee or other person who is the
subject of an unfair immigration-related practice to recover
his or her reasonable attorney's fees and costs, including
any expert witness costs.
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3) Defines "license" to mean any agency permit, certificate,
approval, registration, or charter that is required by law
and that is issued by any agency for the purposes of
operating a business in this state and that is specific to
the business location or locations where the unfair
immigration-related practice occurred, but "license" does not
include a professional license.
4) Defines "violation" to mean each incident when an unfair
immigration-related practice was committed, without reference
to the number of employees involved in the incident.
This bill:
1) Provides that it is unlawful for an employer, in the course
of satisfying specified work authorization requirements of
federal law, to:
a) Request more or different work authorization documents
than are required under specified federal law.
b) Refuse to honor documents tendered that in their face
reasonably appear to be genuine.
c) Refuse to honor documents or work authorization based
upon the specific status or term of status that
accompanies the authorization to work.
d) Attempt to reinvestigate or reverify an incumbent
employee's authorization to work using an unfair
immigration-related practice.
2) Provides that any person who violates this bill shall be
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subject to a penalty imposed by the Labor Commissioner and
liability for equitable relief.
3) Provides than an applicant for employment or an employee,
who is subject to an unlawful practice that is prohibited by
this bill, or their representative, may file a complaint with
the Labor Commissioner.
4) Provides that the penalty recoverable by the applicant or
employee, or by the Labor Commissioner, for a violation of
these provisions shall not exceed $10,000 per violation.
Background
Immigrant workers, both documented and undocumented have a
significant impact in California's workplace and economy.
According to a National Employment Law Project (NELP) report, in
2010, 23.1 million foreign-born persons participated in the
civilian labor force. Of these workers, 5.2 percent (about eight
million) form part of the U.S. undocumented labor force. An
estimated 2.6 million undocumented immigrants reside in
California- approximately seven percent of the state's total
population and one-fourth of the population of undocumented
immigrants nationwide. The NELP report found that employers and
their agents have far too frequently shown that they will use
immigration status as a tool against worker exercising their
employment rights. ("Workers' Rights on ICE: How Immigration
Reform Can Stop Retaliation and Advance Labor Rights," NELP,
February 2013)
Unfair Immigration-Related Practices. It is illegal for a
person or other entity to "knowingly" hire, recruit, or refer
for employment any individual without complying with specified
employment verification procedures. Among other things, the law
requires employers to verify that every new hire is either a
U.S. citizen or authorized to work in the United States. All
employers are required to have new employees complete form I-9,
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Employment Eligibility Verification, upon hire and within three
days, a new employee must show their employers documentation
establishing identity and eligibility to work in the U.S. The
I-9 form contains a list of acceptable documents to meet this
requirement and includes, among others, a U.S. passport,
permanent resident card, employment authorization document, or
social security card.
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. Over the last couple of years, several measures have been
passed and signed by the Governor reinforcing these rights and
protections for all workers. (NOTE: Please see the Senate
Labor and Industrial Relations Committee analysis for more
information.)
Need for this bill? Although existing law has been amended over
the last several years to emphasize the state's policy that "all
protections, rights, and remedies available under state law,
except any reinstatement remedy prohibited by federal law, are
available to all individuals regardless of immigration status,"
fear and threats of job loss appear to be constant challenges
for workers. According to the author, while existing 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. Additionally, the
federal law that provides protection against document abuse must
be enforced through an overly cumbersome process which makes it
extremely difficult for potential workers to avail themselves of
this remedy.
Examples of document abuse include an employer asking to
reverify a worker's authorization to work even after presenting
a valid permanent resident card at the time of hire; a
prospective employer asks for an employment authorization card
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even though the worker has already provided the allowed 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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
According to the Assembly Appropriations Committee, this bill
would result in administrative costs to the Division of Labor
Standards Enforcement in the range of $147,000 to $437,000.
SUPPORT: (Verified8/24/16)
California Immigrant Policy Center (co-source)
Mexican American Legal Defense and Education Fund (co-source)
American Civil Liberties Union of California
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
California Labor Federation, AFL-CIO
California Rural Legal Assistance Foundation
California Teamsters Public Affairs Council
Central American Resource Center-Los Angeles
Clergy and Laity United for Economic Justice
Consumer Attorneys of California
Garment Worker Center
Instituto de Educacion Popular del Sur de California
Interfaith Center for Worker Justice of San Diego County
Latino Coalition for a Healthy California
Mujeres Unidas y Activas
National Network for Immigrant and Refugee Rights
Our Family Coalition
Pomona Economic Opportunity Center
Service Employees International Union California
Services, Immigrant Rights, & Education Network
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Southeast Asia Resource Action Center
Worksafe
One individual
OPPOSITION: (Verified8/24/16)
None received
ARGUMENTS IN SUPPORT: According to the author and
proponents, California must ensure that our immigrant workforce
has in-state protections and a clear mechanism to seek justice
against discriminatory practices. 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." Proponents believe that this bill will protect immigrant
workers and uphold responsible business practices by fortifying
existing protections and strengthening enforcement against the
prevalent practice of document abuse.
ASSEMBLY FLOOR: 67-12, 8/24/16
AYES: Achadjian, Alejo, Arambula, Atkins, Baker, Bloom,
Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chang, Chau,
Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd,
Eggman, Frazier, Cristina Garcia, Eduardo Garcia, Gatto,
Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Roger
Hernández, Holden, Irwin, Jones-Sawyer, Kim, Lackey, Levine,
Linder, Lopez, Low, Maienschein, McCarty, Medina, Mullin,
Nazarian, O'Donnell, Olsen, Patterson, Quirk, Ridley-Thomas,
Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond,
Ting, Waldron, Weber, Wilk, Williams, Wood, Rendon
NOES: Travis Allen, Bigelow, Brough, Dahle, Beth Gaines,
Gallagher, Harper, Jones, Mathis, Melendez, Obernolte, Wagner
NO VOTE RECORDED: Mayes
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Prepared by:Alma Perez-Schwab / L. & I.R. / (916) 651-1556
8/25/16 17:54:17
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