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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