BILL ANALYSIS Ó
AB 1544
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Date of Hearing: May 9, 2012
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
AB 1544 (V. Manual Perez) - As Amended: April 23, 2012
Policy Committee: Labor and
Employment Vote: 5-1
Urgency: No State Mandated Local Program:
No Reimbursable: No
SUMMARY
This bill establishes the California Agricultural Jobs and
Industry Stabilization Act of 2012 (AJIS Act), which requires
the Employment Development Department (EDD) to issue permits
authorizing an undocumented person who meets specified criteria
to reside and work as an employee in the state. Specifically,
this bill:
1)Prohibits EDD from issuing permits under the AJIS Act until it
certifies there are not enough state legal residents to fill
all open agricultural and service industry jobs in the state.
2)Defines employee as an agricultural employee and a person
employed to provide domestic services, janitorial/building
maintenance services, food preparation services, or
housekeeping services.
3)Establishes the following criteria for undocumented person to
receive a permit:
a) The person has established that he or she was present in
the state before January 25, 2012 and has continuously
resided here since this time.
b) The person has established he or she was employed in the
state as an agricultural or service industry worker before
January 25, 2012. Further authorizes this person to
establish employment status by submitting specified
employment records.
c) The person has paid a fee to EDD for costs to administer
this program.
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d) The person has not been convicted of a felony or
misdemeanor involving bodily injury, threat of bodily
injury, or property damage in excess of $500.
4)Prohibits EDD from granting a permit to an undocumented person
unless he or she submits to fingerprints, as specified.
Further requires EDD to use documents submitted for use in the
fingerprinting process to conduct a background check of the
person to determine program eligibility.
5)Requires EDD to issue a permit under the AJIS Act to the
spouse or child (i.e., immediate family member) of an
undocumented person who already received a permit under this
act, as specified. Requires the immediate family member to
comply with pay a fee and not have been convicted of a felony
as specified above.
6)Prohibits an employer, within 90 days of implementing this
bill, from employing an undocumented person who does not have
a permit, as specified.
7)Specifies an employee permitted to work in the state under the
AJIS Act is entitled to all of the same wage and hour and
working condition protections under existing law provided to
an employee who is a legal resident of the state.
8)Requires EDD (in conjunction with the Legislative Analyst
Office), beginning three years after initial implementation of
this act, to annually publish a report analyzing whether this
program has caused displacement of employable legal residents
of California in the agricultural and service industries.
9)Specifies this program is not intended to confer legal status
in a manner that would restrict the enactment of superseding
federal legislation.
10)Requires this program to remain in existence and requires EDD
to administer it only to the extent monies are available in
the AJIS Act Fund, as specified.
FISCAL EFFECT
1)One-time GF costs, likely in excess of $20 million, to EDD to
establish the infrastructure to implement this program,
including developing a new automated system to store permit
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information (e.g., fingerprinting and background checks). The
one-time cost to add an additional withholding from an
employees' payroll to an existing system used by EDD will be
$19 million GF.
2)On-going GF costs, likely in excess of $7 million, to EDD to
implement this program. These costs are associated with
additional personnel to review permit applications and train
and hire staff in regional offices.
3)Department of Justice (DOJ) preliminary estimates indicate
between $3 million and $5 million in personnel costs to
process an influx of fingerprinting submissions.
4)This bill establishes the AJIS Act Fund in the state GF and
requires the fees collected for this program to be deposited
in this fund. Further requires monies deposited in this fund
to only be used to pay for EDD's costs to administer this
program. This bill requires an unspecified fee sufficient to
pay for all administrative costs incurred by EDD; any fee,
however, will likely not cover the full cost of this program.
COMMENTS
1)Background . According to a 2011 At Issue report by the Public
Policy Institute of California (PPIC), the number of
undocumented immigrants in the United States has fallen after
several years of increase. PPPIC states: "From 1990 to 2007,
the number of Ýundocumented] immigrants increased by an
average of 500,000 per year, and the population grew from a
few million to about 12 million. By 2009 the population had
shrunk to approximately 11 million, and 2010 estimates suggest
little change from 2009. California has experienced a similar
decline: the Department of Homeland Security estimates that
2.6 million Ýundocumented] immigrants resided in California in
2010, a decline of 280,000 since 2008."
The PPIC attributes the decrease in the number of undocumented
immigrants to the county's severe economic downturn and
increased enforcement efforts. For example, "Pre-recession
unemployment rates were lower among Ýundocumented] immigrants
than other workers, but are now higher. This has weakened the
jobs magnet that attracts most Ýundocumented] immigrants to
the United States. At the same time, stepped-up interior
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enforcement has led to dramatic increases in deportations. In
2009, a record 393,000 Ýundocumented] immigrants were
deported, compared to less than 200,000 annually in the early
2000s and less than 100,000 annually before 1997."
Under federal law, people can enter the United States
permanently or temporarily. Through permanent means, an
individual receives a permanent resident card (green card)
which enables him or her to work and he or she may apply for
citizenship. An individual entering the country via temporary
means (i.e., tourist, student, diplomat, agricultural worker)
may not work or only work for a particular place; is not
eligible for citizenship; and must leave the country when his
or her visa expires.
2)Purpose . According to PPIC, in California, where the
concentration of Ýundocumented] immigrants is almost twice as
high as in the rest of the nation, about 9% of workers are
Ýundocumented] immigrants. According to one estimate, 14% of
workers in Los Angeles County are in the informal economy and
more than half (61%) of those workers are Ýundocumented]
immigrants."
According to the author, "While programs such as the federal
H-2A guest worker program and E-verify have been highlighted
as options to protect jobs for U.S. citizens and legal
residents, most growers in the U.S. agriculture industry argue
that these programs threaten the viability and sustainability
of their businesses. In the state's service industry, similar
workforce dynamics have been documented among businesses that
provide domestic services, janitorial or building maintenance
services, food preparation services, and housekeeping
services. These employers rely heavily on unauthorized workers
as a sustainable labor supply."
The author further states: "In the absence of federal
comprehensive immigration reform, business interests in the
states of Utah and Oklahoma have either passed or introduced
legislation creating state guest worker programs. Several
other states have studies or are considering the introduction
of such state initiatives."
3)Does this bill apply all state labor laws to agricultural and
service workers ? This bill states: "An employee permitted to
work in this state pursuant to this chapter is entitled to all
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the same wage and hour and working conditions protections
under existing law provided to an employee who is a legal
resident of California." Currently, some state labor laws do
not apply to agricultural or certain service industry workers.
For example, agricultural workers are not governed by the
eight hour workday as other legal resident employees in the
state. As such, it appears the language in this measure would
require employers of agricultural and service workers to
comply with all state labor laws, including ones that
currently do not apply to them.
4)Opposition . The Mexican American Legal Defense and Education
Fund (MALDEF), the California Immigrant Policy Center (CIPC),
and the California Labor Federation (Labor Fed) oppose this
bill for a number of reasons, including the following:
a) Violation of federal law for states to govern
immigration issues . According to MALDEF, "The Supreme
Court held that the Supremacy Clause Ýof the U.S.
Constitution] bars state involvement in immigration
regulation. The ÝSupreme] Court recognized a form of
constitutional preemption in the area of immigration,
concluding 'the determination of who should or should not
be admitted into the country, and the conditions under
which a legal entrant may remain is a regulation of
immigration and thus per se pre-empted by this
constitutional power.''
This bill requires EDD, by May 1, 2013, to submit a formal
request to the federal government to receive the necessary
authority to administer the AJIS Act. MALDEF, however,
contends there is no federal statute that provides the
federal government with authority to grant such a request.
b) No path to citizenship . Opponents argue that creating a
guest worker program does not solve the fundamental problem
of undocumented workers - how do they obtain U.S.
citizenship? According to the CLF, "Guest worker
programs have historically benefitted employers, not
workers. Because workers are dependent on a particular
employer or the ability to work in a particular industry,
they are extremely vulnerable to abuse. A guest worker
program without a path to permanent status is, by nature,
exploitative."
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c) False sense of security this program creates for
undocumented workers . According to the Labor Fed, "this
bill provides no protection to California's immigrant
workers from the threat of deportation. Individuals who
apply for a permit Ýunder this program] potentially could
be at greater risk of being deported. Despite the proposed
state employment authorization, eligible workers in the
program will still be subject to federal immigration
worksite enforcement actions. They will still be subject
to possible termination of employment as a consequence of
I-9 audits, E-Verify tentative non-confirmation notices,
and Social Security Administration no match letters, as
well as self-audits conducted by employers."
Analysis Prepared by : Kimberly Rodriguez / APPR. / (916)
319-2081