Amended in Assembly March 28, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 2014

Introduced by Assembly Member Alejo

February 20, 2014

An act begin insert to add Chapter 8 (commencing with Section 11050) to Part 1 of Division 3 of the Unemployment Insurance Code, end insert relating to undocumented workers.

LEGISLATIVE COUNSEL’S DIGEST

AB 2014, as amended, Alejo. Undocumented workers: begin delete work permits. end delete begin insert California Agricultural and Service Worker Act. end insert

begin insert

Federal law regulates immigration and state laws that regulate immigration are preempted. Existing state law, the Alatorre-Zenovich-Dunlap-Berman Agricultural Labor Relations Act of 1975, grants agricultural employees the right to form and join labor organizations and engage in collective bargaining with respect to wages, terms of employment, and other employment conditions.

end insert begin insert

This bill would require the Employment Development Department and the Department of Food and Agriculture to convene a working group to consult with the United States Department of Homeland Security and the United States Department of Justice in order to determine the legal roles and responsibilities of federal and state agencies in implementing a program to provide undocumented persons who are agricultural or service industry employees with a permit to work and live in California. The bill would require the working group to create a report expressing its recommendations, which would be required to incorporate specified provisions describing a model program, and the bill would require the report to be submitted to the Legislature and the Governor. The bill would require the Governor, using the report, to either make a formal request to the federal government to implement a program to provide undocumented persons who are agricultural or service industry employees with a permit to work and live in California or issue an explanation as to why a formal request was not made and make recommendations to the Legislature for how a program to provide undocumented persons who are agricultural or service industry employees with a permit to work and live in California should be structured.

end insert begin delete

Existing provisions of federal law regulate immigration, including the employment of aliens. Under federal law, state laws regulating immigration are generally preempted.

end delete begin delete

This bill would declare the intent of the Legislature to enact legislation that would require the Employment Development Department to administer a work permit program for undocumented persons, upon the state receiving the necessary authority under federal law.

end delete

Vote: majority. Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program: no.

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Chapter 8 (commencing with Section 11050) is
added to Part 1 of Division 3 of the end insert begin insert Unemployment Insurance
Code end insert begin insert , to read: end insert

begin insert

 

Chapter   begin insert 8. end insert California Agricultural and Service Worker
Program

 

Article begin insert 1. end insert   General Provisions

 

begin insert 11050. end insert   

As used in this chapter:

(a) “Employee” means an agricultural employee, as defined in
Section 1140.4 of the Labor Code, and a person employed to
provide domestic services, janitorial or building maintenance
services, food preparation services, or housekeeping services.

(b) “Employer” means an agricultural employer, as defined in
Section 1140.4 of the Labor Code, a farm labor contractor, and
a service industry employer.

(c) “Farm labor contractor” means a contractor, as defined in
Section 1682 of the Labor Code.

(d) “Farm labor organization” means a labor organization, as
defined in Section 1117 of the Labor Code, that represents
employees rendering personal services in connection with the
production of agricultural products.

(e) “Immediate family member” means a spouse or child under
18 years of age or 18 years or older if the child is enrolled in an
accredited program as described in paragraph (1) of subdivision
(c) of Section 11056.

(f) “Service industry employer” means a person who is
self-employed for the purpose of, or who employs others to, provide
domestic services, janitorial or building maintenance services,
food preparation services, or housekeeping services.

(g) “Service labor organization” means a labor organization,
as defined in Section 1117 of the Labor Code, that represents
employees rendering personal services in connection with the
production of service industry products.

(h) “Undocumented person” means a person who is an
unauthorized alien as defined in Section 1324a(h)(3) of Title 8 of
the United States Code.

begin insert 11051. end insert   

(a) No later than February 1, 2016, the Employment
Development Department and the Department of Food and
Agriculture shall convene a working group to consult with the
United States Department of Homeland Security and the United
States Department of Justice to determine the legal roles and
responsibilities of federal and state agencies in implementing a
program to provide undocumented persons who are agricultural
or service industry employees with a permit to work and live in
California.

(b) The working group shall consist of representatives from the
Employment Development Department, the Department of Food
and Agriculture, the Attorney General, two Members of the Senate,
two Members of the Assembly, and stakeholders, including, but
not limited to, agricultural and service industry employers, farm
labor contractors, farm labor organizations, and service labor
organizations.

(c) Issues to be addressed by the working group shall include
the following:

(1) Qualifying criteria for undocumented persons to apply for
the program.

(2) Documentation requirements for applicants.

(3) A determination of which agency will issue the permits.

(4) Ensuring security, including through the development of
non-tamper-proof work authorization documentation or security
procedures and protocols, or all of these methods.

(5) A determination of the process and the agency that shall
conduct background and security checks and the extent background
and security checks shall be required.

(6) A determination regarding the payment that shall be required
for the submission and review of applications and background
and security checks.

(7) Protocols regarding tracking of employees under the
program.

(8) Consideration of a renewal process for the work permit.

(9) Consideration of the extent to which employees will be
allowed to travel out of the country and the requirements for that
travel.

(10) Determination of a fee structure to cover the costs of the
program, including who will pay and how often the fee shall be
assessed to cover costs of the program.

(11) Determination of the costs involved in receiving,
processing, and issuing work permits.

(12) Any other procedures and legal requirements associated
with the implementation of the program required by the federal
government to ensure the proper role and responsibilities of the
State of California.

(d) The working group shall create a report expressing its
recommendations, which shall incorporate the model program
described in Article 2 (commencing with Section 11055). This
report shall be submitted to the Legislature and the Governor no
later than July 1, 2016.

(e) By August 1, 2016, the Governor, using the report described
in subdivision (d), shall either make a formal request to the federal
government to implement a program to provide undocumented
persons who are agricultural or service industry employees with
a permit to work and live in California, or issue an explanation
as to why a formal request was not made and make
recommendations to the Legislature for how a program to provide
undocumented persons who are agricultural or service industry
employees with a permit to work and live in California shall be
structured.

(f) If the federal government approves or adopts a program to
provide undocumented persons who are agricultural or service
industry employees with a permit to work and live in California,
it is the intent of the Legislature to enact necessary implementing
legislation.

 

Article begin insert 2. end insert   Model Program Requirements

 

begin insert 11055. end insert   

It is the intent of the Legislature that the provisions of
this article provide a model and framework for a program to
provide undocumented persons who are agricultural or service
industry employees with a permit to work and live in California.

begin insert 11056. end insert   

(a) The program shall not be implemented until:

(1) The federal authorization necessary for its lawful application
is received.

(2) A certification is made that not enough legal residents in
California will fill all open agricultural and service industry jobs
in California.

(b) The program shall be limited to undocumented persons who
meet all of the following criteria:

(1) The undocumented person shall be 18 years of age or older.

(2) The undocumented person shall live in California.

(3) (A) The undocumented person shall have performed
agricultural or service industry employment in the United States
for at least 863 hours or 150 workdays during the 24-month period
ending on January 25, 2016, or earned at least seven thousand
five hundred dollars ($7,500) from agricultural or service industry
employment in the United States, and shall have maintained
agricultural or service industry employment for 431 hours or 75
workdays, or earned three thousand seven hundred fifty dollars
($3,750) from that employment, on an annual basis after receiving
the permit.

(B) An undocumented person shall be allowed to conclusively
establish employment status by submitting any of the following
records demonstrating the employment:

(i) Records maintained by the Social Security Administration,
Internal Revenue Service, or any other federal, state, or local
government agency, an employer, a labor organization, service
labor organization, or day labor center.

(ii) Itemized wage statements issued to the employee pursuant
to Section 226 of the Labor Code.

(C) An undocumented person who is unable to submit a
document described in subparagraph (B) shall be allowed to satisfy
the requirement in subparagraph (A) by submitting at least two
other types of reliable documents that provide evidence of
employment, including any of the following:

(i) Bank records.

(ii) Business records.

(iii) Remittance records.

(D) The program shall be implemented in a manner that
recognizes and takes into account the difficulties encountered by
an undocumented person in obtaining evidence of employment due
to the person’s undocumented status, including the crediting of
work in cases in which an undocumented person has been employed
under an assumed name.

(4) The undocumented person shall submit to a fingerprinted
criminal history background check.

(5) The undocumented person shall never have been convicted
of a felony, or three or more misdemeanors, as confirmed by the
fingerprinted criminal history background check.

(6) The undocumented person shall pay a fee to cover the costs
of administering the program.

(c) The program shall extend to an undocumented person who
is an immediate family member of a person to whom a work permit
has been issued. The immediate family member shall be required
to meet all of the following:

(1) The immediate family member shall reside with the
undocumented person to whom a permit was issued or be enrolled
in an accredited two- or four-year college or graduate program
in California.

(2) The immediate family member shall submit to a fingerprinted
criminal history background check.

(3) The immediate family member shall never have been
convicted of a felony, or three or more misdemeanors, as confirmed
by the fingerprinted criminal history background check.

(4) The immediate family member shall pay a fee to cover the
costs of administering the program.

begin insert 11057. end insert   

Once the program becomes authorized and operational,
the following requirements shall apply:

(a) (1) An official or employee of the state government shall
not do any of the following:

(A) Use information furnished by an applicant for purposes of
applying for a permit under the program or any information
provided by an employer or former employer for any purpose other
than to make a determination on the application.

(B) Make any publication in which the information furnished
by any particular individual can be identified.

(C) Permit a person other than a sworn officer or employee of
the state to examine individual applications.

(2) Information furnished by an applicant shall be provided to
both of the following:

(A) A duly recognized state law enforcement entity in connection
with a criminal investigation or a prosecution, if the information
is requested in writing by the entity.

(B) An official coroner, for purposes of affirmatively identifying
a deceased individual, whether or not the death of the individual
resulted from a crime.

(3) Any person who files an application under the program and
knowingly and willfully falsifies, conceals, or covers up a material
fact or makes any false, fictitious, or fraudulent statements or
representations, or makes or uses any false writing or document
knowing that it contains any false, fictitious, or fraudulent
statement or entry shall be disqualified from applying under the
program.

(b) The entities administering the program shall ensure that
employers employing workers authorized under the program make
each of the following assurances:

(1) That the job opportunity for which an employer employs an
undocumented person authorized under the program is not vacant
because a worker is involved in a strike, lockout, or because of a
work stoppage in the course of a labor dispute involving the job
opportunity at the same place of employment.

(2) That the wages and benefits provided to undocumented
persons working under a permit issued under the program are
comparable to the wages and benefits provided to legal residents,
but in no case less than the state minimum wage.

(3) That an employer participating in the program shall comply
with all applicable federal, state, and local labor laws, including
laws affecting migrant and seasonal agricultural workers, with
respect to all United States workers and undocumented workers.

(c) An employer of a person permitted to work in this state under
the program shall provide a written record of employment,
demonstrating the hours worked and wages paid, to the employee
issued a permit, and provide a copy of the record to the state.

begin insert 11058. end insert   

(a) An employee permitted to work in this state under
the program shall be entitled to the same wage, hour, and working
condition protections provided to an employee who is a legal
resident of California.

(b) A permit issued under the program shall not limit an
employee to a single employer or occupation.

begin insert 11059. end insert   

Not later than three years after the program is
implemented, the administering entities shall prepare and transmit
to the Assembly Committee on Labor and Employment and the
Senate Committee on Labor and Industrial Relations a report,
consistent with the requirements Section 9795 of the Government
Code, describing the results of a review of the implementation of,
and compliance with, the requirements of the program. The report
shall address and provide information as to all the following:

(a) Whether the program ensured an adequate and timely supply
of qualified, eligible workers at the time and place needed by
employers.

(b) Whether the program ensured that undocumented persons
authorized to work under the program did not displace eligible,
qualified United States workers or diminished the wages and other
terms and conditions of employment of eligible United States
workers.

(c) Recommendations for improving the operation of the
program for the benefit of participating employers, eligible United
States workers, participating undocumented workers, and
governmental agencies involved in the administration of the
program.

(d) Recommendations for the continuation or termination of the
program.

end insert

begin delete

SECTION 1.  

It is the intent of the Legislature to enact
legislation that would require the Employment Development
Department to administer a work permit program for undocumented
persons in California, upon the state receiving the necessary federal
authority.

end delete