Amended in Assembly April 8, 2014

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 to add begin delete Chapter 8 (commencing with Section 11050) to Part 1 of Division 3 of the Unemployment Insurance Code, relating to undocumented workers end delete begin insert Article 1.5 (commencing with Section 19535) to Chapter 7 of Part 10.2 of Division 2 of the Revenue and Taxation Code, relating to taxation end insert .

LEGISLATIVE COUNSEL’S DIGEST

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

begin insert

Existing law establishes the Franchise Tax Board and prescribes its various powers and duties regarding, among other things, the administration of state personal income taxes and requires that an income tax return be filed by every individual who has income in excess of specified amounts. Existing law allows an income tax return to be filed with the Franchise Tax Board using an individual taxpayer identification number.

end insert begin insert

This bill would require the Franchise Tax Board to, among other things, advertise the availability of filing an income tax return using an individual taxpayer identification number, to provide a receipt or proof of filing to those persons filing an income tax return using an individual taxpayer identification number, and to annually prepare a report to the Legislature and Governor including information regarding those persons. This bill would also provide that it is unlawful for any employee of the Franchise Tax Board, or other specified government employees, to reveal the identity of any person who has filed an income tax return using an individual taxpayer identification number absent a court order or statutory authorization.

end insert begin insert

The California Constitution provides that the powers of state government are legislative, executive, and judicial. Existing law requires that the Governor see that the law is faithfully executed. Existing law provides that the Governor is the sole official organ of communication between the state and the government of any other state or of the United States. Existing federal law regulates immigration.

end insert begin insert

This bill would require the Governor to request that the President of the United States direct the Department of Homeland Security, the United States Immigration and Customs Enforcement, and other relevant federal agencies to not expend resources within the interior of California to apprehend, detain, or remove any person who has filed a California state income tax return using an individual taxpayer identification number, as provided.

end insert begin delete

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 delete begin delete

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.

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Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

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

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begin insert SECTION 1. end insert   

end insert

begin insert (a) end insert begin insert   end insert begin insert The Legislature finds and declares that the
full recovery of the California economy depends upon the continued
residence and employment of all current and future members of
the state workforce, whether currently employed or in the process
of education or training for future employment. end insert

begin insert

(b) The Legislature further finds that the removal of residents
and employees, who are free of any serious criminal history or
criminal misconduct, from the state during this time of economic
recovery is disruptive of the nascent recovery, and separates and
disrupts families and community, with significant secondary effects
on the state economy and the state education system.

end insert begin insert

(c) The Legislature recognizes and acknowledges the federal
government’s exclusive authority in the area of immigration
regulation, including the determination of enforcement priorities
and the granting of discretionary relief on an individual or class
wide basis.

end insert begin insert

(d) The Legislature further finds that the failure of the Congress
to act on much-needed federal legislation to provide relief from
deportation and a pathway to citizenship for those millions of
undocumented persons who have resided peacefully in California
and other states for many years, raising families, paying taxes,
and contributing to our economy and society, has perpetuated a
structural problem in our state economy, with too many workers
intimidated from playing a complete role in our social and
economic development by the lack of legal protection occasioned
by their status.

end insert begin insert

(e) The Legislature further finds that, despite these impediments,
many undocumented workers have endeavored year after year to
file California state income tax returns using an individual
taxpayer identification number.

end insert begin insert

(f) The Legislature further finds that encouraging those who
are not eligible to receive a social security number to file a
California state income tax return using an individual taxpayer
identification number is in the best interest of the state, its
economy, and its tax laws.

end insert

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Article 1.5 (commencing with Section 19535) is added
to Chapter 7 of Part 10.2 of Division 2 of the end insert begin insert Revenue and Taxation
Code end insert begin insert , to read: end insert

begin insert

 

Article begin insert 1.5. end insert   Undocumented Immigrants: State Income Taxes

 

begin insert 19535. end insert   

The Franchise Tax Board shall advertise the availability
of filing a state income tax return using an individual taxpayer
identification number by a California resident who is not eligible
to receive a social security number as this is in the best interest
of California.

begin insert 19536. end insert   

(a) It shall be unlawful for any employee of the
Franchise Tax Board or any other employee of any state or local
government agency to reveal the identity of any natural person
who has filed a California state income tax return using an
individual taxpayer identification number absent a court order or
authorization by statute.

(b) Subdivision (a) shall not apply to any natural person as to
whom the Franchise Tax Board has cause to believe has a social
security number or is eligible for a social security number and is
fraudulently filing a California state income tax return using an
individual taxpayer identification number for purposes unrelated
to the person’s ineligibility to receive a social security number.

(c) The Franchise Tax Board shall do both of the following:

(1) Collaborate with the Department of Justice to draft any
necessary regulations relating to the administration of this section.

(2) Undertake any enforcement action to ensure that the
confidentiality of information regarding a natural person who has
filed a California state income tax return using an individual
taxpayer identification number is maintained to the maximum
extent possible.

begin insert 19537. end insert   

The Franchise Tax Board shall issue a receipt or proof
of filing to a taxpayer filing California state income tax returns
using an individual taxpayer identification number for returns
filed for taxable years beginning on or after January 1, 2014.

begin insert 19538. end insert   

Notwithstanding Section 10231.5 of the Government
Code, on or before December 31, 2015, and on or before December
31 of each successive year, the Franchise Tax Board shall submit
a report to the Legislature and Governor, in compliance with
Section 9795 of the Government Code, that includes the number
of natural persons who have filed California state income tax
returns using individual taxpayer identification numbers, the
aggregate taxable income reported by all of those persons, and
the aggregate amount of income tax paid by all of those persons
with respect to the immediately preceding taxable year.

end insert

begin insert

begin insert SEC. 3. end insert   

end insert

begin insert (a) end insert begin insert   end insert begin insert On or after July 1, 2015, the Governor is
authorized and directed to submit, as a ministerial act on behalf
of the state, a request to the President of the United States asking
that the President direct the Department of Homeland Security,
the United States Immigration and Customs Enforcement (ICE),
and other relevant federal agencies not to expend resources in the
interior of the State of California on the apprehension, detention,
or removal of any person deemed to be removable, other than by
virtue of a serious or violent felony, unless the person meets one
of the priority enforcement criteria set forth in the then-existing
ICE policy on civil immigration enforcement. The request shall
recite the findings of Section 1 of this measure. The request shall
be renewed annually until the federal government enacts legislation
addressing the status of undocumented persons who have lived
continuously and without significant criminal history in California
and other states. end insert

begin insert

(b) On or after July 1, 2015, the Governor is further authorized
and directed, as a ministerial act on behalf of the state, to request
that the President provide any available waivers, exemptions, or
authorizations to provide relief from removal for any persons who
have filed a California state income tax return using an individual
taxpayer identification number and who can demonstrate that
filing by presenting a receipt or proof of filing and who do not fall
within any of the priority enforcement criteria set forth in the
then-existing ICE policy on civil immigration enforcement. The
request shall recite the findings of Section 1 of this measure. The
request shall be renewed annually until the federal government
enacts legislation addressing the status of undocumented persons
who have lived continuously and without significant criminal
history in California and other states.

end insert

begin delete

SECTION 1.  

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

 

Chapter  8. California Agricultural and Service Worker
Program

 

Article 1.  General Provisions

 

11050.  

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.

11051.  

(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 2.  Model Program Requirements

 

11055.  

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.

11056.  

(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.

11057.  

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.

11058.  

(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.

11059.  

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 delete