Existing provisions of the California Fair Employment and Housing Act define and prohibit various discriminatory employment practices to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination, abridgment, or harassment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.

Existing law prohibits an employer or any other person from engaging in, or directing another person to engage in, an unfair immigration-related practice against a person for the purpose of or intent to retaliate against any person for exercising a protected right, as specified.

This bill would make it an unlawful employment practice for an employer to request more or different documents than are required under federal law relating to verification that an individual is not an unauthorized alien, or to refuse to honor documents tendered that on their face reasonably appear to be genuine, or to discriminate against an immigrant with authorization to work based upon the specific status or term of status that accompanies the authorization to work, or to attempt to reinvestigate or reverify an incumbent employees authorization to work unless required to do so by federal law or authority.

Existing provisions of the California Fair Employment and Housing Act define and prohibit various discriminatory employment practices to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination, abridgment, or harassment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.

Existing law prohibits an employer or any other person from engaging in, or directing another person to engage in, an unfair immigration-related practice against a person for the purpose of or intent to retaliate against any person for exercising a protected right, as specified.

This bill would make it an unlawful employment practice for an employer to request more or different documents than are required under federal law relating to verification that an individual is not an unauthorized alien, or to refuse to honor documents tendered that on their face reasonably appear to be genuine, or to attempt to reinvestigate or reverify an incumbent employees authorization to work unless required to do so by federal law or authority.

Date of Hearing: May 6, 2015

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Jimmy Gomez, Chair

ABPCA Bill Id:AB 1065

Author:(Chiu) – As Amended Ver:April 15, 2015

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill specifies it is unlawful employment practice, for purposes of the Fair Employment and Housing Act (FEHA), for an employer to request more or different documents than are required pursuant to federal law relative to employment verification. Further, this bill makes it unlawful for an employer to refuse to honor documents tendered that on their face reasonably appear to be genuine; to discriminate against an immigrant with authorization to work based upon the specific status or term of status that accompanies the authorization to work; or to attempt to reinvestigate or re-verify an incumbent employee’s authorization to work, unless required to do so by federal law or authority.

FISCAL EFFECT:

General Fund administrative costs to the Department of Fair Employment and Housing (DFEH), potentially in the range of $100,000 to $200,000, for staff to investigate and resolve claims. The volume and nature of the claims will dictate whether additional staff is needed.

The nature of these claims appears to be outside the current expertise of DFEH investigators and legal staff.  For example, according to DFEH, significant resources may be needed to investigate and resolve claims related to the refusal to honor documents tendered that "on their face reasonably appear to be genuine". This standard is broad and could present evidentiary confusion.

COMMENTS:

1. Purpose. Employers are required by the Immigration Reform and Control Act (IRCA) to verify the identity and employment eligibility of their workers. To do this, they must complete an Employment Eligibility Verification Form, also known as a “Form I-9,” within three business days after an employee is hired. This process requires employees to present the employer with any one of many possible combinations of documents that prove that they are authorized to work in the United States.

Document abuse occurs when an employer does not permit a worker to use any documents that are legally acceptable but, instead, specifies which documents s/he must use, or requires more documents than are legally required by the Form I-9.

According to the author, while existing state 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. The Mexican American Legal Defense and Education Fund (MALDEF) is sponsoring this bill to assist immigrants who seek to work by prohibiting employers from requesting extraneous documentation from potential employees.

2. Prior related legislation.

1. AB 1236 (Fong), Chapter 691, Statutes of 2011, prohibit state and local entities from requiring an employer, other than one of those government entities, to use an electronic employment verification system, including E-Verify, except when required by federal law or as a condition of receiving federal funds.

2. AB 263 (Roger Hernández), Chapter 732, Statutes of 2013, prohibits an employer or any other person or entity from engaging in unfair immigration-related practices, as defined, against any person for the purpose of retaliating against the person for exercising specified rights. Included within the definition of "unfair immigration related-practices" for retaliation purposes is requesting more or different documents than are required under federal law or refusing to honor documents tendered that on their face that reasonably appear to be genuine. AB 263 also defined "unfair immigration-related practice" to include using E-Verify to check the employment authorization status at a time or in a manner not required under federal law or authorized under a federal memorandum of understanding. Finally, AB 263 prohibited an employer from taking adverse employment action against an employee because the employee updates or attempts to update his or her personal information based on a lawful change or name, social security number or federal employment authorization document.

Analysis Prepared by: Misty Feusahrens / APPR. / (916) 319-2081

Date of Hearing: April 22, 2015

ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT

Roger Hernández, Chair

ABPCA Bill Id:AB 1065

Author:(Chiu) – As Amended Ver:April 15, 2015

SUBJECT: Employment: unfair practices

SUMMARY: Makes specified employer practices related to employment verification unlawful under the Fair Employment and Housing Act (FEHA). Specifically, this bill makes it an unlawful employment practice under FEHA for an employer to:

1. Request more or different documents than are required under existing federal law for verifying employment authorization of an individual.

2. Refuse to honor documents tendered that on their face reasonably appear to be genuine.

3. Discriminate against an immigrant with authorization to work based upon the specific status or term of status that accompanies the authorization to work.

4. Attempt to reinvestigate or re-verify an incumbent employee's authorization to work unless required to do so by federal law or authority.

EXISTING LAW:

1. Defines and prohibits various discriminatory employment practices to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination, abridgment, or harassment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. (Labor Code Section 2812).

2. Prohibits an employer or any other person or entity from engaging in unfair immigration-related practices, as defined, against any person for the purpose of retaliating against the person for exercising specified rights. (Labor Code Section 1019).

3. Includes within the definition of "unfair immigration related-practices" for retaliation purposes requesting more or different documents than are required under federal law or refusing to honor documents tendered that on their face that reasonably appear to be genuine. (Labor Code Section 1019(b)(1)(A).

4. Prohibits an employer from taking adverse employment action against an employee because the employee updates or attempts to update his or her personal information based on a lawful change or name, social security number or federal employment authorization document. (Labor Code Section 1024.6).

5. Prohibits the state, or a city, county, city and county, or special district, from requiring an employer, other than one of those government entities, to use an electronic employment verification system, including E-Verify, except when required by federal law or as a condition of receiving federal funds.

FISCAL EFFECT: Unknown

COMMENTS: According to the author, this bill will help immigrants who seek to work by prohibiting employers from requesting extraneous documentation from potential employees – a practice known as document abuse.

Background on "Document Abuse"

According to a summary paper¹ prepared by the Employment Law Center of the Legal Aid Society of San Francisco:

"Employers are required by the Immigration Reform and Control Act (IRCA) to verify the identity and employment eligibility of their workers. To do this, they must complete an Employment Eligibility Verification Form, also known as a “Form I-9,” within three business days after an employee is hired. This process requires employees to present the employer with any one of many possible combinations of documents that prove that they are authorized to work in the United States. As just a few examples, a worker can show a U.S. Passport (expired or unexpired), or a Permanent Resident Card (more commonly known as a Green Card), or an unexpired Employment Authorization Document with a photograph, or a state identification card together with an “unrestricted” Social Security card. The various types of documents that are acceptable are listed on the Form I-9.

Document abuse occurs when an employer does not permit a worker to use any documents that are legally acceptable but, instead, specifies which documents s/he must use, or requires more documents than are legally required by the Form I-9. Therefore, if an employer refuses to accept legally acceptable documents that appear genuine on their face from a work-authorized immigrant worker with the intent that the worker be prevented from working until s/he has complied, the employer has committed document abuse…

…Document abuse also may occur when an employer demands that you present documents showing your ability to work in the United States, even after you have been hired and already successfully completed the I-9 process.

There are only a limited number of circumstances under which an employer can lawfully “re-verify” a worker’s employment eligibility – that is, require the worker to present I-9 documents again after s/he has already done so. These situations include the following: when an employment authorization document that has been presented to complete the Form I-9 has expired or is about to expire; when the employer has been informed by Immigration and Citizenship Enforcement (ICE) that there are problems with its workers’ documents; or when the employer has “constructive knowledge” that the worker is not work authorized."

These forms of discrimination are made unlawful under federal IRCA. (8 U.S.C. § 1324b). The anti-discrimination provisions of IRCA forbid unfair immigration-related employment practices and establishes procedures to enforce these prohibitions.

If an employer has committed document abuse, and individual may file charges of discrimination with the U.S. Department of Justice’s Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) within 180 days of the act of discrimination. OSC may investigate claims for up to 210 days after receipt of a charge. If OSC finds there is reasonable cause to believe that immigration-related unfair employment practices may have occurred, OSC may file an administrative complaint against the employer. An administrative law judge (ALJ) hears the complaint. If OSC has not made a determination within 120 days of receipt of the charge, it must notify the parties, and the charging party then has the right to file his/her own complaint before an ALJ within the following 90 days. OSC may also initiate independent investigations to investigate whether the company has engaged in a pattern or practice of discrimination.

There are several remedies that may result from an OSC investigation. These include back pay awards, reinstatement or hiring, imposition of injunctive relief, and civil penalties against violating employers.

Recent Examples Highlight Need for the Bill?

This bill is sponsored by the Mexican American Legal Defense and Education Fund (MALDEF). They state that in 2011, Pomona College engaged in a broad re-verification of work authorization for dining hall workers in response to a third-party complaint. This re-verification coincided with active attempts to organize the workers. More recently, in 2014 MALDEF joined in representing a plaintiff who was a recipient of Deferred Action for Childhood Arrivals (DACA), challenging Northwestern Mutual Life Insurance Company, which had a nationwide policy of only contracting with citizens and lawful permanent residents as insurance agents.

In addition, a 2013 report² by the National Employment Law Project highlighted the following additional examples of document abuse in the car wash industry:

• "Carwash workers at Star Carwash in El Monte, California, began to worry when their paychecks began to bounce. Their employer had filed for bankruptcy, and workers found that they had difficulty changing checks when they repeatedly came back with insufficient funds. In November 2012, eight workers of twelve at the company began to organize to work for better conditions with the support of the CLEAN Carwash Campaign, a partnership of unions, community groups, and religious groups. Instead of ensuring that the workers received their pay, management at Star Carwash began to intimidate workers by threatening to cut their hours and fire them. The managers told the workers that they would need to refile their I-9 employment forms to re-verify their work authorization. When the workers refused, the manager brought Maria Flores, one of the worker leaders, into his office. The manager told Maria that she had to fill out new employment papers so that he could show it to the local police department to check her identity, or she could choose to quit. When Maria refused, her employer cut her hours down to 2-3 hours per week."

• "Half of the car wash workers at Robertson Carwash in Los Angeles, California, received no wages from their employer. Although the employer charged customers for each car wash, the employer did not pay the workers at all. Instead, these workers earned only the tips provided by customers after they cleaned the cars. One of the workers, Felipe Martinez, earned so little that he often slept in the car wash bathroom at night to avoid living on the streets. In 2010, after workers reached out to the CLEAN Carwash Campaign, which organized a boycott of the carwash, the employer fired all of the workers who had worked only for tips. After the campaign filed unfair labor practice charges with the NLRB, the employer settled. When Felipe tried to return to work, his employer told him that he would have to reapply and fill out a new I-9 form. Felipe declined, and did not return to his job."

PRIOR LEGISLATION

AB 1236 (Fong) of 2011 enacted provisions of law that prohibit state and local entities from requiring an employer, other than one of those government entities, to use an electronic employment verification system, including E-Verify, except when required by federal law or as a condition of receiving federal funds.

AB 263 (Roger Hernández) of 2013 prohibits an employer or any other person or entity from engaging in unfair immigration-related practices, as defined, against any person for the purpose of retaliating against the person for exercising specified rights. Included within the definition of "unfair immigration related-practices" for retaliation purposes is requesting more or different documents than are required under federal law or refusing to honor documents tendered that on their face that reasonably appear to be genuine. AB 263 also defined "unfair immigration-related practice" to include using E-Verify to check the employment authorization status at a time or in a manner not required under federal law or authorized under a federal memorandum of understanding. Finally, AB 263 prohibited an employer from taking adverse employment action against an employee because the employee updates or attempts to update his or her personal information based on a lawful change or name, social security number or federal employment authorization document.

ARGUMENTS IN SUPPORT

According to the author, federal law currently provides protection against document abuse, but these protections must be enforced through an overly cumbersome process which makes it extremely difficult for potential workers to avail themselves of this remedy. This bill would create a state remedy for this unfair labor practice and would provide protections for workers who have obtained work authorization under new programs created by the President.

In November 2014, President Barack Obama announced an expansion of the existing Deferred Action for Childhood Arrivals (DACA) by removing the age cap as well as creating a new program called the Deferred Action for Parents of Americans (DAPA). Individuals who came to the United States as children and meet DACA-eligibility guidelines may qualify for deferred action, and may also obtain work authorization.

Additionally, under the newly created DAPA program, parents of American citizens and lawful permanent residents may be provided administrative relief. While this program provides deportation relief and the legal right to work for thousands of families in California, some employers may use this newfound status to discourage or create challenges for potential job applicants.

While existing state 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. Recently, the Mexican American Legal Defense and Education Fund (MALDEF) filed a discrimination challenge against one large employer, and MALDEF is prepared to challenge another large employer. This alarming practice highlights a loophole in state law that this bill seeks to close.

REGISTERED SUPPORT / OPPOSITION:

Support

California Employment Lawyers Association

California Immigrant Policy Center

California Rural Legal Assistance Foundation

Coalition for Humane Immigrant Rights of Los Angeles

Consumer Attorneys of California

Equality California

Mexican American Legal Defense and Educational Fund (sponsor)

National Association of Social Workers, CA Chapter

PolicyLink

SEIU California

Services, Immigrant Rights & Education Network

Worksafe

Opposition

None on file.

Analysis Prepared by: Ben Ebbink / L. & E. / (916) 319-2091