AB 20: Undocumented workers: California Agricultural Act.
- Session Year: 2015-2016
- House: Assembly
- Latest Version Date: 2015-08-17
Existing provisions of federal law regulate immigration. Under federal law, state law regulating immigration is preempted.
This bill would require the Employment Development Department Labor and Workforce Development Agency 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 employees with a permit to work and live in California. 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 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 employees with a permit to work and live in California should be structured.
The bill would also describe a framework for a program to provide undocumented persons who are agricultural employees a permit to work and live in California if such a program were to be authorized by federal law.
Existing provisions of federal law regulate immigration. Under federal law, state law regulating immigration is preempted.
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 employees with a permit to work and live in California. 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 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 employees with a permit to work and live in California should be structured.
The bill would also describe a framework for a program to provide undocumented persons who are agricultural employees a permit to work and live in California if such a program were to be authorized by federal law.
Existing provisions of federal law regulate immigration. Under federal law, state law regulating immigration is preempted.
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 employees with a permit to work and live in California. 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 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 employees with a permit to work and live in California should be structured.
The bill would also describe a framework for a program to provide undocumented persons who are agricultural employees a permit to work and live in California if such a program were to be authorized by federal law.
Existing provisions of federal law regulate immigration. Under federal law, state law regulating immigration is preempted.
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 employees with a permit to work and live in California. 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 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 employees with a permit to work and live in California should be structured.
The bill would also describe a framework for a program to provide undocumented persons who are agricultural employees a permit to work and live in California if such a program were to be authorized by federal law.
Existing provisions of federal law regulate immigration. Under federal law, state law regulating immigration is preempted.
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 employees with a permit to work and live in California. 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 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 employees with a permit to work and live in California should be structured.
The bill would also describe a framework for a program to provide undocumented persons who are agricultural employees a permit to work and live in California if such a program were to be authorized by federal law.
Existing provisions of federal law regulate immigration. Under federal law, state law regulating immigration is preempted.
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 employees with a permit to work and live in California. 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 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 employees with a permit to work and live in California should be structured.
The bill would also describe a framework for a program to provide undocumented persons who are agricultural employees a permit to work and live in California if such a program were to be authorized by federal law.
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.
This bill would make findings and declarations regarding immigration and immigrants within the United States and California, including encouraging those immigrants who are not eligible to receive a social security number to file a California state income tax return using an individual taxpayer identification number and that California would benefit by providing undocumented persons who are agricultural or service industry employees with a permit to work and live in the state.
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.
This bill would make findings and declarations regarding immigration and immigrants within the United States and California, including encouraging those immigrants who are not eligible to receive a social security number to file a California state income tax return using an individual taxpayer identification number and that California would benefit by providing undocumented persons who are agricultural or service industry employees with a permit to work and live in the state.
This act shall be known, and may be cited, as the California Agricultural Act.
SEC. 2.The Legislature finds and declares all of the following:
(a)Since 2007, Californias agricultural industry has experienced the highest agricultural sales recorded to date ($36,300,000,000 in 2007, $38,400,000,000 in 2008, $34,800,000,000 in 2009, $37,500,000,000 in 2010, $43,500,000,000 in 2011, $44,300,000,000 in 2012, and $46,400,000,000 in 2013) and continues to lead the nation in gross agricultural cash receipts.
(b)Californias agricultural industry is dependent on immigrant labor. One recent study of 13 California counties gathered information from 2,300 farmworkers. The profile data reported in this study suggests that 95 percent of California agricultural workers were born outside the United States and 91 percent in Mexico. On average, they have been in the United States 11.1 years. Twenty-two percent have been in the United States two years or less, 10 percent are United States citizens, 33 percent have green cards, and 57 percent are unauthorized. Of the newcomers who have been here less than two years, 99 percent are unauthorized.
(c)Immigration policies that seek to deport unauthorized farmworkers or force them to abandon their jobs in agriculture would wreak swift and substantial damage to the agricultural industry in California. California agriculture would lose much of its experienced work force that has made it the most productive agricultural area in the world. At the same time, these policies would impose a substantial human cost on hundreds of thousands of farmworkers and their spouses, as well as their children, most of whom are United States citizens.
(d)The federal employment-based immigration system is broken. The programs for admitting foreign workers for temporary and permanent jobs are rigid, cumbersome, inefficient, do little to protect the wages and working conditions of foreign and domestic workers, do not respond very well to employers needs, and give almost no attention to adapting the number and characteristics of foreign workers to domestic labor shortages.
(e)Nevertheless, Congress has repeatedly failed to pass comprehensive immigration reform including the Agricultural Job Opportunity, Benefits, and Security Act. Instead, Congress is considering making the E-Verify program mandatory for all employers. Requiring agricultural employers to verify whether workers are employment-authorized would eliminate a significant portion of the existing agricultural workforce with no certainty that these vacancies will be filled by work-authorized immigrants or citizens.
(f)Due to the absence of federal action on comprehensive immigration reform, the counterproductive results of E-Verify, and the unworkable framework of the federal H-2A guest worker program, agricultural interests in Oklahoma and Utah have introduced legislation creating state guest worker programs and several other states are considering the introduction of similar state initiatives.
(g)
(f)Recognizing the significant contributions that unauthorized workers make to Californias economy and the need to bring these workers out of the shadows in order to improve worker conditions and at the same time provide a legal workforce for the agricultural industry, it is imperative that a program be created for current unauthorized workers to obtain authorization to live and work in California.
SEC. 3.It is the intent of the Legislature that the executive and legislative branches of the federal government give the highest priority to enacting comprehensive immigration reform legislation that would confer legal status to reside in the United States to most undocumented persons, including many undocumented farmworkers living and working in California.
SEC. 4.Chapter 8 (commencing with Section 11050) is added to Part 1 of Division 3 of the Unemployment Insurance Code, to read:8.California Agricultural Worker Program 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.
(b)Employer means an agricultural employer, as defined in Section 1140.4 of the Labor Code or a farm labor contractor.
(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)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, 2017, the Employment Development Department Labor and Workforce Development Agency 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 employees with a permit to work and live in California.
(b)The working group shall consist of representatives from the Employment Development Department, Labor and Workforce Development Agency, the Department of Food and Agriculture, the Attorney General, two Members of the Senate, appointed by the Senate Rules Committee, two Members of the Assembly, appointed by the Speaker of the Assembly, and stakeholders, including, but not limited to, agricultural employers, farm labor contractors, and farm labor organizations. Industry stakeholders shall be equally represented on the working group. The legislative members of the working group shall be nonvoting ex officio members.
(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 nontamper-proof tamperproof work authorization documentation or security procedures and protocols, or all of these methods.
(5)A determination of the process and the agency that should conduct background and security checks and the extent background and security checks should be required.
(6)A determination regarding the payment that should be required for the submission and review of applications to participate in the program and background and security checks.
(7)Protocols regarding tracking and monitoring of employees, wages and working conditions, and other aspects 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 should 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 implementation of the program required by the federal government to ensure the proper role and responsibilities of the State of California.
(d)(1)The working group shall create a report expressing its recommendations, which shall be based upon 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, 2017.
(2)A report to be submitted pursuant to paragraph (1) shall be submitted in compliance with Section 9795 of the Government Code.
(e)By August 1, 2017, 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 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 employees with a permit to work and live in California should be structured.
(f)If the federal government approves or adopts a program to provide undocumented persons who are agricultural employees with a permit to work and live in California, it is the intent of the Legislature to enact necessary implementing legislation. The model program shall not be implemented until such implementing legislation is enacted by the Legislature.
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 employees with a permit to work and live in California.
11056.(a)The program shall not be implemented until a certification is made by an entity, designated by the working group, that not enough legal residents in California will fill all open agricultural jobs in California.
(b)The program shall be limited to an undocumented person who meets 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 has performed agricultural employment in the United States for at least 863 hours or 150 workdays during the 24-month period ending on January 26, 2016, or earned seven thousand five hundred dollars ($7,500) or more from agricultural industry employment in the United States, and has maintained agricultural employment for 431 hours or 75 workdays, or earned three thousand seven hundred fifty dollars ($3,750) or more 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, 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) should 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 persons 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 has not 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 under this program 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 high school, a GED program, an accredited vocational training program, or 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 may 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, and other obligations under federal and state law.
(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, including workers obtaining a permit under this program, and undocumented workers.
(c)An employer of a person permitted to work in this state under the program should 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 may not limit an employee to a single employer or occupation.
11059.No 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 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, and farm workers in California, including United States workers and participating undocumented workers, and governmental agencies involved in the administration of the program.
(d)Recommendations for the continuation or termination of the program.
(e)A report to be submitted pursuant to subdivision (a) shall be submitted in compliance with Section 9795 of the Government Code.
This act shall be known, and may be cited, as the California Agricultural Act.
SEC. 2.The Legislature finds and declares all of the following:
(a)Since 2007, Californias agricultural industry has experienced the highest agricultural sales recorded to date ($36,300,000,000 in 2007, $38,400,000,000 in 2008, $34,800,000,000 in 2009, $37,500,000,000 in 2010, $43,500,000,000 in 2011, $44,300,000,000 in 2012, and $46,400,000,000 in 2013) and continues to lead the nation in gross agricultural cash receipts.
(b)Californias agricultural industry is dependent on immigrant labor. One recent study of 13 California counties gathered information from 2,300 farmworkers. The profile data reported in this study suggests that 95 percent of California agricultural workers were born outside the United States and 91 percent in Mexico. On average, they have been in the United States 11.1 years. Twenty-two percent have been in the United States two years or less, 10 percent are United States citizens, 33 percent have green cards, and 57 percent are unauthorized. Of the newcomers who have been here less than two years, 99 percent are unauthorized.
(c)Immigration policies that seek to deport unauthorized farmworkers or force them to abandon their jobs in agriculture would wreak swift and substantial damage to the agricultural industry in California. California agriculture would lose much of its experienced work force that has made it the most productive agricultural area in the world. At the same time, these policies would impose a substantial human cost on hundreds of thousands of farmworkers and their spouses, as well as their children, most of whom are United States citizens.
(d)The federal employment-based immigration system is broken. The programs for admitting foreign workers for temporary and permanent jobs are rigid, cumbersome, inefficient, do little to protect the wages and working conditions of foreign and domestic workers, do not respond very well to employers needs, and give almost no attention to adapting the number and characteristics of foreign workers to domestic labor shortages.
(e)Nevertheless, Congress has repeatedly failed to pass comprehensive immigration reform including the Agricultural Job Opportunity, Benefits, and Security Act. Instead, Congress is considering making the E-Verify program mandatory for all employers. Requiring agricultural employers to verify whether workers are employment-authorized would eliminate a significant portion of the existing agricultural workforce with no certainty that these vacancies will be filled by work-authorized immigrants or citizens.
(f)Due to the absence of federal action on comprehensive immigration reform, the counterproductive results of E-Verify, and the unworkable framework of the federal H-2A guest worker program, agricultural interests in Oklahoma and Utah have introduced legislation creating state guest worker programs and several other states are considering the introduction of similar state initiatives.
(g)Recognizing the significant contributions that unauthorized workers make to Californias economy and the need to bring these workers out of the shadows in order to improve worker conditions and at the same time provide a legal workforce for the agricultural industry, it is imperative that a program be created for current unauthorized workers to obtain authorization to live and work in California.
SEC. 3.It is the intent of the Legislature that the executive and legislative branches of the federal government give the highest priority to enacting comprehensive immigration reform legislation that would confer legal status to reside in the United States to most undocumented persons, including many undocumented farmworkers living and working in California.
SEC. 4.Chapter 8 (commencing with Section 11050) is added to Part 1 of Division 3 of the Unemployment Insurance Code, to read:8.California Agricultural Worker Program 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.
(b)Employer means an agricultural employer, as defined in Section 1140.4 of the Labor Code or a farm labor contractor.
(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)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, 2017, 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 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 employers, farm labor contractors, and farm labor organizations. The legislative members of the working group shall be nonvoting ex officio members.
(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 nontamper-proof work authorization documentation or security procedures and protocols, or all of these methods.
(5)A determination of the process and the agency that should conduct background and security checks and the extent background and security checks should be required.
(6)A determination regarding the payment that should be required for the submission and review of applications to participate in the program and background and security checks.
(7)Protocols regarding tracking and monitoring of employees employees, wages and working conditions, and other aspects 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 should 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 implementation of the program required by the federal government to ensure the proper role and responsibilities of the State of California.
(d)(1)The working group shall create a report expressing its recommendations, which shall be based upon 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, 2017.
(2)A report to be submitted pursuant to paragraph (1) shall be submitted in compliance with Section 9795 of the Government Code.
(e)By August 1, 2017, 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 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 employees with a permit to work and live in California should be structured.
(f)If the federal government approves or adopts a program to provide undocumented persons who are agricultural employees with a permit to work and live in California, it is the intent of the Legislature to enact necessary implementing legislation. The model program shall not be implemented until such implementing legislation is enacted by the Legislature.
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 employees with a permit to work and live in California.
11056.(a)The program shall not be implemented until a certification is made by an entity, designated by the working group, that not enough legal residents in California will fill all open agricultural jobs in California.
(b)The program shall be limited to an undocumented person who meets 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 has performed agricultural employment in the United States for at least 863 hours or 150 workdays during the 24-month period ending on January 26, 2015, 2016, or earned seven thousand five hundred dollars ($7,500) or more from agricultural industry employment in the United States, and has maintained agricultural employment for 431 hours or 75 workdays, or earned three thousand seven hundred fifty dollars ($3,750) or more 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, 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) should 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 persons 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 has not 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 under this program 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 high school, a GED program, an accredited vocational training program, or 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 may 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, and other obligations under federal and state law.
(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, including workers obtaining a permit under this program, and undocumented workers.
(c)An employer of a person permitted to work in this state under the program should 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 may not limit an employee to a single employer or occupation.
11059.No 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 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, and farm workers in California, including United States workers and participating undocumented workers, and governmental agencies involved in the administration of the program.
(d)Recommendations for the continuation or termination of the program.
(e)A report to be submitted pursuant to subdivision (a) shall be submitted in compliance with Section 9795 of the Government Code.
This act shall be known, and may be cited, as the California Agricultural Act.
SEC. 2.The Legislature finds and declares all of the following:
(a)Since 2007, Californias agricultural industry has experienced the highest agricultural sales recorded to date ($36,300,000,000 in 2007, $38,400,000,000 in 2008, $34,800,000,000 in 2009, $37,500,000,000 in 2010, $43,500,000,000 in 2011, $44,300,000,000 in 2012, and $46,400,000,000 in 2013) and continues to lead the nation in gross agricultural cash receipts.
(b)Californias agricultural industry is dependent on immigrant labor. One recent study of 13 California counties gathered information from 2,300 farmworkers. The profile data reported in this study suggests that 95 percent of California agricultural workers were born outside the United States and 91 percent in Mexico. On average, they have been in the United States 11.1 years. Twenty-two percent have been in the United States two years or less, 10 percent are United States citizens, 33 percent have green cards, and 57 percent are unauthorized. Of the newcomers who have been here less than two years, 99 percent are unauthorized.
(c)Immigration policies that seek to deport unauthorized farmworkers or force them to abandon their jobs in agriculture would wreak swift and substantial damage to the agricultural industry in California. California agriculture would lose much of its experienced work force that has made it the most productive agricultural area in the world. At the same time, these policies would impose a substantial human cost on hundreds of thousands of farmworkers and their spouses, as well as their children, most of whom are United States citizens.
(d)The federal employment-based immigration system is broken. The programs for admitting foreign workers for temporary and permanent jobs are rigid, cumbersome, inefficient, do little to protect the wages and working conditions of foreign and domestic workers, do not respond very well to employers needs, and give almost no attention to adapting the number and characteristics of foreign workers to domestic labor shortages.
(e)Nevertheless, Congress has repeatedly failed to pass comprehensive immigration reform including the Agricultural Job Opportunity, Benefits, and Security Act. Instead, Congress is considering making the E-Verify program mandatory for all employers. Requiring agricultural employers to verify whether workers are employment-authorized would eliminate a significant portion of the existing agricultural workforce with no certainty that these vacancies will be filled by legal residents. work-authorized immigrants or citizens.
(f)Due to the absence of federal action on comprehensive immigration reform, the counterproductive results of E-Verify, and the unworkable framework of the federal H-2A guest worker program, agricultural interests in Oklahoma and Utah have introduced legislation creating state guest worker programs and several other states are considering the introduction of similar state initiatives.
(g)Recognizing the significant contributions that unauthorized workers make to Californias economy and the need to bring these workers out of the shadows in order to improve worker conditions and at the same time provide a legal workforce for the agricultural industry, it is imperative that a program be created for current unauthorized workers in these industries. to obtain authorization to live and work in California.
SEC. 3.It is the intent of the Legislature that the executive and legislative branches of the federal government give the highest priority to enacting comprehensive immigration reform legislation that would confer legal status to reside in the United States to persons who would participate in the program described in this act. most undocumented persons, including many undocumented farmworkers living and working in California.
SEC. 4.Chapter 8 (commencing with Section 11050) is added to Part 1 of Division 3 of the Unemployment Insurance Code, to read:8.California Agricultural Worker Program 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.
(b)Employer means an agricultural employer, as defined in Section 1140.4 of the Labor Code or a farm labor contractor.
(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)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, 2017, 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 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 employers, farm labor contractors, and farm labor organizations. The legislative members of the working group shall be nonvoting ex-officio ex officio members.
(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 nontamper-proof work authorization documentation or security procedures and protocols, or all of these methods.
(5)A determination of the process and the agency that should conduct background and security checks and the extent background and security checks should be required.
(6)A determination regarding the payment that should be required for the submission and review of applications to participate in the program and background and security checks.
(7)Protocols regarding tracking and monitoring 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 should 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 implementation of the program required by the federal government to ensure the proper role and responsibilities of the State of California.
(d)(1)The working group shall create a report expressing its recommendations, which shall be based upon 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, 2017.
(2)A report to be submitted pursuant to paragraph (1) shall be submitted in compliance with Section 9795 of the Government Code.
(e)By August 1, 2017, 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 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 employees with a permit to work and live in California should be structured.
(f)If the federal government approves or adopts a program to provide undocumented persons who are agricultural employees with a permit to work and live in California, it is the intent of the Legislature to enact necessary implementing legislation. The model program shall not be implemented until such implementing legislation is enacted by the Legislature.
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 employees with a permit to work and live in California.
11056.(a)The program shall not be implemented until a certification is made by an entity, designated by the working group, that not enough legal residents in California will fill all open agricultural jobs in California.
(b)The program shall be limited to an undocumented person who meets 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 has performed agricultural employment in the United States for at least 863 hours or 150 workdays during the 24-month period ending on January 26, 2015, or earned seven thousand five hundred dollars ($7,500) or more from agricultural industry employment in the United States, and has maintained agricultural employment for 431 hours or 75 workdays, or earned three thousand seven hundred fifty dollars ($3,750) or more 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, 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) should 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 persons 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 has not 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 under this program 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 high school, a GED program, an accredited vocational training program, or 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 may 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. wage, and other obligations under federal and state law.
(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 workers, including workers obtaining a permit under this program, and undocumented workers.
(c)An employer of a person permitted to work in this state under the program should 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 may not limit an employee to a single employer or occupation.
11059.No 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 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 and farm workers in California, including United States workers, workers and participating undocumented workers, and governmental agencies involved in the administration of the program.
(d)Recommendations for the continuation or termination of the program.
(e)A report to be submitted pursuant to subdivision (a) shall be submitted in compliance with Section 9795 of the Government Code.
This act shall be known, and may be cited, as the California Agricultural Act.
SEC. 2.The Legislature finds and declares all of the following:
(a)Since 2007, Californias agricultural industry has experienced the highest agricultural sales recorded to date ($36,300,000,000 in 2007, $38,400,000,000 in 2008, $34,800,000,000 in 2009, $37,500,000,000 in 2010, $43,500,000,000 in 2011, $44,300,000,000 in 2012, and $46,400,000,000 in 2013) and continues to lead the nation in gross agricultural cash receipts.
(b)Californias agricultural industry is dependent on immigrant labor. One recent study of 13 California counties gathered information from 2,300 farmworkers. The profile data reported in this study suggests that 95 percent of California agricultural workers were born outside the United States and 91 percent in Mexico. On average, they have been in the United States 11.1 years. Twenty-two percent have been in the United States two years or less, 10 percent are United States citizens, 33 percent have green cards, and 57 percent are unauthorized. Of the newcomers who have been here less than two years, 99 percent are unauthorized.
(c)Immigration policies that seek to deport unauthorized farmworkers or force them to abandon their jobs in agriculture would wreak swift and substantial damage to the agricultural industry in California. California agriculture would lose much of its experienced work force that has made it the most productive agricultural area in the world. At the same time, these policies would impose a substantial human cost on hundreds of thousands of farmworkers and their children, most of whom are United States citizens.
(d)The federal employment-based immigration system is broken. The programs for admitting foreign workers for temporary and permanent jobs are rigid, cumbersome, inefficient, do little to protect the wages and working conditions of foreign and domestic workers, do not respond very well to employers needs, and give almost no attention to adapting the number and characteristics of foreign workers to domestic labor shortages.
(e)Nevertheless, Congress has repeatedly failed to pass comprehensive immigration reform including the Agricultural Job Opportunity, Benefits, and Security Act. Instead, Congress is considering making the E-Verify program mandatory for all employers. Requiring agricultural employers to verify whether workers are employment-authorized would eliminate a significant portion of the existing agricultural workforce with no certainty that these vacancies will be filled by legal residents.
(f)Due to the absence of federal action on comprehensive immigration reform, the counterproductive results of E-Verify, and the unworkable framework of the federal H-2A guest worker program, agricultural interests in Oklahoma and Utah have introduced legislation creating state guest worker programs and several other states are considering the introduction of similar state initiatives.
(g)Recognizing the significant contributions that unauthorized workers make to Californias economy and the need to bring these workers out of the shadows in order to improve worker conditions and at the same time provide a legal workforce for the agricultural industry, it is imperative that a program be created for current unauthorized workers in these industries.
SEC. 3.It is the intent of the Legislature that the executive and legislative branches of the federal government give the highest priority to enacting comprehensive immigration reform legislation that would confer legal status to reside in the United States to persons who would participate in the program described in this act.
SEC. 4.Chapter 8 (commencing with Section 11050) is added to Part 1 of Division 3 of the Unemployment Insurance Code, to read:8.California Agricultural Worker Program 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.
(b)Employer means an agricultural employer, as defined in Section 1140.4 of the Labor Code or a farm labor contractor.
(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)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, 2017, 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 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 employers, farm labor contractors, and farm labor organizations. The legislative members of the working group shall be nonvoting ex-officio members.
(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 should conduct background and security checks and the extent background and security checks should be required.
(6)A determination regarding the payment that should 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 should 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 implementation of the program required by the federal government to ensure the proper role and responsibilities of the State of California.
(d)(1)The working group shall create a report expressing its recommendations, which shall be based upon 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, 2017.
(2)A report to be submitted pursuant to paragraph (1) shall be submitted in compliance with Section 9795 of the Government Code.
(e)By August 1, 2017, 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 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 employees with a permit to work and live in California should be structured.
(f)If the federal government approves or adopts a program to provide undocumented persons who are agricultural employees with a permit to work and live in California, it is the intent of the Legislature to enact necessary implementing legislation. The model program shall not be implemented until such implementing legislation is enacted by the Legislature.
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 employees with a permit to work and live in California.
11056.(a)The program shall not be implemented until a certification is made by an entity, designated by the working group, that not enough legal residents in California will fill all open agricultural jobs in California.
(b)The program shall be limited to an undocumented person who meet meets 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 has performed agricultural employment in the United States for at least 863 hours or 150 workdays during the 24-month period ending on January 26, 2015, or earned seven thousand five hundred dollars ($7,500) or more from agricultural industry employment in the United States, and has maintained agricultural employment for 431 hours or 75 workdays, or earned three thousand seven hundred fifty dollars ($3,750) or more 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, 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) should 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 persons 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 has not 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 may 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 should 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 may not limit an employee to a single employer or occupation.
11059.No 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 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.
(e)A report to be submitted pursuant to subdivision (a) shall be submitted in compliance with Section 9795 of the Government Code.
This act shall be known, and may be cited, as the California Agricultural Act.
SEC. 2.The Legislature finds and declares all of the following:
(a)Since 2007, Californias agricultural industry has experienced the highest agricultural sales recorded to date ($36,300,000,000 in 2007, $38,400,000,000 in 2008, $34,800,000,000 in 2009, $37,500,000,000 in 2010, $43,500,000,000 in 2011, $44,300,000,000 in 2012, and $46,400,000,000 in 2013) and continues to lead the nation in gross agricultural cash receipts.
(b)Californias agricultural industry is dependent on immigrant labor. One recent study of 13 California counties gathered information from 2,300 farmworkers. The profile data reported in this study suggests that 95 percent of California agricultural workers were born outside the United States and 91 percent in Mexico. On average, they have been in the United States 11.1 years. Twenty-two percent have been in the United States two years or less, 10 percent are United States citizens, 33 percent have green cards, and 57 percent are unauthorized. Of the newcomers who have been here less than two years, 99 percent are unauthorized.
(c)Immigration policies that seek to deport unauthorized farmworkers or force them to abandon their jobs in agriculture would wreak swift and substantial damage to the agricultural industry in California. California agriculture would lose much of its experienced work force that has made it the most productive agricultural area in the world. At the same time, these policies would impose a substantial human cost on hundreds of thousands of farmworkers and their children, most of whom are United States citizens.
(d)The federal employment-based immigration system is broken. The programs for admitting foreign workers for temporary and permanent jobs are rigid, cumbersome, inefficient, do little to protect the wages and working conditions of foreign and domestic workers, do not respond very well to employers needs, and give almost no attention to adapting the number and characteristics of foreign workers to domestic labor shortages.
(e)Nevertheless, Congress has repeatedly failed to pass comprehensive immigration reform including the Agricultural Job Opportunity, Benefits, and Security Act. Instead Instead, Congress is considering making the E-Verify program mandatory for all employers. Requiring agricultural employers to verify whether workers are employment-authorized would eliminate a significant portion of the existing agricultural workforce with no certainty that these vacancies will be filled by legal residents.
(f)Due to the absence of federal action on comprehensive immigration reform, the counterproductive results of E-Verify, and the unworkable framework of the federal H-2A guest worker program, agricultural interests in Oklahoma and Utah have introduced legislation creating state guest worker programs and several other states are considering the introduction of similar state initiatives.
(g)Recognizing the significant contributions that unauthorized workers make to Californias economy and the need to bring these workers out of the shadows in order to improve worker conditions and at the same time provide a legal workforce for the agricultural industry, it is imperative that a program be created for current unauthorized workers in these industries.
SEC. 3.It is the intent of the Legislature that the executive and legislative branches of the federal government give the highest priority to enacting comprehensive immigration reform legislation that would confer legal status to reside in the United States to persons who would participate in the program described in this act.
SEC. 4.Chapter 8 (commencing with Section 11050) is added to Part 1 of Division 3 of the Unemployment Insurance Code, to read:8.California Agricultural Worker Program 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.
(b)Employer means an agricultural employer, as defined in Section 1140.4 of the Labor Code or a farm labor contractor.
(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)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, 2017, 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 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 employers, farm labor contractors, and farm labor organizations. The legislative members of the working group shall be nonvoting ex-officio members.
(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 should conduct background and security checks and the extent background and security checks should be required.
(6)A determination regarding the payment that should 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 should 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 implementation of the program required by the federal government to ensure the proper role and responsibilities of the State of California.
(d)(1)The working group shall create a report expressing its recommendations, which shall incorporate be based upon 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, 2017.
(2)A report to be submitted pursuant to paragraph (1) shall be submitted in compliance with Section 9795 of the Government Code.
(e)By August 1, 2017, 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 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 employees with a permit to work and live in California should be structured.
(f)If the federal government approves or adopts a program to provide undocumented persons who are agricultural employees with a permit to work and live in California, it is the intent of the Legislature to enact necessary implementing legislation.
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 employees with a permit to work and live in California.
11056.(a)The program should shall not be implemented until a certification is made by a designated entity an entity, designated by the working group, that not enough legal residents in California will fill all open agricultural jobs in California.
(b)The program should shall be limited to an undocumented person 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 has performed agricultural employment in the United States for at least 863 hours or 150 workdays during the 24-month period ending on January 26, 2015, or earned seven thousand five hundred dollars ($7,500) or more from agricultural industry employment in the United States, and has maintained agricultural employment for 431 hours or 75 workdays, or earned three thousand seven hundred fifty dollars ($3,750) or more 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, 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) should 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 persons 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 has not 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 may 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 should 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 may not limit an employee to a single employer or occupation.
11059.No 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 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.
(e)A report to be submitted pursuant to subdivision (a) shall be submitted in compliance with Section 9795 of the Government Code.
This act shall be known, and may be cited, as the California Agricultural Act.
SEC. 2.The Legislature finds and declares all of the following:
(a)Since 2007, Californias agricultural industry has experienced the highest agricultural sales recorded to date ($36,300,000,000 in 2007, $38,400,000,000 in 2008, $34,800,000,000 in 2009, $37,500,000,000 in 2010, $43,500,000,000 in 2011, $44,300,000,000 in 2012, and $46,400,000,000 in 2013) and continues to lead the nation in gross agricultural cash receipts.
(b)Californias agricultural industry is dependent on immigrant labor. One recent study of 13 California counties gathered information from 2,300 farmworkers. The profile data reported in this study suggests that 95 percent of California agricultural workers were born outside the United States and 91 percent in Mexico. On average, they have been in the United States 11.1 years. Twenty-two percent have been in the United States two years or less, 10 percent are United States citizens, 33 percent have green cards, and 57 percent are unauthorized. Of the newcomers who have been here less than two years, 99 percent are unauthorized.
(c)Immigration policies that seek to deport unauthorized farmworkers or force them to abandon their jobs in agriculture would wreak swift and substantial damage to the agricultural industry in California. California agriculture would lose much of its experienced work force that has made it the most productive agricultural area in the world. At the same time, these policies would impose a substantial human cost on hundreds of thousands of farmworkers and their children, most of whom are United States citizens.
(d)The federal employment-based immigration system is broken. The programs for admitting foreign workers for temporary and permanent jobs are rigid, cumbersome, inefficient, do little to protect the wages and working conditions of foreign and domestic workers, do not respond very well to employers needs, and give almost no attention to adapting the number and characteristics of foreign workers to domestic labor shortages.
(e)Nevertheless, Congress has repeatedly failed to pass comprehensive immigration reform including the Agricultural Job Opportunity, Benefits, and Security Act. Instead Congress is considering making the E-Verify program mandatory for all employers. Requiring agricultural employers to verify whether workers are employment-authorized would eliminate a significant portion of the existing agricultural workforce with no certainty that these vacancies will be filled by legal residents.
(f)Due to the absence of federal action on comprehensive immigration reform, the counterproductive results of E-Verify, and the unworkable framework of the federal H-2A guest worker program, agricultural interests in Oklahoma and Utah have introduced legislation creating state guest worker programs and several other states are considering the introduction of similar state initiatives.
(g)Recognizing the significant contributions that unauthorized workers make to Californias economy and the need to bring these workers out of the shadows in order to improve worker conditions and at the same time provide a legal workforce for the agricultural industry, it is imperative that a program be created for current unauthorized workers in these industries.
SEC. 3.It is the intent of the Legislature that the executive and legislative branches of the federal government give the highest priority to enacting comprehensive immigration reform legislation that would confer legal status to reside in the United States to persons who would participate in the program described in this act.
SEC. 4.Chapter 8 (commencing with Section 11050) is added to Part 1 of Division 3 of the Unemployment Insurance Code, to read:8.California Agricultural Worker Program 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.
(b)Employer means an agricultural employer, as defined in Section 1140.4 of the Labor Code or a farm labor contractor.
(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)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, 2017, 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 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 employers, farm labor contractors, and farm labor organizations. The legislative members of the working group shall be nonvoting ex-officio members.
(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 should conduct background and security checks and the extent background and security checks should be required.
(6)A determination regarding the payment that should 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 should 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 implementation of the program required by the federal government to ensure the proper role and responsibilities of the State of California.
(d)(1)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, 2017.
(2)A report to be submitted pursuant to paragraph (1) shall be submitted in compliance with Section 9795 of the Government Code.
(e)By August 1, 2017, 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 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 employees with a permit to work and live in California should be structured.
(f)If the federal government approves or adopts a program to provide undocumented persons who are agricultural employees with a permit to work and live in California, it is the intent of the Legislature to enact necessary implementing legislation.
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 employees with a permit to work and live in California.
11056.(a)The program should not be implemented until a certification is made by a designated entity that not enough legal residents in California will fill all open agricultural jobs in California.
(b)The program should be limited to an undocumented person 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 has performed agricultural employment in the United States for at least 863 hours or 150 workdays during the 24-month period ending on January 26, 2015, or earned seven thousand five hundred dollars ($7,500) or more from agricultural industry employment in the United States, and has maintained agricultural employment for 431 hours or 75 workdays, or earned three thousand seven hundred fifty dollars ($3,750) or more 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, 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) should 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 persons 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 has not 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 may 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 should 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 may not limit an employee to a single employer or occupation.
11059.No 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 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.
(e)A report to be submitted pursuant to subdivision (a) shall be submitted in compliance with Section 9795 of the Government Code.
SECTION 1.The Legislature finds and declares all of the following:
(a)The United States of America is a nation of values, founded on the principles that all men and women are created equal, and the promise of freedom for all.
(b)We are a nation of immigrants, who believe in the promise of freedom and opportunity.
(c)The current immigration system is broken, antiquated, and not meeting the challenges of the 21st century. It separates families, including same-sex couple families, creates long backlogs for families seeking reunification, and neglects the hard work and financial contributions immigrants make to our country.
(d)Since 2008, more than 1.6 million immigrants have been deported, and one in every 10 American children faces the threat of the deportation of a parent.
(e)Approximately 11 million undocumented immigrants are in the United States, and California has the largest population of immigrants, both legal and undocumented.
(f)Immigrants and their children constitute nearly one-half of Californias population and live and work in all 58 counties, most notably in the San Diego, Central Valley, Los Angeles, Ventura, and greater San Francisco areas.
(g)Approximately 77 percent of undocumented immigrants who reside in California live with family members who are legal United States residents and citizens.
(h)One in 10 workers in California is an undocumented immigrant, and immigrants are a vibrant, productive, and vital part of the states growing economy.
(i)Immigrants are essential in keeping the American economy strong; from technology programmers in the Silicon Valley to restaurant owners and workers, immigrants are filling an intrinsic need in the labor force.
(j)Agricultural workers have been performing very important and difficult work to maintain Americas food supply, and have a role of ensuring that Americans have safe and secure agricultural products to sell and consume.
(k)Students should not be punished for their immigration status. Instead, they should be given recognition for their sacrifice, hard work, and determination.
(l)The United States can do a better job of attracting and keeping the worlds best and brightest. A comprehensive immigration reform should also grant immigrants who have received a Ph.D. or masters degree in science, technology, engineering, or mathematics from an American university the opportunity to invest in and contribute to this great nation. For the future of our economy, it makes no sense to educate the worlds future innovators and entrepreneurs only to ultimately force them to leave our country at the moment they are most able to contribute to our economy.
(m)Modernizing our antiquated and dysfunctional immigration system will uphold our nations basic values of fairness and equality, as well as access to health care.
(n)A comprehensive, as well as compassionate, approach to solve our broken immigration system should be one that works for all communities and families in America.
(o)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.
(p)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.
(q)The Legislature recognizes and acknowledges the federal governments 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.
(r)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.
(s)Despite these impediments, many undocumented workers have endeavored year after year to file California state income tax returns using an individual taxpayer identification number.
(t)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.
(u)California will benefit from a program to provide undocumented persons who are agricultural or service industry employees with a permit to work and live in California.
The Legislature finds and declares all of the following:
(a)The United States of America is a nation of values, founded on the principles that all men and women are created equal, and the promise of freedom for all.
(b)We are a nation of immigrants, who believe in the promise of freedom and opportunity.
(c)The current immigration system is broken, antiquated, and not meeting the challenges of the 21st century. It separates families, including same-sex couple families, creates long backlogs for families seeking reunification, and neglects the hard work and financial contributions immigrants make to our country.
(d)Since 2008, more than 1.6 million immigrants have been deported, and one in every 10 American children faces the threat of the deportation of a parent.
(e)Approximately 11 million undocumented immigrants are in the United States, and California has the largest population of immigrants, both legal and undocumented.
(f)Immigrants and their children constitute nearly one-half of Californias population and live and work in all 58 counties, most notably in the San Diego, Central Valley, Los Angeles, Ventura, and greater San Francisco areas.
(g)Approximately 77 percent of undocumented immigrants who reside in California live with family members who are legal United States residents and citizens.
(h)One in 10 workers in California is an undocumented immigrant, and immigrants are a vibrant, productive, and vital part of the states growing economy.
(i)Immigrants are essential in keeping the American economy strong; from technology programmers in the Silicon Valley to restaurant owners and workers, immigrants are filling an intrinsic need in the labor force.
(j)Agricultural workers have been performing very important and difficult work to maintain Americas food supply, and have a role of ensuring that Americans have safe and secure agricultural products to sell and consume.
(k)Students should not be punished for their immigration status. Instead, they should be given recognition for their sacrifice, hard work, and determination.
(l)The United States can do a better job of attracting and keeping the worlds best and brightest. A comprehensive immigration reform should also grant immigrants who have received a Ph.D. or masters degree in science, technology, engineering, or mathematics from an American university the opportunity to invest in and contribute to this great nation. For the future of our economy, it makes no sense to educate the worlds future innovators and entrepreneurs only to ultimately force them to leave our country at the moment they are most able to contribute to our economy.
(m)Modernizing our antiquated and dysfunctional immigration system will uphold our nations basic values of fairness and equality, as well as access to health care.
(n)A comprehensive, as well as compassionate, approach to solve our broken immigration system should be one that works for all communities and families in America.
(o)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.
(p)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.
(q)The Legislature recognizes and acknowledges the federal governments 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.
(r)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.
(s)Despite these impediments, many undocumented workers have endeavored year after year to file California state income tax returns using an individual taxpayer identification number.
(t)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.
(u)California will benefit from a program to provide undocumented persons who are agricultural or service industry employees with a permit to work and live in California.
|
Date
|
Status
|
|---|---|
| Jun 3, 2015 | Read second time. Ordered to third reading. |
| Aug 27, 2015 | In committee: Held under submission. |
| Aug 17, 2015 | In committee: Referred to APPR. suspense file. |
| Aug 17, 2015 | From committee chair, with author's amendments: Amend, and re-refer to committee. Read second time, amended, and re-referred to Com. on APPR. |
| Jul 14, 2015 | Read second time and amended. Re-referred to Com. on APPR. |
| Jul 13, 2015 | From committee: Amend, and do pass as amended and re-refer to Com. on APPR. (Ayes 5. Noes 0.) (July 7). |
| Jul 7, 2015 | In committee: Set first hearing. Reconsideration of a favorable vote granted. |
| Jul 1, 2015 | From committee chair, with author's amendments: Amend, and re-refer to committee. Read second time, amended, and re-referred to Com. on AGRI. |
| Jun 25, 2015 | From committee: Do pass and re-refer to Com. on AGRI. (Ayes 5. Noes 0.) (June 24). Re-referred to Com. on AGRI. |
| Jun 18, 2015 | Referred to Coms. on L. & I.R. and AGRI. |
| Jun 4, 2015 | Read third time. Passed. Ordered to the Senate. (Ayes 69. Noes 2. Page 1917.) |
| Jun 4, 2015 | Read third time. Passed. Ordered to the Senate. |
| Jun 4, 2015 | In Senate. Read first time. To Com. on RLS. for assignment. |
| Dec 1, 2014 | Read first time. To print. |
| Jun 2, 2015 | Read second time and amended. Ordered returned to second reading. |
| Jun 1, 2015 | From committee: Amend, and do pass as amended. (Ayes 13. Noes 0.) (May 28). |
| May 13, 2015 | In committee: Set, first hearing. Referred to APPR. suspense file. |
| May 4, 2015 | Re-referred to Com. on APPR. |
| Apr 30, 2015 | Read second time and amended. |
| Apr 29, 2015 | From committee: Amend, and do pass as amended and re-refer to Com. on APPR. (Ayes 9. Noes 0.) (April 28). |
| Apr 23, 2015 | From committee: Do pass and re-refer to Com. on JUD. (Ayes 6. Noes 1.) (April 22). Re-referred to Com. on JUD. |
| Apr 6, 2015 | Re-referred to Com. on L. & E. |
| Mar 26, 2015 | Referred to Coms. on L. & E. and JUD. |
| Mar 26, 2015 | From committee chair, with author's amendments: Amend, and re-refer to Com. on L. & E. Read second time and amended. |
| Dec 2, 2014 | From printer. May be heard in committee January 1. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Aug 17, 2015 | Placed on suspense file | Senate Standing Committee on Appropriations |
Passed |
|
| Jul 7, 2015 | Do pass as amended, but first amend, and re-refer to the Committee on [Appropriations] | Senate Standing Committee on Agriculture |
Passed |
|
| Jul 7, 2015 | [07-07-2015] set for [First] hearing: Held in Committee. Reconsideration of favorable vote granted | Senate Standing Committee on Agriculture |
Passed |
|
| Jul 7, 2015 | Do pass as amended, but first amend, and re-refer to the Committee on [Appropriations] | Senate Standing Committee on Agriculture |
Passed |
|
| Jun 24, 2015 | Do pass, but first be re-referred to the Committee on [Agriculture] | Senate Standing Committee on Labor and Industrial Relations |
Passed |
|
| Jun 4, 2015 | AB 20 ALEJO Assembly Third Reading | Assembly Floor |
Passed |
|
| May 28, 2015 | Do pass as amended. | Assembly Standing Committee on Appropriations |
Passed |
|
| Apr 28, 2015 | Do pass as amended and be re-referred to the Committee on [Appropriations] | Assembly Standing Committee on Judiciary |
Passed |
|
| Apr 22, 2015 | Do pass and be re-referred to the Committee on [Judiciary] | Assembly Standing Committee on Labor and Employment |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| Agricultural Council Of California | * Indeterminate | Apr 28, 2015 |
| American Federation Of State, County & Municipal Employees | ** Support | Aug 17, 2015 |
| California Association Of Nurseries And Garden Centers | * Support | Aug 17, 2015 |
| California Cattlemen'S Association | ** Support | Aug 17, 2015 |
| California Chamber Of Commerce | * Support | Aug 17, 2015 |
| California Citrus Mutual | * Support | Aug 17, 2015 |
| California Communities United Institute | ** Support | Aug 17, 2015 |
| California Cotton Ginners and Growers | * Support | Aug 17, 2015 |
| California Cotton Ginners Association | * Support | Aug 17, 2015 |
| California Cotton Growers Association | * Support | Aug 17, 2015 |
| California Farm Bureau Federation | * Support | Aug 17, 2015 |
| California Fresh Fruit Association | * Support | Aug 17, 2015 |
| California Grain & Feed Association | * Indeterminate | Apr 28, 2015 |
| California Pear Growers | * Indeterminate | Apr 28, 2015 |
| California Seed Association | * Indeterminate | Apr 28, 2015 |
| California Tax Reform Association | ** Support | Aug 17, 2015 |
| Community Resources | * Support | Aug 17, 2015 |
| County of Monterey | * Support | Aug 17, 2015 |
| Family Winemakers Of California | ** Support | Aug 17, 2015 |
| Farm Worker Association | * Support | Aug 17, 2015 |
| la Cooperativa Campesina de California | * N/A | Aug 17, 2015 |
| la Cooperativa Campesina de California | * Support | Aug 17, 2015 |
| Page T | ** Support | Apr 28, 2015 |
| United Latinos | * Support | Aug 17, 2015 |
| Western Agricultural Processors Association | * Support | Aug 17, 2015 |
| Western Growers Association | ** Support | Aug 17, 2015 |
| Youth Justice Coalition | * Indeterminate | Apr 28, 2015 |
AB 20 (Alejo) Page 4 of 4
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
AB 20 (Alejo) - Undocumented workers: California Agricultural Act.
|
|
Version: August 17, 2015 |
Policy Vote: L. & I.R. 5 - 0, AGRI. 3 - 0, AGRI. 5 - 0, AGRI. 5 - 0 |
Urgency: No |
Mandate: No |
Hearing Date: August 17, 2015 |
Consultant: Robert Ingenito |
This bill meets the criteria for referral to the Suspense File.
Bill Summary:
AB 20 would (1) create a program to provide undocumented agricultural employees with a permit to work and live in California, as specified, and (2) direct the Labor and Workforce Development Agency (LWDA) and the California Department of Food and Agriculture (CDFA) to convene a working group to consult with the federal government and other stakeholders on how to best implement this program.
Fiscal Impact:
This bill would result in one-time General Fund administrative costs of in the range of $200,000 (General Fund), starting July 1, 2017, for LWDA to convene a working group. These costs include staffing, travel and other administrative expenses. CDFA and the Department of Justice would likely incur minor and absorbable costs to participate in the working group.
The bill also would result in a cost pressure, potentially in the tens of millions of dollars annually, to the extent a model program is ultimately established to provide undocumented persons who are agricultural employees with a permit to work and live in California.
Background:
Current law precludes a person or other entity from “knowingly” hiring, recruiting, or referring for employment an unauthorized individual or any individual without complying with specified employment verification procedures. Specifically, among other things, current law requires employers to verify that every new hire is either a (1) U.S. citizen, or (2) authorized to work in the United States by completing form I-9, Employment Eligibility Verification, upon hire and submitting necessary documentation for verification. Additionally, the E-Verify Program (of the U.S. Department of Homeland Security) is an internet-based system which enables participating employers to, on a voluntary basis, verify that the employees they hire are authorized to work in the United States.
Existing provisions of federal law regulate immigration; it is unconstitutional for a state to enact its own immigration policy. However, current state law 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 have been employed in the State.
Proposed Law:
This bill would do, among other things, the following:
Require LWDA and CDFA to, no later than February 1, 2017, convene a working group consisting of representatives of themselves, the attorney general, the legislature, and various stakeholders. The bill specifies that industry stakeholders would be equally represented on the working group.
Require the working group to consult with the U.S. Department of Homeland Security and U.S. Department of Justice to determine the legal roles and responsibilities of state and federal governments in implementing a state model program to provide undocumented agricultural employees a permit to work and live in California.
Direct the working group to address specified topics, including the following:
Qualifying criteria for undocumented persons to apply for the program.
Documentation requirements for applicants.
Determination of the state agency to issue work permits and conduct background and security checks.
Development of security measures such as tamper-proof work authorization documents.
Program application fees and fee structure to cover the ongoing costs of the program.
Protocols to track and monitor employees under the program.
Renewal process for the work permit.
Considerations for applicants to travel out of the country.
Any other procedures and legal requirements associated with implementing this program as required by the federal government.
Require the working group to submit its recommendations to the Legislature and the Governor no later than July 1, 2017.
Require the Governor, by August 1, 2017, to make a formal request to the federal government to implement this program or explain why the request was not made and provide recommendations on how the program should be structured.
State that it is the intent of the Legislature to enact legislation in order to implement this program should the federal government approve or adopt the program.
Provide model program requirements and limit program eligibility to undocumented persons who meet specified criteria.
Extend the program to immediate family members of the undocumented person as long as those members live with the person or are enrolled in specified educational programs, submit to a fingerprinted background check, have never been convicted of a felony or three or more misdemeanors, and pay a fee to cover costs of administering the program.
Prohibit an official or employee of state government to use information provided for the permit application for any other purpose than to determine eligibility for the program. Prohibits them from publicizing the information or allowing anyone other than a sworn officer or state employee to examine individual applicants.
Require information provided by the applicant to be shared with a state law enforcement entity in connection with a criminal investigation or prosecution or a coroner to identify a deceased individual.
Disqualify any person from the program if the person knowingly files false, fictitious, or fraudulent information.
Require program administrators to provide a review of the program to the Assembly and Senate labor committees that shall address program performance, impact on other workers not permitted by the program, and recommendations for improvement, continuation, or termination of the program.
Related Legislation:
AB 1544 (V.M. Pérez et al, 2012), would have created the California Agricultural Jobs and Industry Stabilization Act of 2012 to create a program to provide undocumented persons with a permit to work in the agricultural and service industries. The bill died on the Assembly Inactive File.
Staff Comments:
This bill would enact the California Agricultural Act to provide a model and framework for a program to provide undocumented persons who are agricultural employees with a permit to work and live in California. However, creation of this program would be contingent on California receiving authority from the federal government. Other states’ attempts in this area in response to the lack of progress at the federal level have not proved successful.
In 2011, Utah enacted two bills in this area: HB 497, which enacts the state’s own immigration policy; and HB 116, which, upon permission from the federal government, develops a state guest-worker program to issue work permits to undocumented individuals. In November 2011, the United States Department of Justice filed a lawsuit in Utah’s District Court claiming that HB 467’s attempts to regulate immigration on a state level is clearly preempted by federal law.
With respect to HB 116, however, DOJ did not immediately file suit. Given that the provisions of HB 116 were not to take effect until 2013, the DOJ opted to continue exploring resolutions short of litigation with state officials. The DOJ statement noted that if “Utah fails to comply with federal law in this area, the department will not hesitate to take the legal action necessary to vindicate the important federal interests in this matter before these laws go into effect." Since the Utah statute was predicated on the federal government granting Utah a waiver to proceed, the Utah Legislature has extended the effective date twice.
As noted earlier, the bill would require LWFA and CDFA to convene a workgroup to consult with the United States Department of Homeland Security and Department of Justice to determine the legal roles and responsibilities of federal and state agencies in implementing a program to provide undocumented agricultural or service industry employees with a permit to work and live in California.
LWDA would likely require one new full-time position plus travel expenses from the date of enactment through July 1, 2017. Depending on the specific responsibilities of AB 20, costs could be significantly higher. For instance, if LWDA is required to convene and host meetings, develop a report, coordinate with federal agencies, or add more staff, the costs could exceed one full time position.
If the bill is enacted, and the proposed plan is approved at the federal level and subsequently enacted through new implementing legislation, then the costs to the State to implement the program would be quite significant. It would require the development of whole new permitting system infrastructure, fingerprinting, background checks, staffing, equipment, and offices. These costs could reach the tens of millions of dollars annually, with some offset by fee revenue.
-- END --
AB 20 (Alejo) Page 7 of 7
SENATE COMMITTEE ON AGRICULTURE
Senator Cathleen Galgiani, Chair
2015 - 2016 Regular
Bill No: AB 20 Hearing Date: 7/7/15
Author: |
Alejo |
||
Version: |
7/1/15 Amended |
||
Urgency: |
No |
Fiscal: |
Yes |
Consultant: |
Anne Megaro |
||
Subject: Undocumented workers: California Agricultural Act.
SUMMARY
:
This bill would enact the California Agricultural Act to create a model program to provide undocumented agricultural employees with a permit to work and live in California, and to direct the state Employment Development Department and the California Department of Food and Agriculture to convene a working group to consult with the federal government and other stakeholders on how to best implement this program.
BACKGROUND AND EXISTING LAW
:
Existing state law provides all protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, to all individuals regardless of immigration status who have applied for employment, or who are or have been employed, in California (Civil Code §3339; Government Code §7285; Health and Safety Code §24000; Labor Code §1171.5).
Existing federal law states that it is illegal for a person or other entity to knowingly hire or recruit an undocumented person or to hire an individual without examining specified documents establishing both employment authorization and identity (8 U.S. Code § 1324a).
Under federal law, it is unconstitutional for a state to enact its own immigration policy. The federal government is responsible for enacting immigration laws and regulations, which preempt state laws.
PROPOSED LAW
:
This bill:
Makes findings and declarations related to California’s agricultural industry, immigrant labor, and the lack of effective immigration policies on the federal level.
Defines “employee,” “employer,” “farm labor contractor,” “farm labor organization,” “immediate family member,” and “undocumented person.”
Requires the state Employment Development Department (EDD) and the California Department of Food and Agriculture (CDFA) to, no later than February 1, 2017, convene a working group consisting of representatives of EDD, CDFA, the attorney general, the legislature, and various stakeholders.
Requires the working group to consult with the U.S. Department of Homeland Security and U.S. Department of Justice to determine the legal roles and responsibilities of state and federal governments in implementing a state model program to provide undocumented agricultural employees a permit to work and live in California.
Directs the working group to address the following:
Qualifying criteria for undocumented persons to apply for the program.
Documentation requirements for applicants.
Determination of the state agency to issue work permits and conduct background and security checks.
Development of security measures such as tamper-proof work authorization documents.
Program application fees and fee structure to cover the ongoing costs of the program.
Protocols to track and monitor employees under the program.
Renewal process for the work permit.
Considerations for applicants to travel out of the country.
Any other procedures and legal requirements associated with implementing this program as required by the federal government.
Requires the working group to submit its recommendations to the legislature and the governor no later than July 1, 2017.
Requires the governor, by August 1, 2017, to make a formal request to the federal government to implement this program or explain why the request was not made and provide recommendations on how the program should be structured.
Requires the legislature to enact legislation in order to implement this program should the federal government approve or adopt the program.
Provides model program requirements and limits program eligibility to undocumented persons who meet all of the following criteria:
18 years of age or older.
Resident of California.
Worked in the agricultural industry for at least 863 hours or 150 workdays over the previous two years or earned $7,500 or more from agricultural employment, and maintained employment for 431 hours or 75 workdays or earned $3,750 or more on an annual basis after receiving the permit.
Ability to establish employment by submitting specified wage and income documents or, if these are unavailable, at least two other types of reliable documents including bank, business, or remittance records.
Submits to a fingerprinted criminal history background check.
Has not been convicted of a felony or three or more misdemeanors.
Pays a fee to cover costs of administering the program.
Extends the program to immediate family members of the undocumented person as long as those members live with the person or are enrolled in specified educational programs, submit to a fingerprinted background check, have never been convicted of a felony or three or more misdemeanors, and pay a fee to cover costs of administering the program.
Prohibits an official or employee of state government to use information provided for the permit application for any other purpose than to determine eligibility for the program. Prohibits them from publicizing the information or allowing anyone other than a sworn officer or state employee to examine individual applicants.
Requires information provided by the applicant to be shared with a state law enforcement entity in connection with a criminal investigation or prosecution or a coroner to identify a deceased individual.
Disqualifies any person from the program if the person knowingly files false, fictitious, or fraudulent information.
Requires program administrators to ensure that employers hiring persons permitted under this program are not filling a vacant position due to a strike or other work dispute, that wages and benefits are comparable to those provided to legal residents, and that the employer complies with all labor laws.
Requires an employer to provide to the permitted employee and the state a written record of employment that includes hours worked and wages paid.
Entitles permitted employees to the same working protections provided to legal residents.
Requires program administrators to provide a review of the program to the Assembly and Senate labor committees that shall address program performance, impact on other workers not permitted by the program, and recommendations for improvement, continuation, or termination of the program.
ARGUMENTS IN SUPPORT:
According to the author, “As California’s farmers enter the summer harvest season, they’ll continue struggling with an ongoing labor shortage and a devastating drought. We cannot simply hope for things to get better. In Washington D.C., the talks revolving around comprehensive immigration reform have stalled, and the President’s Executive Action is blocked. If California wants change in immigration policy, we as state officials must stand up and lead. California led the way with the passage of AB 60, which has already provided over 230,000 undocumented Californians with drivers licenses so they can legally and safely drive to work in California. These are hardworking individuals who are very much a key part in our economy and our society. Let’s also find a way to allow employees of our local farmers to legally work in California as well. AB 20 will do just that – allow skilled, trained, and trusted farmworkers to legally stay and work on California’s farms.”
According to the UFCW Wester States Council, this bill, “would not only offer dignity to those who are working in California, but reform would also result in additional revenue for the state and offer an opportunity for these immigrants to continue to contribute to their communities and families without fear associated with ‘coming out of the shadows.’”
COMMENTS
:
Undocumented farmworkers. According to the Public Policy Institute of California, there are more than 10 million immigrants in California of which 27% are undocumented. Specific to the agricultural immigrant workforce, the USDA Economic Research Service reports data from the U.S. Department of Labor’s National Agricultural Workers Survey (NAWS) that the number of crop farmworkers not legally authorized to work in the U.S. increased from 15% in 1989 to almost 55% in 1999 and has since maintained that level. This data, however, does not include livestock farmworkers.
Current work permits. The federal government provides an H-2A agricultural guest-worker visa to allow non-citizens to do seasonal or temporary work and maintains the E-Verify program to help employers determine employees’ status to work in the U.S. However, these programs have not been adequately robust or effective to provide the necessary skilled labor in a timely manner to fill labor shortages in the agricultural industry. Longstanding criticisms and frustrations with these programs have led the agricultural industry, both employer and employee organizations, to push for federal legislation that would allow additional or reformed guest-worker visas or permits.
Value of immigrant farmworkers. A survey conducted by the American Farm Bureau Federation found that 71% of tree fruit growers and 80% of raisin and berry growers were unable to find enough employees to manage their crops. The National Council of Agricultural Employers further state that “Denials of H-2A applications have increased dramatically. 72 % of growers reported that workers arrived after the "date of need", on average 22 days late. Growers seeking access to a legal workforce suffer $320,000,000 in economic harm due to h-2a program rules and administration. Employers reported $150,408,000 of economic loss due to the inability to get the workers they needed in 2010 and an additional $169,763,000 of loss because the workers they did get were not available at the time they were needed.” This bill would address these issues by permitting undocumented persons to work in the agricultural industry as long as specified criteria are met and it can be shown that these workers will not displace jobs from legal residents.
Agricultural Job Opportunities, Benefits and Security Act (AgJOBS). Immigration reform has been a major issue of concern at the federal level for over a decade and multiple bills have been introduced over the past several years (H.R. 1773 and S. 744 of the 113th Congress; S. 1258 of the 112th Congress; H.R. 2414 of the 111th Congress, among others). These bills have generally sought to achieve the same goal, that being to provide legal working status to immigrant agricultural farmworkers. Specifically, proposals have included the creation of a “blue card” or reform of the H-2A visa. Although some proposals have passed through their respective committees and houses, none has been signed into law.
Other state initiatives. Due to the lack of movement at the federal level, some states have taken action to create state programs that would increase the number of authorized immigrant farmworkers in their state. Specifically, Utah enacted two bills in 2011: H.B. 497, which enacts the state’s own immigration policy; and H.B. 116, which, upon permission from the federal government, develops a state guest-worker program to issue work permits to undocumented individuals.
The U.S. departments of Justice, Homeland Security, and State filed a lawsuit challenging the constitutionality of H.B. 497. In the Department of Justice’s press release dated November 22, 2011, Attorney General Eric Holder stated, “A patchwork of immigration laws is not the answer and will only create further problems in our immigrations system. The federal government is the chief enforcer of immigration laws and while we appreciate cooperation from states, which remains important, it is clearly unconstitutional for a state to set its own immigration policy.”
United Farm Workers. The UFW has a position of support if amended, and their proposed amendments would include:
Remove references to the H-2A program since this bill does not seek to replace it.
Provide equal representation of agricultural employers and employees in the stakeholder group.
Remove specific requirements for program eligibility such as the number of days worked, etc.
Note. This analysis covers agricultural aspects of this bill. For additional labor considerations, please see the analysis by the Senate Committee on Labor and Industrial Relations dated June 24, 2015.
RELATED LEGISLATION
:
AB 1544 (V.M. Pérez et al.) of 2012. Would have created the California Agricultural Jobs and Industry Stabilization Act of 2012 to create a program to provide undocumented persons with a permit to work in the agricultural and service industries. Died on the Assembly Inactive File.
SB 1818 (Romero), Chapter 1071, Statutes of 2002. Finds that all protections, rights, and remedies available under state law, except as prohibited by federal law, are available to individuals regardless of immigration status.
PRIOR ACTIONS
:
Assembly Floor: |
69 - 2 |
Assembly Appropriations Committee: |
13 - 0 |
Assembly Labor and Employment Committee: |
6 - 1 |
SUPPORT
:
American Federation of State, County and Municipal Employees, AFL-CIO
California Association of Nurseries and Garden Centers
California Cattlemen’s Association
California Chamber of Commerce
California Citrus Mutual
California Communities United Institute
California Cotton Ginners Association
California Cotton Growers Association
California Farm Bureau Federation
California Fresh Fruit Association
California Tax Reform Association
Family Winemakers of California
Western Agricultural Processors Association
Western Growers Association
UFCW Western States Council
SUPPORT IF AMENDED:
United Farm Workers
OPPOSITION
:
None received
-- END --
AB 20 (Alejo) Page 8 of 8
SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS
Senator Tony Mendoza, Chair
2015 - 2016 Regular
Bill No: AB 20 Hearing Date: June 24, 2015
Author: |
Alejo |
||
Version: |
June 2, 2015 |
||
Urgency: |
No |
Fiscal: |
Yes |
Consultant: |
Alma Perez-Schwab |
||
Subject: Undocumented workers: California Agricultural Act.
KEY ISSUES
Should the Legislature establish, and administer, [with federal authority] a work permit program that provides undocumented individuals who are agricultural employees with a permit to legally work and live in California?
Should the Legislature require that the Governor either make a formal request to the federal government to implement such a program or issue an explanation as to why a formal request was not made?
Should the Legislature require that the Employment Development Department and the Department of Food and Agriculture convene a working group to consult with the U.S. Department of Homeland Security and the U.S. Department of Justice to determine the legal roles and responsibilities of federal and state agencies in implementing such a program?
ANALYSIS
Under existing law, it is illegal for a person or other entity to “knowingly” hire, recruit, or refer for employment an unauthorized individual or 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 by completing form I-9, Employment Eligibility Verification, upon hire and submitting necessary documentation for verification. Additionally, the E-Verify Program (of the U.S. Department of Homeland Security) is an internet-based system operated by the USCIS in partnership with the SSA which enables participating employers to, on a voluntary basis, verify that the employees they hire are authorized to work in the United States.
Existing provisions of federal law regulate immigration. Under federal law, state law regulating immigration is preempted.
Under existing California law, 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 have been employed in the state. (Labor Code §1019 and §1171.5; Civic Code §3339; Health and Safety Code §24000; Government Code §7285)
This Bill would enact the California Agriculture Act to establish a model and framework for a work permit program that provides undocumented individuals who are agricultural employees with a permit to legally work and live in California, as specified.
Specifically, this bill:
Requires the Employment Development Department (EDD) and the Department of Food and Agriculture, no later than February 1, 2017, to convene a working group to consult with the U.S. Department of Homeland Security and the U.S. Department of Justice to determine the legal roles and responsibilities of federal and state agencies in implementing a program to provide undocumented agricultural employees with a permit to work and live in California.
Provides that the working group shall consist of representatives from EDD, 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 employers, farm labor contractors, and farm labor organizations.
Specifies issues to be addressed by the working group.
Requires the working group to create a report expressing its recommendations to be submitted to the Legislature and the Governor no later than July 1, 2017.
Requires the Governor, by August 1, 2017 to either make a formal request to the federal government to implement such a program, or issue an explanation as to why it was not made and make recommendations to the Legislature on how a program should be structured.
Provides that if the federal government approves or adopts a program to provide undocumented persons who are agricultural employees with a permit to work and live in California, it is the intent of the Legislature to enact necessary implementing legislation.
Outlines model program requirements as follows:
The program shall not be implemented until a certification is made that not enough legal residents in California will fill all open agricultural jobs in California.
The program shall be limited to undocumented persons who are 18 years of age and older, live in California and have performed agricultural employment in the United States for at least 863 hours or 150 workdays during the 24-month period ending on January 26, 2015, or earned seven thousand five hundred dollars ($7,500) or more from agricultural industry employment in the U.S., and has maintained agricultural employment for 431 hours or 75 workdays, or earned three thousand seven hundred fifty dollars ($3,750) or more from that employment, on an annual basis after receiving the permit.
An undocumented person shall be allowed to conclusively establish employment status by submitting specified records demonstrating the employment.
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.
The undocumented person shall submit to a fingerprinted criminal history background check.
The undocumented person has not been convicted of a felony, or three or more misdemeanors, as confirmed by the fingerprinted criminal history background check.
The undocumented person shall pay a fee to cover the costs of administering the program.
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 specified criteria.
Provides that once the program becomes authorized and operational, specified requirements including, but not limited to the following, shall apply:
An official or employee of the state government may not engage in specified activities regarding the misuse of information submitted by the applicant.
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.
The entities administering the program shall ensure that employers employing workers authorized under the program make each of the following assurances:
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.
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.
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 U.S. workers and undocumented workers.
An employer of a person permitted to work in this state under the program should 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.
Provides that an employee permitted to work under the program shall be entitled to the same wage, hour, and working condition protections provided to any legal employee of California.
Provides that a permit issued under the program may not limit an employee to a single employer or occupation.
Provides that no later than three years after program implementation, 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 describing the results of a review of the program, and compliance with, the requirements of the program, as specified.
Contains legislative findings and declarations regarding immigrant contributions to the agricultural industry and states the intent of the Legislature that the federal government gives the highest priority to enacting comprehensive immigration reform.
COMMENTS
1. Contributions of Immigrant Farmworkers:
According to a 2011 report, California is home to nearly 10 million immigrants, more than one quarter of the state’s population. Of those, 2.7 million are undocumented, and the vast majority of them have been living in the United States for more than 10 years. (“Revitalizing the Golden State: What Legalization over Deportation Could Mean to CA and LA County,” Center for American Progress and the Immigration Policy Center) The report found that as a whole, immigrant workers added $492 billion to California’s gross state product and the undocumented workforce by itself accounted for $158 billion of this GSP. Additionally, these workers are not only producing important goods and services but also earning money that is spent in the state contributing to economic growth and job creation and is also taxed contributing to the state treasury. The reports finds immigrant contributions in personal, income and property taxes estimated at $95 billion in taxes in 2008 while undocumented immigrants paid approximately $26 billion. According to the report, when undocumented workers are taken out of the economy, the jobs they support through their labor, their consumption, and their tax payments disappear as well.
The report found that legalization of the undocumented workforce would yield significant economic benefits based on the historical results of the last legalization program under the Immigration Reform and Control Act of 1986. A similar program would increase wages not only for immigrants but also for their native-born co-workers generating more tax revenue and more consumer and business spending, supporting additional jobs throughout the state. Specifically, the report found that this method would add 633,000 jobs, increase labor income by $26.9 billion and increase tax revenues by $5.3 billion.
2. Immigration Laws: Federal Preemption
In 1986, Congress passed the Immigration Reform and Control Act (IRCA) in order to make “combatting the employment of illegal aliens” the central approach to immigration policy. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002) IRCA makes it unlawful for an employer to knowingly employ an ‘unauthorized alien,’ meaning that “at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General.” IRCA further states, “ [T]he provisions of this section preempt any State or local law imposing civil or criminal sanctions … upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.”
Employer responsibilities and sanctions further changed with the passage of the Immigration Act of 1990 and the Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996. Employers are required to verify an employee's authorization to work by reviewing the his/her United States passport, resident alien card, alien registration card, or other document approved by the Attorney General; or by reviewing a combination of other documents such as a driver's license and social security card. The employer must attest under penalty of perjury on Form I–9 that he “has verified that the individual is not an unauthorized alien” by reviewing these documents. Employers that violate IRCA may be subject to both civil and criminal sanctions. Depending on the circumstances of the violation, a civil fine ranging from $250 to $16,000 per unauthorized worker may be imposed.
Aside from policy rationale, a fundamental issue concerning this bill is whether or not it is preempted by federal immigration law. Federal preemption carries particular force in this context because the regulation of immigration, legal and illegal, is “unquestionably exclusively a federal power.” De Cana v. Bica, 424 U.S. 351, 354 (1976) However, In Plyer v. Doe, the US Supreme Court decided that states “might have an interest in mitigating the potentially harsh economic effects of sudden shifts in population”, and thereby concluded that States sometimes do have the power to regulate rights afforded to undocumented aliens when these rights have “a discernible impact on traditional state concerns” 457 U.S. at 228 (1982). However, in the actual process of excluding or including undocumented aliens under the protection of U.S. laws, courts have consistently held that this remains the purview of the federal government. See State v. Patel, 770 P.2d 390, 393 (Ariz. Ct. App. 1989)
In the perceived absence of proper enforcement of the Immigration Reform and Immigrant Responsibility Act (IIRIRA), several states including Arizona, Alabama, South Carolina and Utah have passed a series of immigration statutes that prohibit undocumented aliens from performing a variety of activities such as living in public housing, securing employment, applying for driver’s licenses or attending publically funded schools and universities.
3. The Agricultural Job Opportunities, Benefits and Security Act (AgJOBS)
In the absence of comprehensive immigration reform, but the need for a stable, legal labor force within the agricultural industry, bipartisan legislation has been proposed in Congress to enable many undocumented farmworkers to gain legal temporary residency to work in the United States. For several years, bipartisan legislation was introduced with broad support in Congress. Generally referred to as the Agricultural Job Opportunities, Benefits and Security Act (or AgJOBS), the legislation was carefully negotiated by employee groups such as the United Farm Workers and major agribusiness employers and represents a major compromise to address the agricultural immigration crisis. AgJOBS has traditionally been endorsed by major labor and management representatives, as well as a broad spectrum of organizations, including community leaders, civil rights organizations, religious groups and farmworkers themselves. This program would provide agricultural employers with a stable, legal labor force while protecting farmworkers from exploitative working conditions.
The federal proposals have generally contained two main parts:
An "earned legalization" program enabling many undocumented farmworkers and H-2A guest workers to earn a "blue card" temporary immigration status with the possibility of becoming permanent residents of the U.S. by continuing to work in agriculture and by meeting additional requirements; and
Revisions to the existing H-2A temporary foreign agricultural worker program.
In 2003, the first AgJOBS bill was introduced in Congress when United States Senators Larry Craig (R-ID) and Edward M. Kennedy (D-MA) and Representatives Chris Cannon (R-UT) and Howard Berman (D-CA) introduced the federal immigration reform bill. In 2009, Senator Dianne Feinstein (D-CA) and Representatives Berman (D-CA) and Putnam (R-FL) introduced AgJOBS in the 111th Congress. In 2011, AgJOBS was included in the comprehensive immigration reform bill introduced in the Senate by Senators Menendez (D-NJ), Leahy (D-VT), Durbin (D-IL), Schumer (D-NY), Kerry ( D-MA), and Gillibrand (D-NY) known as the Comprehensive Immigration Reform Act of 2011. In 2015, AgJOBS was again introduced in the 109th Congress by bipartisan authorship.
4. Need for this bill?
According to the California Farm Bureau, California farmers have been experiencing a farm labor shortage of approximately 20%-25% less workers than in 2010. California’s agriculture sector contributes significantly to the state’s economic success. This industry relies heavily on unauthorized workers from outside of the U.S. to maintain its economic production and revenues. According to the author, the current agricultural worker shortage poses a real threat to the ability of California farmers to produce many of the global market’s popular labor-intensive crops including, but not limited to, strawberries, leafy greens, blueberries, raspberries, asparagus, broccoli, cauliflowers, fresh tomatoes, artichokes, and melons.
This bill proposes to enact the California Agricultural Act to provide a model and framework for a program to provide undocumented persons who are agricultural employees with a permit to work and live in California. However, creation of this program would be contingent on California receiving authority from the federal government.
5. Recent Legislation in Other States:
In 2011, Utah enacted a package of immigration legislation that has some bearing on the preemption issues applicable to this bill. HB 116 or the Guest Worker Act listed a procedure for workers to obtain permits to work in agriculture or service related sectors. [Utah Code Annotated §35A-8-201 (1) (a)-(c) (2011)] Furthermore, the Act contained a list of requirements that are to be met by each applicant for such a permit, and allows for immediate family members of the permit-holder to reside in the state for the duration of the permit. Finally, the Act requires the state government to petition the Department of Justice to receive permission to carry out the guest worker program. The Utah bill also compels the state government to coordinate with the FBI and the Department of Homeland Security to ensure that the guest worker applicants do not pose a threat to national security.
HB 116 and HB 467 (a bill similar to Arizona’s S.B. 1070), were signed into law in 2011. Between March and November, the Department of Justice (DOJ) engaged in talks with Utah state officials. However, in November 2011, the DOJ filed a lawsuit in Utah’s District Court claiming that HB 467’s attempts to regulate immigration on a state level is clearly preempted by federal law. The DOJ’s press release stated that the “federal government has the ultimate authority to enforce federal immigration laws and the Constitution does not permit a patchwork of local immigration policies. A state setting its own immigration policy interferes with the federal government’s enforcement efforts.” Attorney General Eric Holder also emphasized that “patchwork of immigration laws is not the answer and will only create further problems in our immigration system. The federal government is the chief enforcer of immigration laws and while we appreciate cooperation from states, which remains important, it is clearly unconstitutional for a state to set its own immigration policy.”
With regards to HB 116 however, the DOJ did not immediately file suit. In November 2011 the DOJ said that it has notified state officials that Utah’s Immigration Guest Worker statute is clearly preempted by federal law. However, given that the provisions of HB 116 were not to take effect until 2013, the DOJ opted to continue exploring resolutions short of litigation with state officials. The DOJ statement noted that if “Utah fails to comply with federal law in this area, the department will not hesitate to take the legal action necessary to vindicate the important federal interests in this matter before these laws go into effect." Since the Utah statute was predicated on the federal government granting Utah a waiver to proceed, the Utah Legislature has extended the effective date twice. With little action occurring at the federal level, some have called on lawmakers to repeal the statute in its entirety.
In 2011 and 2012, Oklahoma State Senator Harry Coates introduced legislation to create a state-administered guest worker program. The proposals would have allowed undocumented adults to stay in the state legally if they purchased a guest worker permit fee for $1,000 and found a program sponsor who would agree to hire them and provide basic health insurance coverage. It does not appear that those proposals passed the Oklahoma Legislature.
6. Proponent Arguments:
According to the author, since 2007, California’s agricultural industry has generated the highest agricultural sales ever recorded in the nation, with 2013 reporting a record $46.4 billion. A key factor making this economic success has been the industry’s access to workers from outside of the U.S. The author cites U.S. Department of Labor estimates that half of the agricultural work force in the U.S. is comprised of unauthorized workers, while the agricultural industry believes the number to exceed 75 percent. In the absence of federal comprehensive immigration reform, the state of Utah has passed legislation creating a state guest worker program. In addition, the states of Oklahoma, Kansas, New Mexico, and Texas have introduced legislation creating state guest worker programs and other states have studies or are considering the introduction of such state initiatives.
In addition, a coalition of agricultural employer groups supports this measure, stating that they share the author’s frustration with the lack of action at the Federal level to address labor shortages and ensure long-term labor security. They argue that using this language as a model will send an important message to Congress about California’s interest in making something happen in this area, even if Washington, DC is not able to act.
7. Opponent Arguments:
None received.
8. Double Referral:
This bill has been double referred to this Committee and the Senate Agriculture Committee. Should the bill be approved today, it will be sent to Senate Agriculture for a hearing.
9. Prior Legislation:
AB 1544 (V.M. Perez) of 2012: Died in Assembly Inactive File
This bill is similar, but not identical, to AB 1544. While this bill applies only to agricultural employees, AB 1544 included agricultural employee and a person employed to provide domestic services, janitorial or building maintenance services, food preparation services, or housekeeping services. AB 1544 was moved to the Inactive File on the Assembly Floor. Subsequently, similar language was amended into AB 916 (V. Manuel Perez) of 2012 in the Senate. However, AB 916 was held in the Senate Rules Committee without further action.
SUPPORT
American Federation of State, County & Municipal Employees
California Association of Nurseries and Garden Centers
California Cattlemen’s Association
California Chamber of Commerce
California Citrus Mutual
California Communities United Institute
California Cotton Ginners Association
California Cotton Growers Association
California Farm Bureau Federation
California Fresh Fruit Association
California Tax Reform Association
Family Winemakers of California
Western Agricultural Processors Association
Western Growers Association
OPPOSITION
None received
-- END –
AB 20
Page 4
ASSEMBLY THIRD READING
AB 20
(Alejo)
As Amended June 2, 2015
Majority vote
Committee |
Votes |
Ayes |
Noes |
Labor |
6-1 |
Roger Hernández, Chu, Low, McCarty, Patterson, Thurmond |
Harper |
Judiciary |
9-0 |
Mark Stone, Wagner, Alejo, Chau, Chiu, Cristina Garcia, Holden, Maienschein, O'Donnell |
|
Appropriations |
13-0 |
Gomez, Bigelow, Bonta, Calderon, Daly, Eggman, Eduardo Garcia, Gordon, Holden, Quirk, Rendon, Weber, Wood |
|
SUMMARY: Enacts a framework work permit program for undocumented individuals who are agricultural employees, as specified. Specifically, this bill:
Requires the Employment Development Department (EDD) and the Department of Food and Agriculture, no later than February 1, 2017, to 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 employees with a permit to work and live in California.
Provides that the working group shall consist of representatives from EDD, 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 employers, farm labor contractors, and farm labor organizations.
Specifies issues to be addressed by the working group.
Requires the working group to create a report expressing its recommendations to be submitted to the Legislature and the Governor no later than July 1, 2017.
Requires the Governor, by August 1, 2017, to either make a formal request to the federal government to implement a program to provide undocumented persons who are agricultural 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 employees with a permit to work and live in California should be structured.
Provides that if the federal government approves or adopts a program to provide undocumented persons who are agricultural employees with a permit to work and live in California, the Legislature shall enact necessary implementing legislation. The model program shall not be implemented until such implementing legislation is enacted by the Legislature.
Outlines model program requirements as follows:
The program shall not be implemented until a certification is made by an entity designated by the working group that not enough legal residents in California will fill all open agricultural jobs in California.
The program shall be limited to undocumented persons who are 18 years of age and older, live in California and have performed agricultural employment in the United States for at least 863 hours or 150 workdays during the 24-month period ending on January 26, 2015, or earned $7,500 or more from agricultural industry employment in the United States, and has maintained agricultural employment for 431 hours or 75 workdays, or earned $3,750 or more from that employment, on an annual basis after receiving the permit.
An undocumented person shall be allowed to conclusively establish employment status by submitting specified records demonstrating the employment.
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.
The undocumented person shall submit to a fingerprinted criminal history background check.
The undocumented person has not been convicted of a felony, or three or more misdemeanors, as confirmed by the fingerprinted criminal history background check.
The undocumented person shall pay a fee to cover the costs of administering the program.
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 specified criteria.
Provides that once the program becomes authorized and operational, specified requirements including, but not limited to the following apply:
An official or employee of the state government may engage in specified activities.
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.
The entities administering the program shall ensure that employers employing workers authorized under the program make each of the following assurances:
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.
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.
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.
An employer of a person permitted to work in this state under the program should 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.
Provides that 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.
Provides that a permit issued under the program may not limit an employee to a single employer or occupation.
Provides that no later than three years after the program is implemented, the administering entities shall prepare and transmit to the Assembly Labor and Employment Committee and the Senate Labor and Industrial Relations Committee a report describing the results of a review of the implementation of, and compliance with, the requirements of the program, including specified information.
Makes related changes.
Contains legislative findings and declarations.
FISCAL EFFECT: According to the Assembly Appropriations Committee, General Fund administrative costs of in the range of $120,000 to $200,000, starting July 1, 2017, for the EDD to convene a working group. These costs include staffing, travel and other administrative expenses. The scope of this work is broad and addresses an unfamiliar subject matter for the EDD. To the extent the EDD is responsible for coordination with federal agencies and production of the working group report, additional workload costs could be incurred. The Department of Food and Agriculture and the Attorney General's Office indicate minor/absorbable costs to participate in the working group.
COMMENTS: This bill proposes to enact the California Agricultural Act to provide a model and framework for a program to provide undocumented persons who are agricultural employees with a permit to work and live in California.
A coalition of agricultural employer groups supports this measure, stating, "Our organizations share your frustration with the lack of action at the Federal level to address labor shortages and ensure long-term labor security. We have promoted Comprehensive Immigration Reform for the past few years to no avail. [This bill] seeks to build upon consensus language found in past versions of the Federal AgJobs legislation. We believe using this language as a model will send an important message to Congress about California's interest in making something happen in this area, even if Washington, DC is not able to act."
There is no opposition on file to this bill.
Analysis Prepared by: Ben Ebbink / L. & E. / (916) 319-2091 FN: 0000566
AB 20
Page 2
Date of Hearing: May 13, 2015
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Jimmy Gomez, Chair
AB 20
(Alejo) – As Amended April 30, 2015
Policy Committee: |
Labor and Employment |
Vote: |
6 - 1 |
|
Judiciary |
|
9 - 0 |
|
|
|
|
Urgency: No State Mandated Local Program: No Reimbursable: No
SUMMARY:
This bill requires the Employment Development Department (EDD) and the Department of Food and Agriculture (DFA), no later than February 1, 2017, to convene a working group to consult with the US Department of Homeland Security and the US 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 employees with a permit to work and live in California. Specifically, this bill:
Specifies the work group shall consist of representatives from the EDD, the DFA, the Attorney General (AG), two Members of the Senate, two Members of the Assembly, and stakeholders, including, but not limited to, agricultural employers, farm labor contractors, and farm labor organizations. The legislative members of the working group shall be nonvoting ex-officio members.
Requires the working group to address the specific issues relative to program application, documentation review, and determination of a fee structure to cover the costs of the program, as well as costs of receiving, processing and issuing work permits. Further, requires a report with recommendations to be submitted to the Legislature and the Governor by July 1, 2017.
Requires the Governor, by August 1, 2017, to either make a formal request to the federal government to implement a program to provide undocumented persons who are agricultural 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 employees with a permit to work and live in California should be structured.
Sets forth criteria related to a model program and framework for providing undocumented persons who are agricultural employees with a permit to work and live in California, and specifies the program shall not be implemented until a certification is made, by an entity designated by the working group, that not enough legal residents in California will fill all open agricultural jobs in California.
Establishes other requirements and conditions, if the program is authorized and becomes operational. Requires the administering entities, no later than three years after the program is implemented, to prepare and transmit a report to the Legislature describing the results of a review of the implementation of, and compliance with, the requirements of the program.
FISCAL EFFECT:
General Fund administrative costs of in the range of $120,000 to $200,000, starting July 1, 2017, for the EDD to convene a working group. These costs include staffing, travel and other administrative expenses. The scope of this work is broad and addresses an unfamiliar subject matter for the EDD. To the extent the EDD is responsible for coordination with federal agencies and production of the working group report, additional workload costs could be incurred. The Department of Food and Agriculture and the Attorney General's Office indicate minor/absorbable costs to participate in the working group.
Unknown costs, potentially in the millions, to the extent a model program is established to provide undocumented persons who are agricultural employees with a permit to work and live in California. Costs to develop and implement a program likely include development of a new automated system to store permit information (e.g., fingerprinting and background checks), permit review and regional office staffing.
COMMENTS:
Purpose. According to the author, California’s agriculture sector contributes significantly to the state’s economic success. This industry relies heavily on unauthorized workers from outside of the U.S. to maintain its economic production and revenues. This bill proposes to enact the California Agricultural Act to provide a model and framework for a program to provide undocumented persons who are agricultural employees with a permit to work and live in California.
This bill is supported by The California Chamber of Commerce, the Western Growers Association, and a number of other farmworker advocates, who state in a joint letter:
"Our organizations share your frustration with the lack of action at the Federal level to address labor shortages and ensure long-term labor security. We have promoted Comprehensive Immigration Reform for the past few years to no avail. AB 20 seeks to build upon consensus language found in past versions of the Federal AgJobs legislation. We believe using this language as a model will send an important message to Congress about California’s interest in making something happen in this area, even if Washington, DC is not able to act."
Previous related legislation. AB 1544 (V.M. Perez) of 2012 is similar to this bill, though more expansive. This bill would have established the California Agricultural Jobs and Industry Stabilization Program, authorizing the EDD to issue permits to undocumented persons to work in the agricultural and service industries and who meet specified criteria. The bill was moved to the Assembly Inactive file.
Analysis Prepared by: Misty Feusahrens / APPR. / (916) 319-2081
AB 20
Page 9
Date of Hearing: April 28, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 20
(Alejo) – As Amended March 26, 2015
As Proposed to be Amended
SUBJECT: UNDOCUMENTED WORKERS: CALIFORNIA AGRICULTURAL ACT
KEY ISSUE: TO ADDRESS A LACK OF FEDERAL RESPONSE TO FARM LABOR SHORTAGES AND THE NEED FOR COMPREHENSIVE IMMIGRATION REFORM, should CALIFORNIA TAKE STEPS TO DEVELOP a model program to ENABLE resident undocumented agricultural workers to LEGALLY work and live in california?
SYNOPSIS
According to the author, recent data shows that California farmers have been experiencing a farm labor shortage of approximately 20%-25% fewer workers as compared to 2010, just five years ago. This shortage in agricultural workers, the author contends, poses a real threat to the ability of California farmers to produce many key crops for the global market, and the lack of comprehensive federal immigration reform compounds these problems for farmers who rely on the labor of undocumented workers in California. As a result, the author believes it appropriate for the state to step forward and begin to act more proactively to address these issues.
Accordingly, this bill authorizes the state, upon receiving necessary authority from the federal government, to develop a model program for enabling resident undocumented agricultural workers to legally work and live in California. First, the bill specifies a number of model requirements for such a work permit program in California, including eligibility criteria and minimal documentation requirements for applicants. Second, the bill establishes a working group of stakeholders comprised of executive and legislative branch officials and stakeholders representing both agricultural employers and workers. The bill directs the working group to make recommendations for a model program based on the framework, and outlines a process for the governor to formally request permission from the federal government to establish the model program in California. Because federal approval would be required before any state law changes could be implemented and because the bill only proposes model principles to guide the working group, rather than directly establishing any program, the author reasonably contends that the bill is not preempted by federal law. The bill is supported by Cal Chamber, AFSCME, and farm labor advocates and has no known opposition. It previously passed the Assembly Labor and Employment Committee by a 6-1 vote.
SUMMARY: Authorizes the Employment Development Department (EDD), upon receiving necessary authority from the federal government, to establish a state resident worker program, modeled after principles outlined in this bill, to issue work permits to agricultural employees who are currently in the state, enabling them to live and work legally in California. Specifically, this bill:
Requires the Employment Development Department (EDD) and the Department of Food and Agriculture, no later than February 1, 2017, to 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 employees with a permit to work and live in California.
Provides that the working group shall consist of representatives from EDD, 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 employers, farm labor contractors, and farm labor organizations.
Specifies 12 key issues to be addressed by the working group, and requires the working group to create a final report expressing its recommendations to be submitted to the Legislature and the Governor no later than July 1, 2017.
Requires the Governor, by August 1, 2017 to either make a formal request to the federal government to implement a program to provide undocumented persons who are agricultural 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 such a program should be structured.
Provides that if the federal government approves or adopts a program to provide undocumented persons who are agricultural employees with a permit to work and live in California, it is the intent of the Legislature to enact necessary implementing legislation.
Outlines model program requirements as follows:
The program should not be implemented until a certification is made by a designated entity that not enough legal residents in California will fill all open agricultural jobs in California.
The program should be limited to undocumented persons who are 18 years of age and older, live in California and have performed agricultural employment in the United States for at least 863 hours or 150 workdays during the 24-month period ending on January 26, 2015, or earned seven thousand five hundred dollars ($7,500) or more from agricultural industry employment in the United States, and has maintained agricultural employment for 431 hours or 75 workdays, or earned three thousand seven hundred fifty dollars ($3,750) or more from that employment, on an annual basis after receiving the permit.
An undocumented person shall be allowed to conclusively establish employment status by submitting specified records demonstrating the employment.
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.
The undocumented person shall submit to a fingerprinted criminal history background check, and shall not have been convicted of a felony or three or more misdemeanors, as confirmed by the background check.
The undocumented person shall pay a fee to cover the costs of administering the program.
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 specified criteria.
Establishes other requirements and conditions should the program be authorized and become operational, including, but not limited to, the following:
Prohibits state officials or employees from using an applicant's information for any other purpose other than making a decision on the application, and from publishing any identifying information about the applicant.
Disqualifies from applying to the program any person who files a program application 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.
The entities administering the program shall ensure that employers employing workers authorized under the program make each of the following assurances:
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.
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.
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.
An employer of a person permitted to work in this state under the program should 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.
Provides that 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.
Provides that a permit issued under the program may not limit an employee to a single employer or occupation.
Provides that no later than three years after the program is implemented, the administering entities shall prepare and transmit to the Legislature a report describing the results of a review of the implementation of, and compliance with, the requirements of the program.
Makes legislative findings and declarations regarding the need for California to take action, in the absence of federal comprehensive immigration reform, to create a program for current unauthorized agricultural workers to become part of a legal workforce in this industry in California.
EXISTING LAW:
Provides, generally, for the regulation of immigration exclusively by the federal government. (E.g., LULAC v. Wilson (C.D. Cal. 1995) 908 F. Supp. 755, 786-87.)
Provides that any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that:
There are not sufficient workers who are able, willing, qualified and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor; and
The employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed. (8 USCA § 1182(a)(5)(A).)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: This bill authorizes the state, upon receiving necessary authority from the federal government, to develop a model program for enabling resident undocumented agricultural workers to legally work and live in California. First, the bill specifies a number of model requirements for such a work permit program in California, including eligibility criteria and minimal documentation requirements for applicants. Second, the bill establishes a working group of stakeholders comprised of executive and legislative branch officials and stakeholders representing both agricultural employers and workers. The bill directs the working group to make recommendations for a model program based on the framework, and outlines a process for the Governor to formally request permission from the federal government to establish the model program in California. If the federal government were to approve the model program proposal, then this bill would state the Legislature's intent to enact necessary implementing language at that time.
Stated Need for the Bill. According to figures provided by the author, California’s agricultural industry generates the highest agricultural sales in the nation, with 2013 reported revenues of a record $46.4 billion. However, a key factor for this economic success is the industry’s access to workers from outside of the U.S. The author cites recent estimates that California farmers have been experiencing a farm labor shortage of approximately 20%-25% fewer workers as compared to 2010, just five years ago. This shortage in agricultural workers, the author contends, poses a threat to the ability of California farmers to produce many key crops for the global market, particularly the more labor-intensive crops.
According to the author, the lack of comprehensive federal immigration reform compounds these problems. As reflected in the Legislative findings and declarations of this bill, the author explains the bill is needed because:
The federal employment-based immigration system is broken. The programs for admitting foreign workers for temporary and permanent jobs are rigid, cumbersome, inefficient, do little to protect the wages and working conditions of foreign and domestic workers, do not respond very well to employers’ needs, and give almost no attention to adapting the number and characteristics of foreign workers to domestic labor shortages. Nevertheless, Congress has repeatedly failed to pass comprehensive immigration reform including the Agricultural Job Opportunity, Benefits, and Security Act . . . Due to the absence of federal action on comprehensive immigration reform, the counterproductive results of E-Verify, and the unworkable framework of the federal H-2A guest worker program, agricultural interests in Oklahoma and Utah have introduced legislation creating state guest worker programs and several other states are considering the introduction of similar state initiatives. Recognizing the significant contributions that unauthorized workers make to California’s economy and the need to bring these workers out of the shadows in order to improve worker conditions and at the same time provide a legal workforce for the agricultural industry, it is imperative that a program be created for current unauthorized workers in these industries (in this state.)
Model program requirements established by this bill. The bill creates the California Agricultural Worker Program under the auspices of the Employment Development Department (EDD), and outlines a model and framework for a state resident worker program that would provide undocumented agricultural workers in California a way to obtain a permit to continue to live and work in the state. The model program described in this bill reflects selected provisions from the AgJOBS Act of 2011, which was part of the comprehensive immigration reform bill (S.1258) introduced in the U.S. Senate in 2011. The AgJOBS Act of 2011, like its two predecessors in 2009 and 2003, was the result of careful negotiation between agricultural employers and farmworker advocates, and has traditionally been endorsed by major labor and management representatives, in addition to enjoying bipartisan support in Congress. According to the author, the model program in this bill seeks to embrace principles that have a track record of bipartisan support.
For example, like the AgJOBS Act of 2011, the model program in this bill would enable undocumented agricultural workers to stay in California if they continue to work in agriculture and meet specified qualifications, such as having performed agricultural employment in the U.S. for at least 863 hours or 150 workdays during the previous 24-month period. The model program also calls for unauthorized workers to be at least 18 years old, live in California, undergo a criminal background check and not be convicted of a felony, or more than three misdemeanors. Like AgJOBS, this model program would allow permits to be issued to the immediate family members of a permitted resident worker, provided that the family members met specified criteria, enabling family units to stay intact within California. Finally, the model program calls for workers in the program to be entitled to all the same wage, hour and working condition protections in California law for other workers and would seek to prohibit the government from disclosing information submitted by workers for any purpose, other than for making a determination on the application.
There are at least two key differences between the model program and AgJOBS. First, unlike the AgJOBS Act which creates a guest agricultural worker program, the model program under this bill would be restricted to providing relief to resident agricultural workers—workers who already live and work in California, rather than guest workers who under AgJOBS legislation would be able to come from out of state in order to work in the state. Secondly, the model program in this bill cannot provide for official adjustment of status for workers, as the AgJOBS Act does in enabling workers to obtain legal permanent resident status through the program. As mentioned, however, the program proposed in the bill seeks to allow the state to issue permits for the worker to keep working in agriculture in California, and for workers’ families to stay intact.
Working group; Process for adopting model program recommendations. Under this bill, the Employment Development Department (EDD) and the Department of Food and Agriculture (DFA) are required to initially 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 resident agricultural worker program. The bill specifies that the working group shall consist of representatives from EDD, the DFA, the Attorney General, two Members of the Senate, two Members of the Assembly, and stakeholders, including, but not limited to, agricultural employers, farm labor contractors, and farm labor organizations. The bill provides a list of twelve broad issues to be addressed by the working group, among them: (1) qualifying criteria for undocumented persons to apply for the program; (2) documentation requirements for applicants; and (3) determination of which agency will issue the permits.
The bill requires the working group to create a report expressing its recommendations "which shall incorporate the model program described" in the bill (proposed Article 2, commencing with Section 11055) and requires this report to be submitted to the Legislature and the Governor no later than July 1, 2017. By August 1, 2017, the bill would require the Governor, using the working group's report, to either make a formal request to the federal government to implement a program to provide undocumented persons who are agricultural 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 such a program should be structured. Finally, the bill provides that it is the intent of the Legislature to enact necessary implementing legislation if the federal government approves or adopts such a program.
Author's clarifying amendments. Although the model program provisions are in most cases worded very specifically (e.g. "The undocumented person shall be 18 years of age or older"), according to the author, the model program is intended to articulate principles and guidance upon which the working group will be basing its recommendations to the Legislature and Governor for later possible action. The author states that these model program provisions are not necessarily required to be adopted as-is by the working group, and that it is the author's intent to allow the working group discretion to develop the final proposal to be submitted to the Legislature and Governor. In order to clarify his intent in this respect, the author proposes the following amendment:
On page 6, line 2, strike “incorporate” and insert “be based upon”
Furthermore, to alleviate potential confusion caused by inconsistent use of the words "shall" and "should" with respect to certain provisions in the model program, the author proposes to make the following technical amendments:
On page 6, line 29, strike “should” and insert “shall”
On page 6, line 33, strike “should” and insert “shall”
Finally, the bill currently in print provides that a model program should not be implemented until a certification is made by "a designated entity" that not enough legal residents in California will fill all open agricultural jobs in California. The author now proposes to amend the bill to make clear that the "designated entity" charged with this certification is not identified in this bill, but rather, an entity to be designated by the working group. The amendment is:
On page 6, line 29, strike “a designated entity” and insert “an entity, designated by the working group pursuant to Section 11051,”
Federal Preemption Doctrine. It is well-established that the regulation of immigration and immigrants, legal and illegal, is “unquestionably exclusively a federal power.” De Cana v. Bica, 424 U.S. 351, 354 (1976). Because of this maxim, there may be serious questions as to whether this bill is preempted by federal law.
The federal preemption doctrine has been divided into the three categories by the U.S. Supreme court: express preemption, field preemption, and conflict preemption. Express preemption is when the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it. Wisconsin Public Intervenor v. Mortier, 501 U.S. 597 (1991). Field preemption is when a federal statute touches a field in which the federal interest is so dominant that the federal system must be assumed to preclude enforcement of state laws on the same subject. PA. v. Nelson, 350 U.S. 497 (1956). And, conflict preemption is when enforcement of the state statute presents a serious danger of conflict with the administration of a federal program. Id.; see also People v. Giese, 408 N.Y. S.2d 693 (1979).
The standard for the federal preemption doctrine is not based on fairness to the parties, but instead is determined by Congressional intent. In re MTBE Products Liability Litigation, 739 F. Supp. 2d 576 (S.D. N.Y. 2010). Courts do not have to decide whether preemption applies solely based on express preemption language in a statute. Jones v. Rath Packing Co., 430 U.S. 519 (1977). In fact, in the absence of express preemptive language, Congressional intent to preempt state law in a particular area may be inferred when the scheme of federal regulation is sufficiently comprehensive to make the reasonable inference that Congress did not leave room for supplementary state regulation. Id. However, finding preemption is inappropriate without clear evidence that federal policy and state law are in sharp conflict or that it would have been physically impossible to comply with both federal and state requirements. Id. However, preemption may be inferred if the scope of statute indicates that Congress intended federal law to occupy the legislative field, or if there is actual conflict between state and federal law. See In re Garrett, 435 B.R. 434 (Bankr. S.D. Tex. 2010).
In Plyer v. Doe, the U.S. Supreme Court agreed that states “might have an interest in mitigating the potentially harsh economic effects of sudden shifts in population”, and thereby concluded that States sometimes do have the power to regulate rights afforded to undocumented aliens when these rights have “a discernible impact on traditional state concerns.” 457 U.S. at 228 (1982). However, in the actual process of excluding or including undocumented aliens under the protection of U.S. laws, courts have consistently held that this remains the purview of the federal government. See State v. Patel, 770 P.2d 390, 393 (Ariz. Ct. App. 1989).
This bill appears to avoid federal preemption to the extent that it does not actually require any changes to state law that conflict with federal immigration law. As previously discussed, the bill outlines a model and framework for a state resident worker program to provide undocumented agricultural workers in California a way to obtain a permit to continue to live and work in the state. If the bill were to actually establish such a resident work permit program in the state, it would likely be preempted under more than one theory of preemption (and possibly all three.) Instead, as the author correctly notes, the bill only outlines a framework for such a program, which the designated working group is to use as a model for developing final recommendations to be submitted to the Legislature and Governor. Author's proposed amendments clarify that the final recommendations are to "be based upon" the model program, but need not "incorporate" it. Therefore it cannot be said for certain that the final recommended program arising from this bill is subject to federal preemption or not, although an argument could be made that any final program based on the principles outlined in this bill may be subject to field preemption or conflict preemption, depending on how the program seeks to carry out its objective.
As described above, the bill prescribes a process by which the working group develops final recommendations for a worker program that is submitted to the Governor, and requires the Governor to make a formal request to the federal government for implementation. Under the process described by this bill, no plan would be implemented by legislation unless the federal government approves or adopts such a program. According to the author, this bill is less subject to preemption challenge because no change to state law would be implemented without federal approval, which presumably would not be given if the final plan was thought to conflict with federal law or otherwise be preempted.
Previous related legislation. AB 1544 (V.M. Perez) is similar to this bill and would have established the California Agricultural Jobs and Industry Stabilization Program, a program authorizing the EDD to issue permits to undocumented aliens to work in the agricultural and service industries and who meet specified criteria. The bill was held in the Assembly Inactive file and died before making it to the Senate.
ARGUMENTS IN SUPPORT: The bill is supported by Cal Chamber, the Western Growers Association, and a number of other farmworker advocates, who in their joint letter to the Committee state:
Our organizations share your frustration with the lack of action at the Federal level to address labor shortages and ensure long-term labor security. We have promoted Comprehensive Immigration Reform for the past few years to no avail. AB 20 seeks to build upon consensus language found in past versions of the Federal AgJobs legislation. We believe using this language as a model will send an important message to Congress about California’s interest in making something happen in this area, even if Washington, DC is not able to act.
REGISTERED SUPPORT / OPPOSITION:
Support
American Federation of State, County and Municipal Employees (AFSCME)
Cal Chamber
California Association of Nurseries and Garden Centers
California Citrus Mutual
California Cotton Ginners Association
California Cotton Growers Association
California Farm Bureau Federation
California Fresh Fruit Association
California Tax Reform Association
Western Agricultural Processors Association
Western Growers Association
Opposition
None on file
Analysis Prepared by: Anthony Lew / JUD. / (916) 319-2334
AB 20
Page 10
Date of Hearing: April 22, 2015
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hernández, Chair
AB 20
(Alejo) – As Amended March 26, 2015
SUBJECT: Undocumented workers: California Agricultural Act
SUMMARY: Enacts a framework work permit program for undocumented individuals who are agricultural employees, as specified. Specifically, this bill:
Requires the Employment Development Department (EDD) and the Department of Food and Agriculture, no later than February 1, 2017, to 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 employees with a permit to work and live in California.
Provides that the working group shall consist of representatives from EDD, 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 employers, farm labor contractors, and farm labor organizations.
Specifies issues to be addressed by the working group.
Requires the working group to create a report expressing its recommendations to be submitted to the Legislature and the Governor no later than July 1, 2017.
Requires the Governor, by August 1, 2017 to either make a formal request to the federal government to implement a program to provide undocumented persons who are agricultural 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 employees with a permit to work and live in California should be structured.
Provides that if the federal government approves or adopts a program to provide undocumented persons who are agricultural employees with a permit to work and live in California, it is the intent of the Legislature to enact necessary implementing legislation.
Outlines model program requirements as follows:
The program should not be implemented until a certification is made by a designated entity that not enough legal residents in California will fill all open agricultural jobs in California.
The program should be limited to undocumented persons who are 18 years of age and older, live in California and have performed agricultural employment in the United States for at least 863 hours or 150 workdays during the 24-month period ending on January 26, 2015, or earned seven thousand five hundred dollars ($7,500) or more from agricultural industry employment in the United States, and has maintained agricultural employment for 431 hours or 75 workdays, or earned three thousand seven hundred fifty dollars ($3,750) or more from that employment, on an annual basis after receiving the permit.
An undocumented person shall be allowed to conclusively establish employment status by submitting specified records demonstrating the employment.
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.
The undocumented person shall submit to a fingerprinted criminal history background check.
The undocumented person has not been convicted of a felony, or three or more misdemeanors, as confirmed by the fingerprinted criminal history background check.
The undocumented person shall pay a fee to cover the costs of administering the program.
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 specified criteria.
Provides that once the program becomes authorized and operational, specified requirements including, but not limited to the following apply:
An official or employee of the state government may engage in specified activities.
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.
The entities administering the program shall ensure that employers employing workers authorized under the program make each of the following assurances:
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.
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.
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.
An employer of a person permitted to work in this state under the program should 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.
Provides that 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.
Provides that a permit issued under the program may not limit an employee to a single employer or occupation.
Provides that no 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 describing the results of a review of the implementation of, and compliance with, the requirements of the program, including specified information.
Makes related changes.
Contains legislative findings and declarations.
FISCAL EFFECT: Unknown
COMMENTS: This bill proposes to enact the California Agricultural Act to provide a model and framework for a program to provide undocumented persons who are agricultural employees with a permit to work and live in California.
The bill's legislative findings and declarations state the following:
Since 2007, California’s agricultural industry has experienced the highest agricultural sales recorded to date ($36,300,000,000 in 2007, $38,400,000,000 in 2008, $34,800,000,000 in 2009, $37,500,000,000 in 2010, $43,500,000,000 in 2011, $44,300,000,000 in 2012, and $46,400,000,000 in 2013) and continues to lead the nation in gross agricultural cash receipts.
California’s agricultural industry is dependent on immigrant labor. One recent study of 13 California counties gathered information from 2,300 farmworkers. The profile data reported in this study suggests that 95 percent of California agricultural workers were born outside the United States and 91 percent in Mexico. On average, they have been in the United States 11.1 years. Twenty-two percent have been in the United States two years or less, 10 percent are United States citizens, 33 percent have green cards, and 57 percent are unauthorized. Of the newcomers who have been here less than two years, 99 percent are unauthorized.
Immigration policies that seek to deport unauthorized farmworkers or force them to abandon their jobs in agriculture would wreak swift and substantial damage to the agricultural industry in California. California agriculture would lose much of its experienced work force that has made it the most productive agricultural area in the world. At the same time, these policies would impose a substantial human cost on hundreds of thousands of farmworkers and their children, most of whom are United States citizens.
The federal employment-based immigration system is broken. The programs for admitting foreign workers for temporary and permanent jobs are rigid, cumbersome, inefficient, do little to protect the wages and working conditions of foreign and domestic workers, do not respond very well to employers’ needs, and give almost no attention to adapting the number and characteristics of foreign workers to domestic labor shortages.
Nevertheless, Congress has repeatedly failed to pass comprehensive immigration reform including the Agricultural Job Opportunity, Benefits, and Security Act. Instead Congress is considering making the E-Verify program mandatory for all employers. Requiring agricultural employers to verify whether workers are employment-authorized would eliminate a significant portion of the existing agricultural workforce with no certainty that these vacancies will be filled by legal residents.
Due to the absence of federal action on comprehensive immigration reform, the counterproductive results of E-Verify, and the unworkable framework of the federal H-2A guest worker program, agricultural interests in Oklahoma and Utah have introduced legislation creating state guest worker programs and several other states are considering the introduction of similar state initiatives.
Recognizing the significant contributions that unauthorized workers make to California’s economy and the need to bring these workers out of the shadows in order to improve worker conditions and at the same time provide a legal workforce for the agricultural industry, it is imperative that a program be created for current unauthorized workers in these industries.
PREVIOUS EFFORTS AT FEDERAL "AgJOBS" LEGISLATION:
For several years, bipartisan legislation was introduced with broad support in Congress. This legislation has generally been referred to as the Agricultural Job Opportunities, Benefits and Security Act (or "AgJOBS"). The "AgJOBS" compromise was carefully negotiated by employee groups such as the United Farm Workers and major agribusiness employers after years of intense conflict. AgJOBS has traditionally been endorsed by major labor and management representatives, as well as a broad spectrum of organizations, including community leaders, civil rights organizations, religious groups and farmworkers themselves.
"AgJOBS" represented a major compromise between farmworker advocates and major agricultural employers to address the agricultural immigration crisis.
The federal proposals have generally contained two main parts:
An "earned legalization" program enabling many undocumented farmworkers and H-2A guest workers to earn a "blue card" temporary immigration status with the possibility of becoming permanent residents of the U.S. by continuing to work in agriculture and by meeting additional requirements; and
Revisions to the existing H-2A temporary foreign agricultural worker program.
In 2003, the first "AgJOBS" bill was introduced in Congress when United States Senators Larry Craig (R-ID) and Edward M. Kennedy (D-MA) and Representatives Chris Cannon (R-UT) and Howard Berman (D-CA) introduced the federal immigration reform bill.1
On May 14, 2009, Senator Dianne Feinstein (D-CA) and Representatives Berman (D-CA) and Putnam (R-FL) introduced "AgJOBS" in the 111th Congress.
In 2011, "AgJOBS" was included in the comprehensive immigration reform bill introduced in the Senate by Senators Menendez (D-NJ), Leahy (D-VT), Durbin (D-IL), Schumer (D-NY), Kerry ( D-MA), and Gillibrand (D-NY) known as the Comprehensive Immigration Reform Act of 2011.
FEDERAL PREEMPTION
Aside from policy rationale, a fundamental issue concerning this bill is whether or not it is preempted by federal immigration law.
Under the Supremacy Clause of the United States Constitution (Article VI, Clause 2), federal law may either expressly or implicitly preempt state or local law. See Hillsborough County v. Auomated Med. Labs., 471 U.S. 707, 713 (1985). In cases of express preemption, Congress “ma[kes] its intent known through explicit statutory language. English v. Gen. Elec. Co.< 496 U.S. 72, 78-79 (1990). Implied preemption, on the other hand, arises in one of two circumstances. Field preemption occurs when a state or municipality purports to “regulate conduct in a field that Congress intended the Federal Government to occupy exclusively.” Id. Conflict preemption can occur “where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id.
Federal preemption carries particular force in the context of immigration because regulation of immigration and immigrants, legal and illegal, is “unquestionably exclusively a federal power.” De Cana v. Bica, 424 U.S. 351, 354 (1976).
Federal Law
“Congress shall have the Power… To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes… To establish an uniform Rule of Naturalization…throughout the United States…” U.S. Const. Art. I § 8 cl. 3, 4.
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. Art. VI cl. 2.
In 1986, Congress passed the Immigration Reform and Control Act (IRCA) in order to make “combatting the employment of illegal aliens” the central approach to immigration policy. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002). IRCA makes it unlawful for an employer to knowingly employ an unauthorized alien. 8 U.S.C. § 1324(a)(1) (2006). Section (h)(3) defines ‘unauthorized alien’ with respect to the employment of an alien to mean that “at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General.” Section (h)(2) states that “ [T]he provisions of this section preempt any State or local law imposing civil or criminal sanctions … upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.”
An employer can confirm an employee's authorization to work by reviewing the employee's United States passport, resident alien card, alien registration card, or other document approved by the Attorney General; or by reviewing a combination of other documents such as a driver's license and social security card. § 1324a(b)(1)(B)-(D). The employer must attest under penalty of perjury on Department of Homeland Security Form I–9 that he “has verified that the individual is not an unauthorized alien” by reviewing these documents. § 1324a(b)(1)(A). Employers that violate IRCA may be subject to both civil and criminal sanctions. Immigration and Customs Enforcement, an entity within the Department of Homeland Security, is authorized to bring charges against a noncompliant employer under § 1324a(e). Depending on the circumstances of the violation, a civil fine ranging from $250 to $16,000 per unauthorized worker may be imposed. § 1324a(e)(4)(A); 73 Fed.Reg. 10136 (2008).
Federal Preemption Doctrines
The federal preemption doctrine has been divided into the three following categories by the U.S. Supreme court: express preemption, field preemption, and conflict preemption. Express preemption is when the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it. Wisconsin Public Intervenor v. Mortier, 501 U.S. 597 (1991). Field preemption is when a federal statute touches a field in which the federal interest is so dominant that the federal system must be assumed to preclude enforcement of state laws on the same subject. PA. v. Nelson, 350 U.S. 497 (1956). And, conflict preemption is when enforcement of the state statute presents a serious danger of conflict with the administration of a federal program. Id.; see also People v. Giese, 408 N.Y. S.2d 693 (1979).
The standard for the federal preemption doctrine is not based on fairness to the parties, but instead is determined by Congressional intent. In re MTBE Products Liability Litigation, 739 F. Supp. 2d 576 (S.D. N.Y. 2010). Courts do not have to decide whether preemption applies solely based on express preemption language in a statute. Jones v. Rath Packing Co., 430 U.S. 519 (1977). In fact, in the absence of express preemptive language, Congressional intent to preempt state law in a particular area may be inferred when the scheme of federal regulation is sufficiently comprehensive to make the reasonable inference that Congress did not leave room for supplementary state regulation. Id. However, finding preemption is inappropriate without clear evidence that federal policy and state law are in sharp conflict or that it would have been physically impossible to comply with both federal and state requirements. Id. However, preemption may be inferred if the scope of statute indicates that Congress intended federal law to occupy the legislative field, or if there is actual conflict between state and federal law. See In re Garrett, 435 B.R. 434 (Bankr. S.D. Tex. 2010).
In Plyer v. Doe, the US Supreme Court agreed that states “might have an interest in mitigating the potentially harsh economic effects of sudden shifts in population”, and thereby concluded that States sometimes do have the power to regulate rights afforded to undocumented aliens when these rights have “a discernible impact on “traditional state concerns” 457 U.S. at 228 (1982). However, in the actual process of excluding or including undocumented aliens under the protection of U.S. laws, courts have consistently held that this remains the purview of the federal government. See State v. Patel, 770 P.2d 390, 393 (Ariz. Ct. App. 1989).
As discussed above, in 1986 Congress passed the Immigration Reform and Control Act (IRCA). IRCA criminalized knowingly hiring undocumented workers, by imposing a heavy fine and a short prison sentence on employers who knowingly continue to employ undocumented aliens. 8 U.S.C. § 1324a (a)(1), (f)(1). However, under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) or 1996, only the federal government is required to use the E-verify system, the electronic system used to verify the legal status of an employee. Pub. L. No. 104-208; 8 U.S.C. § 402(a). In the perceived absence of proper enforcement since its passage in 1986, several states including Arizona, Alabama, South Carolina and Utah have passed a series of immigration statutes that prohibit undocumented aliens from performing a variety of activities such as living in public housing, securing employment, applying for driver’s licenses or attending publically funded schools and universities.
One such bill, Act 69, was approved by the South Carolina General Assembly in June 2011, which among other things, imposes employer sanctions and mandates to local law enforcement regarding the identification and apprehension of persons unlawfully present in the United States. U.S. v. South Carolina, 2011 WL 6973241, 1 (D.S.C. 2011). During a Senate floor debate, proponents of Act 69 stated that rather than attempting to enter into a 287(g) agreement (a written agreement with the federal government regarding immigration enforcement) with the federal government as expressly authorized by the Immigration and Nationality Act, 8 U.S.C. § 1357(g)(1), the State elected to go forward with its own immigration bill because it was “really important” to have State “control.” Id. at 1. Supporters of the bill also voiced the hope that “the Act would encourage persons unlawfully present in South Carolina to find “a different state to go to.” Id. at 2. Supporters also stated their expectation that the Act would make the federal government's “phone ring…off the hook.” Id. Section 8-14 of the final Act 69 established an elaborate scheme of employer licenses and making it unlawful for an employer to knowingly employ “an unauthorized alien.” Id.
In addition to challenging four specific sections of the Act, not including the employer licensing section, the United States made a preemption challenge to the Act in its entirety. Id. at 3. In deciding whether preemption applies here, the court stated that “a court should start preemption analysis with a presumption against preemption. Id. at 3. The presumption against presumption only applies when the federal government is legislating in traditionally state controlled areas. Id. However, the court notes that when a state legislates in a traditionally federally controlled area, the presumption against presumption does not apply. Id. The court then cites to numerous recent decisions involving state immigration statutes where “courts have generally declined to apply a presumption against preemption because the field of immigration has traditionally been a responsibility of the federal government and not the states. Id.; See also U.S. v. Arizona, 641 F.3d 339, 348 (2011); Ga. Latino Alliance for Human Rights, 793 F.Supp.2d 1317, 1330 (2011); U.S. v. Alabama, 2011 WL 4863957, 12, 30, 39 (2011).
RECENT LEGISLATION IN OTHER STATES:
As mentioned above, the legislative findings and declaration in this bill note that "agricultural interests in Oklahoma and Utah have introduced legislation creating state guest worker programs and several other states are considering the introduction of similar state initiatives."
In 2011, Utah enacted a package of immigration legislation that has some bearing on the preemption issues applicable to this bill.
HB 116 or the Guest Worker Act was proposed by Utah Representative Bill Wright and sponsored on the Utah Senate floor by Senator Stuart Reid in 2011. The Act listed a procedure for workers to obtain permits to work in agriculture or service related sectors. Utah Code Annotated § 35A-8-201 (1) (a)-(c) (2011). Furthermore, the Act contained a list of requirements that are to be met by each applicant for such a permit, and allows for immediate family members of the permit-holder to reside in the state for the duration of the permit. Utah Code Annotated § 35A-8-301-303. Finally, the Act requires the state government to petition the Department of Justice to receive permission to carry out the guest worker program. Id. The Utah bill also compels the state government to coordinate with the FBI and the Department of Homeland Security to ensure that the guest worker applicants do not pose a threat to national security. Utah Code Annotated § 76-8-1505 (1) (2011).
HB 116 and HB 467 (a bill similar to Arizona’s S.B. 1070), were signed into law by Governor Herbert on March 15th, 2011. Between March and November, the Department of Justice (DOJ) engaged in talks with Utah state officials. However, in November 2011, the DOJ filed a lawsuit in Utah’s District Court claiming that HB 467’s attempts to regulate immigration on a state level is clearly preempted by federal law. The DOJ’s press release stated that the “federal government has the ultimate authority to enforce federal immigration laws and the Constitution does not permit a patchwork of local immigration policies. A state setting its own immigration policy interferes with the federal government’s enforcement efforts.” Attorney General Eric Holder also emphasized that “patchwork of immigration laws is not the answer and will only create further problems in our immigration system. The federal government is the chief enforcer of immigration laws and while we appreciate cooperation from states, which remains important, it is clearly unconstitutional for a state to set its own immigration policy.”
With regards to HB 116 however, the DOJ did not immediately file suit. In fact, in November 2011 the DOJ said that it has notified state officials that Utah’s Immigration Guest Worker statute is clearly preempted by federal law. However, given that the provisions of HB 116 were not to take effect until 2013, the DOJ opted to continue exploring resolutions short of litigation with state officials. The DOJ statement noted that if “Utah fails to comply with federal law in this area, the department will not hesitate to take the legal action necessary to vindicate the important federal interests in this matter before these laws go into effect."
Since the Utah statute was predicated on the federal government granting Utah a waiver to proceed, the Utah Legislature has extended the effective date twice. With little action occurring at the federal level, some have called on lawmakers to repeal the statute in its entirety.
In 2011 and 2012, Oklahoma State Senator Harry Coates introduced legislation to create a state-administered guest worker program. The proposals would have allowed undocumented adults to stay in the state legally if they purchased a guest worker permit fee for $1,000 and found a program sponsor who would agree to hire them and provide basic health insurance coverage. It does not appear that those proposals passed the Oklahoma Legislature.
PRIOR LEGISLATION:
This bill is similar, but not identical, to AB 1544 (V. Manuel Perez) from 2012. While this bill applies only to agricultural employees, AB 1544 defined "employee" to mean an agricultural employee and a person employed to provide domestic services, janitorial or building maintenance services, food preparation services, or housekeeping services.
AB 1544 was moved to the Inactive File on the Assembly Floor.
Subsequently, similar language was amended into AB 916 (V. Manuel Perez) of 2012 in the Senate. However, AB 916 was held in the Senate Rules Committee without further action.
ARGUMENTS IN SUPPORT
According to the author:
"Since 2007, California’s agricultural industry has generated the highest agricultural sales ever recorded in the nation, with 2013 reporting a record $46.4 billion. A key factor making this economic success has been the industry’s access to workers from outside of the U.S.
The U.S. Department of Labor estimates that half of the agricultural work force in the U.S. is comprised of unauthorized workers, while the agricultural industry believes the number to exceed 75 percent.
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. According to state agricultural industry leaders, media reports, and recent studies, California farmers have been experiencing a farm labor shortage of approximately 20%-25% less workers than in 2010. The current agricultural worker shortage poses a real threat to the ability of California farmers to produce many of the global market’s popular labor-intensive crops including, but not limited to, strawberries, leafy greens, blueberries, raspberries, asparagus, broccoli, cauliflowers, fresh tomatoes, artichokes, and melons.
In the absence of federal comprehensive immigration reform, the state of Utah has passed legislation creating a state guest worker program. In addition, the states of Oklahoma, Kansas, New Mexico, and Texas have introduced legislation creating state guest worker programs and other states have studies or are considering the introduction of such state initiatives."
In addition, a coalition of agricultural employer groups supports this measure, stating, "Our organizations share your frustration with the lack of action at the Federal level to address labor shortages and ensure long-term labor security. We have promoted Comprehensive Immigration Reform for the past few years to no avail. [This bill] seeks to build upon consensus language found in past versions of the Federal AgJobs legislation. We believe using this language as a model will send an important message to Congress about California’s interest in making something happen in this area, even if Washington, DC is not able to act."
REGISTERED SUPPORT / OPPOSITION:
Support
American Federation of State, County and Municipal Employees
CalChamber
California Association of Nurseries and Garden Centers
California Citrus Mutual
California Cotton Ginners Association
California Cotton Growers Association
California Farm Bureau Federation
California Fresh Fruit Association
Western Agricultural Processors Association
Western Growers Association
Opposition
None on file.
Analysis Prepared by: Benjamin Ebbink / L. & E. / (916) 319-2091
1 In 2006, AJR 20 (Nunez) was introduced to demonstrate the California State Legislature's support of the immigration reform bill known as the Agricultural Job Opportunity, Benefits, and Security Act (AgJOBS) introduced by Members of Congress. AJR 20 passed the Assembly Committee on Labor and Employment but was moved to the Inactive File on the Assembly Floor.
Discussed in Hearing
31MIN
Senate Standing Committee on Appropriations
5MIN
Assembly Floor
11MIN
Assembly Standing Committee on Judiciary
Bill Author
Bill Co-Author(s):