BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
SB 1001 (Mitchell)
Version: March 28, 2016
Hearing Date: April 5, 2016
Fiscal: Yes
Urgency: No
TMW
SUBJECT
Employment: unfair practices
DESCRIPTION
This bill would prohibit an employer or any other person or
entity from engaging in unfair immigration-related practices, as
defined, against an applicant for employment or employee. This
bill would also prohibit an employer from reinvestigating or
reverifying an incumbent employee's authorization to work unless
required to do so by federal law or authority, and prohibit
discrimination against an applicant or employee with
authorization to work based upon the specific status or term of
status that accompanies the authorization to work. This bill
would authorize a private right of action for equitable relief,
damages, and penalties by an applicant or employee against an
employer or any other person or entity who engages in unfair
immigration-related practices.
BACKGROUND
A recent study noted that there are approximately 2.6 million
undocumented individuals in California. (Cho and Smith,
Workers' Rights on ICE: How Immigration Reform Can Stop
Retaliation and Advance Labor Rights, National Employment Law
Project (Feb. 2013)
[as of Mar. 18, 2016],
p. 2.) The study also noted that "[m]ost undocumented
immigrants work in traditionally low-wage occupations such as
agriculture, construction, manufacturing, and service
industries, where workers face the greatest risk for
exploitation. Undocumented workers are far more likely to
experience violations of wage and hour laws." (Ibid.) The
study states that many undocumented workers do not file claims
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against their employers out of fear of "'getting in trouble' or
being fired." (Ibid.) The study also found that "[w]hile
threats of job loss have an especially serious consequence in
this job market, an employer's threat to alert immigration or
local law enforcement of an undocumented immigrant worker's
status carries added force. Such action is at least as frequent
as other forms of retaliation." (Id. at pp. 2-3.)
According to a 2011 research project, California has by far the
largest unauthorized-immigrant population (2.55 million), which
accounts for 6.8 percent of the state's population, and is among
the states where unauthorized immigrants constitute the largest
shares of the overall populations. (Passel and Cohn,
Unauthorized Immigrant Population: National and State Trends,
2010 (Feb. 1, 2011) [as of Mar. 23,
2016].) Further, unauthorized workers constitute roughly 10
percent of California's labor force and are especially likely to
hold low-skilled jobs. (See Pew Hispanic Center, A Portrait of
Unauthorized Immigrants in the United States (Apr. 14, 2009)
[as of Mar. 23, 2016].)
In 2012, the Department of Homeland Security issued a directive
referred to as the Deferred Action for Childhood Arrivals
(DACA), which provides certain undocumented individuals relief
from removal from the United States or from entering into
removal proceedings for a period of up to two years, subject to
renewal, and eligibility to apply for work authorization. Yet,
deportations have reached a record level of 2 million, rising to
an annual average of 400,000 since 2009. (Lopez, As
Deportations Rise to Record Levels, Most Latinos Oppose Obama's
Policy (Dec. 28, 2011) [as of June 4, 2014].) According to the
National Immigration Law Center, more than 1,000 immigrants are
separated from their families and communities each day.
On November 20, 2014, the President announced a series of
executive actions that he stated were intended to crack down on
illegal immigration at the border, prioritize deporting felons
rather than families, and require certain undocumented
immigrants to pass a criminal background check and pay taxes in
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order to temporarily stay in the U.S. without fear of
deportation. One of the initiatives in that series allowed
parents of U.S. citizens and lawful permanent residents to
request deferred action and employment authorization for three
years in a new Deferred Action for Parents of Americans and
Lawful Permanent Residents program (DAPA), provided they have
lived in the United States continuously since January 1, 2010,
and pass required background checks.
Existing law provides protections, rights, and remedies
available under state law to all individuals, regardless of
immigration status, who have applied for employment, or who are
or who have been employed, in this state. Further, California's
labor laws provide anti-retaliation protection for employees who
make claims against their employers for violations of labor
laws.
To provide protection for undocumented workers laying claims
against their employers for wage and hour violations, AB 263
(Hernández, Chapter 732, Statutes of 2013) prohibited an
employer or any other person or entity from engaging in unfair
immigration-related practices, as defined, for the purpose of
retaliation against any person who exercises any rights under
the Labor Code. That same year, SB 666 (Steinberg, Chapter 577,
Statutes of 2013), among other things, specified that an
individual is not required to exhaust administrative remedies or
procedures in order to bring a civil action under the Labor
Code, unless expressly required to do so, and prohibited an
employer from reporting or threatening to report a job
applicant's, employee's, or former employee's, or family
member's, as specified, suspected citizenship or immigration
status because the person exercised a right under state law.
The next year, AB 2751 (Hernández, Chapter 79, Statutes of 2014)
clarified the award of a civil penalty of up to $10,000 against
an employer who discriminates, retaliates, or takes any adverse
action against an employee or applicant for employment, who
exercises a right protected under local and state labor and
employment laws, including employers who unlawfully engage in
unfair-immigration-related employment practices in retaliation
against an employee exercising his or her rights under the Labor
Code.
Last year, AB 1065 (Chiu, 2015) was introduced to provide
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protection under the Fair Employment and Housing Act against
employers who refuse to honor documents or discriminate against
an immigrant with authorization to work based upon the specific
statutes or term of status that accompanies the authorization to
work. The introduced version of this bill was substantially
similar to AB 1065, which was held on suspense in the Assembly
Appropriations Committee.
This bill, as recently amended, would prohibit, under the Labor
Code, an employer or any other person or entity from
discriminating against or engaging in unfair immigration-related
practices, as defined, against an applicant or employee or from
reinvestigating or reverifying an incumbent employee's
authorization to work unless required to do so by federal law or
authority.
CHANGES TO EXISTING LAW
Existing federal law , the Immigration and Nationality Act (INA),
requires an employer to verify, through examination of specified
documents, that an individual is not unauthorized to work in the
United States. (8 U.S.C. Sec. 1324a(b).) Existing federal law
provides that a person or entity has complied with this
requirement with respect to examination of a document if the
document reasonably appears on its face to be genuine. (8 U.S.C.
Sec. 1324a(b)(1)(A).) If an individual provides a document or
combination of documents that reasonably appears on its face to
be genuine and that is sufficient to meet the requirements, then
federal law does not require the person or entity to solicit the
production of any other document or require the individual to
produce another document. (Id.)
Existing federal law makes it an unfair immigration-related
employment practice for a person or other entity to discriminate
against any individual (other than an unauthorized immigrant, as
specified) with respect to the hiring, or recruitment or
referral for a fee, of the individual for employment or the
discharging of the individual from employment. (8 U.S.C. Sec.
1324b(a)(1).) Existing federal law makes it an unfair
immigration-related employment practice for a person or other
entity to request more or different documents than are required
or refusing to honor documents tendered that on their face
reasonably appear to be genuine if made for the purpose or with
the intent of discriminating against an individual. (8 U.S.C.
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Sec. 1324b(a)(6).)
Existing 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 who have been employed, in this state.
For purposes of enforcing state labor and employment laws,
existing law provides that a person's immigration status is
irrelevant to the issue of liability, and in proceedings or
discovery undertaken to enforce those state laws, no inquiry
shall be permitted into a person's immigration status except
where the person seeking to make this inquiry has shown by clear
and convincing evidence that the inquiry is necessary in order
to comply with federal immigration law. (Lab. Code Sec. 1171.5;
Civ. Code Sec. 3339; Gov. Code Sec. 7285; Health & Saf. Code
Sec. 24000.)
Existing law prohibits discrimination against an employee or job
applicant who has engaged in prescribed protected conduct
relating to the enforcement of the employee's or applicant's
rights, including initiating an action or testifying in any
proceeding thereto, delineated under the Labor Code. (Lab. Code
Sec. 98.6.)
Existing law makes it unlawful for an employer or any other
person or entity to engage in, or to direct another person or
entity to engage in, unfair immigration-related practices, as
specified, against any person for the purpose of, or with the
intent of, retaliating against any person for exercising any
right protected, including:
filing a complaint or informing any person of an employer's or
other party's alleged violation of this code or local
ordinance, so long as the complaint or disclosure is made in
good faith;
seeking information regarding whether an employer or other
party is in compliance with the Labor Code or local ordinance;
and
informing a person of his or her potential rights and remedies
under the Labor Code or local ordinance, and assisting him or
her in asserting those rights. (Lab. Code Sec. 1019(a).)
Existing law provides that, other than conduct undertaken at the
express and specific direction or request of the federal
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government, an "unfair immigration-related practice" means any
of the following practices, when undertaken for retaliatory
purposes:
requesting more or different documents than are required under
federal law, or a refusal to honor documents tendered pursuant
to federal law that on their face reasonably appear to be
genuine;
using the federal E-Verify system to check the employment
authorization status of a person at a time or in a manner not
required under federal law, or not authorized under any
memorandum of understanding governing the use of the federal
E-Verify system;
threatening to file or the filing of a false police report, or
a false report or complaint with any state or federal agency;
and
threatening to contact or contacting immigration authorities.
(Lab. Code Sec. 1019(c).)
Existing law provides that engaging in an unfair
immigration-related practice against a person within 90 days of
the person's exercise of rights protected under the Labor Code
or local ordinance applicable to employees raises a rebuttable
presumption of having done so in retaliation for the exercise of
those rights. (Lab. Code Sec. 1019(c).)
Existing law authorizes an employee or other person who is the
subject of an unfair immigration-related practice, or a
representative of that employee or person, to bring a civil
action for equitable relief and any applicable damages or
penalties, and, upon finding a violation, authorizes a court to
do the following:
for a first violation, order the appropriate government
agencies to suspend all licenses that are held by the
violating party for a period of up to 14 days;
for a second violation, order the appropriate government
agencies to suspend all licenses that are held by the
violating party for a period of up to 30 days; and
for a third or subsequent violation, order the appropriate
government agencies to suspend for a period of up to 90 days
all licenses that are held by the violating party; and
on receipt of the court's order and notwithstanding any other
law, the appropriate agencies are required to suspend the
licenses according to the court's order. (Lab. Code Sec.
1019(d)(1)-(2).)
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Existing law , in determining whether a suspension of all
licenses is appropriate, requires the court to consider whether
the employer knowingly committed an unfair immigration-related
practice, the good faith efforts of the employer to resolve any
alleged unfair immigration-related practice after receiving
notice of the violations, as well as the harm other employees of
the employer, or employees of other employers on a multiemployer
job site, will suffer as a result of the suspension of all
licenses. (Lab. Code Sec. 1019(d)(3).)
Existing law authorizes a prevailing employee or other person
who is the subject of an unfair immigration-related practice to
recover his or her reasonable attorney's fees and costs,
including any expert witness costs. (Lab. Code Sec.
1019(d)(4).)
Existing law defines "license" to mean any agency permit,
certificate, approval, registration, or charter that is required
by law and that is issued by any agency for the purposes of
operating a business in this state and that is specific to the
business location or locations where the unfair
immigration-related practice occurred, but "license" does not
include a professional license. (Lab. Code Sec. 1019(e)(1).)
Existing law defines "violation" to mean each incident when an
unfair immigration-related practice was committed, without
reference to the number of employees involved in the incident.
(Lab Code Sec. 1019(e)(2).)
This bill would make it unlawful and an unfair
immigration-related practice for an employer or any other person
or entity to request, or to direct another person or entity to
request, that an applicant for employment, or an employee,
provide more or different documents than are required under the
INA.
This bill would make it unlawful and an unfair
immigration-related practice for an employer or any other person
or entity to attempt, or to direct another person or entity to
attempt, to reinvestigate or reverify an incumbent employee's
authorization to work unless required to do so by federal law or
authority.
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This bill would make it unlawful and an unfair
immigration-related practice for an employer or any other person
or entity, or to direct another person, to discriminate against
an applicant for employment or employee with authorization to
work based upon the specific status or term of status that
accompanies the authorization to work.
This bill would authorize an applicant for employment, employee,
or other person who is the subject of an unfair
immigration-related practice, or a representative of that
employee or person, to bring a civil action for equitable relief
and any applicable damages or penalties.
This bill would authorize an applicant for employment or
employee who is the subject of an unfair immigration-related
practice, and who prevails in that action, to recover his or her
reasonable attorney's fees and costs, including any expert
witness costs.
COMMENT
1. Stated need for the bill
The author writes:
Currently, federal law provides protection against document
abuse, but these protections must be enforced through an
overly cumbersome process which makes it extremely difficult
for potential workers to avail themselves of this remedy.
This bill would create a state remedy for this unfair labor
practice and would provide protections for workers who have
obtained work authorization under new programs created by the
President.
In November 2014, President Barack Obama announced an
expansion of the existing Deferred Action for Childhood
Arrivals (DACA) by removing the age cap as well as creating a
new program called the Deferred Action for Parents of
Americans (DAPA). Individuals who came to the United States
as children and meet DACA-eligibility guidelines may qualify
for deferred action, and may also obtain work authorization.
Additionally, under the newly created DAPA program, parents of
American citizens and lawful permanent residents may be
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provided administrative relief. While this program provides
deportation relief and the legal right to work for thousands
of families in California, some employers may use this
newfound status to discourage or create challenges for
potential job applicants.
SB 1001 would address the unlawful practice of document abuse.
Document abuse occurs when an employer does not permit a
worker to use any documents that are legally acceptable but,
instead, specifies which documents s/he must use, or requires
more documents than are legally required by the Form I-9.
Therefore, if an employer refuses to accept legally acceptable
documents that appear genuine on their face from a
work-authorized immigrant worker with the intent that the
worker be prevented from working until s/he has complied, the
employer has committed document abuse. SB 1001 also states
that it is an unlawful employment practice to deny documents
that appear to be genuine, or attempt to re-verify or
re-investigate an employee's authorization to work.
The California Immigrant Policy Center (CIPC), co-sponsor,
writes: "In 2013, Governor Brown signed into law AB 263
(Hernandez) that provides various protections against
retaliation including the unlawful practice of document abuse,
only when employed as a retaliation tool against workers who
exercise their workplace rights. SB 1001 would fortify those
protections and strengthen enforcement against the continued and
prevalent practice of document abuse by providing a state remedy
for workers who are victims of this unlawful discriminatory
practice outside of the retaliation context, and more
specifically at the point of hire."
2. Extending protections against unlawful and unfair
immigration-related practices
Federal law, the Immigration and Nationality Act (INA), requires
all employers to verify both the identity and employment
eligibility of all regular, temporary employees, temporary
agency personnel, and student employees hired after November 6,
1986, and complete and retain a one-page form (INS Form I-9)
documenting this verification. (8 U.S.C. Sec. 1324a.) The INA
also protects undocumented workers against unfair
immigration-related employment practices by which an employer or
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other entity requests more or different documents than are
required or refusing to honor documents tendered that on their
face reasonably appear to be genuine if made for the purpose or
with the intent of discriminating against an individual. (8
U.S.C. Sec. 1324b(a)(6).) State law protects undocumented
workers from retaliation against the individual through unfair
immigration-related employment practices. (Lab. Code Sec.
1019.) This bill would extend those protections under state law
to protect an applicant or employee from document abuse when an
employer or other entity requests more or different documents
than those required under the INA.
The author argues that while state law prohibits document abuse
if it is retaliatory in nature, there is no protection against
document abuse at the initial point of an individual's
application for employment. Further, the author argues that
although federal law provides protection against document abuse,
these protections must be enforced through an overly cumbersome
process making it extremely difficult for potential workers to
avail themselves of this remedy.
The author provides the following examples of document abuse:
A prospective employer demands to see a worker's U.S.
passport.
A prospective employer asks for an Employment
Authorization Document although the worker has already
shown a state identification card and an "unrestricted"
Social Security card.
A prospective employer refuses to accept an Employment
Authorization Document because it has a future expiration
date.
An employer asks to re-verify the work documents of a
worker who had presented a Green Card at the time of hire.
An employer demands to see a worker's renewed driver's
license because the license that the worker originally used
for the I-9 has expired.
CIPC argues that immigrant workers make up more than one-third
of our labor force, and California must ensure that California's
immigrant workforce has in-state protections and a clear
mechanism to seek justice against discriminatory practices such
as document abuse. CIPC states that this bill will further
protect immigrant workers and uphold responsible business
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practices.
The author notes that individuals applying for work or currently
working under the DACA or DAPA programs need protection against
employers who discourage or create unlawful challenges through
document abuse. Accordingly, this bill seeks to protect
immigrant workers such as those authorized under the DACA and
DAPA programs from discrimination by employers through the use
of document abuse.
3. Private right of action and remedies relating to unfair
immigration-related practices
Existing law provides that an employee who is the subject of an
unfair immigration-related practice and is retaliated against
for exercising his or her rights under the Labor Code or any
local ordinance may bring a civil action for equitable relief
and any damages or penalties, and, upon prevailing, recover
reasonable attorney's fees and costs, including any expert
witness costs. (Lab. Code Sec. 1019.) This bill would mirror
these provisions and provide judicial enforcement for an
applicant for employment or employee if an employer refuses to
accept legally acceptable documents that appear genuine on their
face or attempts to re-verify or re-investigate an employee's
authorization to work.
Further, this bill would require the court to award reasonable
attorney's fees to the prevailing applicant or employee, which
would encourage attorneys to take on cases for individuals who
could not otherwise afford an attorney, thus, facilitating the
enforcement of these Labor Code violations.
4. If approved, this bill should be sent back to the Senate
Rules Committee
The Senate Rules Committee has requested that, should this bill
be approved by this Committee, it should be sent back to the
Rules Committee for consideration of a request by the Senate
Labor Committee to hear the bill.
Support : American Civil Liberties Union of California; Asian
Americans Advancing Justice - California; Asian Americans
Advancing Justice - Los Angeles; California Council of Churches
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IMPACT; California Employment Lawyers Association; California
Immigrant Youth Justice Alliance; California Labor Federation,
AFL-CIO; California Rural Legal Assistance Foundation;
California Teamsters Public Affairs Council; Consumer Attorneys
of California; Instituto de Educacion Popular del Sur de
California; Pomona Economic Opportunity Center; Southeast Asia
Resource Action Center; One Individual
Opposition : None Known
HISTORY
Source : California Immigrant Policy Center; Mexican American
Legal Defense and Education Fund
Related Pending Legislation : None Known
Prior Legislation :
AB 1065 (Chiu, 2015) See Background.
AB 731 (Gallagher, Chapter 303, Statutes of 2015), the
Maintenance of the Codes bill, made technical corrections to the
statute enacted by AB 263.
AB 2751 (Hernández, Chapter 79, Statutes of 2014) See
Background.
SB 666 (Steinberg, Chapter 577, Statutes of 2013) See
Background.
AB 263 (Hernández, Chapter 732, Statutes of 2013) See
Background.
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