BILL NUMBER: SB 1128 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Schiff
FEBRUARY 28, 1997
An act to amend and renumber Section 181 of, and to add Chapter
7.5 (commencing with Section 176) to Title 7 of Part 1 of, the Penal
Code, relating to employment of unauthorized aliens.
LEGISLATIVE COUNSEL'S DIGEST
SB 1128, as introduced, Schiff. Crimes: employment of
unauthorized aliens.
(1) The federal Immigration and Nationality Act, with regard to
hiring unauthorized aliens, provides, among other things, (a) that it
is unlawful for any person or other entity to hire, or to recruit or
refer for a fee, for employment in the United States an alien, as
defined, knowing the alien is an unauthorized alien, as defined, with
respect to the employment or to hire for employment in the United
States an individual without complying with specified requirements,
(b) that it is unlawful for a person or other entity, after hiring an
alien for employment in accordance with these provisions to continue
to employ the alien in the United States knowing the alien is or has
become an unauthorized alien with respect to the employment, (c)
that any person or entity that engages in a pattern or practice of
violations of these employment prohibitions shall be subject to
criminal penalties of a fine not exceeding $3,000 for each
unauthorized alien, as specified, imprisonment not exceeding 6 months
for the entire pattern or practice, or both, as specified, and (d)
that any person violating certain of these provisions and violating
an order to cease and desist violations of these provisions shall be
subject to civil money penalties.
This bill would specify similar provisions to apply to an
employer, defined as a person or other entity doing business in this
state, employing 5 or more employees in this state, as specified.
This bill would provide that any employer that engages in a pattern
or practice of violations of these provisions is guilty of a felony
and shall be punished by a fine not exceeding $3,000, imprisonment in
the state prison for 16 months, or 2 or 4 years, or both, thereby
imposing a state-mandated local program by creating a new crime.
These provisions, among other things, would require the employer to
copy specified documents presented by an individual pursuant to these
provisions and retain them for inspection by the Employment
Development Department, the Attorney General, and the district
attorney, as specified.
(2) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Chapter 7.5 (commencing with Section 176) is added to
Title 7 of Part 1 of the Penal Code, to read:
CHAPTER 7.5. UNLAWFUL EMPLOYMENT OF UNAUTHORIZED ALIENS
176. For the purposes of this chapter, the following definitions
shall apply:
(a) "Employer" means a person or other entity doing business in
this state and employing five or more employees in this state that is
subject to any of the following requirements:
(1) Licensure under the licensing provisions that appear in the
Business and Professions Code, Corporations Code, Health and Safety
Code, Insurance Code, Labor Code, Public Utilities Code, or any
combination of these, if applicable.
(2) Any person or entity granted, issued, or renewed a right,
authority, license, or privilege within the meaning of Section 11504
of the Government Code.
(3) Any person or entity that has secured a license, certificate,
registration, permit, or other form of authorization required by a
state agency to engage in a particular activity or act, within the
meaning of Section 15375 of the Government Code.
(4) Any farm labor contractor operating under the Labor Code.
(b) "Unauthorized alien" means, with respect to the employment of
an alien at a particular time, that the alien is not at that time
either of the following:
(1) Lawfully admitted for permanent residence.
(2) Authorized to be employed by federal statute.
177. (a) (1) It is unlawful for an employer doing business under
the laws of this state to do either of the following:
(A) To hire, or to recruit or refer for a fee, for employment in
this state an alien, knowing the alien is an unauthorized alien, as
defined in subdivision (b) of Section 176, with respect to the
employment.
(B) To do either of the following:
(i) To hire for employment in this state an individual without
complying with the requirements of subdivision (b).
(ii) If the employer is a farm labor contractor, as defined in
Section 1682 of the Labor Code, to hire, or to recruit or refer for a
fee, for employment in this state an individual without complying
with the requirements of subdivision (b).
(2) It is unlawful for an employer, after hiring an alien for
employment in accordance with the requirements of this chapter, to
continue to employ the alien in this state, knowing the alien is or
has become an unauthorized alien with respect to the employment.
(3) An employer that establishes that it has complied in good
faith with the requirements of subdivision (b) with respect to the
hiring, recruiting, or referral for employment of an alien in this
state has established an affirmative defense that the employer has
not violated subparagraph (A) of paragraph (1) with respect to the
hiring, recruiting, or referral.
(4) For purposes of this section, an employer who uses a contract,
subcontract, or exchange entered into, renegotiated, or extended
after the date of the enactment of this section, to obtain the labor
of an alien in this state knowing that the alien is an unauthorized
alien, as defined in subdivision (b) of Section 176, with respect to
performing the labor, shall be considered to have hired the alien for
employment in this state in violation of subparagraph (A) of
paragraph (1).
(5) For purposes of subparagraph (B) of paragraph (1), and
paragraph (3), an employer shall be deemed to have complied with the
requirements of subdivision (b) with respect to the hiring of an
individual who was referred for employment by the Employment
Development Department if the employer has and retains, for the
period and in the manner described in paragraph (3) of subdivision
(b), appropriate documentation of the referral by that department
that certifies that the department has complied with the procedures
specified in subdivision (b) with respect to the individual's
referral.
(b) In the case of an employer hiring, recruiting, or referring an
individual for employment in this state, the following requirements,
as referred to in subparagraph (B) of paragraph (1) of, and
paragraph (3) of, subdivision (a) shall apply:
(1) (A) The employer shall attest, under penalty of perjury, that
it has verified that the individual is not an unauthorized alien by
examining either of the following:
(i) One of the documents described in subparagraph (B).
(ii) One of the documents described in subparagraph (C) and one of
the documents described in subparagraph (D).
An employer has complied with the requirement of this paragraph
with respect to the examination of a document if the document
reasonably appears on its face to be genuine. If an individual
provides a document or combination of documents that reasonably
appear on its face to be genuine and sufficient to meet the
requirements of this paragraph, nothing in this paragraph shall be
construed as requiring the employer to solicit the production of any
other document or as requiring the individual to produce any other
document.
(B) The following documents may be examined for purposes of
subparagraph (A):
(i) The individual's United States passport.
(ii) The individual's certificate of United States citizenship.
(iii) The individual's certificate of naturalization.
(iv) The individual's unexpired foreign passport, if the passport
has an appropriate, unexpired endorsement of the United States
Attorney General authorizing the individual's employment in the
United States.
(v) The individual's resident alien card or other alien
registration card, if both of the following apply:
(I) The card contains a photograph of the individual or any other
personal identifying information relating to the individual as the
United States Attorney General finds, by regulation, sufficient for
purposes of this section.
(II) The card is evidence of authorization of employment in the
United States.
(C) The following documents may be examined for purposes of
subparagraph (A):
(i) The individual's social security account number card, other
than this card if it specifies on the face that the issuance of the
card does not authorize employment in the United States.
(ii) The individual's certificate of birth in the United States or
certificate establishing United States nationality at birth, which
certificate the Employment Development Department finds, by
regulation, to be acceptable for the purposes of this section.
(D) The following documents may be examined for purposes of
subparagraph (A):
(i) The individual's driver's license or identification card
issued by the Department of Motor Vehicles.
(ii) In the case of an individual under 16 years of age, the
individual's documentation of personal identity of any type as the
Employment Development Department finds, by regulation, provides a
reliable means of identification.
(2) The individual shall attest, under penalty of perjury, on the
same form designated or established for purposes of subparagraph (A)
of paragraph (1), that the individual is a citizen or national of the
United States, an alien lawfully admitted for permanent residence,
or an alien who is authorized pursuant to Section 1324a of Title 8 of
the United States Code to be hired, recruited, or referred for the
employment.
(3) After completion of the form in accordance with subparagraph
(A) of paragraph (1), and paragraph (2), the employer shall retain
the form and make it available for inspection by the Employment
Development Department, the Attorney General, the district attorney,
or any law enforcement officer during a period beginning on the date
of the hiring, recruiting, or referral of the individual and ending
as follows:
(A) In the case of the recruiting or referral for a fee, without
hiring, of an individual, three years after the date of the
recruiting or referral.
(B) In the case of the hiring of an individual, the later of the
following:
(i) Three years after the date of the hiring.
(ii) One year after the date the individual's employment is
terminated.
(4) Notwithstanding any other provision of law, the employer shall
copy documents presented by an individual pursuant to this
subdivision and shall retain the copies for inspection by the
Employment Development Department, the Attorney General, and the
district attorney. The employer shall retain copies of the documents
for the same period of time as required in paragraph (3) for the
retention of the attestation form. However, except as otherwise
expressly permitted under the law, the employer may only make and
retain these copies for the purpose of complying with the
requirements of this subdivision.
(5) The attestation forms required by this section and any
information contained in or appended to the form may not be used for
purposes other than for enforcement of this section or Section 1324a
of Title 8 of the United States Code.
(6) An employer who has complied with the requirements of this
subdivision shall be rebuttably presumed to have acted in good faith
for the purposes of paragraph (3).
(c) In conducting investigations and hearings under this section,
the following shall apply:
(1) The Employment Development Department, the Attorney General,
and the district attorney shall have reasonable access to examine
evidence of any employer being investigated.
(2) The Employment Development Department and the Attorney General
may, if necessary, compel by administrative subpoena the attendance
of witnesses and the production of evidence.
(3) The Employment Development Department, the Attorney General,
and the district attorney may compel by subpoena the attendance of
witnesses and the production of evidence, and an appropriate superior
court may issue an order requiring compliance with the subpoena, and
any failure to obey the order may be punished by the court as a
contempt thereof.
(4) Upon application of the Attorney General or the district
attorney, a superior court may issue a cease and desist order with a
civil money penalty for hiring, recruiting, and referral violations.
Civil money penalties shall be as follows:
(A) Not less than two hundred fifty dollars ($250) nor more than
two thousand dollars ($2,000) for each unauthorized alien with
respect to whom a violation occurred.
(B) Not less than two thousand dollars ($2,000) nor more than five
thousand dollars ($5,000) for each unauthorized alien in the case of
an employer previously subject to one cease and desist order.
(C) Not less than three thousand dollars ($3,000) nor more than
ten thousand dollars ($10,000) for each unauthorized alien in the
case of an employer previously subject to two or more cease and
desist orders.
(5) Upon application of the Employment Development Department, the
Attorney General, or the district attorney, a superior court may
issue a writ of mandate or prohibition requiring the employer to
comply with the provisions of this section, and take any other
remedial action as is appropriate.
(6) In applying this section in the case of an employer composed
of distinct, physically separate subdivisions, each of which provides
separately for the hiring, recruiting, or referral for employment,
without reference to the practices of, and not under the control of
or common control with, another subdivision, each of these
subdivisions shall be considered a separate employer.
(7) With respect to a violation of subparagraph (B) of paragraph
(1) of subdivision (a), any order under this section shall require
the employer to pay a civil penalty in an amount of not less than one
hundred dollars ($100), nor more than one thousand dollars ($1,000),
for each individual with respect to whom the violation occurred. In
determining the amount of the penalty, due consideration shall be
given to the size of the business of the employer being charged, the
good faith of the employer, the seriousness of the violation, whether
or not the individual was an unauthorized alien, and the history of
previous violations.
(d) Any employer that engages in a pattern or practice of
violations of subparagraph (A) of paragraph (1) of, or paragraph (2)
of, subdivision (a) is guilty of a felony and shall be punished by a
fine not exceeding three thousand dollars ($3,000) for each
unauthorized alien with respect to whom the violation occurs, by
imprisonment in the state prison for 16 months, or two or four years
as punishment for the entire pattern or practice, or by both the fine
and imprisonment.
(e) It is unlawful for an employer, in the hiring, recruiting, or
referring for employment of any individual, to require the individual
to post a bond or security, to pay or agree to pay an amount, or
otherwise to provide a financial guarantee or indemnity, against any
potential liability arising under this section relating to the
hiring, recruiting, or referring of the individual. Any employer
that violates this subdivision shall be subject to a civil penalty of
one thousand dollars ($1,000) for each violation and to an
administrative order requiring the return of any amounts received in
violation of this subdivision to the employee, or, if the employee
cannot be located, to the General Fund.
178. Nothing in this chapter shall be construed to authorize
discrimination against any citizen or authorized alien on the basis
of race or ethnicity in violation of the Unruh Civil Rights Act,
Section 51 of the Civil Code.
SEC. 2. Section 181 of the Penal Code is amended and renumbered to
read:
181.
174. Every person who holds, or attempts to hold, any
person in involuntary servitude, or assumes, or attempts to assume,
rights of ownership over any person, or who sells, or attempts to
sell, any person to another, or receives money or anything of value,
in consideration of placing any person in the custody, or under the
power or control of another, or who buys, or attempts to buy, any
person, or pays money, or delivers anything of value, to another, in
consideration of having any person placed in his or her
custody, or under his or her power or control, or who
knowingly aids or assists in any manner any one thus offending,
is punishable shall be punished by
imprisonment in the state prison for two, three , or four
years.
SEC. 3. No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution because the
only costs that may be incurred by a local agency or school district
will be incurred because this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIIIB of the California Constitution.
Notwithstanding Section 17580 of the Government Code, unless
otherwise specified, the provisions of this act shall become
operative on the same date that the act takes effect pursuant to the
California Constitution.