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AB-20 Undocumented workers: California Agricultural Act.(2015-2016)

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Amended  IN  Senate  August 17, 2015
Amended  IN  Senate  July 14, 2015
Amended  IN  Senate  July 01, 2015
Amended  IN  Assembly  June 02, 2015
Amended  IN  Assembly  April 30, 2015
Amended  IN  Assembly  March 26, 2015

CALIFORNIA LEGISLATURE— 2015–2016 REGULAR SESSION

Assembly Bill No. 20


Introduced by Assembly Member Alejo

December 01, 2014


An act to add Chapter 8 (commencing with Section 11050) to Part 1 of Division 3 of the Unemployment Insurance Code, relating to undocumented workers.


LEGISLATIVE COUNSEL'S DIGEST


AB 20, as amended, Alejo. Undocumented workers: California Agricultural Act.
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.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 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, 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.
(b) 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.
(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 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 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:
CHAPTER  8. California Agricultural Worker Program
Article  1. General Provisions

11050.
 As used in this chapter:
(a) “Employee” means an agricultural employee, as defined in Section 1140.4 of the Labor Code.
(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.

Article  2. Model Program Requirements

11055.
 It is the intent of the Legislature that the provisions of this article provide a model and framework for a program to provide undocumented persons who are agricultural 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 person’s undocumented status, including the crediting of work in cases in which an undocumented person has been employed under an assumed name.
(4) The undocumented person shall submit to a fingerprinted criminal history background check.
(5) The undocumented person 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.