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AB-1885 Undocumented workers: California Resident Worker Program and Economic Stabilization Act.(2017-2018)

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Date Published: 04/09/2018 09:00 PM
AB1885:v97#DOCUMENT

Amended  IN  Assembly  April 09, 2018
Amended  IN  Assembly  February 28, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 1885


Introduced by Assembly Members Eduardo Garcia, Caballero, and Mathis
(Principal coauthor: Senator Cannella)

January 18, 2018


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 1885, as amended, Eduardo Garcia. Undocumented workers: California Resident Worker Program and Economic Stabilization Act.
Existing provisions of federal law regulate immigration.
This bill would require the Employment Development Department and the Department of Food and Agriculture to determine the extent of labor shortages in the state agricultural and service industries and provide that information to specified federal government entities. The bill would require those departments to convene a working group to address the issues relating to a work permit program for undocumented persons who are agricultural or service industry employees to work and live in the state, and to serve as liaison to the United States Department of Homeland Security and the United States Department of Justice to ensure that state departments are not taking on responsibilities in matters dealing with immigration policy that are the jurisdiction of the federal government. The bill would require the working group to create and submit to the Legislature and the Governor a report expressing its recommendations, which would be required to incorporate specified provisions describing a model program. The bill would require the Governor, using the report, to make a formal request to the federal government to implement a program to provide undocumented persons who are agricultural or service industry employees with a permit to work and live in California. The bill would require the Governor to issue an explanation if the federal government proposes a program and the Governor disapproves of the proposed program. The bill would make the implementation of these requirements contingent on a determination by the Employment Development Department and the Department of Food and Agriculture that nonstate funds are available for the purposes of the bill. The bill would state the intent of the Legislature to enact necessary implementing legislation if the federal government approves or adopts a program to provide undocumented persons who are agricultural or service industry employees with a permit to work and live in California.
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 Resident Worker Program and Economic Stabilization Act.

SEC. 2.

 The Legislature finds and declares the following:
(a) The California economy relies upon the agricultural and service industries.
(b) Since 2007, California’s farms and ranches continue to experience the highest agricultural output in the nation. In 2015, they generated an estimated $47 billion, which was 17 percent lower than in 2014, when they generated $54 billion. In 2013, they generated $51.3 billion. This is a substantial increase from the $36.3 billion in 2007 and $37.5 billion in 2010. Despite severe droughts and labor shortages, California continues to lead the nation in cash farm receipts. On a global scale, California ranks between 5th and 9th in the world, ahead of such countries as Canada, Mexico, Germany, and Spain. According to a study by the University of California, Davis, every dollar of value added (labor and property income and indirect business taxes) in farming and agricultural related farming- and agriculture-related industries generates an additional $1.27 in the state economy. For every 100 jobs in agriculture, there are 94 additional jobs created throughout the state.
(c) In the past decade, farming costs have increased an estimated 88 percent, due in part to new and expanding state and federal laws and regulations. Meanwhile, foreign-produced food is being imported at an accelerated pace, and at far lower costs. In today’s global market, California farmers cannot simply pass their costs onto consumers. The high costs of doing business in the state have resulted in consolidation of land and a reduction in total farmed acreage, which is detrimental to the state’s economy.
(d) California’s agricultural industry is dependent on immigrant labor, as evidenced by the most recent National Agricultural Workers Survey, which found that most of the state’s agricultural workers were born in Mexico and that 60 percent of crop workers have been unauthorized for the last 10 years.
(e) A previous study of the status of 2,300 farmworkers in California in 13 counties suggested 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 a Green Card, officially known as a Permanent Resident Card, and 57 percent are unauthorized. Of the newcomers who have been here less than two years, 99 percent are unauthorized.
(f) The federal employment-based immigration programs for admitting foreign workers for temporary and permanent jobs are rigid, cumbersome, inefficient, 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.
(g) Nevertheless, the United States Congress has repeatedly failed to pass comprehensive immigration reform, instead choosing to annually introduce primarily interior and border enforcement-only legislation and temporary worker proposals that ignore the socioeconomic profile of this essential workforce and do not account for the unique workforce needs of California’s diverse agricultural industry.
(h) Congress has also had strong advocacy for having the E-Verify program become mandatory for all employers in conjunction with the new guest worker program. The agricultural employer community throughout the United States believes the E-Verify program requirement, without a guest worker program, would eliminate a significant portion of the existing agricultural workforce with no certainty that these vacancies will be filled by United States citizens and legal residents.
(i) Due to the unworkable framework of the federal H-2A guest worker program, the absence of a suitable alternative program, and the potential for Congress to pass stand-alone E-verify legislation, agricultural interests in Oklahoma and Utah have introduced legislation creating state guest worker programs, while several other states are considering the introduction of similar state initiatives.
(j) Among California’s key economic industry sectors, the hospitality and tourism sector plays a central role in stimulating California’s sluggish economy. In 2011, the leisure and hospitality industry accounted for over $100 billion in travel-related spending. According to state records, more than two million employees, or 14 percent of all employees in California, work in leisure, hospitality, and other services. These workers serve as a foundational workforce for the state’s $1.8 trillion economy.
(k) Despite well-documented labor shortages, especially in agriculture where hourly wages have increased significantly and housing and health care services are being offered, United States-born citizens continue to avoid employment in agriculture.
(l) 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 and service industries, it is imperative that a program be created for current unauthorized workers in these industries.
(m) It is the intent of the Legislature that the executive and legislative branches of the federal government give the highest priority to enacting legislation to create a guest worker program that would confer legal status to reside in the United States to persons who would participate in the program described in this act.
(n) It is the intent of the Legislature that the costs of the working group established pursuant to this act be covered by nonstate funding sources.

SEC. 3.

 Chapter 8 (commencing with Section 11050) is added to Part 1 of Division 3 of the Unemployment Insurance Code, to read:
CHAPTER  8. California Resident 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, and a person employed to provide domestic services, janitorial or building maintenance services, food preparation services, or housekeeping services.
(b) “Employer” means an agricultural employer, as defined in Section 1140.4 of the Labor Code, a farm labor contractor, and or a service industry employer.
(c) “Farm labor contractor” shall have the same meaning as 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 the production of agricultural products.
(e) “Immediate family member” means a spouse or child under 18 years of age or 18 years of age or older if the child is enrolled in an accredited program as described in paragraph (1) of subdivision (c) of Section 11056.
(f) “Service industry employer” means a person who is self-employed for the purpose of, or who employs others to, provide domestic services, janitorial or building maintenance services, food preparation services, or housekeeping services.
(g) “Service 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 service industry products.
(h) “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 March 1, 2019, the Employment Development Department and the Department of Food and Agriculture shall determine the extent of labor shortages in the agricultural and service industries in the state. This information shall be provided not later than March 20, 2019, to the United States Department of Labor, the United States Department of Agriculture, and the United States Department of Homeland Security. The information shall also be provided to members of the California congressional delegation. Recognizing the short timeframe for this work, the Employment Development Department and the Department of Food and Agriculture are also requested to provide as much detail as possible associated with these labor shortages and the consequences to the state’s economy. Lastly, it is requested that the Employment Development Department and the Department of Food and Agriculture address whether there is a viable, available, and efficient workforce of United States-born workers in California or other states that would be able to fill these labor shortages.
(b) No later than April 1, 2019, the Employment Development Department and the Department of Food and Agriculture shall convene a working group to address the issues listed in subdivision (d) and serve as liaison to the United States Department of Homeland Security and the United States Department of Justice to ensure that state departments are not taking on responsibilities in matters dealing with immigration policy that are the jurisdiction of the federal government.
(c) The working group shall consist of representatives from the Employment Development Department, Department and the Department of Food and Agriculture, the California Attorney General, two Members of the Senate appointed by the Senate Committee on Rules, two Members of the Assembly appointed by the Speaker of the Assembly, and representatives of stakeholders, including, but not limited to, agricultural and service industry employers, farm labor contractors, farm and service labor organizations, academia, and policy experts in the field of immigration reform policy.
(d) Issues to be addressed by the working group shall include the following:
(1) Qualifying criteria for undocumented persons to apply for a permit to work and live in California.
(2) Documentation requirements for applicants.
(3) A determination of which agency will issue the permits.
(4) Ensuring security, including through the development of 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 to which background and security checks should be required.
(6) A determination regarding the payment that should be required for to cover the costs of 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.
(e) Notwithstanding Section 10231.5 of the Government Code, the working group, in compliance with Section 9795 of the Government Code, shall create a report expressing its recommendations, which shall incorporate the model program described in Article 2 (commencing with Section 11055). The working group shall make every attempt to reach unanimous agreement and this report shall be submitted to the Legislature and the Governor no later than July 1, 2019. If the working group fails to meet this deadline, the working group shall notify the Governor and the Legislature of its expected completion date.
(f) By August 1, 2019, or no later than 30 calendar days after receipt of the working group’s report, whichever is later, the Governor, using the report described in subdivision (e), shall make a formal request to the federal government to implement a program to provide undocumented persons who are agricultural or service industry employees with a permit to work and live in California. The Governor shall issue an explanation if the federal government proposes a program and the Governor disapproves of the proposed program.
(g) If the federal government approves or adopts a program to provide undocumented persons who are agricultural or service industry employees with a permit to work and live in California, it is the intent of the Legislature to enact necessary implementing legislation.

11052.
 The requirements of Section 11051 shall be implemented only after the Employment Development Department and the Department of Food and Agriculture make a determination that nonstate funds in an amount sufficient to fully support the purposes of Section 11051 are available.

Article  2. Model Program Requirements

11055.
 (a) It is the intent of the Legislature that this article provide a model and framework for a program to provide undocumented persons who are agricultural or service industry employees with a permit to work and live in California.
(b) It is the further intent of the Legislature to recognize that, if the federal government enacts a guest worker program, it would preempt the state program.

11056.
 (a) The program shall be implemented based on the information gathered by the Employment Development Department and the Department of Food and Agriculture and provided to the federal government and members of the California congressional delegation pursuant to subdivision (a) of Section 11051.
(b) The program should be limited to undocumented persons who meet all of the following criteria:
(1) The undocumented person must be 18 years of age or older.
(2) The undocumented person must live in California.
(3) (A) The undocumented person must have performed agricultural or service industry employment in the United States for at least 863 hours or 150 workdays during the 24-month period ending on January 25, 2019, or earned at least seven thousand five hundred dollars ($7,500) from agricultural or service industry employment in the United States, and must have maintained agricultural or service industry employment for 431 hours or 75 workdays, or earned three thousand seven hundred fifty dollars ($3,750) from that employment, on an annual basis after receiving the permit.
(B) An undocumented person should 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, service 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 should 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 must submit to a fingerprinted criminal history background check.
(5) The undocumented person must never have been convicted of a felony, or three or more misdemeanors, as confirmed by the fingerprinted criminal history background check.
(6) The undocumented person must pay a fee to cover the costs of administering the program.
(c) The program should 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 should be required to meet all of the following:
(1) The immediate family member must 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 must submit to a fingerprinted criminal history background check.
(3) The immediate family member must 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 must pay a fee to cover the costs of administering the program.

11057.
 Once the program becomes authorized and operational, the following requirements should apply:
(a) (1) An official or employee of the state government should 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 should 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 should be disqualified from applying under the program.
(b) The entities administering the program should 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 who are United States citizens, 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 should 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 should not limit an employee to a single employer or occupation.

11059.
 Not later than three years after the program is implemented, the administering entities should prepare and transmit to the Assembly Committee on Labor and Employment and the Senate Standing 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 should 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) Recommendations to increase funding and improve enforcement of state labor law protections for employees in the agricultural and service industries to provide greater assurances that employers are in compliance with state laws regarding these workers’ rights and worksite conditions are in compliance by employers. conditions.
(f) Recommendations for how local governments can improve their established processes for determining and providing local and regional affordable housing needs for farmworkers.
(g) Recommendations for how the individual employer, pool of employers, or countywide health care system can provide an essential package of comprehensive preventive primary health care services, including, but not limited to, mental health and dental care for farmworkers participating in this program.