BILL NUMBER: AB 1544AMENDED BILL TEXT AMENDED IN ASSEMBLY MAY 30, 2012 AMENDED IN ASSEMBLY APRIL 23, 2012 AMENDED IN ASSEMBLY MARCH 27, 2012 INTRODUCED BY AssemblyMemberV. Manuel PrezMembers V. Manuel Prez and Alejo (Coauthors: Assembly Members Cedillo and Perea) (Coauthor: Senator Rubio) JANUARY 25, 2012 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 1544, as amended, V. Manuel Prez. Undocumented workers: California Agricultural Jobs and Industry Stabilization Program. Existing provisions of federal law regulate immigration. Under federal law, state laws regulating immigration are preempted. This bill would, upon the state receiving the necessary authority under federal law, require the Employment Development Department to administer a California Agricultural Jobs and Industry Stabilization Program. This bill would require the Employment Development Department to certify that there are not enough legal residents of California to fill all open agricultural and service industry jobs in California. Once the department makes that certification, this bill would authorize the department to issue permits to undocumented aliens to work in the agricultural and service industries and who meet specified criteria. This bill would also authorize the department to issue permits to reside in California to the immediate family members, as defined, of an undocumented alien permitted as a worker under the program. This bill would require, prior to the issuance of a permit, an undocumented alien to pay a fee to the department and would require those fees to be deposited into the California Agricultural Jobs and Industry Stabilization Program Fund, established by this bill. This bill would also require the department, in conjunction with the Legislative Analyst's Office, to annually publish a report analyzing whether the program has caused the displacement of employable legal residents of California in the agricultural and service industries. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated 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 Jobs and Industry Stabilization Act of 2012. 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, and $37,500,000,000 in 2010) and continues to lead the nation in 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 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 serious economic consequences caused by other states' immigration initiatives, 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) The large unauthorized workforce in California has produced an underground economy, without basic protections afforded to United States workers. Adjusting the status of unauthorized workers will give them full rights in the workplace. Thus, an inclusive, practical, and swift adjustment-of-status program will raise labor standards for all workers and avoid major economic dislocations in the affected industries. (h) 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 dollars 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-dollar economy. (i) 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 state policy create an adjustment-of-status program for current unauthorized workers in these industries. 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 AGRICULTURAL JOBS AND INDUSTRY STABILIZATION PROGRAM 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, and a service industry employer. (c) "Immediate family member" means a spouse or child under 18 years of age. (d) "Program" means the California Agricultural Jobs and Industry Stabilization Program. (e) "Service industry employer" means a person who employs 25 or more employees who provide domestic services, janitorial or building maintenance services, food preparation services, or housekeeping services. (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. The California Agricultural Jobs and Industry Stabilization Program is hereby created and shall be administered by the Employment Development Department. 11052. Upon certification by the department that there are not enough legal residents of California to fill all open agricultural and service industry jobs in California, the department shall issue permits authorizing an undocumented person who meets all of the following criteria to reside and work as an employee in California:(a) The undocumented person has established that he or she was present in California before January 25, 2012, and has been continuously in California since that date.(b) (1) The undocumented person has established that he or she was employed in California, whether full time, part time, seasonally, or self-employed, as an agricultural or service industry worker before January 25, 2012.(a) The undocumented person is 18 years of age or older. (b) The undocumented person lives in California. (c) (1) The undocumented person has 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, 2012, or earned at least seven thousand five hundred dollars ($7,500) from agricultural or service industry employment in the United States, and maintains agricultural or service industry employment for 431 hours or 75 workdays, or earns three thousand seven hundred fifty dollars ($3,750) from that employment, on an annual basis after receiving the permit. (2) An undocumented person may conclusively establish employment status by submitting to the department any of the following records demonstrating the employment: (A) Records maintained by any of the following: (i) The Social Security Administration, Internal Revenue Service, or any other federal, state, or local government agency. (ii) An employer. (iii) A labor union,or day labor center, or an organization that assists workers in matters related to employment. (B) Itemized wage statements issued to the employee pursuant to Section 226 of the Labor Code. (3) An undocumented person who is unable to submit a document described in paragraph (2) may satisfy the requirement in paragraph (1) by submitting to the department at least two other types of reliable documents that provide evidence of employment, including any of the following: (A) Bank records. (B) Business records.(C) Sworn affidavits from nonrelatives who have direct knowledge of the undocumented person's work.(D)(C) Remittance records. (4) It is the intent of the Legislature that the requirements in this subdivision be interpreted and 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. (5) An undocumented person has the burden of proving by a preponderance of the evidence that he or she has satisfied the requirements of this subdivision. An undocumented person may meet this burden of proof by producing sufficient evidence to demonstrate the employment as a matter of reasonable inference. (d) The undocumented person submits to a fingerprinted criminal history background check. (e) The undocumented person has never been convicted of a felony, as confirmed by the fingerprinted criminal history background check.(c)(f) The undocumented person has paid a fee to the department to pay for the department's cost in administering the program.(d) As verified pursuant to Section 11052.5, the undocumented person has not been convicted of a felony or misdemeanor an element of which involves bodily injury, threat of serious bodily injury, or property damage in excess of five hundred dollars ($500).(g) The undocumented person submits evidence of ongoing efforts to become proficient in the English language. 11052.5. (a) The department shall not grant a permit to an undocumented person under Section 11052 or 11053 unless the undocumented person submits fingerprints in accordance with procedures established by the department. (b) The department shall utilize fingerprints and other data provided by the undocumented person to conduct a background check of the undocumented person relating to criminal, national security, or other law enforcement actions that would render the undocumented person ineligible as described in Section 11052 or 11053. 11053. The department shall issue permits authorizing an undocumented person who is an immediate family member of a person to whom the department issued a permit pursuant to Section 11052 and who meets all the following criteria to reside in California: (a) The immediate family member resides with the undocumented person to whom a permit was issued.(b) As verified pursuant to Section 11052.5, the immediate family member has not been convicted of a felony or misdemeanor an element of which involves bodily injury, threat of serious bodily injury, or property damage in excess of five hundred dollars ($500).(b) The immediate family member submits to a fingerprinted criminal history background check. (c) The immediate family member has never been convicted of a felony, as confirmed by the fingerprinted criminal history background check.(c)(d) The immediate family member has paid a fee to the department to pay for the department's costs in administering the program. 11054. The Attorney General, Department of Justice, department, or an employee or officer of these agencies shall not use the information provided by an applicant pursuant to this chapter for any purpose other than to make a determination relating to an application made pursuant to this chapter.11054.11055. Within 90 days of the implementation date of this chapter, an employer shall not employ an undocumented person who does not have a permit issued pursuant to Section 11052.11055.11056. An employer of a person permitted to work in this state pursuant to this chapter shall provide a written record of employment to the employee issued a permit, and shall provide a copy to the department. This record shall include information demonstrating the hours worked and wages paid to the employee. 11057. It is the intent of the Legislature that the federal government authorize an undocumented worker or immediate family member participating in the program created pursuant to this section to be allowed to travel to his or her country of origin for no more than a total of 30 days each year, or up to a total of 45 days each year if because of an emergency or other circumstances outside of the participant's control return to the United States could not be accomplished within 30 days.11056.11058. (a) An employee permitted to work in this state pursuant to this chapter is entitled to all the same wage and hour and working conditions protections under existing law provided to an employee who is a legal resident of California. (b) A permit issued pursuant to Section 11052 does not limit an employee to a single employer or occupation.11057.11059. (a) Beginning the third year after the department makes the certification required in Section 11052, the department, in conjunction with the Legislative Analyst's Office, shall annually publish a report analyzing whether the California Agricultural Jobs and Industry Stabilization Program has caused the displacement of employable legal residents of California in the agricultural and service industries. (b) The department shall request the federal Governmental Accountability Office to also comply with subdivision (a).11058.11060. The program created pursuant to this chapter is not intended to confer legal status in a manner that would restrict the enactment of superseding federal legislation that seeks to alter that status.11059.11061. (a) There is hereby created in the General Fund the California Agricultural Jobs and Industry Stabilization Program Fund. The fees collected by the department pursuant to this chapter shall be deposited in the California Agricultural Jobs and Industry Stabilization Program Fund and shall only be used to pay for the department's costs to administer the program, upon appropriation by the Legislature. (b) The department shall only be required to administer the program and the program shall only continue in existence to the extent the funds in the California Agricultural Jobs and Industry Stabilization Program Fund and any appropriation made by the Legislature for the purpose of funding the program cover the department's costs to administer the program.11059.5.11062. (a) By May 1, 2013, the Director of Employment Development shall submit a formal request to the federal government to receive the necessary authority to administer the provisions of this chapter. (b) This chapter, except this section and Section 11063 , shall not be implemented unless the Director of Employment Development receives the necessary authority, consistent with federal law, to administer this chapter. 11063. Recognizing that this chapter cannot be implemented without the authorization of the federal government because state governments do not have the authority to confer legal immigration status to undocumented workers, 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 that participate in the program that would be created pursuant to this chapter.