BILL NUMBER: AB 20AMENDED BILL TEXT AMENDED IN ASSEMBLY MARCH 26, 2015 INTRODUCED BY Assembly Member Alejo DECEMBER 1, 2014 An actrelating to immigration.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. Undocumentedimmigrants.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 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.Existing law establishes the Franchise Tax Board and prescribes its various powers and duties regarding, among other things, the administration of state personal income taxes and requires that an income tax return be filed by every individual who has income in excess of specified amounts. Existing law allows an income tax return to be filed with the Franchise Tax Board using an individual taxpayer identification number.This bill would make findings and declarations regarding immigration and immigrants within the United States and California, including encouraging those immigrants who are not eligible to receive a social security number to file a California state income tax return using an individual taxpayer identification number and that California would benefit by providing undocumented persons who are agricultural or service industry employees with a permit to work and live in the state.Vote: majority. Appropriation: no. Fiscal committee:noyes . 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 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 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 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) 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 in these industries. 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 persons who would participate in the program described in this act. 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 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, the Department of Food and Agriculture, the Attorney General, two Members of the Senate, two Members of the Assembly, and stakeholders, including, but not limited to, agricultural employers, farm labor contractors, and farm labor organizations. 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 non-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 background and security checks should be required. (6) A determination regarding the payment that should be required for 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. (d) (1) The working group shall create a report expressing its recommendations, which shall incorporate 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. 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 should not be implemented until a certification is made by a designated entity that not enough legal residents in California will fill all open agricultural jobs in California. (b) The program should be limited to an undocumented person who meet 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, 2015, 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 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 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. (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 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, 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) A report to be submitted pursuant to subdivision (a) shall be submitted in compliance with Section 9795 of the Government Code.SECTION 1.The Legislature finds and declares all of the following: (a) The United States of America is a nation of values, founded on the principles that all men and women are created equal, and the promise of freedom for all. (b) We are a nation of immigrants, who believe in the promise of freedom and opportunity. (c) The current immigration system is broken, antiquated, and not meeting the challenges of the 21st century. It separates families, including same-sex couple families, creates long backlogs for families seeking reunification, and neglects the hard work and financial contributions immigrants make to our country. (d) Since 2008, more than 1.6 million immigrants have been deported, and one in every 10 American children faces the threat of the deportation of a parent. (e) Approximately 11 million undocumented immigrants are in the United States, and California has the largest population of immigrants, both legal and undocumented. (f) Immigrants and their children constitute nearly one-half of California's population and live and work in all 58 counties, most notably in the San Diego, Central Valley, Los Angeles, Ventura, and greater San Francisco areas. (g) Approximately 77 percent of undocumented immigrants who reside in California live with family members who are legal United States residents and citizens. (h) One in 10 workers in California is an undocumented immigrant, and immigrants are a vibrant, productive, and vital part of the state' s growing economy. (i) Immigrants are essential in keeping the American economy strong; from technology programmers in the Silicon Valley to restaurant owners and workers, immigrants are filling an intrinsic need in the labor force. (j) Agricultural workers have been performing very important and difficult work to maintain America's food supply, and have a role of ensuring that Americans have safe and secure agricultural products to sell and consume. (k) Students should not be punished for their immigration status. Instead, they should be given recognition for their sacrifice, hard work, and determination. (l) The United States can do a better job of attracting and keeping the world's best and brightest. A comprehensive immigration reform should also grant immigrants who have received a Ph.D. or master's degree in science, technology, engineering, or mathematics from an American university the opportunity to invest in and contribute to this great nation. For the future of our economy, it makes no sense to educate the world's future innovators and entrepreneurs only to ultimately force them to leave our country at the moment they are most able to contribute to our economy. (m) Modernizing our antiquated and dysfunctional immigration system will uphold our nation's basic values of fairness and equality, as well as access to health care. (n) A comprehensive, as well as compassionate, approach to solve our broken immigration system should be one that works for all communities and families in America. (o) The full recovery of the California economy depends upon the continued residence and employment of all current and future members of the state workforce, whether currently employed or in the process of education or training for future employment. (p) The removal of residents and employees, who are free of any serious criminal history or criminal misconduct, from the state during this time of economic recovery is disruptive of the nascent recovery, and separates and disrupts families and community, with significant secondary effects on the state economy and the state education system. (q) The Legislature recognizes and acknowledges the federal government's exclusive authority in the area of immigration regulation, including the determination of enforcement priorities and the granting of discretionary relief on an individual or class wide basis. (r) The failure of the Congress to act on much-needed federal legislation to provide relief from deportation and a pathway to citizenship for those millions of undocumented persons who have resided peacefully in California and other states for many years, raising families, paying taxes, and contributing to our economy and society, has perpetuated a structural problem in our state economy, with too many workers intimidated from playing a complete role in our social and economic development by the lack of legal protection occasioned by their status. (s) Despite these impediments, many undocumented workers have endeavored year after year to file California state income tax returns using an individual taxpayer identification number. (t) Encouraging those who are not eligible to receive a social security number to file a California state income tax return using an individual taxpayer identification number is in the best interest of the state, its economy, and its tax laws. (u) California will benefit from a program to provide undocumented persons who are agricultural or service industry employees with a permit to work and live in California.