Currrent as of February 4, 2022

Assembly Bill No. 1510

Introduced by Assembly Member Eduardo Garcia

February 19, 2021

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

LEGISLATIVE COUNSEL’S DIGEST

AB 1510, as amended, Eduardo Garcia. Unauthorized workers: Essential Worker and Economic Stability Act of 2021.

Existing federal law regulates immigration. Existing state law establishes the Employment Development Department (department), which is administered by the Director of Employment Development who is vested with certain duties relating to, among other things, job creation and unemployment compensation.

This bill would require the department to determine the extent of labor shortages in the state’s essential critical infrastructure workforce sectors and provide that information to specified federal government entities. The bill would require the department to convene a working group to address the issues relating to a work permit program for unauthorized persons who are essential critical infrastructure workforce 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.

This 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 statewide program and a model county pilot program. The bill would require the Governor, using the report, to make a formal request to the federal government to implement a statewide program, a county pilot program, or both, to provide unauthorized persons who are essential critical infrastructure workforce 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 state the intent of the Legislature to enact necessary implementing legislation in the future if the federal government approves a program requested by the Governor or proposes a program to provide unauthorized persons who are essential critical infrastructure workforce employees with a permit to work and live in California.

This bill would require the working group to thereafter address the ongoing policy issues revolving around Congress’s work on immigration reform, the federal minimum wage, and the impact those issues will have on the workforce needs of California, and to report on labor shortages, as specified, to the Legislature annually.

This bill would make the implementation of these requirements contingent on a determination by the department that nonstate funds are available for the purposes of the bill.

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 Essential Worker and Economic Stability Act of 2021.

SEC. 2.

The Legislature finds and declares all of 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.

(c) In 2019, California’s agriculture industry generated more than $50 billion in cash receipts for its output. Over one third of the nation’s vegetables and two-thirds of the nation’s fruit and nuts are produced in California. Despite severe droughts and labor shortages, the state accounts for over 13 percent of the country’s total agricultural value.

(d) 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 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.

(e) California’s ability to grow and feed its population and large portions of the nation are essential to the national security of the United States. The capacity and infrastructure necessary to maintain our national security cannot be compromised.

(f) Unauthorized immigrants are one of the largest groups among the essential workforce that are immigrants.

(g) With relatively low unemployment in many essential sectors, the loss of the unauthorized immigrant essential workforce would be particularly crippling for the future COVID-19 economic recovery.

(h) More than two-thirds of all unauthorized immigrant workers serve in frontline jobs in essential industries — a considerably higher share than among other immigrant groups or those individuals born in the United States — and data for California and the nation reflect that these unauthorized workers have contracted COVID-19 at much higher rates and have the highest death rates than almost all other demographic groups.

(i) Unauthorized essential workers, on average, live in households that include members who are U.S.-born citizens or who have been legal residents for more than a decade.

(j) While the Cybersecurity and Infrastructure Security Agency of the United States Department of Homeland Security defined and identified essential critical infrastructure workers for the COVID-19 response on March 28, 2020, it is imperative that these workers, and thus the economy of California and the United States, be protected by ensuring they are not vulnerable and that they do not live or work in fear.

(k) The recently appointed Secretary of the United States Department of Homeland Security (DHS), Mr. Alejandro Mayorkas, served as the Director of the United States Citizenship and Immigration Services in the Obama Administration and has extensive knowledge of the process, procedures, and standards of the operations of DHS.

(l) In 2011, the State of Utah passed a package of legislation that would have integrated immigrants, legal and unauthorized, into mainstream society, created a Migrant Worker Visa Pilot Project, created a pilot program aimed at allowing sponsorship of resident immigrants, and addressed employment, identification, and verification. Due in part to the fact that it did not consult with the federal government, including the United States Department of Justice and the United States Department of Homeland Security, the federal government under the Obama Administration sued and courts agreed that the state could not implement the state law as enacted.

(m) California must have input based on its workforce and state economic needs that are effectively and timely addressed by the federal government.

(n) Therefore, the Legislature hereby enacts this act to ensure that essential workers, as identified by the federal government, are recognized for the phenomenal economic contributions they have performed before and during the COVID-19 pandemic, as they will be indispensable for the economic recovery now that approved vaccines have been produced and are being distributed.

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 a person employed in the essential critical infrastructure workforce.

(b) “Employer” means an agricultural employer, as defined in Section 1140.4 of the Labor Code, a farm labor contractor, or any other employer that employs an employee in the essential critical infrastructure workforce.

(c) “Essential critical infrastructure workforce” means a workforce sector identified by the United States Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency in the guidance document “Guidance on the Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in COVID-19 Response, Version 2.0.”

(d) “Farm labor contractor” shall have the same meaning as in Section 1682 of the Labor Code.

(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) “Labor organization” means a labor organization, as defined in Section 1117 of the Labor Code, that represents employees in the essential critical infrastructure workforce.

(g) “Unauthorized 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) Within three months after a determination is made pursuant to Section 11052, the Employment Development Department shall determine the extent of labor shortages in the essential critical infrastructure workforce sectors in the state. This information shall be provided within two weeks 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 is 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 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) Within 10 calendar days after the specified information is provided in accordance with subdivision (a), the Employment Development Department 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 be led by the Director of Employment Development, who shall have the discretion to invite representatives of academia who have conducted relevant research on the issue of the immigrant workforce in California and the need for non-United States-born workers, and experts who worked extensively on immigration reform policy issues over the last 30 years. Additionally, the working group shall include all of the following members:

(1) A representative of the Department of Industrial Relations.

(2) The California Attorney General.

(3) Three members appointed by the Senate pro Tempore, including one Member of the Senate, one member representing employers, and one member representing environmental justice.

(4) Three members appointed by the Speaker of the Assembly, including one Member of the Assembly, one member from a small or medium agricultural grower of 200 to 2,000 acres, and one member from a labor organization.

(5) Three members appointed by the Governor, including one member from a labor organization related to the building and home construction trades, one member from farm labor contractors, and one member representing the immigrant communities of California.

(d) Issues to be addressed by the working group shall include all of the following:

(1) Qualifying criteria for unauthorized 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 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) Consideration of the amount of state support necessary to assist in the implementation of a county pilot program described in Article 3 (commencing with Section 11060).

(13) Development of the county pilot program plans described in subdivision (b) of Section 11061.

(14) Any other procedures and legal requirements associated with implementation of the statewide and county pilot programs 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). Additionally, the report shall incorporate the working group’s recommendations for a model county pilot program described in Article 3 (commencing with Section 11060). The working group shall make every attempt to reach unanimous agreement and this report shall be submitted to the Legislature and the Governor within 90 calendar days after the working group is convened pursuant to subdivision (b). 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) Within 30 calendar days after receipt of the working group’s report, the Governor, using the report described in subdivision (e), shall make a formal request to the federal government to implement a statewide program, a county pilot program, or both, to provide unauthorized persons who are essential critical infrastructure workforce 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 a program requested by the Governor or proposes a program to provide unauthorized persons who are essential critical infrastructure workforce employees with a permit to work and live in California, it is the intent of the Legislature to enact necessary implementing legislation in the future.

11051.5.

(a) After creating a report expressing its recommendations pursuant to Section 11051, the working group shall remain in place to address the ongoing policy issues revolving around Congress’s work on immigration reform, the federal minimum wage, and the impact those issues will have on the workforce needs of California, as evidenced by the impact the COVID-19 pandemic has had on key industries and the fact that a very large portion of the essential critical infrastructure workforce is comprised of unauthorized workers and not United States-born workers.

(b) (1) Notwithstanding Section 10231.5 of the Government Code, the working group, in compliance with Section 9795 of the Government Code, shall issue an annual report to the Speaker of the Assembly, the Assembly Committees on Labor and Employment, Education, and Agriculture, the Senate Pro Tempore, and the Senate Committees on Labor, Public Employment and Retirement, Education, and Agriculture. This report shall be submitted annually by April 1.

(2) This report shall address any current or forecasted labor shortages in any industries in the state where there has been found to be a lack of United States-born citizens and residents to fill the need and demand for labor. The annual report shall include recommendations for how to secure United States-born labor for employment in these industries and all associated costs with ensuring that workers are available for employment. This information shall also include the process and costs involved to secure labor, that cannot be filled by California- or United States-born labor, from outside of the United States, including Mexico and countries in Central America and others in the western hemisphere.

11052.

The requirements of Sections 11051 and 11051.5 shall be implemented only after the Employment Development Department makes a determination that nonstate funds in an amount sufficient to fully support the purposes of Sections 11051 and 11051.5 are available.

Article 2. Model Statewide Program Requirements

11055.

(a) It is the intent of the Legislature that, to the extent consistent with federal law, this article provide a model and framework for a statewide program to provide unauthorized persons who are essential critical infrastructure workforce employees with a permit to work and live in California that will be incorporated in the report expressing the working group’s recommendations created in accordance with Section 11051.

(b) It is the further intent of the Legislature to recognize that, if the federal government enacts a guest worker program, it may preempt a statewide guest worker program that is adopted in the future pursuant to this chapter.

11056.

(a) The program shall be implemented based on the information gathered by the Employment Development Department and provided to the federal government and members of the California congressional delegation pursuant to subdivision (a) of Section 11051.

(b) The program shall be limited to unauthorized persons who meet all of the following criteria:

(1) The unauthorized person shall be 18 years of age or older.

(2) The unauthorized person shall live in California.

(3) (A) The unauthorized person shall have performed essential critical infrastructure workforce employment in the United States for at least 863 hours or 150 workdays during the 24-month period ending on January 25, 2022, or earned at least seven thousand five hundred dollars ($7,500) from essential critical infrastructure workforce employment in the United States, and shall have maintained essential critical infrastructure workforce 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 unauthorized person may 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 unauthorized person who is unable to submit a document described in subparagraph (B) may 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 unauthorized person in obtaining evidence of employment due to the person’s unauthorized status, including the crediting of work in cases in which an unauthorized person has been employed under an assumed name.

(4) The unauthorized person shall submit to a fingerprinted criminal history background check.

(5) The unauthorized person shall not have been convicted of a felony, or three or more misdemeanors, as confirmed by the fingerprinted criminal history background check.

(6) The unauthorized person shall pay a fee to cover the costs of administering the program.

(c) The program shall extend to an unauthorized 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 unauthorized 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 not 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 shall 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.

(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 unauthorized 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 unauthorized 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 unauthorized workers.

(c) An employer of a person permitted to work in this state under the program shall 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 shall 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 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 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 unauthorized 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 unauthorized 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 essential critical infrastructure workforce to provide greater assurances that employers are in compliance with state laws regarding these workers’ rights and worksite conditions.

(f) Recommendations for how local governments can improve their established processes for determining and providing local and regional affordable housing needs for essential critical infrastructure workforce employees.

(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 essential critical infrastructure workforce employees participating in this program.

Article 3. Model County Pilot Program Requirements

11060.

(a) It is the intent of the Legislature that, to the extent consistent with federal law, this article provide a model and framework for a county pilot program to provide unauthorized persons who are essential critical infrastructure workforce employees with a permit to work and live in California that will be incorporated in the report expressing the working group’s recommendations created in accordance with Section 11051.

(b) It is the further intent of the Legislature to recognize that, if the federal government enacts a guest worker program, it may preempt a pilot program that is adopted in the future pursuant to this chapter.

11061.

(a) The county pilot program shall be implemented based on the information gathered by the Employment Development Department and provided to the federal government and members of the California congressional delegation pursuant to subdivision (a) of Section 11051.

(b) The county pilot program shall meet all the criteria set forth in Article 2 (commencing with Section 11055) and shall incorporate all of the following:

(1) A plan for providing permanent housing for the farmworker workforce currently residing in overcrowded conditions and for any temporary foreign workers that would be requested due to the workforce shortage.

(2) A transportation plan that would minimize the use of fossil fuels to transport workers to agricultural worksites.

(3) A plan to operate regenerative agriculture to determine if this approach can be widely applied in a way that would protect the soil and agricultural land and not compromise its productivity. This initiative would include securing the assistance of the state and federal government to make regenerative agriculture economically viable.

11062.

It is the intent of the Legislature that employers who are hiring unauthorized persons to work in an essential critical infrastructure workforce should have the support of the community and their local government.

AB 1510