Bill Text: CA SB516 | 2013-2014 | Regular Session | Enrolled
Bill Title: Foreign labor contractors: registration.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Vetoed) 2014-02-27 - Consideration of Governor's veto stricken from file. [SB516 Detail]
Download: California-2013-SB516-Enrolled.html
BILL NUMBER: SB 516 ENROLLED
BILL TEXT
PASSED THE SENATE SEPTEMBER 10, 2013
PASSED THE ASSEMBLY SEPTEMBER 9, 2013
AMENDED IN ASSEMBLY SEPTEMBER 4, 2013
AMENDED IN ASSEMBLY AUGUST 20, 2013
AMENDED IN ASSEMBLY AUGUST 5, 2013
AMENDED IN SENATE MAY 7, 2013
AMENDED IN SENATE APRIL 1, 2013
INTRODUCED BY Senator Steinberg
(Coauthors: Senators Leno and Lieu)
FEBRUARY 21, 2013
An act to amend Sections 9998.1, 9998.6, and 9998.8 of, to add
Sections 9998.1.5, 9998.2.5, 9998.10, and 9998.11 to, and to repeal
and add Section 9998.2 of, the Business and Professions Code,
relating to foreign labor contractors.
LEGISLATIVE COUNSEL'S DIGEST
SB 516, Steinberg. Foreign labor contractors: registration.
Existing federal law permits certain aliens to engage in
employment in the United States under specified conditions. Existing
state law regulates the services of foreign labor contractors, as
defined, with regard to contracts, recruitment procedures and
representations, and information as to terms and conditions of
employment. Existing law provides that any person who violates or
induces a violation of the latter provisions is guilty of a
misdemeanor. Existing law also permits any person aggrieved by a
violation of these provisions to bring an action for injunctive
relief or damages, or both, and authorizes recovery of damages,
costs, and reasonable attorney's fees, in an amount not less than
$500, if the aggrieved person prevails on the action.
Under existing state law, the Division of Labor Standards
Enforcement in the Department of Industrial Relations, under the
direction of the Labor Commissioner, enforces and administers the
licensing and supervision of farm labor contractors, as defined.
This bill would change the definition of a foreign labor
contractor to mean a person who performs foreign labor contracting
activity, as defined, and would require a foreign labor contractor to
register with the Labor Commissioner and pay a specified fee, upon
satisfying specified conditions. The bill would require the
commissioner to enforce and administer the registration and
supervision of foreign labor contractors, and would authorize the
commissioner to adopt regulations or policies and procedures to
implement these provisions. The bill would prohibit a person from
knowingly entering into an agreement for the services of a foreign
labor contractor that is not registered with the commissioner. The
bill would also require foreign labor contractors to disclose
specified information and deposit with the commissioner a surety bond
in a specified amount, for payment of any amount adjudicated against
the foreign labor contractor, as a condition of registration, as
specified. The bill would further require persons knowingly using the
services of foreign labor contractors to obtain foreign workers to
disclose specified information to the commissioner.
The bill would require a foreign labor contractor to disclose in
writing to each foreign worker who is recruited for employment
certain information, as specified. The bill would prohibit a foreign
labor contractor and its agent from assessing a fee or cost to a
foreign worker for foreign labor contracting activities. The bill
would also prohibit charging a foreign worker with any costs or
expenses not customarily assessed against similarly situated workers,
and would limit the amount of housing costs charged to the foreign
worker to the market rate for similar housing. The bill would
prohibit requiring a foreign worker to pay any costs or expenses
prior to commencement of work. The bill would prohibit additional
requirements or changes to the terms of the contract originally
provided to and signed by the foreign worker, unless the foreign
worker is provided at least 48 hours to review and consider the
additional requirements or changes, and would require the specific
consent of the foreign worker, as provided, to each additional
requirement or change.
The bill would authorize a civil penalty for violations of these
provisions, would authorize the commissioner or a person aggrieved by
a violation of these provisions to bring an action for injunctive
relief or damages, or both, and would authorize recovery of damages,
costs, and reasonable attorney's fees, as specified, including
enforcement of liability against the bond deposited with the
commissioner. The bill would exempt a person from joint and several
liability for an act or omission by a foreign labor contractor if the
person is using a registered foreign labor contractor's services.
The bill would also exempt a person who uses the services of a
registered foreign labor contractor from misdemeanor liability for an
act or omission by the foreign labor contractor. Because this bill
would expand the scope of the provisions regulating foreign labor
contractors, a violation of which is a misdemeanor, this bill would
impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) Foreign labor contractors are increasingly relied upon to
facilitate the movement of labor from one country to another.
California is the leading destination state in the United States for
temporary foreign workers. As of January 2011, there were 130,000
temporary foreign workers in California.
(b) While many foreign labor contractors behave ethically and are
engaged in lawful conduct, some foreign labor contractors are often
complicit with, or are directly involved in, the illegal trafficking
of foreign workers.
(c) Unscrupulous foreign labor contractors often charge exorbitant
fees for their services, force foreign workers into debt bondage,
falsify documents, and deceive foreign workers about the terms and
conditions of work, thereby increasing their vulnerability to human
trafficking.
(d) The incidence of known human trafficking cases involving
foreign labor recruiters is increasing dramatically in the United
States. Stricter regulation of foreign labor contractors will ensure
the integrity of the Californian economy, which is undermined when
unregulated persons conspire to fraudulently deceive foreign workers
about the terms and conditions of work.
(e) California already regulates farm labor contractors through a
comprehensive licensing system and provides some oversight of the
activities of foreign labor contractors. This bill expands regulation
of the activities of foreign labor contractors by the following:
(1) Requiring foreign labor contractors to register with the
appropriate state agency.
(2) Requiring disclosure of the use of foreign labor contractors,
and their agents, by persons seeking to employ foreign workers.
(3) Imposing penalties on a person using an unregistered foreign
labor contractor to obtain foreign workers or employees.
(4) Expanding the remedies available to foreign workers aggrieved
by the actions of foreign labor contractors and those acting in
concert with them.
(f) It is the intent of the Legislature that the Labor
Commissioner proceed as expediently as possible in reviewing
applications for foreign labor contractor registration to ensure that
workers may come to the United States for legitimate employment
without undue delay.
SEC. 2. Section 9998.1 of the Business and Professions Code is
amended to read:
9998.1. The following definitions are applicable to this chapter:
(a) "Person" includes any natural person, company, firm,
partnership or joint venture, association, corporation, limited
liability company, or sole proprietorship.
(b) "Foreign labor contracting activity" means recruiting or
soliciting for compensation a foreign worker who resides outside of
the United States in furtherance of that worker's employment in
California, including when that activity occurs wholly outside the
United States. "Foreign labor contracting activity" does not include
the services of an employer, or employee of an employer, if those
services are provided directly to foreign workers solely to find
workers for the employer's own use.
(c) "Foreign worker" means any person seeking employment who is
not a United States citizen or permanent resident but who is
authorized by the federal government to work in the United States,
including a person who engages in temporary nonagricultural labor
pursuant to Section 101(a)(15)(H)(ii)(b) of the federal Immigration
and Nationality Act (8 U.S.C. Sec. 1101(a)(15)(H)(ii)(b)).
(d) "Foreign labor contractor" means any person who performs
foreign labor contracting activity, including any person who performs
foreign labor contracting activity wholly outside the United States,
except that the term does not include any entity of federal, state,
or local government. "Foreign labor contractor" does not include a
person licensed by the Labor Commissioner as a talent agency under
Chapter 4 (commencing with Section 1700) of Part 6 of Division 2 of
the Labor Code, or a person who obtained and maintains full written
designation from the United States Department of State under Part 62
of Title 22 of the Code of Federal Regulations.
SEC. 3. Section 9998.1.5 is added to the Business and Professions
Code, to read:
9998.1.5. (a) On and after July 1, 2015, a person acting as a
foreign labor contractor shall register with the Labor Commissioner
in accordance with the terms and procedures for registration
established by the commissioner by January 1, 2015. On and after
August 1, 2015, the commissioner shall post on its Internet Web site
the names and contact information for all registered foreign labor
contractors and a list of the names and contact information for any
foreign labor contractors denied renewal or registration.
(b) The Labor Commissioner may not register a person to act as a
foreign labor contractor, and may not renew a registration, until all
of the following conditions are satisfied:
(1) The person has executed a written application in a form
prescribed by the commissioner, subscribed and sworn to by the
person, and containing all of the following:
(A) A statement by the person of all facts required by the
commissioner concerning the applicant's character, competency,
responsibility, and the manner and means by which the person proposes
to conduct operations as a foreign labor contractor if registered.
(B) The names and addresses of all persons, except bona fide
employees on stated salaries, financially interested, either as
partners, associates, or profit sharers, in the proposed operation as
a foreign labor contractor, together with the amount of their
respective interests.
(C) A declaration consenting to the designation by a court or the
commissioner as an agent available to accept service of summons in
any action against the registrant, if the registrant has left the
jurisdiction in which the action is commenced or otherwise has become
unavailable to accept service.
(2) The commissioner, after investigation, is satisfied as to the
character, competency, and responsibility of the person.
(3) (A) The person has deposited with the commissioner a surety
bond in an amount based on the size of the person's annual gross
receipts from operations as a foreign labor contractor, as follows:
(i) For gross receipts up to five hundred thousand dollars
($500,000), a fifty-thousand-dollar ($50,000) bond.
(ii) For gross receipts of five hundred thousand dollars
($500,000) to two million dollars ($2,000,000), a
one-hundred-thousand-dollar ($100,000) bond.
(iii) For gross receipts greater than two million dollars
($2,000,000), a one-hundred-fifty-thousand-dollar ($150,000) bond.
(B) If the foreign labor contractor has been the subject of a
final judgment in a year in an amount equal to that of the bond
required, that contractor shall be required to deposit an additional
bond within 60 days. The bond shall be payable to the people of the
State of California and shall be conditioned on the foreign labor
contractor complying with all the terms and provisions of this
chapter and paying all damages occasioned to any person by failure to
do so, or by any violation of this chapter, or false statements or
misrepresentations made in the registration process. The bond shall
also be payable for interest on wages and for any damages arising
from violation of applicable orders of the Industrial Welfare
Commission, and for any other monetary relief awarded to a foreign
worker as a result of a violation of law by the foreign labor
contractor.
(4) The person has paid to the commissioner a registration fee of
five hundred dollars ($500) plus a filing fee of ten dollars ($10).
(c) The commissioner may not register a person as a foreign labor
contractor, if the person was found by a court, the Secretary of
Labor, or the commissioner to have violated any of the following
provisions:
(1) The federal Trafficking Victims Protection Act of 2000
(Division A, Public Law 106-386), as amended.
(2) Sections 1682 to 1699, inclusive, of the Labor Code.
(3) Section 236.1 of the Penal Code.
(4) An applicable guest worker program.
SEC. 4. Section 9998.2 of the Business and Professions Code is
repealed.
SEC. 5. Section 9998.2 is added to the Business and Professions
Code, to read:
9998.2. (a) On and after July 1, 2015, a person who knows or
should have known that the person is using the services of a foreign
labor contractor to procure foreign workers or employees pursuant to
subdivision (b) of Section 9998.1 shall disclose this information to
the Labor Commissioner in accordance with the terms and procedures
established by the commissioner by January 1, 2015.
(b) The disclosure shall include, but is not limited to, the
following:
(1) The name, address, and contact information of the person
designated by the employer to work with a foreign labor contractor.
(2) A declaration consenting to the designation by a court of the
commissioner as an agent available to accept service of summons in
any action against the person, if the person has left the
jurisdiction in which the action is commenced or otherwise has become
unavailable to accept service.
(c) A person may not knowingly enter into an agreement for the
services of a foreign labor contractor that is not registered under
this chapter.
SEC. 6. Section 9998.2.5 is added to the Business and Professions
Code, to read:
9998.2.5. (a) A foreign labor contractor shall ascertain and
disclose in writing to each foreign worker who is recruited for
employment in English and in the primary language of the foreign
worker being recruited, at the time of the foreign worker's
recruitment, the following information:
(1) The identity of the employer and the identity of the person
conducting the recruiting on behalf of the employer, including any
subcontractor or agent involved in the recruiting.
(2) A signed copy of the work contract, including all assurances
and terms and conditions of employment, from the prospective employer
for whom the foreign worker is being recruited, including the
compensation to be paid, the place and period of employment, a
description of the type and nature of employment activities, any
withholdings or deductions from compensation, and any penalties for
terminating employment.
(3) The type of visa under which the foreign worker is to be
employed, the length of time the visa is valid, and the terms and
conditions under which the visa will be renewed with a clear
statement of whether the employer will secure renewal of the visa or
if renewal must be obtained by the foreign worker, and any expenses
associated with securing or renewing the visa.
(4) An itemized list of any costs or expenses to be charged to the
foreign worker, including, but not limited to, the costs of housing
or accommodation, transportation to and from the worksite, meals,
medical examinations, health care or safety equipment costs, and any
other costs, expenses, or deductions to be charged the foreign
worker.
(5) A statement, in a form specified by the Labor Commissioner,
that does each of the following:
(A) States that no foreign labor contractor, or agent or employee
of a foreign labor contractor, can lawfully assess any fee, including
visa fees, processing fees, transportation fees, legal expenses,
placement fees, and other costs to a foreign worker for foreign labor
contracting activities, and that the employer may bear the costs or
fees for the foreign labor contractor, but that these fees cannot be
assessed to the foreign worker.
(B) Explains that no additional requirements or changes may be
made to the terms of the contract originally provided by the foreign
labor contractor and signed by the foreign worker, unless the foreign
worker is provided at least 48 hours to review and consider the
additional requirements or changes and the foreign worker gives
specific consent, voluntarily and without threat of penalty, to each
additional requirement or change.
(C) Describes the protections afforded the foreign worker by this
chapter and by the federal Trafficking Victims Protection Act of 2000
(Division A, Public Law 106-386), as amended, and any applicable
guest worker program, including relevant information about the
procedure for filing a complaint under this chapter, and the
telephone number for the national human trafficking resource center
hotline.
(6) Any education or training to be provided or required,
including the nature, timing, and cost of training and the person who
will pay training costs, whether the training is a condition of
employment, continued employment, or future employment, and whether
the foreign worker will be paid or remunerated during the training
period, including the rate of pay or remuneration.
(b) The foreign labor contractor shall file the disclosure
required under subdivision (a) with the Labor Commissioner within
seven business days of providing it to the foreign worker.
(c) A foreign labor contractor, or the agent, subcontractor, or
employee of a foreign labor contractor, or a person using the
services of a foreign labor contractor to obtain foreign workers or
employees, may not assess any fee, including, but not limited to,
visa fees, processing fees, transportation fees, legal expenses,
placement fees, and other costs, to a foreign worker for foreign
labor contracting activities.
(d) A foreign worker may not be required to pay any costs or
expenses that are not customarily assessed against all workers
similarly employed in the United States. No costs or expenses shall
be required to be paid by the foreign worker prior to the
commencement of work. The amount charged for providing housing to the
foreign worker shall be limited to market rate for similar housing.
(e) Additional requirements or changes shall not be made to the
terms of the contract originally provided by the foreign labor
contractor and signed by the foreign worker, unless the foreign
worker is provided at least 48 hours to review and consider the
additional requirements or changes and the foreign worker gives
specific consent, voluntarily and without threat of penalty, to each
additional requirement or change.
SEC. 7. Section 9998.6 of the Business and Professions Code is
amended to read:
9998.6. A person may not intimidate, threaten, restrain, coerce,
discharge, or in any manner discriminate against a foreign worker or
a member of his or her family in retaliation for the foreign worker's
exercise of any right under this chapter.
SEC. 8. Section 9998.8 of the Business and Professions Code is
amended to read:
9998.8. (a) A person who violates this chapter or who causes or
induces another to violate this chapter is guilty of a misdemeanor
punishable by a fine of not more than one thousand dollars ($1,000),
or imprisonment in the county jail for not more than six months, or
both. A person shall not be liable under this subdivision for any act
or omission by a foreign labor contractor engaged by the person if
the foreign labor contractor was registered with the Labor
Commissioner pursuant to Section 9998.1.5 no later than the first day
of engagement.
(b) A person who violates any provision of this chapter shall be
subject to a civil penalty of no less than one thousand dollars
($1,000) and no more than twenty-five thousand dollars ($25,000) per
violation, in addition to any other civil remedies available to the
Labor Commissioner or an aggrieved person.
(c) The commissioner or a person aggrieved by a violation of this
chapter may do all of the following:
(1) Bring an action for injunctive relief against a person who
violates this chapter and, upon prevailing, recover costs and
reasonable attorney's fees.
(2) Bring an action for damages, against a person who violates
this chapter to recover the greater of all of his or her actual
damages or five hundred dollars ($500) per employee per violation for
an initial violation, and one thousand dollars ($1,000) per employee
for each subsequent violation, and, upon prevailing in an action
brought pursuant to this section, recover costs and reasonable
attorney's fees.
(3) Enforce the liability on the bonds required under Section
9998.1.5.
(d) A person shall not be jointly and severally liable for any act
or omission by a foreign labor contractor engaged by the person if
the foreign labor contractor was registered with the Labor
Commissioner pursuant to Section 9998.1.5 no later than the first day
of engagement.
(e) Nothing in this section shall be construed to preempt or alter
any other rights or remedies, including any causes of action,
available under any other federal or state law.
SEC. 9. Section 9998.10 is added to the Business and Professions
Code, to read:
9998.10. The Labor Commissioner and the deputies and
representatives authorized by the commissioner in writing may take
assignments of actions on the bonds required under Section 9998.1.5
by aggrieved persons and may prosecute the actions on behalf of
persons who, in the judgment of the commissioner, are financially
unable to employ counsel, in the same manner that claims are
prosecuted under Section 98 of the Labor Code.
SEC. 10. Section 9998.11 is added to the Business and Professions
Code, to read:
9998.11. The Labor Commissioner may adopt regulations or policies
and procedures to implement the provisions of this chapter.
SEC. 11. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
