BILL NUMBER: AB 1855 CHAPTERED
BILL TEXT
CHAPTER 813
FILED WITH SECRETARY OF STATE SEPTEMBER 30, 2012
APPROVED BY GOVERNOR SEPTEMBER 30, 2012
PASSED THE SENATE AUGUST 21, 2012
PASSED THE ASSEMBLY AUGUST 24, 2012
AMENDED IN SENATE AUGUST 16, 2012
AMENDED IN ASSEMBLY MAY 25, 2012
AMENDED IN ASSEMBLY MAY 7, 2012
AMENDED IN ASSEMBLY APRIL 9, 2012
INTRODUCED BY Assembly Member Torres
(Coauthor: Senator Vargas)
FEBRUARY 22, 2012
An act to amend Section 2810 of the Labor Code, relating to
employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 1855, Torres. Employment: contractors: sufficient funds.
Existing law prohibits a person or entity from entering into a
contract or agreement for labor or services with specified types of
contractors if the person or entity knows or should know that the
contract or agreement does not include funds sufficient to allow the
contractor to comply with all applicable local, state, and federal
laws or regulations governing the labor or services to be provided.
This bill, in addition, would make these provisions applicable
with regard to warehouse contractors.
Existing law provides for a rebuttable presumption affecting the
burden of proof that there has been no violation of this requirement
of sufficient funding if specified conditions are met, including that
the contract or agreement be in writing. The California Public
Records Act requires state and local agencies to make public records
available for inspection, subject to specified criteria, and with
specified exceptions.
This bill would require that upon the request of the Labor
Commissioner, the person entering into the written agreement or
contract to provide to the Labor Commissioner a copy of the
provisions of the contract or agreement, and any other documentation,
as provided. The bill would exempt any documents received by the
Labor Commissioner pursuant to this requirement from the California
Public Records Act.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 2810 of the Labor Code is amended to read:
2810. (a) A person or entity shall not enter into a contract or
agreement for labor or services with a construction, farm labor,
garment, janitorial, security guard, or warehouse contractor, where
the person or entity knows or should know that the contract or
agreement does not include funds sufficient to allow the contractor
to comply with all applicable local, state, and federal laws or
regulations governing the labor or services to be provided.
(b) There is a rebuttable presumption affecting the burden of
proof that there has been no violation of subdivision (a) where the
contract or agreement with a construction, farm labor, garment,
janitorial, security guard, or warehouse contractor meets all of the
requirements in subdivision (d).
(c) Subdivision (a) does not apply to a person or entity who
executes a collective bargaining agreement covering the workers
employed under the contract or agreement, or to a person who enters
into a contract or agreement for labor or services to be performed on
his or her home residences, provided that a family member resides in
the residence or residences for which the labor or services are to
be performed for at least a part of the year.
(d) To meet the requirements of subdivision (b), a contract or
agreement with a construction, farm labor, garment, janitorial,
security guard, or warehouse contractor for labor or services shall
be in writing, in a single document, and contain all of the following
provisions, in addition to any other provisions that may be required
by regulations adopted by the Labor Commissioner from time to time:
(1) The name, address, and telephone number of the person or
entity and the construction, farm labor, garment, janitorial,
security guard, or warehouse contractor through whom the labor or
services are to be provided.
(2) A description of the labor or services to be provided and a
statement of when those services are to be commenced and completed.
(3) The employer identification number for state tax purposes of
the construction, farm labor, garment, janitorial, security guard, or
warehouse contractor.
(4) The workers' compensation insurance policy number and the
name, address, and telephone number of the insurance carrier of the
construction, farm labor, garment, janitorial, security guard, or
warehouse contractor.
(5) The vehicle identification number of any vehicle that is owned
by the construction, farm labor, garment, janitorial, security
guard, or warehouse contractor and used for transportation in
connection with any service provided pursuant to the contract or
agreement, the number of the vehicle liability insurance policy that
covers the vehicle, and the name, address, and telephone number of
the insurance carrier.
(6) The address of any real property to be used to house workers
in connection with the contract or agreement.
(7) The total number of workers to be employed under the contract
or agreement, the total amount of all wages to be paid, and the date
or dates when those wages are to be paid.
(8) The amount of the commission or other payment made to the
construction, farm labor, garment, janitorial, security guard, or
warehouse contractor for services under the contract or agreement.
(9) The total number of persons who will be utilized under the
contract or agreement as independent contractors, along with a list
of the current local, state, and federal contractor license
identification numbers that the independent contractors are required
to have under local, state, or federal laws or regulations.
(10) The signatures of all parties, and the date the contract or
agreement was signed.
(e) (1) To qualify for the rebuttable presumption set forth in
subdivision (b), a material change to the terms and conditions of a
contract or agreement between a person or entity and a construction,
farm labor, garment, janitorial, security guard, or warehouse
contractor must be in writing, in a single document, and contain all
of the provisions listed in subdivision (d) that are affected by the
change.
(2) If a provision required to be contained in a contract or
agreement pursuant to paragraph (7) or (9) of subdivision (d) is
unknown at the time the contract or agreement is executed, the best
estimate available at that time is sufficient to satisfy the
requirements of subdivision (d). If an estimate is used in place of
actual figures in accordance with this paragraph, the parties to the
contract or agreement have a continuing duty to ascertain the
information required pursuant to paragraph (7) or (9) of subdivision
(d) and to reduce that information to writing in accordance with the
requirements of paragraph (1) once that information becomes known.
(f) A person or entity who enters into a contract or agreement
referred to in subdivisions (d) or (e) shall keep a copy of the
written contract or agreement for a period of not less than four
years following the termination of the contract or agreement. Upon
the request of the Labor Commissioner, any person or entity who
enters into the contract or agreement shall provide to the Labor
Commissioner a copy of the provisions of the contract or agreement,
and any other documentation, related to paragraphs (1) to (10),
inclusive, of subdivision (d). Documents obtained pursuant to this
section are exempt from disclosure under the California Public
Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7
of Title 1 of the Government Code).
(g) (1) An employee aggrieved by a violation of subdivision (a)
may file an action for damages to recover the greater of all of his
or her actual damages or two hundred fifty dollars ($250) 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, may
recover costs and reasonable attorney's fees. An action under this
section shall not be maintained unless it is pleaded and proved that
an employee was injured as a result of a violation of a labor law or
regulation in connection with the performance of the contract or
agreement.
(2) An employee aggrieved by a violation of subdivision (a) may
also bring an action for injunctive relief and, upon prevailing, may
recover costs and reasonable attorney's fees.
(h) The phrase "construction, farm labor, garment, janitorial,
security guard, or warehouse contractor" includes any person, as
defined in this code, whether or not licensed, who is acting in the
capacity of a construction, farm labor, garment, janitorial, security
guard, or warehouse contractor.
(i) (1) The term "knows" includes the knowledge, arising from
familiarity with the normal facts and circumstances of the business
activity engaged in, that the contract or agreement does not include
funds sufficient to allow the contractor to comply with applicable
laws.
(2) The phrase "should know" includes the knowledge of any
additional facts or information that would make a reasonably prudent
person undertake to inquire whether, taken together, the contract or
agreement contains sufficient funds to allow the contractor to comply
with applicable laws.
(3) A failure by a person or entity to request or obtain any
information from the contractor that is required by any applicable
statute or by the contract or agreement between them, constitutes
knowledge of that information for purposes of this section.
(j) For the purposes of this section, "warehouse" means a facility
the primary operation of which is the storage or distribution of
general merchandise, refrigerated goods, or other products.