Bill Text: MS HB1001 | 2010 | Regular Session | Introduced
Bill Title: Employee Fair Solicitation Act; create.
Sponsorship: Partisan Bill (Republican 1)
Status: (Failed) 2010-02-02 - Died In Committee [HB1001 Detail]
Download: Mississippi-2010-HB1001-Introduced.html
MISSISSIPPI LEGISLATURE
2010 Regular Session
To: Labor
By: Representative Aldridge
House Bill 1001
AN ACT TO CREATE THE "EMPLOYEE FAIR SOLICITATION ACT"; TO CREATE NEW SECTION 71-1-51, MISSISSIPPI CODE OF 1972, TO PROVIDE THE MINIMUM STANDARDS FOR DISCLOSURE, DOCUMENTATION AND ENFORCEMENT OF EMPLOYEE FINANCIAL OBLIGATIONS TO LABOR ORGANIZATIONS; TO AMEND SECTION 71-1-45, MISSISSIPPI CODE OF 1972, TO CLARIFY THAT AN ASSIGNMENT OR PLEDGE OF WAGES SUBJECT TO THIS ACT SHALL BE CONTROLLED BY THIS ACT; TO AMEND SECTION 71-1-49, MISSISSIPPI CODE OF 1972, TO PROHIBIT A PERSON WHO VIOLATES THIS ACT FROM ATTENDING CERTAIN LABOR MEETINGS; TO AMEND SECTION 97-19-39, MISSISSIPPI CODE OF 1972, TO ADD A CATEGORY TO THE CRIME OF FRAUD; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be known and may be cited as the "Employee Fair Solicitation Act."
SECTION 2. The following shall be codified as Section 71-1-51, Mississippi Code of l972:
71-1-51. Minimum Standards for Disclosure, Documentation and Enforcement of Employee Financial Obligations to Labor Organizations.
(1) The Employee Free Choice Act is legislation which is now before the One Hundred and Eleventh United States Congress. The legislation creates incentives for labor organizations and persons acting on their behalf or in their interest to engage in misleading and fraudulent solicitation and enforcement of employee financial obligations. This act shall be construed to exercise the full extent of state authority to deter and to remedy such abuses, and to assure that employees working in Mississippi are bound only to the labor organization financial obligations that they undertake knowingly and voluntarily, after being fully and fairly informed of their related rights.
(2) The following words and phrases shall have the meanings ascribed in this section unless the context clearly indicates otherwise:
(a) "Financial Obligation Card," abbreviated "FOC", means any and every document, instrument or record which, under applicable law, may be offered to prove that any employee has incurred a financial obligation to a labor organization.
(b) "Labor organization," means the same as defined by in USCS Section 152(5). A person who solicits a FOC from an employee shall be deemed an agent of the labor organization to which the financial obligation is owed, if that labor organization, or any affiliated or successor labor organization, makes any demand or attempt to enforce the FOC, regardless of whether the solicitor or the solicitation was authorized by that labor organization.
(c) "Employee" means the same as defined by 29 USCS Section 152(3).
(d) "Employer" means the same as defined by 29
USCS Section 152(2).
(3) No FOC shall be enforced in any legal proceeding held in Mississippi or pursuant to the substantive law of Mississippi unless the employee executed the FOC on or after the effective date of, and during the term of, a collective bargaining agreement that covers the employee's employment by the employer which employed that employee on the date of the FOC's execution by the employee.
(4) No FOC shall be enforced in any legal proceeding held in Mississippi or pursuant to the substantive law of Mississippi unless each solicitation leading to the employee's execution of the FOC was preceded by delivery to the employee of a written notice of his or her related rights, which explains that: (a) the FOC is a legally binding contract regulated by Mississippi law, including a specific reference to this act, and the employee may wish to consult an attorney before signing the FOC; (b) no person employed in Mississippi may be required to pay labor
organizations dues, or to undertake any other financial obligation to a labor organization as a condition of employment or continued employment; (c) the employee's rights, opportunities and obligations under the collective bargaining agreement covering the employee's employment do not depend on whether the employee executes the FOC.
(5) No FOC shall be enforced in any legal proceeding held in Mississippi or pursuant to the substantive law of Mississippi unless, in addition to delivering the foregoing written notice in advance of the solicitation, the solicitor of any FOC delivered, at the time of the solicitation, a written notice of his or her name, address, telephone number and the name, address and telephone number of the labor organization beneficiary of the FOC.
(6) No FOC shall be enforced in any legal proceeding held in Mississippi or pursuant to the substantive law of Mississippi unless the FOC, or a fully legible, authentic copy of the FOC, is retained in a registry of all Mississippi employee FOC's and is maintained by the labor organization within the State of Mississippi, and open to inspection and copying by any obligated employee, and by any agent of the Attorney General of the State of Mississippi.
(7) No FOC shall be enforced in any legal proceeding held in Mississippi or pursuant to the substantive law of Mississippi unless the FOC is retained in the required registry with a copy of a government-issued photo identification, obtained by the solicitor from the employee within two (2) weeks following the employee's execution of the FOC, along with authentic copies of the related notices required by this act.
(8) No FOC shall be enforced in any legal proceeding held in Mississippi or pursuant to the substantive law of Mississippi unless all applicable rules concerning its effective period, its expiration, and requirements for its revocation were explained
to and understood by the employee before the FOC's execution.
(9) No FOC shall be enforced in any legal proceeding held in Mississippi or pursuant to the substantive law of Mississippi without clear and convincing proof that the employee signature appearing on the FOC is, in fact, the employee's signature,
applied by that employee on the date shown on the FOC in the employee's handwriting.
(10) No FOC shall be enforced in any legal proceeding held in Mississippi or pursuant to the substantive law of Mississippi if the solicitor made to the employee, directly or indirectly, any false or misleading statement in connection with the FOC's solicitation or execution.
(11) Regardless of the amount in controversy, the chancery and circuit courts of the county of the employee's residence, or of his or her place of employment, shall have original subject matter jurisdiction of and shall be appropriate venues for a
civil action, hereby authorized, to determine the validity of, to enforce, or otherwise to resolve a legal question related to the employee's FOC obligation. Such an action may be commenced by the allegedly obligated employee, by the beneficiary labor organization or by the employee's employer, if the labor organization has tendered the FOC to the employer to establish an employer obligation to make deductions from the employee's wages. In such actions, the labor organization shall have the burden to prove complete compliance with this act as a condition of the FOC's enforcement. If the FOC is not enforced, the employee shall be entitled to recover, in addition to any civil damages proven, his or her costs and reasonable attorney's fees. If the action is brought by or joined by the employee's employer, and if the FOC is not enforced as an authorization for payroll deduction, then the employer shall be entitled to recover, in addition to any civil damages proven, its costs and reasonable attorney's fees.
SECTION 3. Section 71-1-45, Mississippi Code of 1972, is amended as follows:
71-1-45. (1) No assignment or pledge of wages, in any form, made or executed directly or collaterally in the payment of, or as security for, the purchase of or contract to purchase any goods, wares, or merchandise shall be valid against or binding upon any employer, or the wages of any employee in the hands of, or owing, or to become owing to such employee, unless the assignee or pledgee thereof shall, prior to the delivery of the goods, wares, or merchandise so purchased or prior to consummation of any contract to purchase the same, serve upon the employer of such assignor, or pledgor, a duly executed copy of such assignment, or pledge, or contract to purchase and obtain such employer's acceptance of notice thereof and agreement in writing to be bound by the terms of such assignment or pledge.
(2) An assignment or pledge of wages subject to the Employee Fair Solicitation Act shall be governed by that act.
SECTION 4. Section 71-1-49, Mississippi Code of 1972, is amended as follows:
71-1-49. (1) No person who is an alien, or who is or has been a member of the Communist Party, or who has been convicted of or served any part of a prison term resulting from his conviction of robbery, bribery, extortion, embezzlement, grand larceny, burglary, arson, violation of narcotics laws, murder, rape, assault with intent to kill, any violation of Section 97-19-39, or conspiracy to commit any such crimes, shall serve:
(a) As an officer, director, trustee, member of any executive board or similar governing body, business agent, manager, organizer, or other employee (other than as an employee performing exclusively clerical or custodial duties) of any labor organization, or as a manager, or any person occupying a bargaining position with industry, or
(b) As a labor relations consultant either of a labor organization or of an employer or both, or as an officer, director, agent, or employee (other than as an employee performing exclusively clerical or custodial duties) of any group or association of employers dealing with any labor organization, during or for five (5) years after the termination of his membership in the Communist Party, or for five (5) years after such conviction, or after the end of such imprisonment. No labor organization, group or association of employers, or officer thereof shall knowingly permit any person to assume or hold any office or paid position in violation of this section.
(2) Any person who willfully violates this section shall be guilty of a misdemeanor and, upon conviction thereof, be fined not more than One Thousand Dollars ($1,000.00) or imprisoned for not more than one (1) year, or both.
(3) For the purposes of this section, any person shall be deemed to have been "convicted" and under the disability of "conviction" from the date of the judgment of the trial court or the date of the final sustaining of such judgment on appeal, whichever is the later event, regardless of whether such conviction occurred before or after July 1, 1960.
SECTION 5. Section 97-19-39, Mississippi Code of 1972, is amended as follows:
97-19-39. (1) Every person who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by another false pretense, obtain the signature of any person to any written instrument, or obtain from any person any money, personal property, or valuable thing, with a value of less than Five Hundred Dollars ($500.00), upon conviction thereof, shall be guilty of a misdemeanor and punished by imprisonment in the county jail not exceeding six (6) months, and by fine not exceeding One Thousand Dollars ($1,000.00).
(2) Every person, who with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by another false pretense, obtain the signature of any person to any written instrument, or obtain from any person any money, personal property, or valuable thing, with a value of Five Hundred Dollars ($500.00) or more, upon conviction thereof shall be guilty of a felony and punished by imprisonment in the State Penitentiary not exceeding ten (10) years, and by a fine not exceeding Ten Thousand Dollars ($10,000.00).
(3) A person who, directly, or through an agent, if with actual knowledge of that agent's unlawful conduct, solicits from an employee a Financial Obligation Card in knowing violation of the Employee Fair Solicitation Act, shall be guilty of the misdemeanor or felony described in the preceding subsections, depending on the amount of the employee's actual loss.
SECTION 6. This act shall be effective from and after the date that the Employee Free Choice Act becomes law and shall repeal from and after the date that the Employee Free Choice Act is no longer effective.
