BILL NUMBER: AB 423 CHAPTERED
BILL TEXT
CHAPTER 157
FILED WITH SECRETARY OF STATE AUGUST 7, 2001
APPROVED BY GOVERNOR AUGUST 7, 2001
PASSED THE ASSEMBLY JULY 20, 2001
PASSED THE SENATE JULY 19, 2001
AMENDED IN SENATE JULY 18, 2001
AMENDED IN SENATE JULY 3, 2001
AMENDED IN ASSEMBLY JUNE 4, 2001
INTRODUCED BY Assembly Members Hertzberg, Jackson, and Maldonado
(Principal coauthors: Senators Burton and Romero)
(Coauthors: Assembly Members Alquist, Cardenas, Calderon, Diaz,
Florez, Goldberg, Havice, Kehoe, Koretz, Migden, Negrete McLeod,
Shelley, Steinberg, Strom-Martin, Thomson, and Vargas)
(Coauthors: Senators Dunn, Ortiz, and Scott)
FEBRUARY 20, 2001
An act to amend Sections 1695.7 and 1698 of, and to add Sections
1695.8, 1695.9, 1696.8, and 1697.3 to, the Labor Code, relating to
farm labor contractors, and making an appropriation therefor.
LEGISLATIVE COUNSEL'S DIGEST
AB 423, Hertzberg. Farm labor contractors: license requirements.
(1) Existing law requires every person acting in the capacity of a
farm labor contractor, prior to entering into any contract or
agreement to supply agricultural labor or services to an agricultural
grower, to first provide the grower with his or her current state
license. Under existing law, a violation of this provision is a
misdemeanor, punishable as specified.
This bill would also require a person contracted by a farm labor
contractor who is acting in the capacity of a farm labor contractor,
prior to entering into a contract, to first provide the farm labor
contractor with a copy of his or her current valid state license.
The bill would require both the grower and the farm labor contractor
to keep a copy of the required licenses for a period of 3 years
following termination of the contract or agreement.
(2) Existing law prohibits a grower from entering into a contract
or agreement with a person who fails to provide a copy of his or her
license, without first making reasonable inquiry to ensure that the
license is valid.
This bill, instead, would provide that a grower has an affirmative
obligation to inspect the license of any person contracted as a farm
labor contractor and to verify that the license is valid. The bill
would also provide that a farm labor contractor has an affirmative
obligation to inspect the license of any person contracted by the
farm labor contractor who is acting in the capacity of a farm labor
contractor and to verify that the license is valid.
The bill would require the Labor Commissioner to establish and
maintain a Farm Labor Contractor License Verification Unit commencing
no later than July 1, 2002, to certify the status of the licenses of
farm labor contractors to growers and farm labor contractors, upon
request, as specified. The obligation under the bill to verify
licensure would not become operative until that unit is operational.
(3) Existing law prohibits a person from discharging, or in any
manner discriminating against an employee because the employee files
a bona fide complaint or claim against the employer, or takes other
specified actions under the jurisdiction of the Labor Commissioner.
Existing law also prohibits any employer from making, adopting, or
enforcing any rule, regulation, or policy that prevents an employee
from disclosing specified information to a government or law
enforcement agency.
This bill would specify that a farm labor contractor, a person
contracted by a farm labor contractor who is acting in the capacity
of a farm labor contractor, or an employer of a farm labor contractor
is subject to these provisions.
(4) Under existing law, an employer or other specified person who
pays or causes to be paid to any employee a wage less than the
minimum fixed by an order of the Industrial Welfare Commission, is
guilty of a misdemeanor that is punishable as provided.
This bill would provide that on or after January 1, 2003, any
grower, farm labor contractor, or other specified person who
knowingly and willfully fails to pay or causes the failure to pay
those wages, or any higher wages that have been agreed to, is guilty
of a misdemeanor. The bill would prescribe various penalties,
depending on the number of repeat violations. The bill would also
require license revocation upon conviction of an offense for one
year in the case of a first offense, 2 years in the case of a 2nd
offense, and permanently in the case of a 3rd offense. By creating
new crimes, the bill would impose a state-mandated local program.
(5) This bill would require the Director of Industrial Relations
to establish a Farm Labor Contractor Enforcement Unit to develop a
program to provide technical assistance to a district attorney's
office that establishes a local farm labor contractor enforcement
unit.
(6) Existing law requires a person to pay a fee of $500 to obtain
a farm labor contractor license. Under existing law, $50 of each fee
is required to be deposited into the Farmworker Remedial Account and
the remaining balance is required to be paid into the State Treasury
and credited to the General Fund.
This bill would make an appropriation by, instead, requiring the
Labor Commissioner to expend $350 of the remaining balance to fund
the Farm Labor Contractor Enforcement Unit and the Farm Labor
Contractor License Verification Unit.
(7) This bill would become operative only if SB 1125 is enacted
and becomes effective on or before January 1, 2002.
(8) 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.
Appropriation: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1695.7 of the Labor Code is amended to read:
1695.7. (a) (1) Prior to entering into any contract or agreement
to supply agricultural labor or services to a grower, a farm labor
contractor shall first provide to the grower a copy of his or her
current valid state license. A failure to do so is a violation of
this chapter. The grower shall keep a copy of the license for a
period of three years following the termination of the contract or
agreement.
(2) In the event that the licensee or prospective licensee has
fulfilled all the requirements for a license, but the Labor
Commissioner has not been able to timely issue or renew a license,
the Labor Commissioner shall issue to the person applying for a
license, or renewal of a license, a letter of authorization
permitting that person to operate or continue to operate as a farm
labor contractor. For purposes of this section, a "valid state
license" shall include a letter of authorization issued pursuant to
this paragraph.
(3) (A) No grower shall enter into a contract or agreement with a
person acting in the capacity of a farm labor contractor who fails to
provide a copy of his or her license. A grower has an affirmative
obligation to inspect the license of any person contracted as a farm
labor contractor, a copy of whose license is provided to the grower
pursuant to paragraph (1), and to verify that the license is valid.
The grower shall request verification from the license verification
unit by the close of the third business day following the day on
which the farm labor contractor is engaged. The grower may be
supplied services by the farm labor contractor and shall not be
liable under this section for an invalid license while awaiting
verification from the verification unit. The verification received
from the license verification unit shall serve as conclusive evidence
of the grower's compliance with this subparagraph. The verification
shall be valid until the farm labor contractor's license expires.
Failure to comply with this subparagraph is a violation of this
chapter.
(B) A farm labor contractor has an affirmative obligation to
inspect the license of any person contracted by the farm labor
contractor who is acting in the capacity of a farm labor contractor a
copy of whose license is provided to the farm labor contractor
pursuant to Section 1695.9, and to verify that the license is valid.
The farm labor contractor shall request verification from the
license verification unit by the close of the third business day
following the day on which the individual who is acting as the farm
labor contractor is engaged. The farm labor contractor may be
supplied services by the acting farm labor contractor and shall not
be liable under this section for an invalid license while awaiting
verification from the verification unit. The verification received
from the license verification unit shall serve as conclusive evidence
of the farm labor contractor's compliance with this subparagraph.
The verification shall be valid until the individual's license
expires. Failure to comply with this subparagraph is a violation of
this chapter.
(C) If a determination is made by the Labor Commissioner that the
verification system is inoperable, no grower or farm labor contractor
shall be liable under this section until seven business days after
the Labor Commissioner determines the system is operable and has made
public notice to affected parties.
(4) (A) If a contract or agreement entered into with a farm labor
contractor extends beyond the expiration date of his or her license,
or extends beyond the date contained in the letter of authorization
to operate, the farm labor contractor shall provide to the grower,
upon renewal of the license or issuance of the letter of
authorization a copy of his or her current valid renewed license or a
copy of a letter of authorization issued by the Labor Commissioner.
In the event the farm labor contractor's license is not renewed, the
farm labor contractor shall notify the grower within three days.
(B) If a contract or agreement entered into by a farm labor
contractor with another farm labor contractor extends beyond the
expiration date of his or her license, or extends beyond the date
contained in the letter of authorization to operate, the other farm
labor contractor shall provide to the farm labor contractor, upon
renewal of the license or issuance of the letter of authorization a
copy of his or her current valid renewed license or a copy of a
letter of authorization issued by the Labor Commissioner. In the
event the license of a person contracted by a farm labor contractor
who is acting as farm labor contractor is not renewed, the person
shall notify the farm labor contractor within three days.
(b) A failure by a farm labor contractor to provide a copy of his
or her license to the grower shall not constitute a defense against
liability under this section for a grower who subsequently fails to
comply with the requirements of subparagraph (A) of paragraph (3) of
subdivision (a). A failure by a person acting as a farm labor
contractor who is contracted by a farm labor contractor to provide a
copy of his or her license to the farm labor contractor shall not
constitute a defense against liability under this section for a farm
labor contractor who subsequently fails to comply with the
requirements of subparagraph (B) of paragraph (3) of subdivision (a).
(c) (1) Any person who acts in the capacity of a farm labor
contractor without first securing a license or while his or her
license has been suspended or revoked is guilty of a misdemeanor
punishable by a fine of not less than one thousand dollars ($1,000)
nor more than five thousand dollars ($5,000), or imprisonment in the
county jail for not more than six months, or both, and is subject to
other sanctions under this chapter, including subdivisions (b) and
(c) of Section 1697.
(2) Any grower or farm labor contractor who enters into a contract
or agreement in violation of this section shall be subject to a
civil action by an aggrieved worker for any claims arising from the
contract or agreement that are a direct result of any violation of
any state law regulating wages, housing, pesticides, or
transportation committed by the unlicensed farm labor contractor.
The court shall grant a prevailing plaintiff reasonable attorney's
fees and costs.
(3) On or after January 1, 2003, any grower, farm labor
contractor, or other person acting either individually or as an
officer, agent, or employee of any grower or farm labor contractor
who knowingly and willfully fails to pay, or causes the failure to
pay, wages as set forth in subdivision (b) of Section 1199, or any
higher wages that have been agreed to, is guilty of a misdemeanor
punishable as set forth in subdivision (f). However, if the
prosecutor elects to prosecute any grower, farm labor contractor, or
other person pursuant to this paragraph and subdivision (f), multiple
failures to pay wages within a single payroll and in a single pay
period shall constitute one violation.
(4) Any aggrieved worker who, claims a violation of this section,
may bring a civil action for injunctive relief and lost wages as
provided in Section 218, and, upon prevailing, shall recover
reasonable attorney's fees and costs.
(d) As used in this section:
(1) "Business day" means any day on which the offices of the
license verification unit are open to the public for the conducting
of business.
(2) "Grower" means any person who owns or leases land used for the
planting, cultivation, production, harvesting, or packing of any
farm products, if he or she hires or uses persons acting as farm
labor contractors, and includes a packing shed or a person or entity
who farms the land on behalf of the land owner, whether or not he or
she owns or leases the land.
(3) "Inspect," with regard to inspecting a license, means to
examine the license to determine whether it reasonably appears on its
face to be genuine.
(4) "License verification unit" means the Farm Labor Contractor
License Verification Unit established pursuant to subdivision (e).
(5) "Verify," with respect to verifying a license, means to
contact by telephone, facsimile, website, electronic mail, or other
means as determined by the Labor Commissioner, the license
verification unit to confirm the validity of a license and to record
in the requester's files the unique verification number provided by
the license verification unit to document that the requester
confirmed the validity of the license of the farm labor contractor
with whom he or she has entered into a contract or agreement to
supply services.
(e) The Labor Commissioner shall establish and maintain a Farm
Labor Contractor License Verification Unit commencing no later than
July 1, 2002. The license verification unit shall, upon the request
of a grower or farm labor contractor, certify the status of a state
license issued to a farm labor contractor. The license verification
unit shall assign a unique verification number to the request and the
unit shall within 24 hours send by mail, or, if available, by
facsimile or electronic mail, confirmation that will serve as
conclusive evidence of compliance with the verification requirements
of this section. The obligation under this section to verify
licenses shall not become operative and the penalties for failure to
verify a license shall not be applicable until three months after the
license verification unit becomes operational, as certified by the
State Auditor.
(f) (1) On or after January 1, 2003, a violation of paragraph (3)
of subdivision (c) is a misdemeanor and is punishable as provided in
subdivision (a) of Section 1697, except that the fine portion of the
penalty shall be as follows:
(A) Upon conviction for a first violation, by a fine of not less
than one thousand dollars ($1,000) nor more than five thousand
dollars ($5,000), and is subject to other sanctions under this
chapter, including subdivisions (b) and (c) of Section 1697. Upon
conviction, the Labor Commissioner shall revoke the defendant's
license and the defendant shall be ineligible for a license for a
period of one year from the date of revocation.
(B) Upon a conviction for a violation committed within three years
after a conviction for a prior violation, by a fine of not less than
ten thousand dollars ($10,000) and is subject to other sanctions
under this chapter, including subdivisions (b) and (c) of Section
1697. Upon a second conviction, the Labor Commissioner shall revoke
the defendant's license and the defendant shall be ineligible for a
license for a period of two years from the date of revocation.
(C) Upon a conviction for a violation committed within five years
after a second conviction pursuant to subparagraph (B), by a fine of
not less than twenty-five thousand dollars ($25,000), and is subject
to other sanctions under this chapter, including subdivisions (b) and
(c) of Section 1697. Upon a third conviction, the Labor
Commissioner shall revoke the defendant's license and the defendant
shall not thereafter be eligible to obtain a license.
(2) If a person is prosecuted under this subdivision, that person
may not be prosecuted under any other law if the prosecution would be
based upon the same set of facts as the prosecution under this
subdivision.
(g) A farm labor contractor, a person contracted by a farm labor
contractor who is acting in the capacity of a farm labor contractor,
or an employer of a farm labor contractor is subject to Section 98.6
and 1102.5.
SEC. 2. Section 1695.8 is added to the Labor Code, to read:
1695.8. (a) No person whose license was suspended, revoked, or
denied renewal by the Labor Commissioner shall perform any activity
or service specified in subdivision (b) of Section 1682 or in Section
1682.3 to, for, or under the direction of a farm labor contractor,
whether as an employee, independent contractor, or otherwise, for
three years after the license is suspended, revoked, or denied
renewal, or until the license is reinstated, whichever first occurs.
(b) No farm labor contractor shall knowingly contract with or use
any person specified in subdivision (a), whether as an employee,
independent contractor, or otherwise, to perform an activity or
service specified in subdivision (b) of Section 1682 or in Section
1682.3 for three years after the license of the person is suspended,
revoked, or denied renewal, or until the license is reinstated,
whichever first occurs.
SEC. 3. Section 1695.9 is added to the Labor Code, to read:
1695.9. Any person contracted by a farm labor contractor who is
acting in the capacity of a farm labor contractor shall first provide
to the farm labor contractor a copy of his or her current valid
state license. A farm labor contractor is responsible for ensuring
that every person who is performing farm labor contracting activities
on behalf of the farm labor contractor has obtained a farm labor
contractor license as required by Section 1683 prior to the person's
engagement in any activity described in subdivision (b) of Section
1682. A farm labor contractor who utilizes the services of another
farm labor contractor who is not his or her employee shall also
comply with the provisions of this chapter. The farm labor
contractor is responsible for any violations of this chapter
committed by his or her employee, whether or not the employee has
registered as required by this chapter. The farm labor contractor
shall keep a copy of the license or licenses for a period of three
years following the termination of the contract or agreement.
SEC. 4. Section 1696.8 is added to the Labor Code, to read:
1696.8. (a) The director shall establish a Farm Labor Contractor
Enforcement Unit. The unit shall develop a program to provide
technical assistance to a district attorney's office that establishes
a local farm labor contractor enforcement unit. A local farm labor
contractor enforcement unit established pursuant to this section
shall, whenever possible, coordinate its enforcement efforts with the
Rural Crime Prevention Program in its jurisdiction, if any,
established pursuant to Section 14171 of the Penal Code. Any funds
appropriated to the department for purposes of this section shall be
administered and allocated by the director.
(b) A local farm labor contractor enforcement unit that receives
technical assistance pursuant to this section shall concentrate
enhanced prosecution efforts and resources on the prosecution of farm
labor contractors who violate a state law regulating wages. For
purposes of this subdivision, "enhanced prosecution efforts and
resources" include, but are not limited to, all of the following:
(1) "Vertical" prosecutorial representation, whereby the
prosecutor who makes the initial filing or appearance performs all
subsequent court appearances on a particular case through its
conclusion, including the sentencing phase.
(2) Assignment of highly qualified investigators and prosecutors
to farm labor enforcement cases.
(3) Significant reduction of caseloads for investigators and
prosecutors assigned to farm labor enforcement cases.
SEC. 5. Section 1697.3 is added to the Labor Code, to read:
1697.3. Upon the final determination of the Labor Commissioner
that a grower, a farm labor contractor, or person acting in the
capacity of a farm labor contractor has failed to pay wages to its
employees, the grower, farm labor contractor, or person acting in the
capacity of a farm labor contractor shall immediately pay those
wages. If payment is not made within 30 days of the final
determination, the Labor Commissioner shall forward the matter for
consideration of prosecution to the local district attorney's office.
SEC. 6. Section 1698 of the Labor Code is amended to read:
1698. All fines collected for violations of this chapter shall be
paid into the Farmworker Remedial Account and shall be available,
upon appropriation, for purposes of this chapter. Of the moneys
collected for licenses issued pursuant to this chapter, fifty dollars
($50) of each annual license fee shall be deposited in the
Farmworker Remedial Account pursuant to subdivision (d) of Section
1684, three hundred fifty dollars ($350) of each annual license fee
shall be expended by the Labor Commissioner to fund the Farm Labor
Contractor Enforcement Unit and the Farm Labor Contractor License
Verification Unit, both within the department, and the remaining
money shall be paid into the State Treasury and credited to the
General Fund.
SEC. 7. This bill shall become operative only if Senate Bill 1125
is enacted and becomes effective on or before January 1, 2002.
SEC. 8. No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB 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 XIIIB of the California Constitution.