BILL ANALYSIS                                                                                                                                                                                                    



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          Date of Hearing:   June 23, 2010

                     ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
                                Sandre Swanson, Chair
                    SB 1231 (Corbett) - As Amended:  May 17, 2010

           SENATE VOTE  :   21-13
           
          SUBJECT  :   Public contracts: slave and sweat free code of  
          conduct.

           SUMMARY  :   Makes various changes to existing provisions of the  
          Public Contract Code related to "sweat free" procurement policy  
          and a related code of conduct   Specifically,  this bill  :   

          1 Renames the "Sweat Free Code of Conduct" as the "Slave and  
            Sweat Free Code of Conduct" and makes conforming changes.

          2)Expands the scope of the code of conduct to include abusive  
            forms of labor performed by all persons, not just child labor.

          3)Extends the period that a contractor may be removed from the  
            bidder's list for violations of these requirements from 360  
            days to two years, as specified.

          4)Specifies that contractors must only exercise "due diligence"  
            (rather than "ensure") that their contractors comply with the  
            Slave and Sweat Free Code of Conduct.

          5)Provides that a contractor shall not be subject to sanctions  
            for violations of which the contractor had no knowledge that  
            were committed solely by a subcontractor.  Sanctions shall  
            instead be imposed against the subcontractor that committed  
            the violation.

          6)Specifies that for contractors whose manufacturing or assembly  
            locations are located outside the United States, those  
            contractors shall ensure that their subcontractors comply with  
            the appropriate laws of countries where the facilities are  
            located "or international laws or treaties binding upon those  
            countries."

          7)Specifies that the Department of Industrial Relations (DIR)  
            shall establish a contractor responsibility program by January  
            1, 2012, as specified.








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          8)Authorizes the appropriate procurement agency and DIR to use  
            the United States Department of Labor's "List of Goods  
            Produced by Child Labor or Forced Labor" in identifying  
            procurement categories appropriate for phased implementation.

          9)Requires DIR and the Department of General Services (DGS) to  
            post procedures and contact information for filing complaints  
            on their respective web sites.






           EXISTING LAW  :

          1 Provides DGS with the governing authority related to state  
            procurement activities, including acquisition of materials,  
            supplies and services.

          2)Requires every contract entered into by a state agency for the  
            procurement of equipment, materials, supplies, apparel,  
            garments and accessories and the laundering thereof, excluding  
            public works contracts, to require a contractor to certify  
            that no such items provided under the contract are produced by  
            sweatshop labor, forced labor, convict labor, indentured labor  
            under penal sanction, abusive forms of child labor, or  
            exploitation of children in child labor.  The law provides for  
            misdemeanor liability in the case of a knowing false  
            certification.

          3)Provides that if a contractor knew or should have known the  
            specified products furnished to the state were laundered or  
            produced by the specified types of prohibited labor, the  
            contractor may be removed from the bidder's list for 360 days.

          4)Requires contractors to "ensure" that their subcontractors  
            comply with the Sweat Free Code of Conduct, under penalty of  
            perjury.

          5)Requires the DIR to establish a contractor responsibility  
            program, including a Sweat Free Code of Conduct, as specified.

          6)Requires the appropriate procurement agency, in consultation  








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            with DIR, to employ a phased and targeted approach to  
            implement the Sweat Free Code of Conduct, as specified.

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   This bill proposes to make several changes related  
          to state procurement policy regarding materials produced by  
          abusive forms of labor.

           Background on the "Sweat Free Code of Conduct"

           On October 8, 2003, Governor Davis signed Senate Bill 578  
          (Alarc?n), Chapter # 711, Statutes of 2003.  SB 578 represented  
          a landmark piece of legislation designed to establish a  
          statewide "sweat free" procurement policy to ensure that  
          specified goods purchased by the state are produced in  
          workplaces free of sweatshop conditions.

          In recent years, other local entities (including cities,  
          counties, school districts, colleges and universities) across  
          the state and the nation have enacted their own policies and/or  
          ordinances designed to prevent the procurement of materials  
          produced by sweatshop labor.  Many of these efforts couple  
          "sweat free" codes of conduct with enforcement facilitated  
          through the use of an independent outside monitor.
          






           California Procurement Policy Prior to SB 578
           
          Prior to the enactment of SB 578, there were several bills  
          enacted addressing the state's procurement of goods and  
          materials by various forms of labor.

          AB 2457 (Figueroa), Chapter # 1149, Statutes of 1996, required  
          state agencies to provide in every contract for procurement that  
          the contractor certify that no foreign-made equipment, materials  
          or supplies provided under the contract are produced by forced  
          labor, convict labor, or indentured labor under penal sanction.

          That bill essentially provided for state enforcement of the  








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          Smoot-Hawley Tariff Act of 1930 - the federal law that prohibits  
          the importation of any goods produced by forced labor.  AB 2457  
          also was designed to strengthen deficiencies in enforcement  
          under federal law by imposing additional state law requirements.

          SB 1888 (Hayden), Chapter # 891, Statutes of 2000, expanded the  
          provisions of the law by prohibiting the procurement by state  
          agencies of goods that have been made by forced or indentured  
          child labor, abusive forms of child labor, or exploitation of  
          children in sweatshop labor.  

          Under SB 1888, "abusive forms of child labor" was defined to  
          mean any of the following:

                 All forms of slavery or practices similar to slavery,  
               such as the sale and trafficking of children, debt bondage,  
               and serfdom and forced or compulsory labor, including  
               forced or compulsory recruitment of children for use in  
               armed conflict.
                 The use, procuring, or offering of a child for  
               prostitution, for the production of pornography, or for  
               pornographic performances.
                 The use, procuring, or offering of a child for illicit  
               activities, in particular for the production and  
               trafficking of illicit drugs.
                 All work or service exacted from or performed by any  
               person under the age of 18 either under the menace of any  
               penalty for its nonperformance and for which the worker  
               does not offer oneself voluntarily, or under a contract,  
               the enforcement of which can be accomplished by process or  
               penalties.
                 All work or service exacted from or performed by a child  
               in violations of all applicable laws of the country of  
               manufacture governing the minimum age of employment,  
               compulsory education, and occupational health and safety.

          SB 1888 defined "exploitation of children in sweatshop labor" as  
          all work or service exacted from or performed by any person  
          under the age of 18 years in violation of more than one law of  
          the country of manufacture governing wage and benefits,  
          occupational health and safety, nondiscrimination, and freedom  
          of association.

          SB 1888 also increased the enforcement ability of contracting  
          state agencies.








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          Specific Provisions of SB 578
           
          California's procurement law prior to the enactment of SB 578  
          focused primarily on foreign-made goods produced under  
          indentured/convict labor and other exploitative forms of child  
          labor.  SB 578 broadened the existing prohibition to include  
          domestic-made goods and applied procurement restrictions to a  
          broader classification of "sweatshop labor." 

          Among other things, SB 578 made the following major changes to  
          existing law:

                 Expanded existing law to include contracts involving the  
               procurement or laundering of apparel, garments and  
               corresponding accessories (including uniforms), in addition  
               to the procurement of equipment, materials or supplies.
                 Expanded existing law to cover contracts involving  
               domestic-made or laundered goods.
                 Required DIR to establish a contractor responsibility  
               program, including a "Sweat Free Code of Conduct,"  
               consisting of 13 specified terms and conditions of  
               employment, to be signed by all bidders on state contracts  
               and subcontracts.
                 Required state contractors to certify that no covered  
               items have been laundered or produced in whole or in part  
               by or with the benefit of sweatshop labor.
                 Defined "sweatshop labor" as all work or service exacted  
               from or performed by any person under the age of 18 years  
               in violation of more than one law of the country of  
               manufacture governing wage and benefits, occupational  
               health and safety, nondiscrimination, and freedom of  
               association.
                 Prohibited contracting between state agencies and any  
               contractor that does not meet the requirements of the  
               "Sweat Free Code of Conduct."
                 Required contractors to ensure, under penalty of  
               perjury, that their subcontractors comply in writing with  
               the "Sweat Free Code of Conduct."
                 Required the state to post proposed contracts on the  
               Internet and required state agencies to establish a  








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               mechanism for soliciting and reviewing any information  
               indicating violations of the "Sweat Free Code of Conduct."
                 Required the appropriate procurement agency, in  
               consultation with DIR, to employ a phased and targeted  
               approach to implementing the "Sweat Free Code of Conduct."
                 Authorized procurement policies involving apparel,  
               garments and corresponding accessories to have a phase-in  
               period of up to one year for purposes of feasibility and  
               providing sufficient notice to contractors and the general  
               public.
                 Required the appropriate procurement agency, in  
               consultation with DIR, to target other procurement  
               categories based on the magnitude of verified sweatshop  
               conditions and the feasibility of implementation, and  
               authorized them to set phase-in goals and timetables of up  
               to three years in order to achieve compliance with the  
               "Sweat Free Code of Conduct."
                 Required DIR to explore feasible and cost-effective  
               monitoring measures, as specified, to ensure compliance  
               with the law.
                 Authorized DIR to access information from nonprofit  
               organizations to determine whether contractors or  
               subcontractors "are compensating their employees at a level  
               that enables those employees to live above the applicable  
               poverty level."
                 Established a misdemeanor penalty for any person who  
               certifies as true any material matter pursuant to the  
               provisions of the law that he or she knows is false.



           Local Sweat Free Policies in California  

          In addition to SB 578, several governmental or other entities  
          throughout the nation have established their own sweat free  
          procurement policies, some of which include enforcement via the  
          use of an independent outside monitor.

           Background on Human Trafficking

           According to the Senate Committee on Governmental Organization's  
          analysis of this bill:

               "Human trafficking is the modern-day practice of slavery.   
               It's one of the fastest growing criminal industries in the  








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               world, consisting of the subjugation, recruitment,  
               harboring, and/or transportation of people for the purpose  
               of forced or coerced labor or commercial sexual  
               exploitation.  Every year traffickers generate billions of  
               dollars by exploiting those seeking to cross international  
               borders in search of a better life as well as those  
               vulnerable within the United States, including within the  
               State of California.
           
               Since passage of the Trafficking Victims Protection Act in  
               2000 and the United Nations Palermo Protocol, international  
               awareness of human trafficking has increased and new human  
               trafficking laws have been introduced in over half of the  
               countries around the world.  The International Labor  
               Organization estimates that over 12 million people  
               worldwide are working in some form of forced labor on  
               bondage and that more than 200 million children are at  
               work, many in hazardous forms of labor.
           
               Hilda Solis, the U.S. Secretary of Labor, recently stated  
               the 'most vulnerable persons - including women, indigenous  
               groups, and migrants - are the most likely to fall into  
               these exploitive situations and the current global economic  
               crisis has only exacerbated their vulnerability.'
           
               In 2005, Congress passed the Trafficking Victims Protection  
               Reauthorization Act, directing the Secretary of Labor and  
               the Department of Labor's Bureau of International Labor  
               Affairs (ILAB) to compile 'a list of goods that ILAB has  
               reason to believe were produced using forced labor or child  
               labor.'  One of the principal purposes of the List is to  
               inform the public of the significant incidence of child  
               labor and forced labor in the production of certain goods.   
               It is ILAB's intent that the List (published in 2009) will  
               serve as a useful tool for consumers, firms, governments,  
               and others who do not want to support such practices  
               through their purchases with the end goal being the  
               abolition of these practices.  The List contains122 goods  
               produced with forced labor, child labor, or both, in 58  
               countries.  When grouped by sector, agricultural crops  
               comprise the largest category.  There are 60 agricultural  
               goods on the List, 38 manufactured goods, and 23 mined or  
               quarried goods.  Production of pornography was a separate  
               category."









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          On June 14, 2010, the United States Department of State issued  
          its tenth annual "Trafficking in Persons Report."  That report  
          stated the following:


               "With the majority of modern slaves in agriculture and  
               mining around the world - and forced labor prevalent in  
               cotton, chocolate, steel, rubber, tin, tungsten, coltan,  
               sugar, and seafood - it is impossible to get dressed, drive  
               to work, talk on the phone, or eat a meal without touching  
               products tainted by forced labor.  Even reputable companies  
               can profit from abuse when they do not protect their supply  
               chain - whether at the level of raw materials, parts, or  
               final products - from modern slavery?


               ?There is no way to effectively monitor a supply chain  
               without tracing it all the way down to raw materials.  Such  
               research will lead to an understanding of supply and demand  
               factors used to encourage greater protections of the  
               workers whose labor contributes to downstream profits."


           Recent Oversight  

          In December of 2009, the Senate Judiciary Committee and the  
          Senate Committee on Labor and Industrial Relations held a joint  
          informational hearing on the subject of human trafficking and  
          supply chains.  According to the author's office, this  
          legislation is a product of that hearing and subsequent  
          discussions.

           ARGUMENTS IN SUPPORT  :

          Supporters argue that, in a global economy, we have seen a race  
          to the bottom as free trade policies have allowed corporations  
          to jump from country to country in search of the cheapest labor  
          and the least regulations.  As a result, products are produced  
          throughout the globe using forced labor, child labor, indentured  
          servitude and other abusive conditions.  The current global  
          economic crisis has only exacerbated the problem by worsening  
          the degree of poverty that is often a precursor to slavery and  
          trafficking.  

          Supports contend that while the State of California cannot  








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          always eradicate such labor conditions, it should not legitimate  
          them by doing business with those who engage in immoral  
          practices.  They argue that as the eighth largest economy, and  
          one of the largest purchasers of goods in the world, California  
          bears a moral responsibility to be a leader in socially  
          responsible procurement and purchasing practices that insist on  
          humane and lawful labor standards.  This bill would help further  
          ensure that human rights violations are not subsidized with  
          taxpayer dollars.

           ARGUMENTS IN OPPOSITION  :

          Opponents argue that this bill will raise the cost for  
          businesses through increased litigation, either against  
          businesses or because businesses will believe they were  
          inappropriately targeted, and delay project and service  
          delivery.  This in turn will raise the cost of state procurement  
          at a time when California is facing a cash and budget crisis.   
          To the extent that these projects are delayed by protests and  
          litigation, this bill would slow the state's economic recovery  
          at a time when unemployment continues to hover at high levels.

          Opponents also state that, according to their discussions with  
          DIR, the current law has yet to be enforced.  Therefore, this  
          bill would expand a section of law that has yet to be used, even  
          though there is no estimation of how effective the current law  
          is and whether it should be expanded.  Opponents also contend  
          that the bill inappropriately allows state agencies to contract  
          with non-profit organizations and non-governmental  
          organizations.  They express serious concerns about this type of  
          third-party enforcement of state law on private businesses.

          Opponents conclude that, while the business community opposes  
          slavery and the abusive treatment of workers, this bill seeks to  
          use a one-size-fits-all approach on businesses of varying sizes  
          and industries.  They contend that the bill will ultimately  
          increase costs to the state over a very difficult issue that is  
          best handled on federal and international levels.

           RELATED LEGISLATION  :

          SB 657 (Steinberg) would, among other things, beginning January  
          1, 2011, require specified retailers and manufacturers doing  
          business in the state to develop, maintain, and implement  
          policies related to their compliance with federal and state  








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          trafficking prohibitions related to procurement and their supply  
          chain.  SB 657 is currently pending in the Assembly Judiciary  
          Committee.

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          Alliance to Stop Slavery and End Trafficking
          California Commission on the Status of Women
          California Conference Board of the Amalgamated Transit Union
          California Conference of Machinists
          California Employment Lawyers Association
          California Labor Federation, AFL-CIO
          California Teamsters Public Affairs Council
          Coalition to Abolish Slavery and Trafficking
          Engineers and Scientists of California, IFPTE Local 20
          International Longshore and Warehouse Union
          Jockeys' Guild
          Professional and Technical Engineers, IFPTE Local 21
          United Food and Commercial Workers, Western States Council
          UNITE-HERE!
          Utility Workers Union of America, Local 132
           
            Opposition 
           
          American Council of Engineering Companies - California
          Associated Builder and Contractors of California
          California Business Properties Association
          California Chamber of Commerce
          California Chapter of the American Fence Association
          California Fence Contractors Association
          California Independent Grocers Association
          California Manufacturers and Technology Association
          California Retailers Association
          Engineering Contractors Association
          Flasher Barricade Association
          Marin Builders Association
          TechAmerica
          Western Electrical Contractors Association


           Analysis Prepared by  :    Ben Ebbink / L. & E. / (916) 319-2091