BILL NUMBER: AB 1897 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 19, 2014
AMENDED IN SENATE JULY 1, 2014
AMENDED IN ASSEMBLY MAY 28, 2014
AMENDED IN ASSEMBLY MAY 23, 2014
AMENDED IN ASSEMBLY APRIL 10, 2014
AMENDED IN ASSEMBLY MARCH 28, 2014
INTRODUCED BY Assembly Member Roger Hernández
FEBRUARY 19, 2014
An act to add Section 2810.3 to the Labor Code, relating to
private employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 1897, as amended, Roger Hernández. Labor contracting: client
liability.
Existing law regulates the terms and conditions of employment and
establishes specified obligations of employers to employees. Existing
law prohibits a person or entity from entering into a contract for
labor or services with a construction, farm labor, garment,
janitorial, security guard, or warehouse contractor, if the person or
entity knows or should know that the contract or agreement does not
include sufficient funds for the contractor to comply with laws or
regulations governing the labor or services to be provided.
This bill would require a client employer to share with a labor
contractor all civil legal responsibility and civil liability for
all workers supplied by that labor contractor for the
payment of wages, the obligation to provide a safe work environment,
as specified, and the failure to obtain valid workers' compensation
coverage. The bill would define a client employer as a business
entity that obtains or is provided workers to perform labor
or services within the usual course of business from a
labor contractor, except as specified. The bill would define a labor
contractor as an individual or entity that supplies workers, either
with or without a contract, to a client employer to perform labor
or services within the client employer's usual
course of business and would except from this definition specified
nonprofit, labor, and motion picture payroll services organizations.
The bill would specify that it does not prohibit client employers and
labor contractors from mutually contracting for otherwise lawful
remedies for violations of its provisions by the other party. The
bill would require a client employer or labor contractor to provide
to a requesting enforcement agency or department, and make available
for copying, information within its possession, custody, or control
required to verify compliance with applicable state laws. The bill
would authorize the Labor Commissioner, the Division of Occupational
Safety and Health, and the Employment Development Department to adopt
necessary regulations and rules to administer and enforce the bill's
provisions. The bill would provide that waiver of its provisions is
contrary to public policy, void, and unenforceable. The bill
would prohibit its provisions from being interpreted to impose
liability in specified circumstances.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 2810.3 is added to the Labor Code, to read:
2810.3. (a) As used in this section:
(1) "Client employer" means a business entity, regardless of its
form, that obtains or is provided workers to perform labor
or services within its usual course of business from a
labor contractor. "Client employer" does not include a business
entity with a workforce of less than 25 workers, including those
hired directly by the client employer and those obtained from, or
provided by, any labor contractor, and five or fewer workers supplied
by a labor contractor at any given time. "Client employer" does not
include the state or any political subdivision of the state,
including any city, county, city and county, or special district.
(2) "Labor" has the same meaning provided by Section 200.
(2)
(3) "Labor contractor" means an individual or entity
that supplies, either with or without a contract, a client employer
with workers to perform labor or services within
the client employer's usual course of business. "Labor contractor"
does not include any of the following:
(A) A bona fide nonprofit, community-based organization that
provides services to low-wage workers.
(B) A bona fide labor organization or apprenticeship program or
hiring hall operated pursuant to a collective bargaining agreement.
(C) A motion picture payroll services company as defined in
subparagraph (A) of paragraph (4) of subdivision (f) of Section 679
of the Unemployment Insurance Code.
(3)
(4) "Wages" has the same meaning provided by Section
200 and all sums payable to an employee or the state based upon any
failure to pay wages, as provided by law.
(4)
(5) "Worker" does not include an employee who is exempt
from the payment of an overtime rate of compensation for executive,
administrative, and professional employees pursuant to wage orders by
the Industrial Welfare Commission described in Section 515.
(5)
(6) "Usual course of business" means the regular and
customary work of a business, performed within or upon the premises
or worksite of the client employer.
(b) A client employer shall share with a labor contractor all
civil legal responsibility and civil liability for all w
orkers supplied by that labor contractor for all of the
following:
(1) The payment of wages to workers provided by a labor
contractor. wages.
(2) The obligation to provide a safe work environment under the
provisions of Division 5 (commencing with Section 6300).
(3) Failure to secure valid workers' compensation coverage as
required by Section 3700.
(c) At least 30 days prior to filing a claim against a client
employer for violations covered by this section, a worker or his or
her representative shall notify the client employer of violations
under subdivision (b).
(d) Neither the client employer nor the labor contractor may take
any adverse action against any worker for providing notification of
violations or filing a claim.
(e) The provisions of subdivision (b) are in addition to, and
shall be supplemental of, any other theories of liability or
requirement established by statute or common law.
(f) This section does not prohibit a client employer from
establishing, exercising, or enforcing by contract any otherwise
lawful remedies against a labor contractor for liability created by
acts of a labor contractor.
(g) This section does not prohibit a labor contractor from
establishing, exercising, or enforcing by contract any otherwise
lawful remedies against a client employer for liability created by
acts of a client employer.
(h) Upon request by a state enforcement agency or department, a
client employer or a labor contractor shall provide to the agency or
department any information within its possession, custody, or control
required to verify compliance with applicable state laws. Upon
request, these records shall be made available promptly for
inspection, and the state agency or department shall be permitted to
copy them. This subdivision does not require the disclosure of
information that is not otherwise required to be disclosed by
employers upon request by a state enforcement agency or department.
(i) The Labor Commissioner may adopt regulations and rules of
practice and procedure necessary to administer and enforce the
provisions of subdivisions (b) and (h) that are under his or her
jurisdiction.
(j) The Division of Occupational Safety and Health may adopt
regulations and rules of practice and procedure necessary to
administer and enforce the provisions of subdivisions (b) and (h)
that are under its jurisdiction.
(k) The Employment Development Department may adopt regulations
and rules of practice and procedure necessary to administer and
enforce the provisions of subdivisions (b) and (h) that are under its
jurisdiction.
(l) A waiver of this section is contrary to public policy, and is
void and unenforceable.
(m) This section shall not be interpreted to impose individual
liability on a homeowner for labor or services received at the home
or the owner of a home-based business for labor or services received
at the home.
(n) This section shall not be interpreted to impose liability on a
client employer for the use of a bona fide an
independent contractor other than a labor contractor
or to change the definition of independent contractor.
(o) This section shall not be interpreted to impose liability on
the following:
(1) A client employer that is not a motor carrier of property
based solely on the employer's use of a third-party motor carrier of
property with interstate or intrastate operating authority to ship or
receive freight.
(2) A client employer that is a motor carrier of property
subcontracting with, or otherwise engaging, another motor carrier of
property to provide transportation services using its own employees
and commercial motor vehicles, as defined in Section 34601 of the
Vehicle Code.
(3) A client employer that is a cable operator, as defined by
Section 8350 of the Public Utilities Code, based upon its
subcontracting with a company to build, install, maintain, or perform
repair work utilizing the employees and vehicles of the
subcontractor if the name of the subcontractor is visible on employee
uniforms and vehicles.