BILL NUMBER: AB 1897 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 22, 2014
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, wages and the failure to obtain
valid workers' compensation coverage. The bill would prohibit a
client employer from shifting to the labor contractor legal duties or
liabilities under workplace safety provisions with respect to
workers provided by the labor contractor. The bill would define
a client employer as a business entity that obtains or is provided
workers to perform labor 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
within the client employer's usual course of business and
business. The bill would except from
this the definition of labor contractor
specified nonprofit, labor, and motion picture payroll services
organizations and 3rd parties engaged in an employee leasing
arrangement, as specified . 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) (A) "Client employer" means a business
entity, regardless of its form, that obtains or is provided workers
to perform labor 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.
(B) "Client employer" does not include any of the following:
(i) 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.
(ii) A business entity with five or fewer workers supplied by a
labor contractor or labor contractors to the client employer at any
given time.
(iii) 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.
(3) "Labor contractor" means an individual or entity that
supplies, either with or without a contract, a client employer with
workers to perform labor 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 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.
(D) A third party who is a party to an employee leasing
arrangement, as defined by Rule 4 of Section V of the California
Workers' Compensation Experience Rating Plan-1995 (Section 2353.1 of
Title 10 of the California Code of Regulations), as it read on
January 1, 2014, except those arrangements described in subrule d of
Rule 4 of Section V, if the employee leasing arrangement
contractually obligates the client employer to assume all civil legal
responsibility and civil liability under this act.
(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.
(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.
(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 workers
supplied by that labor contractor for all
both of the following:
(1) The payment of wages.
(2) The obligation to provide a safe work environment under the
provisions of Division 5 (commencing with Section 6300).
(3)
(2) Failure to secure valid workers' compensation
coverage as required by Section 3700.
(c) A client employer shall not shift to the labor contractor any
legal duties or liabilities under the provisions of Division 5
(commencing with Section 6300) with respect to workers supplied by
the labor contractor.
(c)
(d) At least 30 days prior to filing a claim
civil action 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)
(e) 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 or civil
action .
(e)
(f) The provisions of subdivision (b)
subdivisions (b) and (c) are in addition to, and
shall be supplemental of, any other theories of liability or
requirement established by statute or common law.
(f)
(g) 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)
(h) 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)
(i) 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)
(j) The Labor Commissioner may adopt regulations and
rules of practice and procedure necessary to administer and enforce
the provisions of subdivisions (b) and (h)
(i) that are under his or her jurisdiction.
(j)
(k) 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)
(c) and (h) (i)
that are under its jurisdiction.
(k)
(l) 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) (i) that are under its
jurisdiction.
(l)
(m) A waiver of this section is contrary to public
policy, and is void and unenforceable.
(m)
(n) 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)
(o) This section shall not be interpreted to impose
liability on a client employer for the use of an independent
contractor other than a labor contractor or to change the definition
of independent contractor.
(o)
(p) 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 5830
of the Public Utilities Code, a direct-to-home satellite
service provider, or a telephone corporation as defined by Section
234 of the Public Utilities Code, based upon its
subcontracting contracting with a company to
build, install, maintain, or perform repair work utilizing the
employees and vehicles of the subcontractor
contractor if the name of the subcontractor
contractor is visible on employee uniforms and vehicles.
(4) A motor club holding a certificate of authority issued
pursuant to Chapter 2 (commencing with Section 12160) of Part 5 of
Division 2 of the Insurance Code when it contracts with third parties
to provide motor club services utilizing the employees and vehicles
of the third-party contractor if the name of the contractor is
visible on the contractor's vehicles.