BILL ANALYSIS Ó SENATE JUDICIARY COMMITTEE Senator Hannah-Beth Jackson, Chair 2013-2014 Regular Session AB 2288 (Hernández) As Introduced Hearing Date: June 10, 2014 Fiscal: No Urgency: No TMW SUBJECT Child Labor Protection Act of 2014 DESCRIPTION This bill would toll the statute of limitations for unlawful labor practices until a child worker attains the age of majority. This bill would also authorize an award of treble damages to an individual, who is discharged, threatened with discharge, demoted, suspended, retaliated against, subjected to adverse action, or in any other manner discriminated against in the terms of conditions of his or her employment because he or she filed a claim or civil action alleging a violation of the Labor Code that arose while he or she was a minor. This bill would also increase the civil penalty to not more than $25,000 and not less than $50,000 for a violation that presents an imminent danger or serious physical harm to a child worker 12 years of age or younger. BACKGROUND The federal Fair Labor Standards Act established wage, working hour, and working condition protections for child workers. California enacted similar provisions and has expanded these protections over the years. A recent study of child labor violations in the United States called on states to increase child labor law protections. (Human Rights Watch, Fields of Peril, Child Labor in US Agriculture (2010).) To better protect child workers, this bill (more) AB 2288 (Hernández) Page 2 of ? would enact the Child Labor Protection Act of 2014 and extend (toll) the statute of limitations for a child worker's labor violation claims until the child reaches the age of 18, authorize an award of treble damages for discrimination or retaliation against a child worker who files a labor claim or civil action, and increase civil penalties for violations that put a child worker in imminent danger or present a substantial probability that death or serious physical harm would result to the child. CHANGES TO EXISTING LAW Existing law defines "minor" to mean any person under the age of 18 years who is required to attend school and any person under the age of six years. A person under the age of 18 years who is not required to attend school solely because that person is a nonresident of California shall still be considered a minor. (Lab. Code Sec. 1286(c).) Existing law restricts the occupations in which minors may be employed and the number of hours and times they may work. Distinctions are made according to age, with special rules and exceptions in some groups. (Ed. Code Secs. 49100-49183; Lab. Code Secs. 1285-1312, 1390-1399.) Existing law generally protects individuals regarding wages, working hours, and working conditions. (Lab. Code Secs. 200 et seq., 500 et seq., 1171 et seq.) Existing law protects individuals from unlawful discrimination for reporting employment violations and provides a statute of limitations for bringing a claim of discrimination within six months of the occurrence of the violation. (Lab. Code Secs. 98.6, 98.7.) Existing law authorizes the Director of Industrial Relations to issue a citation to a person in violation of any statutory provision or rule or regulation relating to the employment of minors. (Lab. Code Sec. 1287.) Existing law requires a citation issued to a person in violation of labor laws against minors to be classified as follows: Class "A" violations are issued when there is an imminent danger to minor employees or a substantial probability that death or serious physical harm would result therefrom; the civil penalty for these violations is not less than $5,000 and not more than $10,000 for each and every violation, however, AB 2288 (Hernández) Page 3 of ? willful or repeated violations shall receive higher civil penalties than those imposed for comparable nonwillful or first violations, not to exceed $10,000; Class "B" violations are issued when there is a direct or immediate relationship to the health, safety, or security of minor employees, other than class "A" violations; the civil penalty for these violations is not less than $500 and not to exceed $1,000 for each and every violation, however, willful or repeated violations shall receive higher civil penalties than those imposed for comparable nonwillful or first violations. (Lab. Code Sec. 1288.) Existing law generally provides a statute of limitations of three years for a person to bring a claim based on statutory law, which includes labor violations claims. (Code Civ. Proc. Sec. 338(a).) Existing law tolls the statute of limitations for specified civil actions involving claims made by a minor until the minor reaches the age of majority. (Code Civ. Proc. Sec. 352.) This bill would enact the Child Labor Protection Act of 2014 and would provide that the statute of limitations for claims involving labor law violations would be tolled until the individual allegedly aggrieved by an unlawful practice attains the age of majority; this bill would declare that it is declaratory of existing law. This bill would provide that, in addition to other remedies available, an individual who is discharged, threatened with discharge, demoted, suspended, retaliated against, subjected to an adverse action, or in any other manner discriminated against in the terms or conditions of his or her employment because the individual filed a claim or civil action alleging a violation of this code that arose while the individual was a minor, whether the claim or civil action was filed before or after the individual reached the age of majority, shall be entitled to treble damages. This bill would increase the amount of a Class "A" civil penalty to an amount not less than $25,000 and not exceeding $50,000 for each violation against a child worker 12 years of age or younger. COMMENT 1. Stated need for the bill AB 2288 (Hernández) Page 4 of ? The author writes: Some of the earliest labor laws in our nation were designed to protect child laborers from exploitation and abusive working conditions. However, child labor law violations continue to be rampant across many industries. In November 2011, Human Rights Watch published a report on child labor in the United States which exposed the fact that children as young as seven are working on farms, often 10 or more hours per day at the peak of harvest. In addition, the National Human Trafficking Resource Center reported that from 2007 to 2013, 20 percent of calls to their hotline from California reported labor trafficking, and nearly 30 percent of the victims were minors. Assembly Bill (AB) 2288 would strengthen current law to protect children from child labor law abuses. 2. Clarifying tolling of statute of limitations for child worker labor claims This bill would toll the statute of limitations for all claims of employer violations of the Labor Code brought by an employee who was a minor at the time of the alleged violation. Generally speaking, a cause of action that is based on a violation of a statute must be commenced within three years after the cause of action has accrued. (Code Civ. Proc. Sec. 338(a).) Unless otherwise provided by statute, most claims of labor violations are subject to this three-year statute of limitations. However, that statute of limitations is tolled if, at the time the cause of action accrued, the claimant was under the age of majority, and the time from the date of the alleged violation to the date the claimant reaches 18 years old is not part of the time limited for the commencement of the action. (Code Civ. Proc. Sec. 352(a).) The author argues that child workers may not be fully aware of their rights under the law, and are uniquely vulnerable to intimidation and coercion not to come forward with claims for violations of the law. Consistent with existing law, this bill would expressly codify that a child worker would be able to bring his or her labor violation claim after the child reaches the age of 18, regardless of when the alleged labor violation occurred. This bill would also state that this provision is AB 2288 (Hernández) Page 5 of ? declaratory of existing law to avoid any inadvertent confusion that these claims would not be tolled under existing law. 3. Treble damages for labor violations against child employees This bill would authorize an award of treble damages if a child worker is discriminated or retaliated against for filing a labor violation claim or civil action. The author argues that this provision would provide a powerful disincentive to employers to retaliate against children, who are the most vulnerable workers. In support, the American Federation of State, County and Municipal Employees, AFL-CIO argues that "[m]inors have special protections because they are particularly vulnerable to labor exploitation; they should not be punished for asserting their right to a safe and fair workplace." An award of treble damages to child workers is not unusual. In 2012, the Legislature enacted AB 1660 (Campos, Ch. 634, Stats. 2012) to increase protection for child performers by implementing a "Child Performer Services Permit" process and background checks for persons who wish to represent or provide services to those who are minors. Under AB 1660, a person may not provide child performer services (i.e., talent agents and acting coaches) unless the person applies for and receives a Child Performer Services Permit, and any child injured by that person's failure to submit to that permit process may be awarded up to three times the damages incurred. Similarly, this bill would provide an increased damage award for the protection of child workers. By authorizing an award of treble damages to a child worker who is discriminated or retaliated against for reporting labor abuses, this bill would further protect child workers from abusive labor practices. 4. Increased civil penalties for egregious labor violations against child employees 12 years of age and younger Existing law authorizes a civil penalty between $5,000 and $10,000 for each labor practice violation when there is an imminent danger to minor employees or a substantial probability that death or serious physical harm would result therefrom. This bill would increase that civil penalty to not less than $25,000 and not more than $50,000 for each violation involving a child worker 12 years of age or younger. The author argues that this bill would provide added protections for the youngest child workers against the most serious types of violations. According to Human Rights Watch, child labor is AB 2288 (Hernández) Page 6 of ? often employed in the agricultural industry, where child workers are exposed to "occupations deemed particularly hazardous for children including operating equipment such as tractors of over 20 horsepower take-off, corn and cotton pickers, grain combines, and hay mowers; working in yards, pens, or stalls occupied by a bull, boar, or stud horse; working from a ladder at a height of over 20 feet; working inside fruit, forage, or grain storage containers; and handling or applying agricultural chemicals classified as Category I or II of toxicity." (Human Rights Watch, Fields of Peril, Child Labor in US Agriculture (2010), p. 78.) Existing law has recognized that child workers 12 years of age and younger should be restricted from certain occupational dangers, including "an agricultural zone of danger," which means on or about moving equipment, in or about unprotected chemicals, and in or about any unprotected water hazard. (Lab. Code Sec. 1293.1.) Consistent with the Legislature's prior intent to protect the youngest and weakest workers from dangerous or life-threatening environments, this bill would increase civil penalties against employers of child workers age 12 or younger. Support : American Federation of State, County and Municipal Employees, AFL-CIO; California Conference of Machinists; California Conference of the Amalgamated Transit Union; California Labor Federation, AFL-CIO; California School Employees Association, AFL-CIO; California Teachers Association; California Teamsters Public Affairs Council; Communications Workers of America, AFL-CIO, District 9; Engineers & Scientists of California, IFPTE Local 20; International Longshore and Warehouse Union, Coast Division; Professional & Technical Engineers, IFPTE Local 21; UNITE HERE; Utility Workers Union of America, Local 132 Opposition : None Known HISTORY Source : Author Related Pending Legislation : None Known Prior Legislation : None Known Prior Vote : Assembly Floor (Ayes 76, Noes 0) AB 2288 (Hernández) Page 7 of ? Assembly Committee on Judiciary (Ayes 10, Noes 0) Assembly Committee on Labor and Employment (Ayes 7, Noes 0) **************