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  
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          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,  
                                                                      



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            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  
                                                                      



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          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  
                                                                      



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          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  
                                                                      



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          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) 
                                                                      



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          Assembly Committee on Judiciary (Ayes 10, Noes 0)
          Assembly Committee on Labor and Employment (Ayes 7, Noes 0)

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