Amended in Senate January 6, 2014

Senate Bill No. 477

Introduced by Senator Steinberg

February 21, 2013

begin delete An act relating to the Political Reform Act of 1974. end delete begin insert An act to amend Sections 9998.1, 9998.6, and 9998.8 of, to add Sections 9998.1.5, 9998.2.5, 9998.10, and 9998.11 to, and to repeal and add Section 9998.2 of, the Business and Professions Code, relating to foreign labor contractors. end insert

LEGISLATIVE COUNSEL’S DIGEST

SB 477, as amended, Steinberg. begin delete Political Reform Act of 1974: contributions: ballot measures. end delete begin insert Foreign labor contractors: registration. end insert

begin insert

Existing federal law permits certain aliens to engage in employment in the United States under specified conditions. Existing state law regulates the services of foreign labor contractors, as defined, with regard to contracts, recruitment procedures and representations, and information as to terms and conditions of employment. Existing law provides that any person who violates or induces a violation of the latter provisions is guilty of a misdemeanor. Existing law also permits any person aggrieved by a violation of these provisions to bring an action for injunctive relief or damages, or both, and authorizes recovery of damages, costs, and reasonable attorney’s fees, in an amount not less than $500, if the aggrieved person prevails on the action.

end insert begin insert

Under existing state law, the Division of Labor Standards Enforcement in the Department of Industrial Relations, under the direction of the Labor Commissioner, enforces and administers the licensing and supervision of farm labor contractors, as defined.

end insert begin insert

This bill would change the definition of a foreign labor contractor to mean a person who performs foreign labor contracting activity, as defined, and would require a foreign labor contractor to register with the Labor Commissioner and would impose certain conditions for registration, including payment of specified fees. The bill would require the commissioner to enforce and administer the registration and supervision of foreign labor contractors, and would authorize the commissioner to adopt regulations or policies and procedures to implement these provisions. The bill would prohibit a person from knowingly entering into an agreement for the services of a foreign labor contractor that is not registered with the commissioner. The bill would also require foreign labor contractors to disclose specified information and deposit with the commissioner a surety bond in a specified amount, for payment of any amount adjudicated against the foreign labor contractor, as a condition of registration, as specified. The bill would further require persons knowingly using the services of foreign labor contractors to obtain foreign workers to disclose specified information to the commissioner.

end insert begin insert

The bill would require a foreign labor contractor to disclose in writing to each foreign worker who is recruited for employment certain information, as specified. The bill would prohibit a foreign labor contractor and its agent from assessing a fee or cost to a foreign worker for foreign labor contracting activities. The bill would also prohibit charging a foreign worker with any costs or expenses not customarily assessed against similarly situated workers, and would limit the amount of housing costs charged to the foreign worker to the market rate for similar housing. The bill would prohibit requiring a foreign worker to pay any costs or expenses prior to commencement of work. The bill would prohibit additional requirements or changes to the terms of the contract originally provided to and signed by the foreign worker, unless the foreign worker is provided at least 48 hours to review and consider the additional requirements or changes, and would require the specific consent of the foreign worker, as provided, to each additional requirement or change.

end insert begin insert

The bill would authorize a civil penalty for violations of these provisions, would authorize the commissioner or a person aggrieved by a violation of these provisions to bring an action for injunctive relief or damages, or both, and would authorize recovery of damages, costs, and reasonable attorney’s fees, as specified, including enforcement of liability against the bond deposited with the commissioner. The bill would exempt a person from joint and several liability for an act or omission by a foreign labor contractor if the person is using a registered foreign labor contractor’s services. The bill would also exempt a person who uses the services of a registered foreign labor contractor from misdemeanor liability for an act or omission by the foreign labor contractor. Because this bill would expand the scope of the provisions regulating foreign labor contractors, a violation of which is a misdemeanor, this bill would impose a state-mandated local program.

end insert begin insert

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

end insert begin insert

This bill would provide that no reimbursement is required by this act for a specified reason.

end insert begin delete

The Political Reform Act of 1974 imposes various limitations on contributions made to, or accepted by, candidates for elective office and campaign committees that support or oppose candidates and ballot measures.

end delete begin delete

This bill would declare the intent of the Legislature to enact legislation that would prohibit a political campaign committee from accepting large contributions made for the purpose of supporting the qualification of a statewide initiative ballot measure until the committee has first received a significant number of small individual contributions made for the same purpose, thereby demonstrating a sufficient degree of public support for the proposed initiative measure.

end delete

Vote: majority. Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program:  begin delete no end delete begin insert yes end insert .

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert begin insert

The Legislature finds and declares all of the
following:

end insert begin insert

(a) Foreign labor contractors are increasingly relied upon to
facilitate the movement of labor from one country to another.
California is the leading destination state in the United States for
temporary foreign workers. As of January 2011, there were
130,000 temporary foreign workers in California.

end insert begin insert

(b) While many foreign labor contractors behave ethically and
are engaged in lawful conduct, some foreign labor contractors
are often complicit with, or are directly involved in, the illegal
trafficking of foreign workers.

end insert begin insert

(c) Unscrupulous foreign labor contractors often charge
exorbitant fees for their services, force foreign workers into debt
bondage, falsify documents, and deceive foreign workers about
the terms and conditions of work, thereby increasing their
vulnerability to human trafficking.

end insert begin insert

(d) The incidence of known human trafficking cases involving
foreign labor recruiters is increasing dramatically in the United
States. Stricter regulation of foreign labor contractors will ensure
the integrity of the Californian economy, which is undermined
when unregulated persons conspire to fraudulently deceive foreign
workers about the terms and conditions of work.

end insert begin insert

(e) California already regulates farm labor contractors through
a comprehensive licensing system and provides some oversight of
the activities of foreign labor contractors. This bill expands
regulation of the activities of foreign labor contractors by the
following:

end insert begin insert

(1) Requiring foreign labor contractors to register with the
appropriate state agency.

end insert begin insert

(2) Requiring disclosure of the use of foreign labor contractors,
and their agents, by persons seeking to employ foreign workers.

end insert begin insert

(3) Imposing penalties on a person using an unregistered foreign
labor contractor to obtain foreign workers or employees.

end insert begin insert

(4) Expanding the remedies available to foreign workers
aggrieved by the actions of foreign labor contractors and those
acting in concert with them.

end insert begin insert

(f) It is the intent of the Legislature that the Labor Commissioner
proceed as expediently as possible in reviewing applications for
foreign labor contractor registration to ensure that workers may
come to the United States for legitimate employment without undue
delay.

end insert

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 9998.1 of the end insert begin insert Business and Professions Code end insert
begin insert is amended to read: end insert

9998.1.  

The following definitions are applicable to this chapter:

(a) “Person” includes any natural person, company, firm,
begin delete partnership, end delete begin insert partnership end insert or joint venture, association, corporation,
limited liability company, or sole proprietorship.

(b)  begin delete “Compensation” end delete begin insert “Foreign labor contracting activity” end insert
means begin delete all forms end delete begin insert recruiting or soliciting for compensation a foreign
worker who resides outside end insert of begin delete remuneration end delete begin insert the United States in
furtherance of that worker’s employment in California, including
when that activity occurs wholly outside the United States.
“Foreign labor contracting activity” does not include the services
of an employer, end insert or begin delete consideration for the provision of employment end delete
begin insert employee of an employer, if those end insert services begin insert are provided directly end insert
to foreign workers begin delete by a foreign labor contractor. end delete begin insert solely to find
workers for the employer’s own use. end insert

begin delete end delete begin delete

(c) “Employment services” includes, but is not limited to,
procuring employment, marketing labor, or otherwise arranging
the employment or transportation, housing, and other living
accommodations for foreign workers either on behalf of those
workers or on behalf of another party.

end delete begin delete end delete begin delete

(d)

end delete

begin insert (c) end insert  “Foreign worker” means any person seeking employment
who is not a United States citizen begin insert or permanent resident end insert but who
is authorized by the federal government to work in the United
States, including a person who engages in temporary
nonagricultural labor pursuant to Section begin delete 1101(a)(15)(H)(ii)(b) end delete
begin insert 101(a)(15)(H)(ii)(b) end insert of begin delete Title 8 of end delete the federal Immigration and
Nationality begin delete Act. end delete begin insert Act (8 U.S.C. Sec. 1101(a)(15)(H)(ii)(b)). end insert

begin delete

(e)

end delete

begin insert (d) end insert  “Foreign labor contractor” means any person who begin delete for
compensation agrees to assist in securing end delete begin insert performs foreign labor
contracting activity, including any person who performs foreign
labor contracting activity wholly outside the United States, except
that the term does not include any entity of federal, state, end insert or begin insert local
government. “Foreign labor contractor” does not include a person
licensed by the Labor Commissioner as a talent agency under
Chapter 4 (commencing with Section 1700) of Part 6 of Division
2 of the Labor Code, or a person end insert who begin delete actually secures for or
provides employment services to foreign workers. end delete begin insert obtained and
maintains full written designation from the United States
Department of State under Part 62 of Title 22 of the Code of
Federal Regulations. end insert

begin insert

begin insert SEC. 3. end insert   

end insert

begin insert Section 9998.1.5 is added to the end insert begin insert Business and
Professions Code end insert begin insert , to read: end insert

begin insert

begin insert 9998.1.5. end insert   

(a) On and after July 1, 2015, a person acting as a
foreign labor contractor shall register with the Labor
Commissioner in accordance with the terms and procedures for
registration established by the commissioner by January 1, 2015.
On and after August 1, 2015, the commissioner shall post on its
Internet Web site the names and contact information for all
registered foreign labor contractors and a list of the names and
contact information for any foreign labor contractors denied
renewal or registration.

(b) The Labor Commissioner may not register a person to act
as a foreign labor contractor, and may not renew a registration,
until all of the following conditions are satisfied:

(1) The person has executed a written application in a form
prescribed by the commissioner, subscribed and sworn to by the
person, and containing all of the following:

(A) A statement by the person of all facts required by the
commissioner concerning the applicant’s character, competency,
responsibility, and the manner and means by which the person
proposes to conduct operations as a foreign labor contractor if
registered.

(B) The names and addresses of all persons, except bona fide
employees on stated salaries, financially interested, either as
partners, associates, or profit sharers, in the proposed operation
as a foreign labor contractor, together with the amount of their
respective interests.

(C) A declaration consenting to the designation by a court or
the commissioner as an agent available to accept service of
summons in any action against the registrant, if the registrant has
left the jurisdiction in which the action is commenced or otherwise
has become unavailable to accept service.

(2) The commissioner, after investigation, is satisfied as to the
character, competency, and responsibility of the person.

(3) (A) The person has deposited with the commissioner a surety
bond in an amount based on the size of the person’s annual gross
receipts from operations as a foreign labor contractor, as follows:

(i) For gross receipts up to five hundred thousand dollars
($500,000), a fifty-thousand-dollar ($50,000) bond.

(ii) For gross receipts of five hundred thousand dollars
($500,000) to two million dollars ($2,000,000), a
one-hundred-thousand-dollar ($100,000) bond.

(iii) For gross receipts greater than two million dollars
($2,000,000), a one-hundred-fifty-thousand-dollar ($150,000)
bond.

(B) If the foreign labor contractor has been the subject of a final
judgment in a year in an amount equal to that of the bond required,
that contractor shall be required to deposit an additional bond
within 60 days. The bond shall be payable to the people of the
State of California and shall be conditioned on the foreign labor
contractor complying with all the terms and provisions of this
chapter and paying all damages occasioned to any person by
failure to do so, or by any violation of this chapter, or false
statements or misrepresentations made in the registration process.
The bond shall also be payable for interest on wages and for any
damages arising from violation of applicable orders of the
Industrial Welfare Commission, and for any other monetary relief
awarded to a foreign worker as a result of a violation of law by
the foreign labor contractor.

(4) The person has paid to the commissioner a registration fee
and a filing fee in a total amount the commissioner determines is
sufficient to support the ongoing costs of the program.

(c) The commissioner may not register a person as a foreign
labor contractor, if the person was found by a court, the Secretary
of Labor, or the commissioner to have violated any of the following
provisions:

(1) The federal Trafficking Victims Protection Act of 2000
(Division A, Public Law 106-386), as amended.

(2) Sections 1682 to 1699, inclusive, of the Labor Code.

(3) Section 236.1 of the Penal Code.

(4) An applicable guest worker program.

end insert

begin insert

begin insert SEC. 4. end insert   

end insert

begin insert Section 9998.2 of the end insert begin insert Business and Professions Code end insert
begin insert is repealed. end insert

begin delete

9998.2.  

Every contract for the provision of employment
services to foreign workers shall be written in the primary language
of the foreign worker and shall include all material terms including,
but not limited to, any and all compensation or consideration to
be provided to the foreign worker in exchange for that worker’s
labor or services, any wages, housing, transportation, other living
accommodations, and other benefits which are to be provided.

end delete

begin insert

begin insert SEC. 5. end insert   

end insert

begin insert Section 9998.2 is added to the end insert begin insert Business and Professions
Code end insert begin insert , to read: end insert

begin insert

begin insert 9998.2. end insert   

(a) On and after July 1, 2015, a person who knows or
should have known that the person is using the services of a foreign
labor contractor to procure foreign workers or employees pursuant
to subdivision (b) of Section 9998.1 shall disclose this information
to the Labor Commissioner in accordance with the terms and
procedures established by the commissioner by January 1, 2015.

(b) The disclosure shall include, but is not limited to, the
following:

(1) The name, address, and contact information of the person
designated by the employer to work with a foreign labor contractor.

(2) A declaration consenting to the designation by a court of
the commissioner as an agent available to accept service of
summons in any action against the person, if the person has left
the jurisdiction in which the action is commenced or otherwise
has become unavailable to accept service.

(c) A person may not knowingly enter into an agreement for the
services of a foreign labor contractor that is not registered under
this chapter.

end insert

begin insert

begin insert SEC. 6. end insert   

end insert

begin insert Section 9998.2.5 is added to the end insert begin insert Business and
Professions Code end insert begin insert , to read: end insert

begin insert

begin insert 9998.2.5. end insert   

(a) A foreign labor contractor shall ascertain and
disclose in writing to each foreign worker who is recruited for
employment in English and in the primary language of the foreign
worker being recruited, at the time of the foreign worker’s
recruitment, the following information:

(1) The identity of the employer and the identity of the person
conducting the recruiting on behalf of the employer, including any
subcontractor or agent involved in the recruiting.

(2) A signed copy of the work contract, including all assurances
and terms and conditions of employment, from the prospective
employer for whom the foreign worker is being recruited, including
the compensation to be paid, the place and period of employment,
a description of the type and nature of employment activities, any
withholdings or deductions from compensation, and any penalties
for terminating employment.

(3) The type of visa under which the foreign worker is to be
employed, the length of time the visa is valid, and the terms and
conditions under which the visa will be renewed with a clear
statement of whether the employer will secure renewal of the visa
or if renewal must be obtained by the foreign worker, and any
expenses associated with securing or renewing the visa.

(4) An itemized list of any costs or expenses to be charged to
the foreign worker, including, but not limited to, the costs of
housing or accommodation, transportation to and from the
worksite, meals, medical examinations, health care or safety
equipment costs, and any other costs, expenses, or deductions to
be charged the foreign worker.

(5) A statement, in a form specified by the Labor Commissioner,
that does each of the following:

(A) States that no foreign labor contractor, or agent or employee
of a foreign labor contractor, can lawfully assess any fee, including
visa fees, processing fees, transportation fees, legal expenses,
placement fees, and other costs to a foreign worker for foreign
labor contracting activities, and that the employer may bear the
costs or fees for the foreign labor contractor, but that these fees
cannot be assessed to the foreign worker.

(B) Explains that no additional requirements or changes may
be made to the terms of the contract originally provided by the
foreign labor contractor and signed by the foreign worker, unless
the foreign worker is provided at least 48 hours to review and
consider the additional requirements or changes and the foreign
worker gives specific consent, voluntarily and without threat of
penalty, to each additional requirement or change.

(C) Describes the protections afforded the foreign worker by
this chapter and by the federal Trafficking Victims Protection Act
of 2000 (Division A, Public Law 106-386), as amended, and any
applicable guest worker program, including relevant information
about the procedure for filing a complaint under this chapter, and
the telephone number for the national human trafficking resource
center hotline.

(6) Any education or training to be provided or required,
including the nature, timing, and cost of training and the person
who will pay training costs, whether the training is a condition of
employment, continued employment, or future employment, and
whether the foreign worker will be paid or remunerated during
the training period, including the rate of pay or remuneration.

(b) The foreign labor contractor shall file the disclosure
required under subdivision (a) with the Labor Commissioner within
seven business days of providing it to the foreign worker.

(c) A foreign labor contractor, or the agent, subcontractor, or
employee of a foreign labor contractor, or a person using the
services of a foreign labor contractor to obtain foreign workers
or employees, may not assess any fee, including, but not limited
to, visa fees, processing fees, transportation fees, legal expenses,
placement fees, and other costs, to a foreign worker for foreign
labor contracting activities.

(d) A foreign worker may not be required to pay any costs or
expenses that are not customarily assessed against all workers
similarly employed in the United States. No costs or expenses shall
be required to be paid by the foreign worker prior to the
commencement of work. The amount charged for providing housing
to the foreign worker shall be limited to market rate for similar
housing.

(e) Additional requirements or changes shall not be made to
the terms of the contract originally provided by the foreign labor
contractor and signed by the foreign worker, unless the foreign
worker is provided at least 48 hours to review and consider the
additional requirements or changes and the foreign worker gives
specific consent, voluntarily and without threat of penalty, to each
additional requirement or change.

end insert

begin insert

begin insert SEC. 7. end insert   

end insert

begin insert Section 9998.6 of the end insert begin insert Business and Professions Code end insert
begin insert is amended to read: end insert

9998.6.  

begin delete No end delete begin insert A end insert person begin delete shall take end delete begin insert may not intimidate, threaten,
restrain, coerce, discharge, or in end insert any begin delete action end delete begin insert manner discriminate end insert
against a foreign worker begin insert or a member of his or her family end insert in
retaliation for the foreign worker’s exercise of any right under this
chapter.

begin insert

begin insert SEC. 8. end insert   

end insert

begin insert Section 9998.8 of the end insert begin insert Business and Professions Code end insert
begin insert is amended to read: end insert

9998.8.  

(a)  begin delete Any end delete begin insert A end insert begin insert end insert person who violates this chapter or who
causes or induces another to violate this chapter is guilty of a
misdemeanor punishable by a fine of not more than one thousand
dollars ($1,000), or imprisonment in the county jail for not more
than six months, or both. begin insert A person shall not be liable under this
subdivision for any act or omission by a foreign labor contractor
engaged by the person if the foreign labor contractor was
registered with the Labor Commissioner pursuant to Section
9998.1.5 no later than the first day of engagement. end insert

begin insert

(b) A person who violates any provision of this chapter shall
be subject to a civil penalty of no less than one thousand dollars
($1,000) and no more than twenty-five thousand dollars ($25,000)
per violation, in addition to any other civil remedies available to
the Labor Commissioner or an aggrieved person.

end insert begin delete

(b)

end delete

begin insert (c) end insert   begin delete Any end delete begin insert The commissioner or a end insert begin insert end insert person aggrieved by a violation
of this chapter may begin delete bring an action for injunctive relief or damages,
or both. If end delete begin insert do all of end insert the begin delete person aggrieved prevails on the action,
this person shall recover damages, costs, and reasonable attorney’s
fees, but in no case shall recovery be less than five hundred dollars
($500). end delete begin insert following: end insert

begin insert

(1) Bring an action for injunctive relief against a person who
violates this chapter and, upon prevailing, recover costs and
reasonable attorney’s fees.

end insert begin insert

(2) Bring an action for damages, against a person who violates
this chapter to recover the greater of all of his or her actual
damages or five hundred dollars ($500) per employee per violation
for an initial violation, and one thousand dollars ($1,000) per
employee for each subsequent violation, and, upon prevailing in
an action brought pursuant to this section, recover costs and
reasonable attorney’s fees.

end insert begin insert

(3) Enforce the liability on the bonds required under Section
9998.1.5.

end insert begin insert

(d) A person shall not be jointly and severally liable for any act
or omission by a foreign labor contractor engaged by the person
if the foreign labor contractor was registered with the Labor
Commissioner pursuant to Section 9998.1.5 no later than the first
day of engagement.

end insert begin insert

(e) Nothing in this section shall be construed to preempt or alter
any other rights or remedies, including any causes of action,
available under any other federal or state law.

end insert

begin insert

begin insert SEC. 9. end insert   

end insert

begin insert Section 9998.10 is added to the end insert begin insert Business and
Professions Code end insert begin insert , to read: end insert

begin insert

begin insert 9998.10. end insert   

The Labor Commissioner and the deputies and
representatives authorized by the commissioner in writing may
take assignments of actions on the bonds required under Section
9998.1.5 by aggrieved persons and may prosecute the actions on
behalf of persons who, in the judgment of the commissioner, are
financially unable to employ counsel, in the same manner that
claims are prosecuted under Section 98 of the Labor Code.

end insert

begin insert

begin insert SEC. 10. end insert   

end insert

begin insert Section 9998.11 is added to the end insert begin insert Business and
Professions Code end insert begin insert , to read: end insert

begin insert

begin insert 9998.11. end insert   

The Labor Commissioner may adopt regulations or
policies and procedures to implement the provisions of this chapter.

end insert

begin insert

begin insert SEC. 11. end insert   

end insert begin insert

No reimbursement is required by this act pursuant
to Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.

end insert

begin delete

SECTION 1.  

It is the intent of the Legislature to enact
legislation that would prohibit a political campaign committee
from accepting large contributions made for the purpose of
supporting the qualification of a statewide initiative ballot measure
until the committee has first received a significant number of small
individual contributions made for the same purpose, thereby
demonstrating a sufficient degree of public support for the proposed
initiative measure.

end delete