BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 477| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: SB 477 Author: Steinberg (D) Amended: 1/6/14 Vote: 21 SENATE APPROPRIATIONS COMMITTEE : 6-0, 1/23/14 AYES: De León, Gaines, Hill, Lara, Padilla, Steinberg NO VOTE RECORDED: Walters SUBJECT : Foreign labor contractors: registration SOURCE : Coalition to Abolish Slavery and Trafficking DIGEST : This bill requires foreign labor contractors to register with the Labor Commissioner (Commissioner), as well as follow additional contractual and bonding requirements, as specified. ANALYSIS : Existing law provides the following: 1. 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, all compensation or consideration to be provided to the foreign worker. 2. Any foreign labor contractor who recruits or solicits without a bona fide job order and who does not then provide employment for the foreign worker shall pay wages to the foreign worker at the agreed rate of pay for the job to which CONTINUED SB 477 Page 2 the foreign worker was being transported. 3. No foreign labor contractor shall make, publish, or circulate any false, fraudulent, or misleading representation or information concerning the terms or conditions of employment at any place or places of employment. 4. No foreign labor contractor shall make promises or otherwise induce a foreign worker to travel or accept promises of employment by promising or providing assurances of U.S. citizenship or permanent residency. Existing law provides that anyone who violates any of the above provisions is guilty of a misdemeanor punishable by a fine of not more than $1,000, or imprisonment in the county jail for not more than six months, or both. Existing law provides that any person aggrieved by a violation of this chapter may bring an action for injunctive relief or damages, or both. If the 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 $500. This bill requires foreign labor contractors to register with the Commissioner, as well as follow additional contractual and bonding requirements, as specified. Specifically, this bill: 1. Requires, on and after July 1, 2015, any person acting as a foreign labor contractor to register with the Commissioner. 2. Exempts from the definition of foreign labor contractor any person licensed as a talent agency under existing law or entities or persons that have obtained designation under specified federal law related to work and study-based exchange visitor programs. 3. Defines "foreign labor contracting activity" to mean recruiting or soliciting for compensation with respect to a foreign worker who resides outside of the U.S. in furtherance of that worker's employment in California. 4. Specifies that "foreign labor contracting activity" does not include the services of an employer, or employee or an CONTINUED SB 477 Page 3 employer, if those services are provided directly to foreign workers solely to find workers for the employer's own use. 5. Requires the Commissioner (on and after August 1, 2015) to post on its Web site the names and contact information for all registered foreign labor contractors. 6. Provides that the 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: A. The person has executed a written application containing specified information. B. The Commissioner, after investigation, is satisfied as to the character, competency, and responsibility of the person. C. The person has deposited a surety bond as follows: (1) For gross receipts up to $500,000, a $50,000 bond. (2) For gross receipts of $500,000 to $2 million, a $100,000 bond. (3) For gross receipts over $2 million, a $150,000 bond. A. The person has paid 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. 1. Provides that the Commissioner may not register a person as a foreign labor contractor if the person was found to have violated specified provisions of state and federal law. 2. Requires, on and after July 1, 2015, a person who knows or should have known it is using the services of a foreign labor contractor to disclose specified information to the Commissioner. 3. Prohibits a person from knowingly entering into a contract for the services of a foreign labor contractor that is not CONTINUED SB 477 Page 4 registered. 4. Requires a foreign labor contractor to disclose in writing specified information to each foreign worker who is recruited for employment. 5. Prohibits a foreign labor contractor or a person using the services of a foreign labor contractor from assessing 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 employment services. 6. Provides that a foreign worker may not be required to pay any costs or expenses that are not customarily assessed against all workers similarly employed, as specified. 7. Provides that a person may not intimidate, threaten, restrain, coerce, discharge, or in any manner discriminate against a foreign worker or a member of his/her family in retaliation for a foreign worker's exercise of any rights under the law. 8. Provides that a person who violates any provision of these requirements shall be subject to a civil penalty of not less than $1,000 and not more than $25,000 per violation. 9. Provides that the Commissioner or an aggrieved person may bring enforcement actions, as specified. 10.Provides that a person shall not be jointly and severally liable shall for any act or omission by a foreign labor contractor engaged by the person provided the foreign labor contractor was registered no later than the first day of such engagement. 11.Authorizes the Commissioner to adopt regulations or policies and procedures to carry out or implement these provisions. 12.Makes related and conforming changes. 13.Makes related legislative findings and declarations. Prior Legislation CONTINUED SB 477 Page 5 SB 516 (Steinberg 2013) was identical to this measure, except that it specified a registration fee of $500. This registration fee was determined to be insufficient to fund the ongoing costs of the program and the bill was vetoed by the Governor. The veto message read: I am returning Senate Bill 516 without my signature. This bill seeks to prevent the exploitation of foreign workers - a worthy goal which I support. Unfortunately, the registration and filing fees established by the bill are insufficient to support the ongoing costs of the proposed program. This funding shortfall would be underwritten by the Labor Enforcement and Compliance Fund, funded from an assessment on employers' workers' compensation premiums. This shift in costs is inequitable as it would result in all California employers paying a share of the enforcement costs for the regulation of these foreign labor contractors. I request that the Legislature send me a bill in January where the fees generated are sufficient to pay for the costs of the program proposed by this measure. FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: Yes According to the Senate Appropriations Committee, DIR estimates that it will incur first-year costs of $892,000 (special funds) and $681,000 ongoing (special funds) to implement the provisions of the bill. This bill includes a filing fee of $10 and a registration fee to be set by DIR to support the ongoing costs of the program. SUPPORT : (Verified 1/23/14) Coalition to Abolish Slavery and Trafficking (source) American Association of University Women - California Food Chain Workers Alliance National Council of Jewish Women - California ARGUMENTS IN SUPPORT : Proponents argue that this bill takes a multi-prong approach to preventing human trafficking in California by foreign labor recruiters. First, proponents note CONTINUED SB 477 Page 6 that foreign labor contractors will be required to provide full and fair information to foreign workers and that employers using the services of foreign labor contractors to obtain workers will be required to report those activities. Proponents also note that this bill prohibits any foreign labor contractor from soliciting a foreign worker for a job in California in the absence of a bona fide offer of employment. Finally proponents also note that, under this bill, foreign labor contractors, and employers using unregistered contractors, will be subject to civil and criminal penalties for violations. Aggrieved workers will have civil causes of action against both contractors and employers to protect their rights and help prevent future cases of exploitation. PQ:nl 1/24/14 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED