BILL ANALYSIS Ó
Senate Committee on Labor and Industrial Relations
Ted W. Lieu, Chair
Date of Hearing: April 24, 2013 2013-2014 Regular
Session
Consultant: Gideon L. Baum Fiscal:Yes
Urgency: No
Bill No: SB 516
Author: Steinberg
As Introduced/Amended: April 1, 2013
SUBJECT
Foreign labor contractors: registration.
KEY ISSUE
Should the Legislature require foreign labor contractors to
register with the Labor Commissioner, as well as follow
additional contractual and bonding requirements?
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;
(Business and Professions Code § 9998.2)
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 the foreign worker was being transported;
(Business and Professions Code § 9998.5)
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;
(Business and Professions Code § 9998.3)
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; (Business and
Professions Code § 9998.7)
Existing law also 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. (Business and Professions
Code § 9998.9(a))
Existing law provides that 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 five
hundred dollars ($500). (Business and Professions Code §
9998.9(b))
This bill would create a registration process for foreign labor
contractors. Specifically, this bill would:
1) Expand the definition of "employment services" provided
by a foreign labor contractor to include visa applications
and services provided outside of the United States;
2) On or after July 1, 2015, all persons acting as foreign
labor contractors must register with the Labor
Commissioner;
3) On or 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.
4) Prohibits the Labor Commissioner from renewing or
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Senate Committee on Labor and Industrial Relations
registering an individual as a foreign labor contractor
unless the following conditions are satisfied:
a) The individual has filed out an application approved
by the Labor Commissioner that includes, among other
things, a statement on how the applicant will operate as
a foreign labor contractor, and the names and addresses
of all financially-interested individuals in the foreign
labor contractor operation;
b) The application includes a declaration consenting to
the designation by a court or the Labor 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;
c) The Labor Commissioner, after investigation, is
satisfied as to the character, competency, and
responsibility of the person; and
d) The individual has posted an appropriate bond and
application filing fee, as specified.
This bill would also require an employer to disclose the
utilizing of the services of a foreign labor contractor to
procure foreign workers to the Labor Commissioner on or after
July 1, 2015. Specifically, this bill would:
1) Require the employer's disclosure to include, but not be
limited to, the following:
a) The names and addresses of all financially
interested persons in the person's business enterprise,
together with the amount of their respective interests.
b) 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.
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c) A copy of the foreign labor contractor's disclosure
to all foreign workers;
d) Information about the steps the person has taken to
verify the accuracy of the foreign labor contractor's
disclosure regarding the employee's visa.
1) Prohibit an employer from entering into an agreement
with a foreign labor contractor that isn't registered;
2) Post an appropriate bond, as specified.
This bill would also require a foreign labor contractor to
ascertain and disclose the following to each foreign worker:
a) 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;
b) 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;
c) 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.
d) An itemized list of any costs or expenses to be
charged to the foreign worker;
e) A statement, in a form specified by the Labor
Commissioner, that states the rights of the foreign
worker under both state and federal law.
f) Any education or training to be provided or
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required;
g) Any other information that the commissioner may
require by regulation.
This bill would also prohibit a foreign labor contractor
assessing fees for employment services or visa filing, or pay
any costs or expenses not charged workers similarly situated.
This bill would prohibit anyone from intimidating, threatening,
restraining, coercing, discharging, or in any action manner
discriminating against a foreign worker or his or her family
members from utilizing any of the rights delineated above.
This bill would add a civil penalty to violations of the above
provisions no less than $1,000 and no more than $25,000, and
also allows an aggrieved person or Labor Commissioner to bring
injunctive relief.
This bill would also provide that foreign labor contractors and
employers are jointly and severally liable for violations of the
above provisions.
This bill would also authorize the Labor Commissioner to enforce
the liability under the bond requirements.
This bill also contains findings, declarations, and minor and
conforming amendments.
COMMENTS
1. Need for this bill?
The Department of Homeland Security reports that California
has the largest population of temporary foreign workers in the
country at 130,000, or 14% of the national total. All of
these workers are present legally with appropriate visas.
Most were brought into the country by legitimate and ethical
foreign labor contractors, seeking to address the labor needs
of a California employer. However, some foreign labor
contractors are not so virtuous.
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According to the author's office and advocates for victims of
human trafficking, there has been a marked increase in human
trafficking by foreign labor contractors through the misuse of
the visa system. Specifically, advocates report that foreign
labor contractors charge exorbitant fees and charges for
legitimate and legal U.S. visas, forcing the foreign workers
and their families into a cycle of debt bondage.
Additionally, advocates state that the families of the foreign
workers often face retaliation and violence if the abused
foreign worker reports abuse.
Advocates note, however, that the licensing of farm labor
contractors has cut down on human trafficking in the
agricultural industry, suggesting that the registration and
licensure of farm labor contractors has served as a partial
deterrent to unlawful labor practices. SB 516 seeks to
replicate this deterrent effect among foreign labor
contractors by requiring registration by the contractor and
requesting employer, clear contractual requirements, bonding
requirements, and prohibitions on abusive fees and costs.
2. Possible Amendments:
On page 9, lines 14-20, discuss a notice requirement regarding
a contract protection for foreign workers. However, this
requirement was not explicitly created. Therefore, the
Committee may wish to consider the following amendment:
On page 10, between lines 8 and 9, insert the following:
(d) No additional requirements or changes may be made from the
terms of the contract originally 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.
3. Proponent Arguments :
Proponents argue that SB 516 takes a multi-prong approach to
preventing human trafficking in California by Foreign Labor
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recruiters. First, proponents note 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 SB 516 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 SB 516, 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.
4. Double Referral to Senate Committee on Judiciary:
If SB 516 is approved by this Committee, it will be referred
to the Senate Committee on Judiciary.
5. Opponent Arguments :
None on file.
6. Prior Legislation :
SB 1230 (DeSaulnier) of 2010 would have required the workplace
posting of two toll-free anti-human trafficking hotlines that
provide services in support of the elimination of slavery and
human trafficking. SB 1230 was vetoed by Governor
Schwarzenegger.
SUPPORT
California Rural Legal Assistance Foundation
Coalition to Abolish Slavery & Trafficking
National Council of Jewish Women-California
Religious Sisters of Charity
Alliance to End Slavery and Trafficking
Food Chain Workers Alliance
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Senate Committee on Labor and Industrial Relations
OPPOSITION
None on file.
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