BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 516|
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THIRD READING
Bill No: SB 516
Author: Steinberg (D), et al.
Amended: 5/7/13
Vote: 21
SENATE LABOR & INDUSTRIAL RELATIONS COMMITTEE : 4-0, 4/24/13
AYES: Lieu, Wyland, Leno, Yee
NO VOTE RECORDED: Padilla
SENATE JUDICIARY COMMITTEE : 7-0, 4/30/13
AYES: Evans, Walters, Anderson, Corbett, Jackson, Leno, Monning
SENATE APPROPRIATIONS COMMITTEE : 7-0, 5/23/13
AYES: De León, Walters, Gaines, Hill, Lara, Padilla, Steinberg
SUBJECT : Foreign labor contractors: registration
SOURCE : Author
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
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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
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 United
States citizenship or permanent residency.
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.
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:
1. Creates a registration process for foreign labor contractors.
Specifically, this bill:
A. Expands the definition of "employment services"
provided by a foreign labor contractor to include visa
applications and services provided outside of the United
States.
B. Provides that, on or after July 1, 2015, all persons
acting as foreign labor contractors must register with the
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Commissioner.
C. Requires, on or after August 1, 2015, the Commissioner
to 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.
D. Prohibits the Commissioner from renewing or registering
an individual as a foreign labor contractor unless the
following conditions are satisfied:
(1) The individual has executed a written application
approved by the 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;
(2) The application includes 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;
(3) The Commissioner, after investigation, is satisfied
as to the character, competency, and responsibility of
the person; and
(4) The individual has posted an appropriate bond and
application filing fee, as specified.
2. Requires an employer to disclose the utilizing of the
services of a foreign labor contractor to procure foreign
workers to the Commissioner on or after July 1, 2015.
Specifically, this bill:
A. Requires the employer's disclosure to include, but not
be limited to, the following:
(1) The names and addresses of all financially
interested persons in the person's business enterprise,
together with the amount of their respective interests.
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(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.
(3) A copy of the foreign labor contractor's disclosure
to all foreign workers.
(4) Information about the steps the person has taken to
verify the accuracy of the foreign labor contractor's
disclosure regarding the employee's visa.
B. Prohibits an employer from entering into an agreement
with a foreign labor contractor that is not registered.
C. Posts an appropriate bond, as specified.
3. Requires 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.
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E. A statement, in a form specified by the
Commissioner, that states the rights of the foreign worker
under both state and federal law.
F. Any education or training to be provided or
required.
G. Any other information that the Commissioner may
require by regulation.
4. Prohibits a foreign labor contractor assessing fees for
employment services or visa filing, or pay any costs or
expenses not charged workers similarly situated.
5. Prohibits anyone from intimidating, threatening, restraining,
coercing, discharging, or in any action manner discriminating
against a foreign worker or his/her family members from
utilizing any of the rights delineated above.
6. Adds 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 the Commissioner to bring injunctive
relief.
7. Provides that foreign labor contractors and employers are
jointly and severally liable for violations of the above
provisions.
8. Authorizes the Commissioner to enforce the liability under
the bond requirements.
9. Makes findings, declarations, and minor and conforming
changes.
Comments
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.
Prior legislation . SB 1230 (DeSaulnier, 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. The bill was
vetoed by Governor Schwarzenegger.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee, the Department
of Industrial Relations (DIR) estimates that it would incur
first-year costs of $756,000 (special funds) and $606,000
ongoing to implement the provisions of this bill. Specifically,
DIR would require $556,000 annually to develop and administer
the new registration program and promulgate regulations, plus
$50,000 on-going ($200,000 in the first year) to develop,
operate and maintain a database summarizing online applications
and information pertaining to registered foreign labor
contractors.
SUPPORT : (per Senate Labor and Industrial Relations Committee
analysis of 4/24/1) (Unable to reverify at the time of writing)
Alliance to End Slavery and Trafficking
California Rural Legal Assistance Foundation
Coalition to Abolish Slavery and Trafficking
Food Chain Workers Alliance
National Council of Jewish Women-California
Religious Sisters of Charity
ARGUMENTS IN SUPPORT : Proponents argue that this bill takes a
multi-prong approach to preventing human trafficking in
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California by foreign labor 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 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:k 5/25/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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