BILL ANALYSIS Ó
SB 1087
Page 1
Date of Hearing: June 25, 2014
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hernández, Chair
SB 1087 (Monning) - As Amended: May 27, 2014
SENATE VOTE : 26-10
SUBJECT : Farm labor contractors.
SUMMARY : Amends existing law and enacts new provisions related
to the regulation of farm labor contractors (FLCs).
Specifically, this bill :
1)Requires a FLC to provide a list of all employees who provided
FLC services on behalf of the FLC, as specified.
2)Increases bond requirements for FLCs to $50,000 for payrolls
up to $500,000 or a bond of $100,000 for payrolls up to
$2,000,000 or a bond of $150,000 for payrolls over $2,000,000.
3)Requires the FLC to provide documentation to the Labor
Commissioner (LC) of the size of the contractor's payroll,
using specified sources.
4)Increases the FLC licensure fee to $600, with the additional
$100 funding the LC's Farm Labor Contractor Enforcement Unit
and the Farm Labor Contractor Verification Unit.
5)Requires an applicant for licensure as a FLC to provide a
written statement verifying that the person's supervisorial
and non-supervisorial employees have been trained in the
prevention of sexual harassment, as specified.
6)Increases the examination fee by $100 and adds the Department
of Fair Employment and Housing (DFEH) to the organizations
that must be consulted by the LC when creating the exam.
7)Expands circumstances where service to the surety is
appropriate to include if the FLC remains in the state, but
has fled the jurisdiction where the labor law violation has
occurred.
8)Requires that the FLC fully document net and gross hours
worked and wages to a grower and provides paystubs that fully
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comply with existing law to the contractor's employees.
9)Allows for the collection of expert witness fees in the event
of a successful action against an FLC.
10)Increases fees for any FLC who continues to provide farm
labor contracting services after his or her license has been
suspended or revoked to not less than $10,000, and also extend
this penalty to FLCs who were denied a license.
11)Makes additional changes regarding compliance with federal
law and appropriate posting of a FLC's license information.
12)Expands the conditions upon which a FLC's surety bond may be
payable to include damages due to sexual harassment
specifically, or harassment generally on the basis of race,
religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, genetic
information, marital status, sex, gender, gender identity,
gender expression, age, sexual orientation, or military and
veteran status.
13)Requires the addition of protection from sexual harassment in
the workplace as a topic for the FLC written examination.
14)Increases annual continuing education for FLCs to ten hours
and requires it include prevention training on sexual
harassment.
15)Prohibits the LC from issuing a license to an FLC who, within
the three preceding years, committed sexual harassment or
employed a supervisor who the farm labor contractor knew, or
should have known, had been found to have committed sexual
harassment of an employee.
16)Allows the LC to revoke, suspend, or refuse to renew the
license of an FLC who, within the three preceding years,
committed sexual harassment or employed a supervisor who the
farm labor contractor knew, or should have known, had been
found to have committed sexual harassment of an employee.
17)Provides that a FLC licensee will be considered to have not
known about sexual harassment committed by an employee or
supervisor if the employee or supervisor executes a form
provided by the LC that the employee or supervisor has not
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been found to have committed sexual harassment.
FISCAL EFFECT : According to the Senate Appropriations
Committee, DIR indicates it would incur a one-time cost of
$58,000 for rulemaking, and DFEH indicates minimal costs from
the bill.
COMMENTS : This bill represents a wide-ranging and
comprehensive reform of existing farm labor contractor licensure
requirements. However, there are several dominant legislative
goals which guide the legislation as follows:
Increasing Enforcement Capabilities
Despite ongoing enforcement efforts by the LC, stakeholders in
the agricultural industry contend that bad actors in the farm
labor contractor industry remain prevalent. This has remained
an enduring challenge in the agricultural industry, despite the
fact that farm labor contractors have been licensed since 1951.
This bill seeks to aid ongoing enforcement efforts by increasing
funding for farm labor contractor licensure enforcement and
verification, increasing bonding requirements, increasing
penalties for failure to comply with the law, increasing wage
and hour reporting, and making it easier to access the surety
bond in the event of an absconding employer, ensuring that
aggrieved employees receive some of their wages.
Combating Sexual Harassment in the Fields
As was recently documented in a Frontline documentary, sexual
harassment and sexual assault are a significant problem in
California's agricultural industry. This bill combats this with
new examination requirements (funded with increased examination
fees) on preventing sexual harassment in the workplace, allowing
claims against the farm labor contractor's surety bond in the
event of a successful sexual harassment or discrimination claim,
and creating licensure penalties for a farm labor contractor or
the contractor's employees if convicted in a court or
administrative hearing of sexual harassment.
In addition, this bill requires an applicant for licensure as a
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FLC to provide a written statement verifying that the person's
supervisorial employees have been trained at least once for at
least two hours each calendar year in the prevention of sexual
harassment. The bill also requires the written statement to
provide that all non-supervisorial employees have been trained
in identifying, preventing, documenting, and reporting sexual
harassment in the workplace "for at least two hours within 10
calendar days of being hired by the person and at least once
each calendar year."
ARGUMENTS IN SUPPORT :
This bill is sponsored by the California Rural Legal Assistance
Foundation (CRLAF). They and other supporters argue that this
bill is an important step in protecting the lives of farm
workers in the fields. Supporters note that this bill does not
expand liability for farm labor contractors, but rather ensures
that farm labor contractors are sufficiently bonded to protect
the needs of farm workers, as well as increases funds available
for the purposes of licensure enforcement. Additionally,
supporters note that sexual harassment and assault in a serious
and significant problem in California's agricultural industry.
Supporters argue that additional training and surety bond claims
will provide needed protection to female farm workers from the
current injustices under which they currently suffer.
ARGUMENTS IN OPPOSITION :
Opponents take an "oppose unless amended position" and state
that they support the underlying goal of this bill. However,
they continue to raise a number of concerns. First, they
express concern about this bill's proposal to double the surety
bond requirement and argue that proponents have yet to make
their case for this policy change. Second, they express
concerns about the bill's requirements that employees of FLCs
receive sexual harassment training "within 10 calendar days of
being hired," arguing that this requirement is unfeasible given
the transitional nature of the agricultural labor force. Third,
opponents object to the bill's requirement of two additional
hours of continuing education for sexual harassment prevention
and argue that this requirement can be incorporated into the
current eight hour requirement. Finally, opponents continue to
raise concerns about the language in the bill related to license
issuance or revocation where an FLC "knew or should have known"
of specific sexual harassment.
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These concerns are addressed in more detail in the committee
staff comment section below.
COMMITTEE STAFF COMMENTS :
As discussed above, a number of groups, including the California
Association of Winegrape Growers (CAWG), have adopted an "oppose
unless amended" position on this bill. Each of the remaining
concerns will be discussed as follows:
1)Proposed Increases to FLC Surety Bond Requirements
As introduced, this bill proposed to essentially double the
current surety bond requirement for FLCs. Specifically, this
bill would have increased the bond from $25,000 to $50,000 for
payrolls up to $500,000, from $50,000 to $100,000 for payrolls
of between $500,000 and $2 million, and from $75,000 to
$150,000 for payrolls greater than $2 million.
Opponents objected to this provision of the bill, stating,
"The proponents of doubling the required surety bond have yet
to make their case for this policy change. As a result, we
believe it should be removed from the bill."
The author and the sponsor have agreed to delete the proposed
surety bond increases from the bill.
2)Proposed Sexual Harassment Prevention Training for
Non-Supervisorial Employees
This bill provides that the Labor Commissioner shall not issue
a FLC license unless, among other requirements, the person
executes a written statement that all non-supervisorial
employees have been trained in sexual harassment prevention
"for at least two hours within ten calendar days of being
hired by the person and at least once each calendar year."
Opponents raise concerns regarding this proposal as follows:
"While it is important to make employees aware of sexual
harassment and its remedies, requiring farm workers to
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receive two hours of training before beginning each new job
is unfeasible given the transitional nature of the
agricultural labor force. Farm workers change jobs
frequently and may work for several FLC employers in a
single season, making the tracking and monitoring of such
requirements a difficult and onerous task. We are working
with the author to devise a workable training requirement
that will ensure that workers receive meaningful training
to help them understand sexual harassment and vindicate
their rights if they are abused."
Opponents have submitted suggested amendment language to
the author that would specify a
requirement and manner for a FLC to ensure that sexual
harassment training is provided to
employees "at the time of hire" but be less prescriptive
than the ten day requirement currently
outlined in the bill. The author and the sponsor have
accepted this proposal, but would like to
ensure that non-supervisorial employees receive training at
least once every two years. At the
time of preparation of this analysis, this issue had not
been resolved.
3)Proposed Increase in Hours Requirement for FLC Continuing
Education
Current law requires FLCs to enroll and participate in at
least eight hours of relevant educational classes each year.
This bill proposes to increase this requirement to ten hours
and specifies that the classes shall include at least two
hours of sexual harassment prevention training.
Opponents state that current guidelines for FLC continuing
education established by the LC require review of sexual
harassment prevention and argue that the proposed requirement
of two hours of sexual harassment prevention training can be
incorporated into the current eight hour program.
The author and the sponsor have stated that they would agree
to amend the bill to require nine (9) hours of educational
classes, with one hour devoted to sexual harassment training.
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At the time of preparation of this analysis, this issue had
not been resolved.
4)FLC License Issuance/Revocation Involving Prior Sexual
Harassment
This bill prohibits the LC from issuing a license to an FLC,
and authorizes the Labor Commissioner to revoke, suspend, or
refuse to renew the license of an FLC who, within the three
preceding years, committed sexual harassment or employed a
supervisor who the farm labor contractor knew, or should have
known, had been found to have committed sexual harassment of
an employee. Amendments adopted on the Senate floor provide
that a FLC licensee will be considered to have not known about
sexual harassment committed by an employee or supervisor if
the employee or supervisor executes a form provided by the LC
that the employee or supervisor has not been found to have
committed sexual harassment.
However, opponents argue that despite this recent
clarification, the wording of such a statement is unknown and
at the LC's discretion. They argue that without specific
notice language in the bill, the statement may fall short of
true liability protection for FLCs. They therefore suggest
that the bill should specify the statement language to be
executed by an employee or supervisor to read, "I have not
been found to have committed sexual harassment by any court or
any administrative agency within the preceding three years."
Opponents and the author have agreed to amendment language
that would specify the aforementioned statement on a form to
be prepared by the LC, and would clarify that these provisions
do not take effect until such time as the LC prepares the form
and makes it available on the division's website.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees
California Applicant Attorneys Association
California Labor Federation, AFL-CIO
California Rural Legal Assistance Foundation (sponsor)
California Teamsters Public Affairs Council
National Association of Social Workers, California Chapter
Roots of Change
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Opposition
Agricultural Council of California
California Association of Winegrape Growers
California Farm Bureau Federation
California Farm Labor Contractors Association
Nisei Farmers League
Wine Institute
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091