BILL ANALYSIS
AB 2135
Page 1
Date of Hearing: April 21, 2010
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Sandre Swanson, Chair
AB 2135 (De La Torre) - As Amended: April 15, 2010
SUBJECT : Home delivery contractors: registration.
SUMMARY : Requires the Labor Commissioner to regulate the use
of home delivery contractors, as specified. Specifically, this
bill :
1 Requires any individual, association, corporation, or other
entity that uses (either directly or indirectly through third
person) a person or persons as an independent contractor for
purposes of home deliveries (where the delivery person has
access to the home) to register annually with the Labor
Commissioner.
2)Prohibits the Labor Commissioner from registering or renewing
the registration of an applicant unless the Labor Commissioner
completes an investigation (including a criminal background
check by the California Department of Justice) on all persons
who would be engaged in home deliveries and would have access
to the home.
3)Requires the Labor Commissioner to adopt regulations to
implement these requirements.
4)Requires each application for initial registration to be
accompanied by a fee (determined by the Labor Commissioner via
regulation) in an amount sufficient to defray the costs of
administering these requirements.
FISCAL EFFECT : Unknown
COMMENTS : The mission of the Division of Labor Standards
Enforcement (DLSE) is to vigorously enforce minimum labor
standards in order to ensure that employees are not required or
permitted to work under substandard unlawful conditions, and to
protect employers who comply with the law from those who attempt
to gain competitive advantage at the expense of their workers by
failing to comply with minimum labor standards. The DLSE
adjudicates wage claims, investigates discrimination and public
works complaints, and enforces labor law and the requirements of
AB 2135
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Industrial Welfare Commissioner wage orders. The Labor
Commissioner is appointed by the Governor to serve as the Chief
of DLSE.
Over the years, the Legislature has charged the Labor
Commissioner with licensing or registering certain industries,
most of which have traditionally had a high incidence of labor
law violations or may be characterized as traditionally part of
the "underground economy." Current licensing and/or
registration requirements (or similar permitting requirements)
include the following:
farm labor contractors
garment manufacturers
car washing and polishing businesses
talent agents
fee-related talent services
employers transporters and supervisors of minors
involved in door-to-door sales
minors employed in the entertainment industry
industrial homeworkers
sheltered workshops and special minimum wage workers
studio teachers
This bill would require the Labor Commissioner to register and
regulate individuals or entities that utilize independent
contractors for purposes of home deliveries where the delivery
person has access to the home, as specified. Most
significantly, the bill prohibits the Labor Commissioner from
registering or renewing the registration of an applicant unless
the Labor Commissioner completes an investigation (including a
criminal background check) on all persons who would be engaged
in home deliveries and would have access to the home.
ARGUMENTS IN SUPPORT :
This measure is sponsored by the author, who states the
following in support of the bill:
"Under existing law, the Labor Commissioner is the chief of
the Division of Labor Standards Enforcement and is charged
with the responsibility of enforcing the state's labor laws
not specifically vested in any other officer, board, or
commission.
AB 2135
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Assembly Bill 2135 will ensure consumers are protected when
an independent contractor enters a consumer's home for
services or delivery. The bill prohibits any independent
contractor who is working on behalf of an employer from
entering a customer's premises unless a background check as
been conducted on the contractor.
Specifically, this bill would require an entity that
employs or uses an independent contractor for purposes of
in-home deliveries to register with the Labor Commissioner
and would require the Labor Commissioner to conduct an
investigation, including a criminal background check by the
Department of Justice, of all persons identified by the
applicant for registration as persons who would be engaged
in home deliveries."
ARGUMENTS IN OPPOSITION :
The American Civil Liberties Union (ACLU) opposes this bill for
a number of reasons.
First, they contend that people who enter into agreements with
independent contractors are already able to sufficiently screen
applicants for criminal background checks.
Second, they state that the only private employers who have
access to state DOJ criminal background checks are organizations
that work with children, the elderly, and the disabled -
vulnerable communities that may need extra protection.
Extending private employer access to DOJ records is not
necessary for employers who are already able to screen for
convictions that disqualify applicants for work in accordance
with the law.
Third, the ACLU states that independent contractors are not
afforded proper due process rights. There are no standards in
the bill regarding which crimes would make someone ineligible to
be a delivery person, and what they could show to prove
rehabilitation. Further, there is no appeal process that
provides the applicant with notice of the appeal and the
opportunity to demonstrate his or her fitness to hold the
position including evidence of rehabilitation.
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Fourth, the ACLU argues that independent contractors should be
given a copy of the background checks so that he or she can
review the reports for accuracy and challenge any errors in the
reports.
The California Retailers Association (writing in opposition to
the prior version of the bill) argues that this bill would enact
a staggeringly expensive new burden on retail companies. They
contend that the hiring process will become cumbersome, lengthy
and expensive, and the Labor Commissioner would need hundreds of
new employees to process the volume of hundreds of thousands of
affected individuals. They point out that the bill would apply
to retail businesses across a wide spectrum of trade styles,
including home good stores (for appliance deliveries), furnace
and air conditioning stores, electronic store deliveries and
services, home improvement store services, personal cosmetic
consultants, furniture deliveries and others.
PRIOR LEGISLATION :
AB 2232 (De La Toree), Chapter 195, Statutes of 2008, required
that a background check be conducted for all individuals
entering a home of a customer on behalf of a video franchise
holder, a telephone corporation, or a satellite television
provider.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file.
Opposition
American Civil Liberties Union
California Retailers Association
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091