BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 2288 (Hernández)
As Introduced
Hearing Date: June 10, 2014
Fiscal: No
Urgency: No
TMW
SUBJECT
Child Labor Protection Act of 2014
DESCRIPTION
This bill would toll the statute of limitations for unlawful
labor practices until a child worker attains the age of
majority.
This bill would also authorize an award of treble damages to an
individual, who is discharged, threatened with discharge,
demoted, suspended, retaliated against, subjected to adverse
action, or in any other manner discriminated against in the
terms of conditions of his or her employment because he or she
filed a claim or civil action alleging a violation of the Labor
Code that arose while he or she was a minor. This bill would
also increase the civil penalty to not more than $25,000 and not
less than $50,000 for a violation that presents an imminent
danger or serious physical harm to a child worker 12 years of
age or younger.
BACKGROUND
The federal Fair Labor Standards Act established wage, working
hour, and working condition protections for child workers.
California enacted similar provisions and has expanded these
protections over the years.
A recent study of child labor violations in the United States
called on states to increase child labor law protections.
(Human Rights Watch, Fields of Peril, Child Labor in US
Agriculture (2010).) To better protect child workers, this bill
(more)
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would enact the Child Labor Protection Act of 2014 and extend
(toll) the statute of limitations for a child worker's labor
violation claims until the child reaches the age of 18,
authorize an award of treble damages for discrimination or
retaliation against a child worker who files a labor claim or
civil action, and increase civil penalties for violations that
put a child worker in imminent danger or present a substantial
probability that death or serious physical harm would result to
the child.
CHANGES TO EXISTING LAW
Existing law defines "minor" to mean any person under the age of
18 years who is required to attend school and any person under
the age of six years. A person under the age of 18 years who is
not required to attend school solely because that person is a
nonresident of California shall still be considered a minor.
(Lab. Code Sec. 1286(c).)
Existing law restricts the occupations in which minors may be
employed and the number of hours and times they may work.
Distinctions are made according to age, with special rules and
exceptions in some groups. (Ed. Code Secs. 49100-49183; Lab.
Code Secs. 1285-1312, 1390-1399.)
Existing law generally protects individuals regarding wages,
working hours, and working conditions. (Lab. Code Secs. 200 et
seq., 500 et seq., 1171 et seq.)
Existing law protects individuals from unlawful discrimination
for reporting employment violations and provides a statute of
limitations for bringing a claim of discrimination within six
months of the occurrence of the violation. (Lab. Code Secs.
98.6, 98.7.)
Existing law authorizes the Director of Industrial Relations to
issue a citation to a person in violation of any statutory
provision or rule or regulation relating to the employment of
minors. (Lab. Code Sec. 1287.)
Existing law requires a citation issued to a person in violation
of labor laws against minors to be classified as follows:
Class "A" violations are issued when there is an imminent
danger to minor employees or a substantial probability that
death or serious physical harm would result therefrom; the
civil penalty for these violations is not less than $5,000 and
not more than $10,000 for each and every violation, however,
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willful or repeated violations shall receive higher civil
penalties than those imposed for comparable nonwillful or
first violations, not to exceed $10,000;
Class "B" violations are issued when there is a direct or
immediate relationship to the health, safety, or security of
minor employees, other than class "A" violations; the civil
penalty for these violations is not less than $500 and not to
exceed $1,000 for each and every violation, however, willful
or repeated violations shall receive higher civil penalties
than those imposed for comparable nonwillful or first
violations. (Lab. Code Sec. 1288.)
Existing law generally provides a statute of limitations of
three years for a person to bring a claim based on statutory
law, which includes labor violations claims. (Code Civ. Proc.
Sec. 338(a).)
Existing law tolls the statute of limitations for specified
civil actions involving claims made by a minor until the minor
reaches the age of majority. (Code Civ. Proc. Sec. 352.)
This bill would enact the Child Labor Protection Act of 2014 and
would provide that the statute of limitations for claims
involving labor law violations would be tolled until the
individual allegedly aggrieved by an unlawful practice attains
the age of majority; this bill would declare that it is
declaratory of existing law.
This bill would provide that, in addition to other remedies
available, an individual who is discharged, threatened with
discharge, demoted, suspended, retaliated against, subjected to
an adverse action, or in any other manner discriminated against
in the terms or conditions of his or her employment because the
individual filed a claim or civil action alleging a violation of
this code that arose while the individual was a minor, whether
the claim or civil action was filed before or after the
individual reached the age of majority, shall be entitled to
treble damages.
This bill would increase the amount of a Class "A" civil penalty
to an amount not less than $25,000 and not exceeding $50,000 for
each violation against a child worker 12 years of age or
younger.
COMMENT
1. Stated need for the bill
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The author writes:
Some of the earliest labor laws in our nation were designed to
protect child laborers from exploitation and abusive working
conditions.
However, child labor law violations continue to be rampant
across many industries. In November 2011, Human Rights Watch
published a report on child labor in the United States which
exposed the fact that children as young as seven are working
on farms, often 10 or more hours per day at the peak of
harvest. In addition, the National Human Trafficking Resource
Center reported that from 2007 to 2013, 20 percent of calls to
their hotline from California reported labor trafficking, and
nearly 30 percent of the victims were minors.
Assembly Bill (AB) 2288 would strengthen current law to
protect children from child labor law abuses.
2. Clarifying tolling of statute of limitations for child worker
labor claims
This bill would toll the statute of limitations for all claims
of employer violations of the Labor Code brought by an employee
who was a minor at the time of the alleged violation. Generally
speaking, a cause of action that is based on a violation of a
statute must be commenced within three years after the cause of
action has accrued. (Code Civ. Proc. Sec. 338(a).) Unless
otherwise provided by statute, most claims of labor violations
are subject to this three-year statute of limitations. However,
that statute of limitations is tolled if, at the time the cause
of action accrued, the claimant was under the age of majority,
and the time from the date of the alleged violation to the date
the claimant reaches 18 years old is not part of the time
limited for the commencement of the action. (Code Civ. Proc.
Sec. 352(a).)
The author argues that child workers may not be fully aware of
their rights under the law, and are uniquely vulnerable to
intimidation and coercion not to come forward with claims for
violations of the law. Consistent with existing law, this bill
would expressly codify that a child worker would be able to
bring his or her labor violation claim after the child reaches
the age of 18, regardless of when the alleged labor violation
occurred. This bill would also state that this provision is
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declaratory of existing law to avoid any inadvertent confusion
that these claims would not be tolled under existing law.
3. Treble damages for labor violations against child employees
This bill would authorize an award of treble damages if a child
worker is discriminated or retaliated against for filing a labor
violation claim or civil action. The author argues that this
provision would provide a powerful disincentive to employers to
retaliate against children, who are the most vulnerable workers.
In support, the American Federation of State, County and
Municipal Employees, AFL-CIO argues that "[m]inors have special
protections because they are particularly vulnerable to labor
exploitation; they should not be punished for asserting their
right to a safe and fair workplace." An award of treble damages
to child workers is not unusual. In 2012, the Legislature
enacted AB 1660 (Campos, Ch. 634, Stats. 2012) to increase
protection for child performers by implementing a "Child
Performer Services Permit" process and background checks for
persons who wish to represent or provide services to those who
are minors. Under AB 1660, a person may not provide child
performer services (i.e., talent agents and acting coaches)
unless the person applies for and receives a Child Performer
Services Permit, and any child injured by that person's failure
to submit to that permit process may be awarded up to three
times the damages incurred. Similarly, this bill would provide
an increased damage award for the protection of child workers.
By authorizing an award of treble damages to a child worker who
is discriminated or retaliated against for reporting labor
abuses, this bill would further protect child workers from
abusive labor practices.
4. Increased civil penalties for egregious labor violations
against child employees 12 years of age and younger
Existing law authorizes a civil penalty between $5,000 and
$10,000 for each labor practice violation when there is an
imminent danger to minor employees or a substantial probability
that death or serious physical harm would result therefrom.
This bill would increase that civil penalty to not less than
$25,000 and not more than $50,000 for each violation involving a
child worker 12 years of age or younger.
The author argues that this bill would provide added protections
for the youngest child workers against the most serious types of
violations. According to Human Rights Watch, child labor is
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often employed in the agricultural industry, where child workers
are exposed to "occupations deemed particularly hazardous for
children including operating equipment such as tractors of over
20 horsepower take-off, corn and cotton pickers, grain combines,
and hay mowers; working in yards, pens, or stalls occupied by a
bull, boar, or stud horse; working from a ladder at a height of
over 20 feet; working inside fruit, forage, or grain storage
containers; and handling or applying agricultural chemicals
classified as Category I or II of toxicity." (Human Rights
Watch, Fields of Peril, Child Labor in US Agriculture (2010), p.
78.) Existing law has recognized that child workers 12 years of
age and younger should be restricted from certain occupational
dangers, including "an agricultural zone of danger," which means
on or about moving equipment, in or about unprotected chemicals,
and in or about any unprotected water hazard. (Lab. Code Sec.
1293.1.) Consistent with the Legislature's prior intent to
protect the youngest and weakest workers from dangerous or
life-threatening environments, this bill would increase civil
penalties against employers of child workers age 12 or younger.
Support : American Federation of State, County and Municipal
Employees, AFL-CIO; California Conference of Machinists;
California Conference of the Amalgamated Transit Union;
California Labor Federation, AFL-CIO; California School
Employees Association, AFL-CIO; California Teachers Association;
California Teamsters Public Affairs Council; Communications
Workers of America, AFL-CIO, District 9; Engineers & Scientists
of California, IFPTE Local 20; International Longshore and
Warehouse Union, Coast Division; Professional & Technical
Engineers, IFPTE Local 21; UNITE HERE; Utility Workers Union of
America, Local 132
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote :
Assembly Floor (Ayes 76, Noes 0)
AB 2288 (Hernández)
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Assembly Committee on Judiciary (Ayes 10, Noes 0)
Assembly Committee on Labor and Employment (Ayes 7, Noes 0)
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