California Assembly Bill AB1563 Introduced / Bill

 BILL NUMBER: AB 1563INTRODUCED BILL TEXT INTRODUCED BY Committee on Labor and Employment (Monning (Chair), Eng, Furutani, Ma, and Portantino) MARCH 11, 2009 An act to amend Section 2810 of the Labor Code, relating to employment. LEGISLATIVE COUNSEL'S DIGEST AB 1563, as introduced, Committee on Labor and Employment. Employment: contracts or agreements for labor or services. Existing law prohibits a person or entity from entering into a contract or agreement for labor or services with a construction, farm labor, garment, janitorial, or security guard contractor where the person or entity knows or should know that the contract or agreement does not include funds sufficient to allow the contractor to comply with all applicable local, state, and federal laws or regulations governing the labor or services to be provided. Existing law permits an aggrieved employee to bring an action to recover the greater of his or her actual damages or $250 per employee per violation for an initial violation and $1,000 per employee for each subsequent violation, in addition to injunctive relief. This bill would require the Labor Commissioner, by July 1, 2010, to develop and implement an enforcement protocol to be used in an investigation involving a labor contractor whose contract or agreement for construction, farm labor, garment, janitorial, or security guard services does not include funds sufficient to allow the contractor to comply with applicable local, state, and federal laws or regulations governing the labor or services to be provided. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 2810 of the Labor Code is amended to read: 2810. (a) A person or entity  may   shall  not enter into a contract or agreement for labor or services with a construction, farm labor, garment, janitorial, or security guard contractor, where the person or entity knows or should know that the contract or agreement does not include funds sufficient to allow the contractor to comply with all applicable local, state, and federal laws or regulations governing the labor or services to be provided. (b) There is a rebuttable presumption affecting the burden of proof that there has been no violation of subdivision (a) where the contract or agreement with a construction, farm labor, garment, janitorial, or security guard contractor meets all of the requirements in subdivision (d). (c) Subdivision (a) does not apply to a person or entity who executes a collective bargaining agreement covering the workers employed under the contract or agreement, or to a person who enters into a contract or agreement for labor or services to be performed on his or her home  residences   residence  , provided that a family member resides in the residence  or residences  for which the labor or services are to be performed for at least a  part   portion  of the year. (d) To meet the requirements of subdivision (b), a contract or agreement with a construction, farm labor, garment, janitorial, or security guard contractor for labor or services must be in writing, in a single document, and contain all of the following provisions, in addition to any other provisions that may be required by regulations adopted by the Labor Commissioner  from time to time  : (1) The name, address, and telephone number of the person or entity and the construction, farm labor, garment, janitorial, or security guard contractor through whom the labor or services are to be provided. (2) A description of the labor or services to be provided and a statement of when those services are to be commenced and completed. (3) The employer identification number for state tax purposes of the construction, farm labor, garment, janitorial, or security guard contractor. (4) The workers' compensation insurance policy number and the name, address, and telephone number of the insurance carrier of the construction, farm labor, garment, janitorial, or security guard contractor. (5) The vehicle identification number of any vehicle that is owned by the construction, farm labor, garment, janitorial, or security guard contractor and used for transportation in connection with  any   a  service provided pursuant to the contract or agreement, the number of the vehicle liability insurance policy that covers the vehicle, and the name, address, and telephone number of the insurance carrier. (6) The address of  any  real property to be used to house workers in connection with the contract or agreement. (7) The total number of workers to be employed under the contract or agreement, the total amount of all wages to be paid, and the date or dates when those wages are to be paid. (8) The amount of the commission or other payment made to the construction, farm labor, garment, janitorial, or security guard contractor for services under the contract or agreement. (9) The total number of persons who will be utilized under the contract or agreement as independent contractors, along with a list of the current local, state, and federal contractor license identification numbers that the independent contractors are required to have under local, state, or federal laws or regulations. (10) The signatures of all parties, and the date the contract or agreement was signed. (e) (1) To qualify for the rebuttable presumption set forth in subdivision (b), a material change to the terms and conditions of a contract or agreement between a person or entity and a construction, farm labor, garment, janitorial, or security guard contractor must be in writing, in a single document, and contain all of the provisions listed in subdivision (d) that are affected by the change. (2) If a provision required to be contained in a contract or agreement pursuant to paragraph (7) or (9) of subdivision (d) is unknown at the time the contract or agreement is executed, the best estimate available at that time is sufficient to satisfy the requirements of subdivision (d). If an estimate is used in place of actual figures in accordance with this paragraph, the parties to the contract or agreement have a continuing duty to ascertain the information required pursuant to paragraph (7) or (9) of subdivision (d) and to reduce that information to writing in accordance with the requirements of paragraph (1) once that information becomes known. (f) A person or entity who enters into a contract or agreement referred to in  subdivisions   subdivision  (d) or (e) shall keep a copy of the written contract or agreement for a period of not less than four years following the termination of the contract or agreement. (g) (1) An employee aggrieved by a violation of subdivision (a) may file an action for damages to recover the greater of  all of his or her actual damages or two hundred fifty dollars ($250) per employee per violation for an initial violation and one thousand dollars ($1,000) per employee for each subsequent violation, and, upon prevailing in an action brought pursuant to this section, may recover costs and reasonable attorney's fees.  An   To maintain an  action under this section  may not be maintained unless it is pleaded and proved that   ,  an employee  shall plead and prove that he or she  was injured as a result of a violation of a labor law or regulation in connection with the performance of the contract or agreement. (2) An employee aggrieved by a violation of subdivision (a) may also bring an action for injunctive relief and, upon prevailing, may recover costs and reasonable  attorney's   attorneys'  fees. (h) The phrase "construction, farm labor, garment, janitorial, or security guard contractor" includes  any   a  person, as defined in this code, whether or not licensed, who is acting in the capacity of a construction, farm labor, garment, janitorial, or security guard contractor. (i) (1) The term "knows" includes the knowledge, arising from familiarity with the normal facts and circumstances of the business activity engaged in, that the contract or agreement does not include funds sufficient to allow the contractor to comply with applicable laws. (2) The phrase "should know" includes the knowledge of any additional facts or information that would make a reasonably prudent person undertake to inquire whether, taken together, the contract or agreement contains sufficient funds to allow the contractor to comply with applicable laws. (3) A failure by a person or entity to request or obtain  any  information from the contractor that is required by  any   an  applicable statute or by the contract or agreement between them  ,  constitutes knowledge of that information for purposes of this section.  (j) The Labor Commissioner shall, not later than July 1, 2010, develop and implement an enforcement protocol for investigations involving a construction, farm labor, garment, janitorial, or security guard contractor whose contract or agreement for labor or services does not include funds sufficient to allow the contractor to comply with applicable local, state, and federal laws or regulations governing the labor or services to be provided.