California Senate Bill SB1087 Introduced / Bill

 BILL NUMBER: SB 1087INTRODUCED BILL TEXT INTRODUCED BY Senator Monning (Coauthor: Assembly Member Medina) FEBRUARY 19, 2014 An act to amend Sections 1684, 1685, 1690, 1690.1, 1694, 1695, 1695.5, 1695.55, 1696.2, 1696.5, and 1697 of the Labor Code, relating to farm labor contractors, and making an appropriation therefor. LEGISLATIVE COUNSEL'S DIGEST SB 1087, as introduced, Monning. Farm labor contractors. Existing law requires farm labor contractors to be licensed by the Labor Commissioner and to comply with specified employment laws applicable to farm labor contractors. Existing law requires farm labor contractors to pay license fees to the commission who, in turn, is required to deposit those fees into the Farmworker Remedial Account, which is a continuously appropriated special fund. Under existing law, a person who violates farm labor contractor requirements is guilty of a misdemeanor punishable by specified fines, or imprisonment in the county jail for not more than 6 months, or both. This bill would prohibit a license to operate as a farm labor contractor from being granted to a person who, within the preceding 3 years, has been found to have committed sexual harassment of an employee. This bill would increase the license fee paid by an applicant from $500 to $600, thereby making an appropriation. The bill would require the fee increase to be expended by the Labor Commissioner to fund the Farm Labor Contractor Enforcement Unit and the Farm Labor Contractor License Verification Unit. The bill would require an applicant to provide the names and addresses of all persons who performed specified services for him or her in the previous year, in order to be issued a license to act as a farm labor contractor. The bill would require the employees of an applicant for licensure as a farm labor contractor to register as farm labor contractor employees pursuant to federal law, if that registration is required under federal law. The bill would also increase the amount of the surety bond that is required to be deposited with the commissioner in order to be issued a license to act as a farm labor contractor by $25,000 or $50,000 based upon the size of the person's annual payroll, and require documentation of the payroll size. The bill would require that the bond be conditioned upon compliance with, and payment of all damages occasioned by failure to comply with, provisions prohibiting sexual harassment, as specified. Existing law requires an applicant for licensure as a farm labor contractor to have taken a written examination that demonstrates an essential degree of knowledge of current laws and regulations concerning farm labor contractors and authorizes the commissioner to charge a fee of not more than $100 to cover the cost of administering the exam. This bill would require that exam to cover laws and regulations concerning sexual harassment in the workplace. The bill would authorize the commissioner to consult with the Department of Fair Employment and Housing in preparing the exam. The bill would also increase the maximum amount the commissioner may charge for developing and administering the exam to $200. Existing law authorizes the commissioner to renew a license without requiring the applicant to take the examination if during the previous year the applicant has not been found to be in violation of specified laws and regulations, and meets other criteria. This bill would include among those laws that the applicant must not have violated laws and regulations related to sexual harassment. Existing law requires an applicant for a license to act as a farm labor contractor to participate in at least 8 hours of educational classes each year. This bill would increase the requirement to 16 hours of classes and require that those classes include sexual harassment prevention training. Existing law provides that it is a crime for an employer who has made withholdings from an employee's wages willfully or with intent to defraud to fail to remit the withholdings to the proper agency or to fail to make any required payments required. This bill would authorize the commissioner to refuse to issue or renew the license until the amount of any delinquency under these provisions is fully paid. Existing law requires every licensee to have a written statement ready for inspection stating the rate of compensation he or she receives from the grower and that he or she is paying to employees, as specified. This bill would require that this statement and any agreement with the grower or other farm labor contractor concerning the amount of the commission or the payment made to the licensee for services be provided to a current or former employee or the grower within 21 calendar days of a written request. The bill would make a licensee who fails to comply with this requirement subject to a civil penalty of $750. Existing law provides that any farm labor contractor who engages in farm labor contracting activities after his or her license has been suspended or revoked is punishable by a fine of not less than $1,000 but not exceeding $5,000, or by imprisonment for not less than 6 months and not more than one year, or both. This bill would instead provide that any farm labor contractor who engages in farm labor contracting activities after his or her license has been suspended, revoked, or denied reissuance is punishable by a fine of not less than $10,000, or by imprisonment for not less than 6 months and not more than one year, or both. Existing law provides that any violation of these provisions is a crime punishable by a fine of not more than $1,000, or imprisonment in a county jail for not more than 6 months, or both. Because this bill would change various provisions, the violation of which, are crimes, this bill would impose a state-mandated local program. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason. Vote: majority. Appropriation: yes. Fiscal committee: yes. State-mandated local program: yes. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 1684 of the Labor Code is amended to read: 1684. (a) The Labor Commissioner shall not issue to any person a license to act as a farm labor contractor, nor shall the Labor Commissioner renew that license, until all of the following conditions are satisfied: (1) The person has executed a written application in a form prescribed by the Labor Commissioner, subscribed and sworn to by the person, and containing all of the following: (A) A statement by the person of all facts required by the Labor Commissioner concerning the applicant's character, competency, responsibility, and the manner and method by which the person proposes to conduct operations as a farm labor contractor if the license is issued. (B) The names and addresses of all persons, except bona fide employees on stated salaries, financially interested, either as partners, associates, or profit sharers, in the proposed operation as a farm labor contractor, together with the amount of their respective interests. (C) A declaration consenting to the designation by a court of the Labor Commissioner as an agent available to accept service of summons in any action against the licensee if the licensee has left the jurisdiction in which the action is commenced or otherwise has become unavailable to accept service.  (D) The names and addresses of all persons who in the previous calendar year performed any services described in subdivision (b) of Section 1682 within the scope of his or her employment by the licensee on whose behalf he or she was acting, unless the person was employed as an independent contractor.  (2) The Labor Commissioner, after investigation, is satisfied as to the character, competency, and responsibility of the person. (3)  (A)    The person has deposited with the Labor Commissioner a surety bond in an amount based on the size of the person's annual payroll for all employees, as follows:  (A)   (i)  For payrolls up to five hundred thousand dollars ($500,000), a  twenty-five thousand dollar ($25,000)   fifty thousand dollar ($50,000)  bond.  (B)   (ii)  For payrolls of five hundred thousand dollars ($500,000) to two million dollars ($2,000,000), a  fifty thousand dollar ($50,000)   one hundred thousand dollar ($100,000)  bond.  (C)   (iii) For payrolls greater than two million dollars ($2,000,000), a  seventy-five thousand dollar ($75,000)   one hundred fifty thousand dollar ($150,000) bond.  (B) For purposes of this paragraph, the Labor Commissioner shall require documentation of the size of the person's annual payroll which may include, but is not limited to, information provided by the person to the Employment Development Department, the Franchise Tax Board, the Division of Workers' Compensation, the insurer providing the licensee's workers' compensation insurance, or the Internal Revenue Service.   Where   If  the contractor has been the subject of a final judgment in a year in an amount equal to  that   or greater than the amount of the bond required, he or she shall be required to deposit an additional bond within 60 days.  The bond   All bonds required under this chapter  shall be payable to the people of the State of California and shall be conditioned  that   upon  the farm labor  contractor will comply   contractor's compliance  with all the terms and provisions of this chapter and  will pay   subdivisions (j) and (k) of Section 12940 of, and Sections 12950 and 12950.1 of, the Government Code, and payment of  all damages occasioned to any person by failure to do so, or by any violation of this chapter  or of subdivision (j) or (k) of Section 12940 of, or of Section 12950 or 12950.1 of, the Government Code  , or false statements or misrepresentations made in the procurement of the license. The bond shall also be payable for interest on wages and for any damages arising from violation of orders of the Industrial Welfare Commission, and for any other monetary relief awarded to an agricultural worker as a result of a violation of this code  or of subdivision (j) or (k) of Section 12940 of, or Section 12950 or 12950.1 of, the Government Code  . (4) The person has paid to the Labor Commissioner a license fee of five hundred dollars ($500) plus a filing fee of ten dollars ($10). However, where a timely application for renewal is filed, the ten dollar ($10) filing fee is not required.  The license fee shall increase by one hundred dollars ($100), to six hundred dollars (   $600), on January 1, 2015. The increased fee shall be expended by the Labor Commissioner to fund the Farm Labor Contractor Enforcement Unit and the Farm Labor Contractor License Verification Unit. Notwithstanding Section 1698, no portion of that increase shall be credited to the General Fund.  The Labor Commissioner shall deposit one hundred fifty dollars ($150) of each licensee's annual license fee into the Farmworker Remedial Account. Funds from this account shall be disbursed by the Labor Commissioner only to persons determined by the Labor Commissioner to have been damaged by any licensee  when   if  the damage exceeds the  limits   amount  of the  licensee' s bond  ,  licensee's bond or the surety fails to pay the full amount of the licensee's bond,  or to persons determined by the Labor Commissioner to have been damaged by an unlicensed farm labor contractor. In making these determinations, the Labor Commissioner shall disburse funds from the Farmworker Remedial Account to satisfy claims against farm labor contractors or unlicensed farm labor contractors, which shall also include interest on wages and any damages arising from the violation of orders of the Industrial Welfare Commission, and for any other monetary relief awarded to an agricultural worker as a result of a violation of this code. The Labor Commissioner may disburse funds from the Farmworker Remedial Account to farm labor contractors, for payment of farmworkers, where a contractor is unable to pay farmworkers due to the failure of a grower or packer to pay the contractor. Any disbursed funds subsequently recovered by the Labor Commissioner pursuant to Section 1693, or otherwise, shall be returned to the Farmworker Remedial Account. (5) The person has taken a written examination that demonstrates an essential degree of knowledge of the current laws and administrative regulations concerning farm labor contractors as the Labor Commissioner deems necessary for the safety and protection of farmers, farmworkers, and the  public.   public, including, protections from sexual harassment in the workplace.  To successfully complete the examinations, the person must correctly answer at least 85 percent of the questions posed. The examination period shall not exceed four hours. The examination may only be taken a maximum of three times in a calendar year. The examinations shall include a demonstration of knowledge of the current laws and regulations regarding wages, hours, and working conditions, penalties, employee housing and transportation, collective bargaining, field sanitation, and safe work practices related to pesticide use, including all of the following subjects: (A) Field reentry regulations. (B) Worker pesticide safety training. (C) Employer responsibility for safe working conditions. (D) Symptoms and appropriate treatment of pesticide poisoning. (6) The person has registered as a farm labor contractor pursuant to the federal Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1801 et seq.), when registration is required pursuant to federal law  , and that information is provided by the person to the Labor Commissioner  .  (7) The person's employees have registered as a farm labor contractor employee pursuant to the federal Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1801 et seq.) if that registration is required pursuant to federal law, and that information is provided by the person to the Labor Commissioner.  (b) (1) The Labor Commissioner shall consult with the Director of Pesticide Regulation, the Department of the California Highway Patrol, the Department of Housing and Community Development, the Employment Development Department,  the Department of Fair Employment and Housing,  the Department of Food and Agriculture, the Department of Motor Vehicles, and the Division of Occupational Safety and Health in preparing the examination required by paragraph (5) of subdivision (a) and the appropriate educational materials pertaining to the matters included in the examination, and may charge a fee of not more than  one hundred dollars ($100)   two hundred dollars ($200)  to cover the cost of administration of the examination. (2) In addition, the person must enroll and participate in at least  eight   16  hours of relevant, educational classes each year.  The classes shall include sexual harassment prevention training.  The classes shall be chosen from a list of approved classes prepared by the Labor Commissioner, in consultation with the persons and entities listed in paragraph (1) and county agricultural commissioners. (c) The Labor Commissioner may renew a license without requiring the applicant for renewal to take the examination specified in paragraph (5) of subdivision (a) if the Labor Commissioner finds that the applicant meets all of the following criteria: (1) Has satisfactorily completed the examination during the immediately preceding two years. (2) Has not during the preceding year been found to be in violation of any applicable laws or regulations including, but not limited to, Division 7 (commencing with Section 12501) of the Food and Agricultural Code,  subdivisions (j) and (k) of Section 12940 of, and Section 1   2950 or 12950.1 of, the Government Code,  Part 1 (commencing with Section 17000) of Division 13 of the Health and Safety Code, Division 2 (commencing with Section 200), Division 4 (commencing with Section 3200), and Division 5 (commencing with Section 6300) of this code, and Chapter 1 (commencing with Section 12500) of Division 6 of the Vehicle Code. (3) Has, for each year since the license was obtained, enrolled and participated in at least eight hours of relevant, educational classes, chosen from a list of approved classes prepared by the Labor Commissioner. (4) Has complied with all other requirements of this section. SEC. 2. Section 1685 of the Labor Code is amended to read: 1685. No license to operate as a farm labor contractor shall be granted: (a) To any person who sells or proposes to sell intoxicating liquors in a building or on premises where he operates or proposes to operate as a farm labor contractor. (b) To a person whose license has been revoked within three (3) years from the date of application.  (c) To a person who, within the preceding three years, has been found by a court or an administrative agency to have committed sexual harassment of an employee. For purposes of this section, "person" means any applicant or any crewleader, mayordomo, foreperson, or any other employee of the applicant whose duties include the supervision, direction, or control of any agricultural worker on behalf of the applicant.  SEC. 3. Section 1690 of the Labor Code is amended to read: 1690. The Labor Commissioner may revoke, suspend, or refuse to renew any license  when   if  it is shown that any of the following have occurred: (a) The licensee or any agent of the licensee has violated or failed to comply with any of the provisions of this chapter. (b) The licensee has made any misrepresentations or false statements in his or her application for a license. (c) The conditions under which the license was issued have changed or no longer exist. (d) The licensee, or any agent of the licensee, has violated, or has willfully aided or abetted any person in the violation of, or failed to comply with, any law of the State of California regulating the employment of employees in agriculture, the payment of wages to farm employees, or the conditions, terms, or places of employment affecting the health and safety of farm employees, which is applicable to the business, activities, or operations of the licensee in his or her capacity as a farm labor contractor. (e) The licensee, or any agent of the licensee, has failed to comply with any provisions of the Vehicle Code pertaining to a farm labor vehicle, as described in Sections 322 and 323 of the Vehicle Code, under the licensee's control, or has allowed a farm labor vehicle under his or her control to be operated by a driver without a valid driver's license and certificate required pursuant to Section 12519 of the Vehicle Code. (f) The licensee has been found, by a court or the Secretary of Labor, to have violated any provision of the federal Migrant and Seasonal Agricultural Worker Protection Act (Chapter 20 (commencing with Section 1801), Title 29, United States Code), provided that the licensee is required to register as a farm labor contractor pursuant to federal law.  (g) The licensee, or any crewleader, mayordomo, foreperson, or any other employee of the licensee whose duties include the supervision, direction, or control of any agricultural worker on behalf of the licensee, has been found by a court or an administrative agency to have committed sexual harassment of an employee.  SEC. 4. Section 1690.1 of the Labor Code is amended to read: 1690.1.  (a)    If any licensee fails to remit the proper amount of worker contributions required by Chapter 4 (commencing with Section 901) of Part 1 of Division 1 of the Unemployment Insurance Code, or the Employment Development Department has made an assessment for such unpaid worker contributions against the licensee that is final, the Labor Commissioner shall, upon written notice by the Employment Development Department, refuse to issue or renew the license of such licensee until such licensee has fully paid the amount of delinquency for such unpaid worker contributions. The Labor Commissioner shall not, however, refuse to renew the license of a licensee under this section until the assessment for unpaid worker contributions is final and unpaid, and the licensee has exhausted, or failed to seek, his right of administrative review of such final assessment, pursuant to Chapter 4 (commencing with Section 901) of Part 1 of Division 1 of the Unemployment Insurance Code.  (b) If any licensee fails to remit the amounts required by Section 227, the Labor Commissioner shall refuse to issue or renew the license of the licensee until the delinquent amount has been paid in full.  SEC. 5. Section 1694 of the Labor Code is amended to read: 1694. When a licensee has departed from the State  or has left the jurisdiction in which a violation of this chapter is alleged to have occurred  with intent to defraud creditors or to avoid service of summons in any action brought under this chapter, service shall be made upon the surety as prescribed in the Code of Civil Procedure. A copy of the summons shall be mailed to the licensee at the last known post-office address of his residence, as shown by the records of the Labor Commissioner. Service is complete as to  such   the  licensee, after mailing, at the expiration of the time prescribed by the Code of Civil Procedure for service of summons in the particular court in which suit is brought. SEC. 6. Section 1695 of the Labor Code is amended to read: 1695. (a) Every licensee shall do all of the following: (1) Carry his or her license and proof of registration issued pursuant to paragraph (8) with him or her at all times and exhibit the same to all persons with whom he or she intends to deal in his or her capacity as a farm labor contractor prior to so dealing. (2) File at the United States Post Office serving the address of the licensee, as noted on the face of his or her license, with the office of the Labor Commissioner, and with the agricultural commissioner of the county or counties in which the labor contractor has contracted with a grower, a correct change of address immediately upon each occasion the licensee permanently moves his or her address. The address shall also be the mailing address for purposes of notice required by the Labor Code or by any other applicable statute or regulations respecting service by mail. (3) Promptly when due, pay or distribute to the individuals entitled thereto, all moneys or other things of value entrusted to the licensee by any third person for this purpose. (4) Comply on his or her part with the terms and provisions of all legal and valid agreements and contracts entered into between licensee in his or her capacity as a farm labor contractor and third persons. (5) Have available for inspection by his or her employees and by the grower with whom he or she has contracted a written statement in English and Spanish showing the rate of compensation he or she receives from the grower and the rate of compensation he or she is paying to his or her employees for services rendered to, for, or under the control of the grower.  Upon written request, the statement shall be provided to a current or former employee or the grower within 21 calendar days. A licensee who fails to comply with this paragraph is subject to a civil penalty of seven hundred fifty dollars ($750) recoverable by the employee or the grower.  (6) Take out a policy of insurance with any insurance carrier authorized to do business in the State of California in an amount satisfactory to the commissioner, which insures the licensee against liability for damage to persons or property arising out of the licensee's operation of, or ownership of, any vehicle or vehicles for the transportation of individuals in connection with his or her business, activities, or operations as a farm labor contractor. (7) Have displayed prominently at the site where the work is to be performed and on all vehicles used by the licensee  or his or her employees or agents  for the transportation of employees the rate of compensation the licensee is paying to his or her employees for their services, printed in both English and Spanish and in lettering of a size to be prescribed by the Department of Industrial Relations. (8) Register annually with the agricultural commissioner of the county or counties in which the labor contractor has contracted with a grower. (9) Provide information and training on applicable laws and regulations governing worker safety, including the requirements of Article 10.5 (commencing with Section 12980) of Chapter 2 of Division 7 of the Food and Agricultural Code,  sexual harassment,  or regulating the terms and conditions of agricultural employment, to each crew leader, foreperson, or other employee whose duties include the supervision, direction, or control of any agricultural worker on behalf of a licensee, or pursuant to, a contract or agreement for agricultural services entered into with a licensee.  (10) Upon written request, provide to a current or former employee within 21 calendar days, a copy of any written agreement with the grower or other farm labor contractor concerning the amount of the commission or the payment made to the licensee for services under the contract or agreement. If an oral agreement was made with the grower or other farm labor contractor concerning the amount of the commission or other services provided under the agreement, the licensee shall reduce the elements of the agreement to writing and, within 21 calendar days of a written request, provide a copy thereof to a current or former employee. A licensee who fails to comply with this paragraph is subject to a civil penalty of seven hundred fifty dollars ($750) recoverable by the employee.  (b) The board of supervisors of a county may establish fees to be charged each licensee for the recovery of the actual costs incurred by commissioners in the administration of registrations and change of address and the issuance of proofs of registration. SEC. 7. Section 1695.5 of the Labor Code is amended to read: 1695.5. (a) Every farm labor contractor, upon request of any agricultural grower with whom he or she has a contract to supply farmworkers, shall immediately furnish the grower with a payroll list of all the contractor's employees working for the grower. (b) The payroll list shall be on a uniform form approved by the Labor Commissioner, which shall include, but not be limited to, the employee's name, social security number, permanent and temporary address, telephone number, and length of employment with the grower. (c) The requirements of this section are in addition to any requirements of federal law, including the federal Migrant and Seasonal Agricultural Worker Protection Act (Chapter 20 (commencing with Section 1801), Title 29, United States Code).  (d) A current or former employee asserting a failure of the farm labor contractor to comply with a provision of this code, upon written request, shall receive within 21 calendar days a complete and accurate copy of a payroll list of all of the contractor's employees covering the inclusive dates of his or her employment. A licensee who fails to comply with this paragraph is subject to a civil penalty of seven hundred fifty dollars ($750) recoverable by the employee.  SEC. 8. Section 1695.55 of the Labor Code is amended to read: 1695.55. (a) Every person acting in the capacity of a farm labor contractor shall provide any grower with whom he or she has contracted to supply farmworkers a payroll record for each farmworker providing labor under the contract. The payroll record shall include a disclosure of the  wages and   net and gross wages, total  hours  worked   worked, and total hourly and piece rate earnings  for each farmworker. (b) Each grower entering into a contract with a farm labor contractor shall retain a copy of the payroll record provided by the contractor for  the duration of the contract.   a period of three years after the contract has ended.  SEC. 9. Section 1696.2 of the Labor Code is amended to read: 1696.2. All vehicles used by a licensee  or his or her employees or agents  for the transportation of individuals in his  or her  operations as a farm labor contractor shall have displayed prominently at the entrance of such vehicle the name of the farm labor contractor and the number of his  or her  license as issued by the Labor Commissioner pursuant to this chapter. SEC. 10. Section 1696.5 of the Labor Code is amended to read: 1696.5. Every licensee shall, at the time of each payment of wages, which shall be not less often than once every week as required by Section 205 of this code, furnish each of the workers employed by him  or her  either as a detachable part of the check, draft, or voucher paying the employee's wages, or separately, an itemized statement in writing  showing   that complies with the requirements of subdivision (a) of Section 226 and shows  in detail each  and every  deduction made from  such   the  wages. SEC. 11. Section 1697 of the Labor Code is amended to read: 1697. (a) Any person who violates this chapter, or who causes or induces another to violate this chapter, is guilty of a misdemeanor punishable by a fine of not more than one thousand dollars ($1,000), or imprisonment in the county jail for not more than six months, or both. (b) Any employee aggrieved by any violation of this chapter, other than acts and conduct also proscribed by Sections 1153, 1154, and 1155, may do all of the following: (1) Bring a civil action for injunctive relief or damages, or both, against a farm labor contractor or unlicensed farm labor contractor who violates this chapter and, upon prevailing, shall recover reasonable attorney's  fees.   fees and costs, including expert witness fees.  (2) Enforce the liability on the farm labor contractor's bond. (c) Any farm labor contractor who engages in farm labor contracting activities after his or her license has been  suspended or revoked   suspended, revoked, or denied reissuance  is guilty of an offense punishable by a fine of not less than  one thousand dollars ($1,000) and not more than five thousand dollars ($5,000),   ten thousand dollars ($10,000),  or by imprisonment for not less than six months and not more than one year, or both. SEC. 12. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.