To protect day laborers from unfair labor practices.

August 2, 2001

Mr. GUTIERREZ (for himself, Mr. OWENS, Mr. DAVIS of Illinois, Mr. LIPINSKI, Ms. MCKINNEY, Ms. LEE, Ms. KAPTUR, Mr. TOWNS, Mr. STARK, Mr. MCGOVERN, Mr. RUSH, Mr. CUMMINGS, Mr. FRANK, Mr. FILNER, Ms. CARSON of Indiana, Ms. SOLIS, Mr. KUCINICH, Mr. JACKSON of Illinois, Mr. BLAGOJEVICH, Mr. COSTELLO, Mr. CONYERS, and Mr. THOMPSON of Mississippi) introduced the following bill; which was referred to the Committee on Education and the Workforce

To protect day laborers from unfair labor practices.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Day Laborer Fairness and Protection Act'.

SEC. 2. DEFINITIONS.

In this Act the following definitions apply:

(1) DAY LABORER- The term `day laborer' means an individual who contracts for employment with a day labor service agency.

(2) DAY LABOR- The term `day labor' means labor or employment that is occasional or irregular for which an individual is employed for not longer than the time period required to complete the assignment for which the individual was hired and in which wage payments are made directly or indirectly by the day labor service agency or the third party employer for work undertaken by a day laborer pursuant to a contract between the day labor service agency with the third party employer. Day labor does not include labor or employment of a professional or clerical nature.

(3) DAY LABOR SERVICE AGENCY- The term `day labor service agency' means any person or entity engaged in the business of employing day laborers to provide services to or for any third party employer pursuant to a contract with the day labor service agency and the third party employer.

(4) DEPARTMENT- The term `Department' means the Department of Labor.

(5) SECRETARY- The term `Secretary' means the Secretary of Labor.

(6) THIRD PARTY EMPLOYER- The term `third party employer' means any person or entity that contracts with a day labor service agency for the employment of day laborers.

SEC. 3. EQUAL WAGES.

(a) EQUAL RATE- A day labor service agency shall provide notice of the wage rate expected to be paid by each third party employer using the services of the agency. For a third party employer, such wage rate shall be the rate that is equal to the rate paid to permanent employees of such third party employer who are performing substantially equivalent work, with due consideration given to seniority, experience, skills and qualifications. A day laborer shall be paid by a third party employer not less than the wage rate stated in the notice of the agency for all work performed for the third party employer, including the work contained in the description issued under section 6.

(b) WAGE REDUCTION- An employer who is paying a wage rate differential in violation of subsection (a) shall not, in order to comply with subsection (a), reduce the wage rate of any employee.

(c) AGENCY PROCESSING DELAY-

(1) IN GENERAL- If a day labor service agency expends more than 30 minutes in processing a day laborer's work assignment, the day labor service agency shall pay the day laborer for any additional waiting time at a rate that is not less than the rate in effect under section 6(a)(1) of the Fair Labor Standards Act of 1938 (20 U.S.C. 206) or the applicable State minimum wage law whichever is higher.

(2) LIMITATION- The time spent in transit to or from the designated work site or to or from the day labor service agency shall not be included in computing processing time.

(d) UNPAID WAGES- For purposes of administration and enforcement of this Act, any amounts owing to any employee that have been withheld in violation of subsection (a) shall be deemed to be unpaid minimum wages or unpaid overtime compensation.

(e) ENFORCEMENT- Any employer who violates subsection (a) shall be liable to any eligible employee affected for damages equal to--

(1) the amount of any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation;

(2) the interest on the amount described in paragraph (1) calculated at the prevailing rate.

(f) CRIMINAL PROVISION-

(1) IN GENERAL- Any employer or any agent of an employer, who, being able to pay wages, final compensation, or wage supplements and being under a duty to pay, willfully refuses to pay as provided in

subsection (a), or falsely denies the amount or validity thereof or that the same is due, with intent to secure for such employer or other person any underpayment of such indebtedness with intent to annoy, harass, oppress, hinder, delay, or defraud the person to whom such indebtedness is due, shall be fined under title 18, United States Code.

(2) CONTINUED VIOLATION- Each day during which any violation of subsection (a) continues shall constitute a separate and distinct offense.

(g) EMPLOYER FAILURE TO PAY- Any employer who has been ordered by the Secretary or the court to pay wages due an employee and who fails to do so within 15 days after such order is entered shall be liable to pay a penalty of 10 percent per calendar day to the day laborer for each day of delay in paying such wages to the day laborer up to an amount equal to twice the sum of unpaid wages due the day laborer.

(h) OTHER WAGE ISSUES-

(1) IN GENERAL- At the time of the payment of wages, a day labor service agency shall provide each day laborer with an itemized statement showing in detail each deduction made from the wages.

(2) ANNUAL STATEMENT- A day labor service agency shall provide each worker an annual earnings summary within a reasonable time after the preceding calendar year, but in no case later than February 1. A day labor service agency shall, at the time of each wage payment, give notice to day laborers of the availability of the annual earnings summary or post such a notice in a conspicuous place in the public reception area.

(3) PAYMENT SCHEDULES- At the request of a day laborer, a day labor service agency shall hold the daily wages of the day laborer and make either weekly or semi-monthly payments. The wages shall be paid in a single check representing the wages earned during the period for which wage payments are to be made, as designated by the day laborer. A day labor service agency that make daily wage payments shall provide written notification to all day laborers of the right to request weekly or semi-monthly checks. The day laborer service agency may provide such notice by conspicuously posting the notice at the location where the wages are received by the day laborers.

(4) CHECK CASHING- A day labor service agency may not charge any day laborer for cashing a check issued by the agency for wages earned by a day laborer who performed work through that agency.

(5) OVERPAYMENT- A day laborer shall not be charged fees for overpayment to them by the day labor agency.

SEC. 4. RIGHTS OF DAY LABORERS.

(a) GENERAL RIGHTS- Any employer, or any agent of an employer, who knowingly discharges or in any other manner knowingly discriminates against any day laborer because that day laborer has--

(1) made a complaint to the day laborer's employer, or to the Secretary or the Secretary's authorized representative, that the day laborer has not been paid in accordance with section 3(a),

(2) caused to be instituted any proceeding under or related to this Act, or

(3) testified or is about to testify in an investigation or proceeding under this Act,

shall be fined under title 18, United States Code.

(b) PUBLIC ACCESS AREA- Each day labor service agency shall provide adequate seating in the public access area of the offices of the agency. The public access area shall be the location for the employment and wage notices required by this Act. The public access area shall allow for access to restrooms and water.

(c) WORK RESTRICTION- No day labor service agency shall restrict the right of a day laborer to accept a permanent position with a third party employer to whom the day laborer has been referred for temporary work or restrict the right of such third party employer to offer such employment to a day laborer. Nothing in this subsection shall restrict a day labor service agency from receiving a placement fee from the third party employer for employing a day laborer for whom a contract for temporary work has been effected by the day labor service agency.

SEC. 5. INJURIES.

(a) HEALTH CARE EXPENSES- If a day laborer is injured while working, the employer who has requested the services of such day laborer shall be responsible to pay for the health care costs associated with the injury unless compensation is available under the applicable State workmens' compensation law.

(b) TRANSPORTATION LIABILITY- A day labor service agency or a third party employer that transports a day laborer to or from a designated work site is liable for any injury to a day laborer arising from any accident that occurs while the day laborer is being transported to or from the work site.

SEC. 6. NOTIFICATION REQUIREMENTS.

A day labor service agency shall, in the public reception area, post a list of all employers that are seeking day laborers which shall include the following:

(1) The name and address of the employer and the address of the work site if different from that of the employer.

(2) The type of job opportunity for day laborers.

(3) The amount of wages to be paid per hour for the work.

(4) Whether transportation is available, the cost of transportation, if any, whether the work site is accessible by public or personal transportation, and the approximate commute time to the work site. A day labor service agency shall, for each job opportunity posted, provide a detailed description of the work which shall include the following:

(A) A detailed description of the work to be performed by the day laborer, including any requirements for special attire, accessories, or safety equipment.

(B) Whether the day laborer will be charged for using special attire, accessories, or safety equipment.

(C) The exact address of the work site and a telephone number at which a day laborer can be reached for emergency purposes. If the location is in a rural area, the notice must also contain directions to the work site.

(D) The time of day the work will begin, the time of day the work will end, and the overtime rate of pay.

(E) Whether a meal is provided, either by the day labor service agency or the third party employer, and the cost of the meal, if any. The notices required to be posted under this section shall be written in English and any other language that is generally used in the locale of the day labor service agency.

SEC. 7. EQUITABLE EXPENSES.

(a) MEALS- A day labor service agency or a third party employer shall not charge a day laborer more than the actual cost of providing a meal. In no case shall the purchase of a meal be a condition of employment for a day laborer.

(b) TRANSPORTATION- A day labor service agency or a third party employer shall charge no more than the actual cost to transport a day laborer to or from the designated work site; except that, the total cost to each day laborer shall not exceed 3 percent of the day laborer's daily wages. Any motor vehicle that is owned or operated by the day labor service agency or a third party employer, or a contractor of either, which is used for the transportation of day laborers shall have proof of financial responsibility as provided for in applicable State insurance laws of the area.

(c) DAY LABORER EQUIPMENT- For any safety equipment, clothing, accessories, or any other items required by the nature of the work, either by law, custom or as a requirement of the third party employer, the day labor service agency or the third party employer may charge the day laborer the market value of the item temporarily provided to the day laborer by the third party employer if the day laborer fails to return such items to the third party employer or the day labor service agency. For any other equipment, clothing, accessories, or any other items the day labor service agency makes available for purchase, the day laborer shall not be charged more than the actual market value for the item.

SEC. 8. AGENCY REGISTRATION.

(a) IN GENERAL- A day labor service agency shall register with the Secretary in accordance with rules adopted by the Secretary for day labor service agencies and with State departments of labor which require such registration.

(b) FEES- The Secretary may assess each day labor agency a registration fee not exceeding $250.

SEC. 9. DEPARTMENT REQUIREMENTS AND RESPONSIBILITIES.

(a) IN GENERAL- The Secretary shall adopt rules and regulations necessary to implement the provisions of this Act, including provisions for hearings and imposition of penalties for violations of this Act.

(b) POSTING REQUIREMENT- The Secretary shall cause to be posted in each day labor service agency a notice which informs the public of a toll-free telephone number for day laborers and the public to file wage dispute complaints and other alleged violations by day labor service agencies.

(c) FINES- The Secretary shall have the authority to fine a day labor service agency that fails to register with the Department of Labor in accordance with this Act $1,000 for the first offense and $5,000 for the second offense.

(d) SUSPENSIONS AND REVOCATIONS- The Secretary shall have the authority to suspend or revoke the registration of a day labor service agency if warranted by public health and safety concerns or violations of this Act.

(e) INVESTIGATIONS- The Secretary shall promptly investigate complaints concerning alleged violations of this Act.

SEC. 10. PREVENTION OF DISCRIMINATION DURING AND AT THE CONCLUSION OF LABOR DISPUTES.

Section 8(a) of the National Labor Relations Act (29 U.S.C. 158(a)) is amended--

(1) by striking the period at the end of paragraph (5) and inserting `; or', and

(2) by adding at the end thereof the following new paragraph:

`(6)(i) to offer, or to grant, the status of a permanent replacement employee to an individual for performing bargaining unit work for the employer during a labor dispute, or

`(ii) to otherwise offer, or grant, an individual any employment preference based on the fact that such individual was employed, or indicated a willingness to be employed, during a labor dispute over an individual who--

`(A) was an employee of the employer at the commencement of the dispute;

`(B) has exercised the right to join, to assist, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection through the labor organization involved in the dispute; and

`(C) is working for, or has unconditionally offered to return to work for, the employer.'.

END