To protect day laborers from unfair labor practices.

July 24, 2003

Mr. GUTIERREZ 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. FINDINGS.

Congress finds the following:

(1) According to the General Accounting Office, contingent workers comprise approximately 30 percent of the workforce and research indicates that the size of the day labor workforce may be greater than nationally available data suggests.

(2) Employers increasingly rely on contingent workers rather than permanent workers. Employers benefit from the reduced costs and increased flexibility of utilizing a contingent workforce. This reliance has resulted in a significant decrease in the number of workers with health insurance coverage, included in retirement and pension plans, and receiving other employment benefits such as long-term disability coverage. Contingent workers have lower family incomes than those in full-time permanent employment. Many contingent workers live below the Federal poverty line.

(3) The General Accounting Office has found that the day labor workforce is particularly vulnerable to workplace abuses. Day laborers are subject to a wide range of abuses of their civil rights, employment and labor rights, and health and safety rights. Although day laborers and contingent workers face higher incidences of workplace abuse, the General Accounting Office has found current practices and laws make it difficult to detect violations affecting contingent workers and day laborers.

(4) Wage and hour abuses are of particular concern to day laborers. Despite current legal wage and hour protections afforded to day laborers, such laborers are subject to pervasive wage and hour violations committed by day labor employers and temporary labor agencies. The short nature of the employment relationship, multiple barriers to enforcement resources and the lack of strong protective wage and hour laws render day laborers particularly vulnerable to nonpayment of wages. Wage and hour problems confronting day laborers take many forms and include: complete nonpayment of wages; payment of less than the agreed upon rate; payment by checks with insufficient funds and late payment of wages. Day labor employers often delay payments of promised wages until the completion of a job. Upon completion, day laborers are commonly left with less than promised or a void check. Lack of access to social and legal services that could assist them in enforcing their workplace rights leave few options for day laborers seeking to recover unpaid wages.

(5) Occupational injury and fatality rates for day laborers are disproportionately higher than such rates for other workers. Desperate for work and fearing retaliation, day laborers often risk life and limb without ever reporting work hazards. Day laborers are often assigned to the dangerous tasks shunned by workers with more options. Employers often neglect their duties to provide safe employment that is free from hazards to a day laborers' health. Employers regularly fail to provide necessary health and safety equipment and training to day laborers. Due to the lack of notice requirements, most day laborers have no advance warning about possible exposure to hazardous materials or dangerous tasks.

(6) Day laborers and contingent workers seeking to enforce the employment and labor laws are frequently subject to intimidating retaliatory acts by the employer. Absent stronger antiretaliation protections, day laborers will continue to endure dangerous and unjust working conditions without recourse.

(7) Day laborers and contingent workers provide employers with a flexible workforce and contribute significantly to interstate commerce. Despite these contributions, day laborers are routinely subjected to workplace abuse with little or no recourse. The growing numbers of day laborers and other contingent workers in the workforce calls for legislative reforms that expand and protect the rights of day laborers.

SEC. 3. PURPOSE.

The purpose of this Act is to ensure that individuals working as day laborers, or temporary workers, are afforded full protection of and access to employment and labor laws that ensure workplace dignity and to reduce unfair competitive advantage for firms that abuse day laborers.

SEC. 4. DEFINITIONS.

In this Act the following definitions apply:

(1) DAY LABORER- The term `day laborer' means an individual who is engaged in or waiting to be engaged in day labor.

(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 to the day laborer or indirectly by the day labor service agency or the third party employer for work undertaken by a day laborer. Day labor does not include labor or employment of a professional or clerical nature.

(3) DAY LABOR EMPLOYER- For purposes of this Act, the term `day laborer employer' refers to any person or entity that directly or indirectly, through an agent, day labor service agency or any other entity acting in the employer's interest, engages, suffers or permits a day laborer to work or otherwise has the right to exercise control over the wages, hours or working conditions of a day laborer. The term includes day labor service agencies and third party employers as defined in this Act.

(4) DAY LABORER SHAPE-UP SITE- The term `day laborer shape-up site' means any public area or street corner, residential or commercial, where day laborers assemble to seek employment.

(5) DAY LABORER HIRING SITE- The term `day laborer hiring site' refers to any program sponsored by a public entity or nonprofit organization that provides a space for day laborers to assemble for work and participate in skills development workshops and classes. For the purposes of this Act, day laborer hiring sites are not day labor employers.

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

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

(8) REGULAR RATE OF PAY- The term `regular rate of pay' means an hourly wage rate agreed to by the day labor employer and day laborer. If a daily rate is negotiated, the regular rate of pay shall be calculated by dividing the total remuneration agreed upon for 1 week by 40. On jobs that require prevailing wage rates, the regular rate of pay shall be the prevailing wage or wage agreed to by the day laborer employer and day laborer, whichever is higher. In no circumstances shall the regular rate of pay be less than that required by law.

(9) DAY LABOR SERVICE AGENCY- The term `day labor service agency' means any person or entity that recruits, dispatches, or otherwise facilitates the employment of day laborers by a third party employer. A day labor service agency is a day labor employer and shares all legal obligations placed on a day labor employer by this Act. A not-for-profit organization is not a day labor service agency.

(10) WORKDAY AND DAY- The terms `workday' and `day' mean any consecutive 24 hours period beginning at the same time each calendar day.

(11) THIRD PARTY EMPLOYER- The term `third party employer' refers to a person or entity that suffers or permits a day laborer to work by contracting with a day labor service agency. Third party employers are day labor employers and share all legal obligations placed on day labor employers.

SEC. 5. SUSTAINABLE WAGES.

(a) SUSTAINABLE WAGE- A day laborer shall be paid not less than the equivalent of the prevailing wage rate paid to permanent employees who are performing substantially equivalent work, with due consideration given to seniority, experience, and skills.

(b) NOTICE OF WAGE RATE- Day labor employers shall provide notice of the wage rate expected to be paid to each day laborer. 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. 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 work contained in the description issued under section 8.

(c) WAGE REDUCTION- Day labor employers are prohibited from reducing the wage rate of any permanent full time employee in order to comply with subsection (a) or (b).

(d) OVERTIME- A day laborer shall be compensated at a rate of 1 and one-half times the regular rate of pay for each hour worked beyond 8 hours up to and including 12 hours in a workday, and for the first 8 hours worked on the seventh consecutive day of work in a work week.

(e) DAILY OVERTIME- Day laborers are entitled to double the regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of 8 hours on the seventh consecutive day of work in a work week.

(f) MINIMUM DAILY RATE- A day laborer performing day labor shall be compensated for not less that 4 hours of work for each day worked.

(g) CALL IN PAY- If the day labor employer fails to appear after requesting a day laborer's services at a designated time and location, the day laborer shall be compensated for not less than 4 hours at the regular rate of pay.

(h) WAIT TIME- If a day laborer arrives for employment at the request of a day labor employer, time spent waiting for the employer is wait time compensable at the regular rate of pay.

(i) REDUCTION OF SALARY- If a day labor employer has offered and a day laborer has accepted a wage rate, the day labor employer cannot reduce that negotiated salary during that day of employment.

(j) TRAVEL TIME- Day laborers are to be compensated for travel time if such activity is an integral and indispensable part of the principal activities that the workers are employed to perform. For the purposes of this Act, time spent traveling from a day labor shape-up site, day labor hiring site, or day labor service agency to the worksite shall be compensable at the regular rate of pay.

(k) 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 the regular rate of pay.

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

SEC. 6. OTHER RIGHTS OF DAY LABORERS.

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

(b) 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. This subsection shall be understood to outlaw the charging of fines or additional amounts for making or accepting an offer of employment.

(c) BREAKS AND MEALS- For each 4-hour period of uninterrupted day labor, a 15-minute compensated break shall be provided. For periods of uninterrupted day labor lasting longer than 6 hours, a 30-minute compensated lunch period shall be provided.

(d) DISCLOSURE OF EMPLOYER INFORMATION- At the time of hire, a day labor employer must provide a day laborer with the day labor employers' phone number and business address.

(e) TRANSPORTATION BACK TO POINT OF HIRE- Unless the day laborer requests otherwise, the day labor employer shall provide transportation back to the point of hire at the end of each work day.

(f) TRANSPORTATION FEES- Day labor service agencies, third party employers and day laborer employers shall not charge a day laborer for the costs of transportation to and from the premises of the day labor agency, day laborer shape-up site, or day laborer hiring site to the worksite.

(g) PAYMENTS-

(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 or day labor employer shall hold the daily wages of the day laborer and make either weekly or semimonthly 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 or day labor employer that makes daily wage payments shall provide written notification to all day laborers of the right to request weekly or semimonthly 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) DAILY WAGES- If day labor employment lasts less than 1 week wages shall be paid at the end of each workday.

(5) CHECK CASHING- A day labor service agency, day labor employer, or third party employer may not directly or indirectly charge any day laborer for cashing a check issued by the day labor service agency, day labor employer, or third party employer for wages earned by a day laborer who performed work through that day labor service agency, day labor employer or third party employer.

(6) OVERPAYMENT- A day laborer shall not be charged fees for overpayment by the day laboragency.

(7) NEGOTIABLE TENDER- All noncash wage payments shall be in the form of immediately negotiable tender payable in cash, on demand at a financial institution, and without discount.

(8) PAYMENT BY CHECK- If a day labor service agency or day labor employer pays by check, that check shall be immediately redeemable.

(9) PAYMENT ON TERMINATION- All wages must be paid within 72 hours of termination.

(10) PLACE OF PAYMENT ON TERMINATION- Upon termination, a day laborer may choose to be paid either at the worksite, the day labor site, or the day labor service agency. A day laborer may also request that the check be sent by first class mail. Unless the day laborer requests otherwise, a day labor employer shall pay a discharged day laborer at the worksite.

(h) OTHER RIGHTS GUARANTEED BY LAW- Day laborers shall be afforded all other rights guaranteed workers under the law.

(i) SPECIFIC RIGHTS- Day laborers shall be free of any restriction on their ability to solicit day labor or to express their availability for lawful day labor employment in any public area unless such restriction is applied to all speech or expression of any content, including political, artistic, religious, or commercial speech and to speech regardless of whether the speaker is physically present or speaks through unattended signs or banners--

(1) this right shall be enforceable by day laborers through a private action under section 1979 of the Revised Statutes (17 Stat. 13; 42 U.S.C. 1983); and

(2) any local or State ordinance or law that violates this provision shall be enjoined as invalid.

SEC. 7. HEALTH AND SAFETY.

(a) IN GENERAL- Every day labor service agency and day labor employer shall furnish employment and a place of employment that is safe and healthful for day laborers. Such employment shall be free of recognized hazards that are likely to cause death or serious physical harm to day laborers.

(b) LIFE, SAFETY, AND HEALTH REQUIREMENTS- No day labor service agency or day laborer employer shall fail or neglect to do any of the following:

(1) To provide and use safety devices and safeguards reasonably adequate to render the employment and place of employment safe at no cost to the day laborer.

(2) To adopt and use methods and processes reasonably adequate to render the employment and place of employment safe.

(3) To do every other thing reasonably necessary to protect the life, safety, and health of day laborers.

(c) CITATIONS FOR FAILURE TO COMPLY- On multi-employer worksites, both construction and nonconstruction, citations may be issued to the following categories of employers when the Occupational Safety and Health Administration, referred to in this Act as `OSHA', has evidence that a day laborer was exposed to a hazard in violation of any requirement enforceable by OSHA:

(1) The employer whose day laborers were exposed to the hazard (the exposing employer).

(2) The employer who actually created the hazard (the creating employer).

(3) The employer who was responsible, by contract or through actual practice, for safety and health conditions on the worksite, which is the employer who had the authority for ensuring that the hazardous condition is corrected (the controlling employer).

(4) The employer who had the responsibility for actually correcting the hazard (the correcting employer).

The employers listed in paragraphs (2) through (4), inclusive, of this subsection may be cited regardless of whether their own day laborers were exposed to a hazard.

(d) APPLICATION OF FEDERAL LAW-

(1) IN GENERAL- Employers and day laborers as defined by this Act shall be covered under the Occupational Health and Safety Act (OSHA). In addition to coverage under OSHA, employers and day laborers shall adhere to the following requirements:

(2) HEALTH CARE EXPENSES- If a day laborer is injured while working, the day labor employer shall be responsible to pay for the health care costs associated with the injury and all compensable damages flowing from that injury unless coverage for the accident is available under the applicable State worker's compensation law. The statute of limitations shall be otherwise tolled during the period in which the day laborer seeks coverage under the applicable State workers' compensation law.

(3) HEALTH AND SAFETY EQUIPMENT- The day labor service agency or day laborer employer shall provide at no cost to each day laborer any special attire, accessories, tools, safety equipment or other items required by law or custom to perform the work assignment.

(4) WORKERS' COMPENSATION- All day labor service agencies and day laborer employers are required to provide workers' compensation benefits to their day labor day laborers, regardless of immigration status, for injuries arising out of and in the course of employment.

(5) NOTIFICATION OF WORKERS' COMPENSATION BENEFITS- Day labor service agencies and day laborer employers shall provide all day laborers written notice on the first day of employment that contains a statement of the day laborer's right to workers' compensation benefits and the day labor service agency and day laborer employer's workers' compensation insurance carrier name and number. This notice shall be provided in English and any other language that is generally used by the workforce serviced by the day labor service agency or employed by the employer.

(6) NOTIFICATION, CONSENT, AND DISCLOSURE-

(A) IN GENERAL- The day labor service agency or any employer or agent of the employer must disclose the risk of exposure to hazardous chemicals or any other unsafe materials or working condition that require the use of safety and protective equipment.

(B) WRITTEN CONSENT- Day labor service agencies and day laborer employers are required to obtain the informed written consent of any day laborer who will be exposed to hazardous materials. Written consent shall include: a description of the hazardous materials the day laborer will be exposed to, the possible health and safety consequences of exposure to the hazardous materials and any specialized certification or training required to safely handle the hazardous materials.

(C) NO RETALITION- A day labor service agency or day laborer employer shall not take any retaliatory action against a day laborer who refuses to perform hazardous work due to health or safety concerns.

(7) TRANSPORTATION LIABILITY- A day labor service agency, day labor employer or any other employer or agent of the employer that transports a day laborer to or from a designated worksite 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 worksite.

(8) MOTOR VEHICLE SAFETY-

(A) IN GENERAL- Any motor vehicle that is owned or operated by the day labor service agency or any other employer, or a contractor of either, which is used for the transportation of day laborers shall--

(i) have proof of financial responsibility as provided for in applicable State insurance laws of the area;

(ii) be equipped with seats securely fastened to the vehicle;

(iii) be equipped, if a motortruck, with a railing or other suitable enclosure on the sides and end of the vehicle not less than 46 inches above the floor of the vehicle; and

(iv) equipped with steps, stirrups, or other equivalent devices so placed and arranged that the vehicle may be safely mounted and dismounted.

(B) UNSAFE VEHICLE- A day labor service agency or day labor employer who knows or should know that a motor vehicle used primarily or regularly for the transportation of day laborers is unsafe, or not equipped as required by this Act, or any regulations adopted pursuant to this Act, shall not use the motor vehicle for transporting day laborers.

(C) INSPECTION- The Secretary or an appointed designee shall inspect motor vehicles used primarily or regularly for the transport of day laborers at least once annually to determine whether its construction, design, and equipment comply with all provisions of Federal and State law. No person shall drive any motor vehicle used primarily or regularly for the transport of day laborers without displaying a certificate issued from the Secretary or an appointed designee confirming timely inspection and compliance with all laws and regulations relating to construction, design, and equipment.

(D) RENTER REQUIREMENTS- An owner or person who rents any motor vehicle used primarily or regularly for the transport of day laborers is responsible for compliance with the motor vehicle requirements of this Act.

SEC. 8. NOTIFICATION REQUIREMENTS.

(a) IN GENERAL-

(1) NOTICE- A day labor service agency shall, in the public reception area, post a list of all employers that are seeking day laborers which includes the following:

(A) The name and address of the employer and the address of the worksite if different from that of the employer.

(B) The type of job opportunities for day laborers.

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

(D) If transportation is available, whether the worksite is accessible by public or personal transportation, and the approximate commute time to the worksite.

(2) DESCRIPTION- 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) The exact address of the worksite 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 worksite.

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

(D) Whether a meal is provided, either by the day labor service agency, day labor employer, or the third party employer, and the cost of the meal, if any.

(E) A phone number and business address for the third party employer requesting the day laborer through the day labor service agency.

(b) POSTING- 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.

(c) OFFER AND ACCEPTANCE- Upon offer and acceptance of a job, the information referred to in this subsection shall be provided to each day laborer in writing in English and any other language that is generally used in the locale of the day labor service agency, day labor site, or by the day laborer or at the time of acceptance.

SEC. 9. DEDUCTIONS.

(a) MEALS- A day labor service agency or any other employer shall not charge a day laborer more than the actual cost of providing a meal. In no case shall a deduction for a meal be permitted against the wage requirements of this Act if--

(1) the day laborer does not consume the meal;

(2) the day laborer has no realistic opportunity to obtain meals by other means due to the location of the job site and the time permitted for the meal; or

(3) the purchase of a meal is a condition of employment.

(b) TRANSPORTATION- A day labor service agency or any other employer shall not charge to transport a day laborer to or from the designated worksite.

(c) SAFETY AND PROTECTIVE EQUIPMENT-

(1) GENERAL RULE- The day labor service agency or day laborer employer shall provide at no cost to each day laborer any special attire, accessories, tools, safety equipment, or other items required by law or custom to perform the work assignment. For any other equipment, clothing, accessories, or any other items the day labor service agency or day laborer employer makes available for purchase, the day laborer shall not be charged more than the actual market value for the item.

(2) EXCEPTION- A day labor service agency or day laborer employer is not precluded from charging the day laborer the market value of items temporarily provided to the day laborer, in the event that the day laborer willfully fails to return such items.

(d) HOUSING-

(1) IN GENERAL- An employer shall comply with applicable State requirements and Federal law requirements when crediting lodging towards an employer's wage obligation under this Act only if--

(A) lodging is received and used;

(B) lodging is furnished as part of the day laborer's compensation; and

(C) the day laborer enters a voluntary written agreement to credit lodging toward the employer's wage obligation.

(2) LODGING REQUIREMENTS- The amount credited for lodging shall not exceed an amount that would result in the day laborer earning less than the wage required by this Act. In order for lodging to be creditable towards the wage obligation, it shall be available to the day laborer for full-time occupancy and be adequate, decent, and sanitary according to usual and customary standards.

SEC. 10. RETALIATION

(a) PROHIBITION- Any employer, or any agent of an employer, who knowingly retaliates through discharge or in any other manner against any day laborer shall be fined under title 18, United States Code or subject to a private cause of action.

(b) PROTECTED ACTS FROM RETALIATION INCLUDE- The Secretary shall ensure that a day laborer is protected from retaliation for--

(1) making a complaint to the day laborer's employer, or a State agency, or federal agency, or community organization that rights guaranteed a day laborer under this Act have been violated;

(2) making a complaint to an employer, a coworker, or before a public hearing or the press that rights guaranteed a day laborer under this Act have been violated;

(3) causing to be instituted any proceeding under or related to this Act; or

(4) testifying or preparing to testify in an investigation or proceeding under this Act.

SEC. 11. DAY LABOR SERVICE AGENCY AND DAY LABOR EMPLOYER REGISTRATION.

(a) IN GENERAL- A day labor service agency and day labor employer 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 and day labor employer a registration fee not to exceed $250.

SEC. 12. 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 in English and any other language generally spoken in the locale of the day labor service agency 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 and other day labor employers.

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

(d) SUSPENSIONS AND REVOCATIONS- The Secretary shall have the authority to suspend or revoke the registration of a day labor service agency or day labor employer 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. 13. CRIMINAL SANCTIONS.

(a) CRIMINAL PROVISION-

(1) IN GENERAL- Any employer or any agent of an employer, who, willfully and knowingly violates this Act, shall be fined under title 18, United States Code.

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

SEC. 14. JUDICIAL ENFORCEMENT.

(a) INJUNCTIVE RELIEF- The Secretary may petition any appropriate district court of the United States for temporary or permanent injunctive relief if the Secretary determines that this Act, or any regulation under this Act, has been violated.

(b) CONTROL OF CIVIL LITIGATION- The Solicitor of Labor may appear for and represent the Secretary in any civil litigation brought under this Act, but all such litigation shall be subject to the direction and control of the Attorney General.

SEC. 15. ADMINISTRATIVE SANCTIONS.

(a) CIVIL MONEY PENALTIES FOR VIOLATIONS- Any person who commits a violation of this Act or any regulation under this Act shall be assessed a penalty of $1000 for each violation.

(b) COLLECTION OF AMOUNTS ON BEHALF OF INJURED DAY LABORERS-

(1) If an employer willfully violates sections 5 or 9 of this Act, the Secretary shall collect, on behalf of each injured day laborer, the amount of wages not paid in violation of the Act and an equal amount for each day for which the wages are not paid.

(2) An employer that willfully violates sections 6, 7, or 8 of this Act shall be assessed by the Secretary an amount up to $500 per violation of each section, which the Secretary shall collect on behalf of each injured day laborer.

SEC. 16. PRIVATE CAUSE OF ACTION.

(a) MAINTENANCE OF CIVIL ACTION IN DISTRICT COURT BY AGGRIEVED PERSON- Any person aggrieved

by a violation of this Act or any regulation under this Act by an employer may file suit in any district court of the United States or State court of competent jurisdiction without regard to the citizenship of the parties and without regard to exhaustion of any alternative administrative remedies provided herein. Actions may be brought by one or more day laborers for and on behalf of himself or themselves and other day laborers similarly situated.

(b) AWARD OF DAMAGES OR OTHER EQUITABLE RELIEF- Any day laborer whose rights have been violated under this Act by his or her employer shall be entitled to collect--

(1) in the case of a violation under sections 5 or 9 of the Act, the amount of any wages, salary, employment benefits, or other compensation denied or lost to such day laborer by reason of the violation, plus an equal amount for each day for which wages are not paid;

(2) in the case of a violation under sections 6, 7, or 8 of the Act, compensatory damages and an amount up to $500 for the violation of each subpart of each section;

(3) in the case of a violation under section 10 of the Act, all legal or equitable relief as may be appropriate to effectuate the purposes of Section 10 of the Act;

(4) attorney's fees and costs; or

(5) punitive damages in a case in which any employer, or agent of an employer, threatens to call the Immigration and Naturalization Service or the police in retaliation for protected acts described in section 10 of the Act.

(c) STATUTE OF LIMITATIONS- The right of an aggrieved person to bring a cause of action under this section terminates upon the passing of 3 years from the final date of employment by the employer. This limitations period is tolled if a day labor employer has deterred a day laborer's exercise of rights under this act by contacting or threatening to contact the Immigration and Naturalization Service or other law enforcement agencies.

(d) WAIVER THROUGH CONTRACT- Any agreement between a day laborer and a day labor employer to waive rights and responsibilities under this Act are void and unenforceable as violative of public policy.

(e) EVIDENTIARY BURDEN- If an employer has not met the notifications requirements under this Act or required recordkeeping pursuant to title II of the Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. section 201 et seq.), there is a presumption that any reasonable factual presentation by the day laborer is accurate. The employer is then required to disprove the day laborer's representation by clear and convincing evidence.

SEC. 17. 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)(A) to offer, or to grant, the status of a permanent replacement day laborer to an individual for performing bargaining unit work for the employer during a labor dispute, or

`(B) 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--

`(i) was an day laborer of the employer at the commencement of the dispute;

`(ii) 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

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

SEC. 18. LABOR DISPUTES.

No day labor service agency may send any day laborer to a workplace where a strike, lockout, or other labor trouble exists.

SEC. 19. COMPLIANCE WITH STATE AND LOCAL LAWS.

This Act is intended to supplement State and local laws, and compliance with this Act shall not excuse any person from compliance with appropriate State and local laws.

END