S 2094
110th CONGRESS
1st Session
S. 2094
To increase the wages and benefits of blue collar workers by
strengthening labor provisions in the H-2B program, to provide for labor
recruiter accountability, and for other purposes
IN THE SENATE OF THE UNITED STATES
September 26, 2007
Mr. SANDERS introduced the following bill; which was read twice and
referred to the Committee on the Judiciary
A BILL
To increase the wages and benefits of blue collar workers by
strengthening labor provisions in the H-2B program, to provide for labor
recruiter accountability, and for other purposes
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title- This Act may be cited as the `Increasing American Wages
and Benefits Act of 2007'.
(b) Table of Contents- The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents.
TITLE I--LABOR PROTECTIONS
Sec. 101. Enforcement of Federal labor laws relating to H-2B nonagricultural
guest workers.
Sec. 102. Recruitment of United States workers.
Sec. 103. Prevailing wages for United States workers and H-2B workers.
Sec. 104. Certification requirement.
Sec. 105. Protections for workers.
Sec. 106. Petitions by employers that have signed labor agreements
with unions that operate hiring halls.
Sec. 107. H-2B nonimmigrant labor certification application fees.
TITLE II--LABOR RECRUITER ACCOUNTABILITY
Sec. 203. Protections for workers recruited abroad.
Sec. 204. Enforcement provisions.
Sec. 205. Procedures in addition to other rights of employees.
TITLE I--LABOR PROTECTIONS
SEC. 101. ENFORCEMENT OF FEDERAL LABOR LAWS RELATING TO H-2B NONAGRICULTURAL
GUEST WORKERS.
(a) In General- Section 214(c)(14) of the Immigration and Nationality
Act (8 U.S.C. 1184(c)(14)) is amended--
(1) in subparagraph (A), by striking `of Homeland Security' each place
it appears and inserting `of Labor';
(2) by striking subparagraph (B);
(3) by redesignating subparagraphs (C) and (D) as subparagraphs (B)
and (C), respectively; and
(4) by adding at the end the following:
`(D) The Secretary of Labor is authorized to take such actions, including
imposing appropriate penalties and seeking appropriate injunctive relief
and specific performance of contractual obligations, as may be necessary
to assure employer compliance with the terms and conditions required
under this Act for employing nonimmigrant workers described in section
101(a)(15)(H)(ii)(b), and as required under the Increasing American
Wages and Benefits Act of 2007. The authority of the Secretary of Labor
under this subparagraph shall not preempt any other rights which affected
persons may have under Federal or State law.
`(E) Any aggrieved person whose wages or working conditions have been
directly and adversely affected by an employer in violation of applicable
laws and regulations governing the employment of nonimmigrant workers
described in section 101(a)(15)(H)(ii)(b), or by a violation of the
terms and conditions of employment, may bring a civil action against
such employer in the appropriate district court of the United States.
Such cause of action shall not be subject to exhaustion of administrative
remedies and shall be in addition to any other causes of action and
remedies that may exist.
`(F) Notwithstanding any other provision of law, the Legal Services
Corporation may provide legal services on behalf of nonimmigrant workers
described in section 101(a)(15)(H)(ii)(b) regarding the terms and conditions
of employment, transportation, and housing and other provisions of law
applicable to the employment of such nonimmigrants.'.
(b) Report- Section 214(g)(10) of the Immigration and Nationality Act
(8 U.S.C. 1184(g)(10)) is amended--
(1) by inserting `(A)' after `(10)'; and
(2) by adding at the end the following:
`(B) Each employer that hires a nonimmigrant worker described in section
101(a)(15)(H)(ii)(b) shall--
`(i) notify the Secretary of Labor not later than 30 days after the
conclusion of each such nonimmigrant's term of employment; and
`(ii) submit to the Secretary of Labor employment payroll records
and similar documentation showing that the employer paid the required
prevailing wage and transportation, and other expenses required under
this section and section 212.'.
SEC. 102. RECRUITMENT OF UNITED STATES WORKERS.
Section 212 of the Immigration and Nationality Act (8 U.S.C. 1182) is
amended--
(1) in subsection (p)(3), by striking `(a)(5)(A), (n)(1)(A)(i)(II),'
and inserting `(n)(1)(A)(i)(II)';
(2) by redesignating subsection (t) (as added by section 1(b)(2)(B)
of Public Law 108-449) as subsection (u); and
(3) by adding at the end the following:
`(v)(1) Except as provided under paragraph (5), an employer that seeks
to employ an alien described in section 101(a)(15)(H)(ii)(b) (referred
to in this subsection as an `H-2B nonimmigrant') shall take the following
steps to recruit United States workers for the position for which the
alien is sought not later than 14 days before filing an application
under paragraph (3):
`(A) The employer shall submit a copy of the job offer, including
a description of the wages and other terms and conditions of employment,
to the State Workforce Agency that serves the area of employment in
the State in which the employer is located (referred to in this subsection
as the `SWA'). The SWA shall provide the employer with an acknowledgment
of receipt of such documentation in accordance with this paragraph.
`(B) The employer shall authorize the SWA to post the job opportunity
on the Internet through the web site for `America's Job Bank', with
local job banks, and with unemployment agencies and other labor referral
and recruitment sources pertinent to such job opportunity.
`(C) The employer shall authorize the SWA to provide notification
of the job opportunity, and the SWA shall designate that these are
job opportunities for which H-2B visas have been requested, to--
`(i) the central office of the State Federation of Labor in the
State in which the job is located; and
`(ii) the office of the local union which represents the employees
in the same or substantially equivalent job classification, if applicable.
`(D) The employer shall post the availability of the job opportunity
for which the employer is seeking a worker in conspicuous locations
at the place of employment for all employees to see.
`(E) The employer shall advertise the availability of the job opportunity
for which the employer is seeking a worker in a publication with the
highest circulation in the labor market that is likely to be patronized
by a potential worker for at least 5 consecutive days.
`(F) Based on recommendations by the local job service, the employer
shall advertise the availability of the job opportunity in professional,
trade, or local minority and ethnic publications that are likely to
be patronized by a potential worker.
`(2) An employer that seeks to employ an H-2B nonimmigrant shall--
`(A) first offer the job to any eligible United States worker who--
`(ii) is qualified for the job; and
`(iii) is available at the time of need; and
`(B) maintain, for at least 3 years after the employment relation
is terminated, documentation of recruitment efforts and responses
conducted and received before filing an application with the Department
of Labor, including--
`(iii) tests of United States workers who applied and were not hired
for the job the employer seeks to fill with a nonimmigrant worker,
if applicable.
`(3) An employer that seeks to hire an H-2B nonimmigrant shall submit
an application to the Secretary of Labor that includes a certification,
under penalty of perjury, that--
`(A) the employer has not made a job offer to a United States worker,
which imposed restrictions or obligations that will not be imposed
on an H-2B nonimmigrant;
`(B) the employer has complied with the recruitment requirements under
paragraph (1);
`(C) the employer will offer an H-2B nonimmigrant not less than the
same benefits and working conditions provided to United States workers
similarly employed in the same occupational classification at the
same actual place of employment in addition to paying an H-2B nonimmigrant
a prevailing wage rate not less than the wage rate offered to United
States workers;
`(D) there is currently no strike, lockout, or labor dispute (as defined
in section 2(9) of the Labor-Management Relations Act (29 U.S.C. 152(9)),
at the same place of employment, which affects employees in the same
occupational classification in which an H-2B nonimmigrant will be
employed;
`(E) the employer will comply with all applicable laws and regulations
relating to the right of workers to join or organize a union (including
rights protected under section 7 of the Labor-Management Relations
Act (29 U.S.C. 157));
`(i) provided notice of the filing of an application to the bargaining
representative of employees, if any, working in the same occupational
classification at the place of employment as an H-2B nonimmigrant
who the employer intends to employ; or
`(ii) if there is no such bargaining representative, posted notice
of filing such application in conspicuous locations at the place
of employment for all employees to see for not fewer than 14 business
days; and
`(G) the requirements applicable to the job, which the employer intends
to hire an H-2B nonimmigrant to perform, represent the actual minimum
requirements applicable to that job and the employer will not hire
an H-2B nonimmigrant to perform the job who has less training or experience
than the employer's other employees.
`(4)(A) An employer that applies to hire an H-2B nonimmigrant shall
hire any qualified United States worker who applies for the job for
which such nonimmigrant was intended to be employed if such United States
worker applies before the date that is 30 days before the date on which
the last such H-2B nonimmigrant is scheduled to begin work for such
employer.
`(B) The Secretary of Labor, through the workforce agency of a State,
as appropriate, shall provide information about applications for H-2B
nonimmigrants, including information about domestic workers who apply
for jobs but are not hired, to a United States worker, nonprofit organization,
or union not later than 48 hours after such worker, organization, or
union requests such information.'.
SEC. 103. PREVAILING WAGES FOR UNITED STATES WORKERS AND H-2B WORKERS.
Section 212 of the Immigration and Nationality Act (8 U.S.C. 1182),
as amended by section 102, is further amended by adding at the end the
following:
`(w)(1) No alien may be admitted or provided status as a nonimmigrant
under section 101(a)(15)(H)(ii)(b) in an occupational classification
unless the Secretary of Labor certifies that the employer--
`(A) is offering and will offer during the period of authorized employment
to aliens admitted or provided such status the wage rate set forth
in the collective bargaining agreement, if the job opportunity is
covered by a collective bargaining agreement;
`(B) if the job opportunity is not covered by a collective bargaining
agreement, the wage the employer is offering and will offer, to any
alien or United States worker employed by or offered employment by
the employer, during the period of authorized employment for aliens
admitted or provided such status, wages that are not less than the
higher of--
`(i) the wage determination, if any, issued pursuant to subchapter
IV of chapter 31 of title 40, United States Code (commonly known
as the `Davis-Bacon Act');
`(ii) the wage determination, if any, issued pursuant to the Service
Contract Act of 1965 (41 U.S.C. 351 et seq.);
`(iii) the median rate of the highest 66 percent of the wage data
applicable to such occupational classification under the most recently
published Occupational Employment Statistics Survey, compiled by
the Bureau of Labor Statistics; or
`(iv) a wage that is not less than 150 percent of the Federal minimum
wage in effect under the Fair Labor Standards Act (29 U.S.C. 201
et seq.); and
`(C) will provide working conditions for such alien that will not
adversely affect the working conditions of workers similarly employed.
`(2) An employer may not appeal a decision of the Secretary of Labor
concerning the wages required to be paid under paragraph (1)(A) unless
United States workers and their labor representatives are given the
opportunity to submit contrary evidence or appeal that such required
wages are too low.
`(3) An employer may not hire a nonimmigrant described in section 101(a)(15)(H)(ii)(b)
unless--
`(A) real prevailing wages in the occupational classification in which
such nonimmigrant is to be hired are at least 3 percent higher than
such wages during the preceding year under the Occupational Employment
Statistics Survey compiled by the Bureau of Labor Statistics; or
`(B) the employer offers to pay the H-2B worker or a United States
worker a wage in the occupational classification in which such worker
is to be hired that is at least 3 percent higher during the preceding
year, after adjusting for inflation under the Occupational Employment
Survey.'.
SEC. 104. CERTIFICATION REQUIREMENT.
Section 214(c)(14) of the Immigration and Nationality Act, as amended
by section 101, is further amended by adding at the end the following:
`(G) A petition by an employer seeking to hire an alien described in
section 101(a)(15)(H)(ii)(b) shall not be approved until the employer
has provided written certification, under penalty of perjury, to the
Secretary of Labor that--
`(i) the employer has not been required under law to provide a notice
of a mass layoff pursuant to the Worker Adjustment and Retraining
Notification Act (29 U.S.C. 2101 et seq.) during the 12-month period
immediately preceding the date on which the alien is to be hired;
and
`(ii) the employer does not intend to provide a notice of a mass layoff
pursuant to such Act.
`(H) If an employer is required under law to provide a notice of a mass
layoff pursuant to such Act after hiring nonimmigrants granted status
under section 101(a)(15)(H)(ii)(b), the status of such nonimmigrants
shall expire on the date that is 60 days after the date on which such
notice is provided.
`(I) An employer shall be exempt from the requirements under subparagraphs
(G) and (H) if the employer provides written certification, under penalty
of perjury, that the total number of the employer's employees in the
United States will not be reduced as a result of a mass layoff.'.
SEC. 105. PROTECTIONS FOR WORKERS.
Section 214(c)(14) of the Immigration and Nationality Act, as amended
by section 104, is further amended by adding at the end the following:
`(J) Employers who hire nonimmigrants described in section 101(a)(15)(H)(ii)(b)
shall reimburse the nonimmigrants for the reasonable transportation
costs incurred by such nonimmigrants and United States workers to initially
reach the job site and, once the period of employment for the job opportunity
is completed, to return to their countries of origin or to the next
place of employment, if the worker has contracted with a subsequent
employer who has not agreed to provide or pay for the worker's transportation
to such subsequent employer's place of employment. The amount of reimbursement
for such transportation expenses shall not exceed the lesser of--
`(i) the actual cost to the worker or alien of the transportation
and subsistence involved; or
`(ii) the most economical and reasonable common carrier transportation
charges and subsistence costs for the distance involved.
`(K)(i) Employers who hire nonimmigrants described in section 101(a)(15)(H)(ii)(b)
shall guarantee to offer the worker employment for at least 75 percent
of the workdays of the total periods during which the work contract
and all extensions of such contract are in effect, beginning with the
first workday after the arrival of the worker at the place of employment
and ending on the expiration date specified in the work contract or
in its extensions, if any.
`(ii) If the employer affords a worker during the total work contract
period less employment than that required under this subparagraph, the
employer shall pay the worker the amount which the worker would have
earned had the worker worked for the guaranteed number of days.
`(iii) In this subparagraph, the term `workday'--
`(I) means a day in which the worker is offered the number of hours
stated in the job order; and
`(II) excludes the worker's Sabbath and Federal holidays.
`(iv) A work guarantee does not meet the requirements under this subparagraph
unless the number of hours of work offered by the employer is equal
to not less than the product of--
`(I) 75 percent of the workdays; multiplied by
`(II) the average number of hours per day stated in the job order.
`(v) A worker may be offered more than the specified hours of work on
a single workday.
`(vi) The employer may not require, for purposes of meeting the work
guarantee, that the worker work longer than the number of hours specified
in the job order on a workday, the worker's Sabbath, or a Federal holiday.
`(L) If the job opportunity is not covered by the State workers' compensation
law, the employer will provide, at no cost to the worker, insurance
covering injury and disease arising out of, and in the course of, the
worker's employment which will provide benefits at least equal to those
provided under the State's workers' compensation law for comparable
employment.'.
SEC. 106. PETITIONS BY EMPLOYERS THAT HAVE SIGNED LABOR AGREEMENTS
WITH UNIONS THAT OPERATE HIRING HALLS.
Section 212(v) of the Immigration and Nationality Act, as added by section
102, is amended by adding at the end the following:
`(5) An employer that seeks to hire an H-2B nonimmigrant may file an
application with the Secretary of Labor in accordance with this paragraph,
instead of complying with paragraphs (1) through (4), if--
`(A) the employer has signed a labor agreement with a labor organization
(as defined in section 2(5) of the Labor-Management Relations Act
(29 U.S.C. 152(5)) under which the labor organization is responsible
for referring applicants for employment to the employer under a procedure
commonly known as a `hiring hall' or `referral hall'; and
`(B) the application is accompanied by a written statement prepared
by the labor organization attesting that--
`(i) the labor organization operates a hiring hall that, pursuant
to contractual agreement and actual practice, is a source of employees
in the same or substantially equivalent occupational classification
in which the employer seeks to employ an H-2B nonimmigrant;
`(ii) the labor organization does not have a sufficient number of
qualified applicants available for referral in the same or substantially
equivalent occupational classification in which the employer seeks
to employ an H-2B nonimmigrant;
`(iii) the labor organization has advertised, for at least 5 consecutive
days, the availability of the job opportunity for which the employer
is seeking to employ an H-2B nonimmigrant in the publication with
the highest circulation in the labor market that is likely to be
patronized by potential applicants;
`(iv) the employer is contractually obligated to pay all employees,
in the same or substantially equivalent occupational classification
in which the employer seeks to employ an H-2B nonimmigrant, wages
and benefits set forth in a labor agreement with the labor organization,
which equals or exceeds the prevailing wage rate the employer would
be obligated to pay; and
`(v) the H-2B nonimmigrants who the employer seeks to employ will
be paid not less than the same wages and benefits and be subject
to the same terms and conditions of employment set forth in the
employer's labor agreement with the labor organization.'.
SEC. 107. H-2B NONIMMIGRANT LABOR CERTIFICATION APPLICATION FEES.
(a) Establishment of Fees- Section 212(a)(5)(A) of the Immigration and
Nationality Act (8 U.S.C. 1182(a)(5)(A)) is amended by adding the following:
`(v) ESTABLISHMENT OF H-2B EMPLOYMENT CERTIFICATION APPLICATION
FEE-
`(I) IN GENERAL- The Secretary of Labor shall impose a fee on
an employer that submits an application for an employment certification
for aliens granted nonimmigrant status under section 101(a)(15)(H)(ii)(b)
to the Secretary of Labor under this subparagraph on or after
the date that is 30 days after the date of enactment of the
Increasing American Wages and Benefits Act of 2007.
`(II) FEE DURING INITIAL YEAR- During the period beginning 30
days after the date of enactment of the Increasing American
Wages and Benefits Act of 2007 and ending 1 year after such
date, the fee imposed under subclause (I) shall be $800 for
each application.
`(III) FEE AFTER INITIAL YEAR- After the date that is one year
after the date of enactment of the Increasing American Wages
and Benefits Act of 2007, the fee imposed under subclause (I)
shall be set at a level the Secretary of Labor determines will
ensure recovery of the full costs of carrying out labor certification
activities under this subparagraph and will recover any additional
costs associated with the administration of the fees collected.
`(IV) PROHIBITION ON EMPLOYER ACCEPTING REIMBURSEMENT OF FEE-
`(aa) IN GENERAL- An employer subject to a fee under this
clause shall not require or accept reimbursement, directly or indirectly,
of or other compensation for all or part of the cost of such fee.
`(bb) CIVIL PENALTY- If the Secretary of Labor determines,
after notice and opportunity for a hearing, that a violation of item
(aa) has occurred, the Secretary of Labor may impose a civil penalty
in an amount not to exceed $5,000 per violation.
`(V) DEPOSIT OF FEES AND PENALTIES- Fees and civil penalties
collected under this clause shall be deposited in the `H-2B
Employment Certification Application Fee Account' established
under section 286(w).'.
(b) Establishment of Account and Use of Fund- Section 286 of the Immigration
and Nationality Act (8 U.S.C. 1356) is amended by adding at the end
the following:
`(w) H-2B Employment Certification Application Fee Account-
`(1) ESTABLISHMENT OF ACCOUNT- There is established in the general
fund of the Treasury a separate account, which shall be known as the
`H-2B Employment Certification Application Fee Account'. Notwithstanding
any other provision of this title, there shall be deposited as offsetting
receipts into the account all amounts from the fees and civil penalties
collected under section 212(a)(5)(A)(v).
`(2) USE OF FEES- Of the amounts deposited into the H-2B Employment
Certification Application Fee Account under this subsection in each
fiscal year, the Secretary of Labor shall use such amounts as the
Secretary of Labor determines are necessary for the costs of Federal
administration, including personnel, in carrying out labor certification
activities under section 212(a)(5)(A), and to assist the States, as
appropriate, in the determination of prevailing wages for purposes
of carrying out such section.
`(3) AVAILABILITY OF FUNDS- The fees deposited into the H-2B Employment
Certification Application Fee Account under this subsection shall
remain available until expended for the activities described in paragraph
(2).'.
(c) Program Integrity- Section 212(a)(5)(A) of the Immigration and Nationality
Act (8 U.S.C. 1182(a)(5)(A)), as amended by subsection (a), is further
amended by adding at the end the following:
`(vi) PROGRAM INTEGRITY REGULATIONS- The Secretary of Labor may
prescribe such regulations as may be necessary to ensure the integrity
of the labor certification process carried out under this subparagraph.
Such regulations may include standards and procedures under which
employers and their representatives are excluded from participation
in the labor certification process under this subparagraph.'.
TITLE II--LABOR RECRUITER ACCOUNTABILITY
SEC. 201. SHORT TITLE.
This title may be cited as the `Indentured Servitude Abolition Act of
2007'.
SEC. 202. DEFINITIONS.
(a) Fair Labor Standards Act of 1938- Except as otherwise provided by
this title, for purposes of this Act the terms used in this Act shall
have the same meanings, respectively, as are given those terms in section
3 of the Fair Labor Standards Act of 1938 (29 U.S.C. 203).
(b) Other Definitions- In this title:
(1) FOREIGN LABOR CONTRACTING ACTIVITY- The term `foreign labor contracting
activity' means recruiting, soliciting, hiring, employing, or furnishing,
an individual who resides outside of the United States to be employed
in the United States.
(2) FOREIGN LABOR CONTRACTOR- The term `foreign labor contractor'
means any person who for any money or other valuable consideration
paid or promised to be paid, performs any foreign labor contracting
activity.
(3) SECRETARY- The term `Secretary' means the Secretary of Labor.
(4) STATE- The term `State' means any State of the United States and
includes the District of Columbia, Puerto Rico, Guam, American Samoa,
the Commonwealth of the Northern Mariana Islands, and the Virgin Islands
of the United States.
(5) WORKER- The term `worker' means an individual who is the subject
of foreign labor contracting activity.
SEC. 203. PROTECTIONS FOR WORKERS RECRUITED ABROAD.
(1) DISCLOSURES OF INFORMATION- Each employer and foreign labor contractor
who engages in foreign labor contracting activity shall ascertain
and disclose to each such worker who is recruited for employment the
following information at the time of the worker's recruitment:
(A) The place of employment.
(B) The compensation for the employment.
(C) A description of employment activities.
(D) The period of employment.
(E) The transportation, housing, and any other employee benefit
to be provided and any costs to be charged for each benefit.
(F) The existence of any arrangements with any owner or agent of
any establishment in the area of employment under which the contractor
or employer is to receive a commission or any other benefit resulting
from any sales (including the provision of services) by such establishment
to the workers.
(G) Whether and the extent to which workers will be compensated
through workers' compensation, private insurance, or otherwise for
injuries or death, including work related injuries and death, during
the period of employment and, if so, the name of the State workers'
compensation insurance carrier or the name of the policyholder of
the private insurance, the name and the telephone number of each
person who must be notified of an injury or death, and the time
period within which such notice must be given.
(H) Any education or training to be provided or made available,
including the nature and cost of such training, who will pay such
costs, and whether the training is a condition of employment, continued
employment, or future employment.
(I) A statement, approved by the Secretary of Labor, describing
the protections of this Act for workers recruited abroad.
(2) PROHIBITION ON PROVIDING FALSE INFORMATION- No foreign labor contractor
or employer shall knowingly provide false or misleading information
to any worker concerning any matter required to be disclosed in paragraph
(1).
(3) FORM OF DISCLOSURE- The information required to be disclosed by
paragraph (1) to workers shall be provided in written form. Such information
shall be provided in English or, as necessary and reasonable, in the
language of the worker being recruited. The Department of Labor shall
make forms available in English, Spanish, and other languages, as
necessary, which may be used in providing workers with information
required under this section.
(4) PROHIBITION ON RECRUITMENT FEES- No fees may be charged to a worker
for recruitment.
(5) PROHIBITION ON VIOLATING THE TERMS OF A WORKING ARRANGEMENT- No
employer or foreign labor contractor shall, without justification,
violate the terms of any working arrangement made by that contractor
or employer.
(6) PROHIBITION ON DISCRIMINATION-
(A) IN GENERAL- It shall be unlawful for an employer or a foreign
labor contractor to fail or refuse to hire or to discharge any individual,
or otherwise discriminate against an individual with respect to
compensation, terms, conditions, or privileges of employment because
such individual's race, color, creed, sex, national origin, religion,
age, or disability.
(B) CONSIDERATIONS- For the purposes of determining the existence
of unlawful discrimination under subparagraph (A)--
(i) in the case of a claim of discrimination based on race, color,
creed, sex, national origin, or religion, the same legal standards
shall apply as are applicable under title VII of the Civil Rights
Act of 1964 (42 U.S.C. 2000e et seq.);
(ii) in the case of a claim of discrimination based on unlawful
discrimination based on age, the same legal standards shall apply
as are applicable under the Age Discrimination in Employment Act
of 1967 (29 U.S.C. 621 et seq.); and
(iii) in the case of a claim of discrimination based on disability,
the same legal standards shall apply as are applicable under title
I of the Americans With Disabilities Act (42 U.S.C. 12101 et seq.).
(b) Other Worker Protections-
(1) NOTIFICATION REQUIREMENTS- Each employer shall notify the Secretary
of the identity of any foreign labor contractor involved in any foreign
labor contractor activity for or on behalf of the employer. The employer
shall be subject to the civil remedies of this Act for violations
committed by such foreign labor contractor to the same extent as if
the employer had committed the violation. The employer shall notify
the Secretary of the identity of such a foreign labor contractor whose
activities do not comply with this Act.
(2) LIST OF VIOLATORS- The Secretary shall maintain a list of all
foreign labor contractors whom the Secretary knows or believes have
been involved in violations of this Act, and make that list publicly
available. The Secretary shall provide a procedure by which an employer,
a foreign labor contractor, or someone acting on behalf of such contractor
may seek to have a foreign labor contractor's name removed from such
list by demonstrating to the Secretary's satisfaction that the foreign
labor contractor has not violated this Act in the previous five years.
(3) PROHIBITION ON VIOLATION OF WRITTEN AGREEMENTS- No foreign labor
contractor shall violate, without justification, the terms of any
written agreements made with an employer pertaining to any contracting
activity or worker protection under this Act.
(c) Discrimination Prohibited Against Workers Seeking Relief Under This
Act- No person shall intimidate, threaten, restrain, coerce, blacklist,
discharge, or in any manner discriminate against any worker because
such worker has, with just cause, filed any complaint or instituted,
or caused to be instituted, any proceeding under or related to this
Act, or has testified or is about to testify in any such proceedings,
or because of the exercise, with just cause, by such worker on behalf
of himself or others of any right or protection afforded by this Act.
SEC. 204. ENFORCEMENT PROVISIONS.
(a) Criminal Sanctions- Whoever knowingly violates this Act shall be
fined under title 18, United States Code, or imprisoned not more than
one year, or both. Upon conviction, after a first conviction under this
section, for a second or subsequent violation of this Act, the defendant
shall be fined under title 18, United States Code, or imprisoned not
more than three years, or both.
(b) Administrative Sanctions-
(A) IN GENERAL- Subject to subparagraph (B), the Secretary may assess
a civil money penalty of not more than $5,000 on any person who
violates this Act.
(B) CONSIDERATIONS- In determining the amount of any penalty to
be assessed under subparagraph (A), the Secretary shall take into
account--
(i) the previous record of the person in terms of compliance with
this Act and with comparable requirements of the Fair Labor Standards
Act of 1938 (29 U.S.C. 201 et seq.), and with regulations promulgated
under such Acts; and
(ii) the gravity of the violation.
(2) USE OF PROHIBITED CONTRACTOR- Any employer who uses the services
of a foreign labor contractor who is on the list maintained by the
Secretary pursuant to section 203(b)(2), shall, if the actions of
such foreign labor contractor have contributed to a violation of this
Act by the employer, be fined $10,000 per violation in addition to
any other fines or penalties for which the employer may be liable
for the violation.
(c) Actions by Secretary- The Secretary may take such actions, including
seeking appropriate injunctive relief and specific performance of contractual
obligations, as may be necessary to assure employer compliance with
terms and conditions of employment under this Act and with this Act.
(d) Waiver of Rights- Agreements by employees purporting to waive or
to modify their rights under this Act shall be void as contrary to public
policy.
(e) Representation in Court- Except as provided in section 518(a) of
title 28, United States Code, relating to litigation before the Supreme
Court, 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. 205. PROCEDURES IN ADDITION TO OTHER RIGHTS OF EMPLOYEES.
The rights and remedies provided to workers by this Act are in addition
to, and not in lieu of, any other contractual or statutory rights and
remedies of the workers, and are not intended to alter or affect such
rights and remedies.
SEC. 206. RULEMAKING.
The Secretary shall prescribe such regulations as may be necessary to
carry out this Act.
END
