[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2755 Introduced in House (IH)]
107th CONGRESS
1st Session
H. R. 2755
To protect day laborers from unfair labor practices.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
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
_______________________________________________________________________
A BILL
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.''.
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