II 112th CONGRESS 2d Session S. 3402 IN THE SENATE OF THE UNITED STATES July 18, 2012 Mr. Casey (for himself and Mr. Brown of Ohio) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To require the Secretary of Labor to maintain a publicly available list of all employers that relocate a call center overseas, to make such companies ineligible for Federal grants or guaranteed loans, and to require disclosure of the physical location of business agents engaging in customer service communications, and for other purposes.

1.

Short title

This Act may be cited as the The United States Call Center Worker and Consumer Protection Act of 2012.

2.

Definitions

In this Act: (1)

Agency

The term agency means a Federal or State executive agency or a military department. (2)

Business entity

The term business entity means any organization, corporation, trust, partnership, sole proprietorship, unincorporated association, or venture established to make a profit, in whole or in part, by purposefully availing itself of the privilege of conducting commerce in the United States. (3)

Call center

The term call center means a facility or other operation whereby employees receive incoming telephone calls, emails, or other electronic communication for the purpose of providing customer assistance or other service. (4)

Consumer

The term consumer means any individual within the territorial jurisdiction of the United States who purchases, transacts, or contracts for the purchase or transaction of any goods, merchandise, or services, not for resale in the ordinary course of the individual's trade or business, but for the individual's use or that of a member of the individual’s household. (5)

Customer service communication

The term customer service communication means any telecommunication or wire communication between a consumer and a business entity in furtherance of commerce. (6)

Employer

The term employer means any business enterprise that employs in a call center— (A)50 or more employees, excluding part-time employees; or (B)50 or more employees who in the aggregate work at least 1,500 hours per week (exclusive of hours of overtime). (7)

Part-time employee

the term part-time employee means an employee who is employed for an average of fewer than 20 hours per week or who has been employed for fewer than 6 of the 12 months preceding the date on which notice is required. (8)

Relocating and relocation

The terms relocating and relocation refer to the closure of a call center, or the cessation of operations of a call center, or 1 or more facilities or operating units within a call center comprising at least 30 percent of the call center’s, or operating unit’s, total volume when measured against the previous 12-month average call volume of operations or substantially similar operations to a location outside of the United States. (9)

Secretary

The term Secretary means the Secretary of Labor. (10)

Telecommunication

The term telecommunication means the transmission, between or among points specified by the communicator, of information of the communicator's choosing, without change in the form or content of the information as sent and received. (11)

Wire communication and communication by wire

The term wire communication or communication by wire means the transmission of writing, signs, signals, pictures, and sounds of all kinds by aid of wire, cable, or other like connection between the points of origin and reception of such transmission, including all instrumentalities, facilities, apparatus, and services (among other things, the receipt, forwarding, and delivery of communications) incidental to such transmission.

3.

List of call centers relocating overseas and ineligibility for grants or guaranteed loans

(a)

List

(1)

Notice requirement

(A)

In general

Not fewer than 120 days before relocating a call center to a location outside of the United States, an employer shall notify the Secretary of such relocation. (B)

Penalty

A person who violates subparagraph (A) shall be subject to a civil penalty not to exceed $10,000 for each day of violation. (2)

Establishment and maintenance of list

(A)

In general

The Secretary shall establish, maintain, and make available to the public a list of all employers who relocate a call center as described in paragraph (1)(A). (B)

Term

Each employer included in the list required by subparagraph (A) shall remain on the list for a period not to exceed 3 years after each instance of relocating a call center. (C)

Removal

The Secretary may remove an employer from the list required by subparagraph (A) if the Secretary determines that the employer has relocated a call center from a location outside of the United States to a location in the United States. (b)

Ineligibility for grants or guaranteed loans

(1)

Ineligibility

Except as provided in subsection (b) and notwithstanding any other provision of law, an employer who appears on the list required by subsection (a)(2)(A) shall be ineligible for any direct or indirect Federal grants or Federal guaranteed loans for 5 years after the date such employer was added to the list. (2)

Exceptions

The Secretary, in consultation with the appropriate agency providing a loan or grant, may waive the eligibility restriction provided under subsection (a) if the employer applying for such loan or grant demonstrates that a lack of such loan or grant would— (A)threaten national security; (B)result in substantial job loss in the United States; or (C)harm the environment. (c)

Preference in Federal contracting for not relocating a call center overseas

The head of an agency, when awarding a civilian or defense-related contract, shall give preference to a United States employer that does not appear on the list required by subsection (a)(2)(A). (d)

Effective date

This section shall take effect on the date that is 1 year after the date of the enactment of this Act.

4.

Rule of construction related to Federal benefits for workers

No provision of section 3 shall be construed to permit withholding or denial of payments, compensation, or benefits under any provision of Federal law (including Federal unemployment compensation, disability payments, or worker retraining or readjustment funds) to workers employed by employers that relocate operations outside the United States.

5.

Required disclosure by business entities engaged in customer service communications of physical location

(a)

In general

Except as provided in subsection (b), a business entity that either initiates or receives a customer service communication shall require that each of its employees or agents participating in the communication disclose their physical location at the beginning of each customer service communication so initiated or received. (b)

Exceptions

(1)

Business entities located in the United States

The requirements of subsection (a) shall not apply to a customer service communication involving a business entity if all of the employees or agents of the business entity participating in such communication are physically located in the United States. (2)

Communication initiated by consumer knowingly to foreign entity or address

The requirements of subsection (a) shall not apply to an employee or agent of a business entity participating in a customer service communication with a consumer if— (A)the customer service communication was initiated by the consumer; (B)the employee or agent is physically located outside the United States; and (C)the consumer knows or reasonably should know that the employee or agent is physically located outside the United States. (3)

Emergency services

The requirements of subsection (a) shall not apply to a customer service communication relating to the provision of emergency services (as defined by the Federal Trade Commission). (4)

Business entities and customer service communications excluded by Federal Trade Commission

The Federal Trade Commission may exclude certain classes or types of business entities or customer service communications from the requirements of subsection (a) if the Commission finds exceptionally compelling circumstances that justify such exclusion. (c)

Transfer to U.S.-Based customer service center

A business entity that is subject to the requirements of subsection (a) shall, at the request of a customer, transfer the customer to a customer service agent who is physically located in the United States. (d)

Certification requirement

Each year, each business entity that participates in a customer service communication shall certify to the Federal Trade Commission that it has complied or failed to comply with the requirements of subsections (a) and (c). (e)

Regulations

Not later than 1 year after the date of the enactment of this Act, the Federal Trade Commission shall promulgate such regulations as may be necessary to carry out the provisions of this section. (f)

Effective date

The requirements of subsection (a) shall apply with respect to customer service communications occurring on or after the date that is 1 year after the date of the enactment of this Act.

6.

Enforcement

(a)

In general

Any failure to comply with the provisions of section 5 shall be treated as a violation of a regulation under section 18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)) regarding unfair or deceptive acts or practices. (b)

Powers of Federal Trade Commission

(1)

In general

The Federal Trade Commission shall prevent any person from violating section 5 and any regulation promulgated thereunder, in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of the Federal Trade Commission Act (15 U.S.C. 41 et seq.) were incorporated into and made a part of this Act. (2)

Penalties

Any person who violates regulations promulgated under section 5 shall be subject to the penalties and entitled to the privileges and immunities provided in the Federal Trade Commission Act in the same manner, by the same means, and with the same jurisdiction, power, and duties as though all applicable terms and provisions of the Federal Trade Commission Act were incorporated into and made part of this Act. (c)

Authority preserved

Nothing in this section or section 5 shall be construed to limit the authority of the Federal Trade Commission under any other provision of law.