Day Laborer Fairness and Protection Act

Summary: Sets forth requirements for: (1) agency payments to day laborers for excessive processing time; (2) civil damages and criminal penalties for certain employer violations; (3) itemized wage statements, annual earnings summaries, and optional payment schedules; (4) no charges for cashing wage payment checks or for overpayments; (5) nondiscrimination; (6) adequate seating, restrooms and water in waiting areas; (7) no restrictions on worker acceptance of permanent positions, but allowance placement fees paid to agencies by employers; (8) health care liability for injuries on the job or in transit; (9) agency notices, including employer lists and descriptions of jobs, wages, and other working conditions; (10) equitable expenses for day laborer meals, transportation, and equipment; (11) agency registration with the Secretary of Labor; and (12) Department of Labor enforcement of this Act.
Amends the National Labor Relations Act to make it an unfair labor practice for employers to offer and grant: (1) permanent replacement employee status or other employment preferences to individuals for performing bargaining unit work for the employer during a labor dispute; or (2) any employment preference based on an individual's being employed, or having indicated a willingness to be employed, during a labor dispute, over any employee who was there at dispute commencement, has exercised rights through the labor organization involved in the dispute, and is working for the employer, or has unconditionally offered to return to such work.

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.''.