I

106TH CONGRESS

2D SESSION H. R. 5182

To protect day laborers from unfair labor practices.

IN THE HOUSE OF REPRESENTATIVES

SEPTEMBER 14, 2000

Mr. GUTIERREZ (for himself, Ms. MCKINNEY, Mr. JACKSON of Illinois, Mr.

PAYNE, Mr. COSTELLO, Mr. PHELPS, Mr. GONZALEZ, Mr. OWENS, Mr.

RUSH, Mr. DAVIS of Illinois, Mr. MARTINEZ, Mr. LIPINSKI, Mr. FILNER,

Mrs. CHRISTENSEN, Ms. MILLENDER-MCDONALD, Mr. HILLIARD, Ms.

JACKSON-LEE of Texas, Mr. NADLER, Mr. MEEKS of New York, Ms.

CARSON, Mr. BROWN of Ohio, Ms. LEE, Mr. KUCINICH, Mr. ABERCROMBIE, and Mr. BLAGOJEVICH) 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.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Day Laborer Fairness

5 and Protection Act’’.

6 SEC. 2. DEFINITIONS.

7 In this Act the following definitions apply:
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1 (1) DAY LABORER.—The term ‘‘day laborer’’

2 means an individual who contracts for employment

3 with a day labor service agency.

4 (2) DAY LABOR.—The term ‘‘day labor’’ means

5 labor or employment that is occasional or irregular

6 for which an individual is employed for not longer

7 than the time period required to complete the as8 signment for which the individual was hired and in

9 which wage payments are made directly or indirectly

10 by the day labor service agency or the third party

11 employer for work undertaken by a day laborer pur12 suant to a contract between the day labor service

13 agency with the third party employer. Day labor

14 does not include labor or employment of a profes15 sional or clerical nature.

16 (3) DAY LABOR SERVICE AGENCY.—The term

17 ‘‘day labor service agency’’ means any person or en18 tity engaged in the business of employing day labor19 ers to provide services to or for any third party em20 ployer pursuant to a contract with the day labor

21 service agency and the third party employer.

22 (4) DEPARTMENT.—The term ‘‘Department’’

23 means the Department of Labor.

24 (5) SECRETARY.—The term ‘‘Secretary’’ means

25 the Secretary of Labor.
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1 (6) THIRD PARTY EMPLOYER.—The term

2 ‘‘third party employer’’ means any person or entity

3 that contracts with a day labor service agency for

4 the employment of day laborers.

5 SEC. 3. EQUAL WAGES.

6 (a) EQUAL RATE.—A day labor service agency shall

7 provide notice of the wage rate expected to be paid by each

8 third party employer using the services of the agency. For

9 a third party employer, such wage rate shall be the rate

10 that is equal to the rate paid to permanent employees of

11 such third party employer who are performing substan12 tially equivalent work, with due consideration given to se13 niority, experience, skills and qualifications. A day laborer

14 shall be paid by a third party employer not less than the

15 wage rate stated in the notice of the agency for all work

16 performed for the third party employer, including the work

17 contained in the description issued under section 6.

18 (b) WAGE REDUCTION.— An employer who is paying

19 a wage rate differential in violation of subsection (a) shall

20 not, in order to comply with subsection (a), reduce the

21 wage rate of any employee.

22 (c) AGENCY PROCESSING DELAY.—

23 (1) IN GENERAL.—If a day labor service agency

24 expends more than 30 minutes in processing a day

25 laborer’s work assignment, the day labor service
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1 agency shall pay the day laborer for any additional

2 waiting time at a rate that is not less than the rate

3 in effect under section 6(a)(1) of the Fair Labor

4 Standards Act of 1938 (20 U.S.C. 206) or the appli5 cable State minimum wage law whichever is higher.

6 (2) LIMITATION.—The time spent in transit to

7 or from the designated work site or to or from the

8 day labor service agency shall not be included in

9 computing processing time.

10 (d) UNPAID WAGES.—For purposes of administra11 tion and enforcement of this Act, any amounts owing to

12 any employee that have been withheld in violation of sub13 section (a) shall be deemed to be unpaid minimum wages

14 or unpaid overtime compensation.

15 (e) ENFORCEMENT.—Any employer who violates sub16 section (a) shall be liable to any eligible employee affected

17 for damages equal to—

18 (1) the amount of any wages, salary, employ19 ment benefits, or other compensation denied or lost

20 to such employee by reason of the violation;

21 (2) the interest on the amount described in

22 paragraph (1) calculated at the prevailing rate.

23 (f) CRIMINAL PROVISION.—

24 (1) IN GENERAL.—Any employer or any agent

25 of an employer, who, being able to pay wages, final
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1 compensation, or wage supplements and being under

2 a duty to pay, willfully refuses to pay as provided in

3 subsection (a), or falsely denies the amount or valid4 ity thereof or that the same is due, with intent to

5 secure for such employer or other person any under6 payment of such indebtedness with intent to annoy,

7 harass, oppress, hinder, delay, or defraud the person

8 to whom such indebtedness is due, shall be fined

9 under title 18, United States Code.

10 (2) CONTINUED VIOLATION.—Each day during

11 which any violation of subsection (a) continues shall

12 constitute a separate and distinct offense.

13 (g) EMPLOYER FAILURE TO PAY.—Any employer

14 who has been ordered by the Secretary or the court to

15 pay wages due an employee and who fails to do so within

16 15 days after such order is entered shall be liable to pay

17 a penalty of 10 percent per calendar day to the day laborer

18 for each day of delay in paying such wages to the day

19 laborer up to an amount equal to twice the sum of unpaid

20 wages due the day laborer.

21 (h) OTHER WAGE ISSUES.—

22 (1) IN GENERAL.—At the time of the payment

23 of wages, a day labor service agency shall provide

24 each day laborer with an itemized statement showing

25 in detail each deduction made from the wages.
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1 (2) ANNUAL STATEMENT.—A day labor service

2 agency shall provide each worker an annual earnings

3 summary within a reasonable time after the pre4 ceding calendar year, but in no case later than Feb5 ruary 1. A day labor service agency shall, at the

6 time of each wage payment, give notice to day labor7 ers of the availability of the annual earnings sum8 mary or post such a notice in a conspicuous place

9 in the public reception area.

10 (3) PAYMENT SCHEDULES.—At the request of a

11 day laborer, a day labor service agency shall hold the

12 daily wages of the day laborer and make either

13 weekly or semi-monthly payments. The wages shall

14 be paid in a single check representing the wages

15 earned during the period for which wage payments

16 are to be made, as designated by the day laborer. A

17 day labor service agency that make daily wage pay18 ments shall provide written notification to all day la19 borers of the right to request weekly or semi-month20 ly checks. The day laborer service agency may pro21 vide such notice by conspicuously posting the notice

22 at the location where the wages are received by the

23 day laborers.

24 (4) CHECK CASHING.—A day labor service

25 agency may not charge any day laborer for cashing
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1 a check issued by the agency for wages earned by a

2 day laborer who performed work through that agen3 cy.

4 (5) OVERPAYMENT.—A day laborer shall not be

5 charged fees for overpayment to them by the day

6 labor agency.

7 SEC. 4. RIGHTS OF DAY LABORERS.

8 (a) GENERAL RIGHTS.—Any employer, or any agent

9 of an employer, who knowingly discharges or in any other

10 manner knowingly discriminates against any day laborer

11 because that day laborer has—

12 (1) made a complaint to the day laborer’s em13 ployer, or to the Secretary or the Secretary’s author14 ized representative, that the day laborer has not

15 been paid in accordance with section 3(a),

16 (2) caused to be instituted any proceeding

17 under or related to this Act, or

18 (3) testified or is about to testify in an inves19 tigation or proceeding under this Act,

20 shall be fined under title 18, United States Code.

21 (b) PUBLIC ACCESS AREA.—Each day labor service

22 agency shall provide adequate seating in the public access

23 area of the offices of the agency. The public access area

24 shall be the location for the employment and wage notices
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1 required by this Act. The public access area shall allow

2 for access to restrooms and water.

3 (c) WORK RESTRICTION.—No day labor service agen4 cy shall restrict the right of a day laborer to accept a per5 manent position with a third party employer to whom the

6 day laborer has been referred for temporary work or re7 strict the right of such third party employer to offer such

8 employment to a day laborer. Nothing in this subsection

9 shall restrict a day labor service agency from receiving a

10 placement fee from the third party employer for employing

11 a day laborer for whom a contract for temporary work

12 has been effected by the day labor service agency.

13 SEC. 5. INJURIES.

14 (a) HEALTH CARE EXPENSES.—If a day laborer is

15 injured while working, the employer who has requested the

16 services of such day laborer shall be responsible to pay

17 for the health care costs associated with the injury unless

18 compensation is available under the applicable State work19 mens’ compensation law.

20 (b) TRANSPORTATION LIABILITY.—A day labor serv21 ice agency or a third party employer that transports a day

22 laborer to or from a designated work site is liable for any

23 injury to a day laborer arising from any accident that oc24 curs while the day laborer is being transported to or from

25 the work site.
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1 SEC. 6. NOTIFICATION REQUIREMENTS.

2 A day labor service agency shall, in the public recep3 tion area, post a list of all employers that are seeking day

4 laborers which shall include the following:

5 (1) The name and address of the employer and

6 the address of the work site if different from that

7 of the employer.

8 (2) The type of job opportunity for day labor9 ers.

10 (3) The amount of wages to be paid per hour

11 for the work.

12 (4) Whether transportation is available, the cost

13 of transportation, if any, whether the work site is

14 accessible by public or personal transportation, and

15 the approximate commute time to the work site. A

16 day labor service agency shall, for each job oppor17 tunity posted, provide a detailed description of the

18 work which shall include the following:

19 (A) A detailed description of the work to

20 be performed by the day laborer, including any

21 requirements for special attire, accessories, or

22 safety equipment.

23 (B) Whether the day laborer will be

24 charged for using special attire, accessories, or

25 safety equipment.
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1 (C) The exact address of the work site and

2 a telephone number at which a day laborer can

3 be reached for emergency purposes. If the loca4 tion is in a rural area, the notice must also con5 tain directions to the work site.

6 (D) The time of day the work will begin,

7 the time of day the work will end, and the over8 time rate of pay.

9 (E) Whether a meal is provided, either by

10 the day labor service agency or the third party

11 employer, and the cost of the meal, if any. The

12 notices required to be posted under this section

13 shall be written in English and any other lan14 guage that is generally used in the locale of the

15 day labor service agency.

16 SEC. 7. EQUITABLE EXPENSES.

17 (a) MEALS.—A day labor service agency or a third

18 party employer shall not charge a day laborer more than

19 the actual cost of providing a meal. In no case shall the

20 purchase of a meal be a condition of employment for a

21 day laborer.

22 (b) TRANSPORTATION.—A day labor service agency

23 or a third party employer shall charge no more than the

24 actual cost to transport a day laborer to or from the des25 ignated work site; except that, the total cost to each day
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1 laborer shall not exceed 3 percent of the day laborer’s

2 daily wages. Any motor vehicle that is owned or operated

3 by the day labor service agency or a third party employer,

4 or a contractor of either, which is used for the transpor5 tation of day laborers shall have proof of financial respon6 sibility as provided for in applicable State insurance laws

7 of the area.

8 (c) DAY LABORER EQUIPMENT.—For any safety

9 equipment, clothing, accessories, or any other items re10 quired by the nature of the work, either by law, custom

11 or as a requirement of the third party employer, the day

12 labor service agency or the third party employer may

13 charge the day laborer the market value of the item tem14 porarily provided to the day laborer by the third party em15 ployer if the day laborer fails to return such items to the

16 third party employer or the day labor service agency. For

17 any other equipment, clothing, accessories, or any other

18 items the day labor service agency makes available for pur19 chase, the day laborer shall not be charged more than the

20 actual market value for the item.

21 SEC. 8. AGENCY REGISTRATION.

22 (a) IN GENERAL.—A day labor service agency shall

23 register with the Secretary in accordance with rules adopt24 ed by the Secretary for day labor service agencies and with
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1 State departments of labor which require such registra2 tion.

3 (b) Fees.—The Secretary may assess each day labor

4 agency a registration fee not exceeding $250.

5 SEC. 9. DEPARTMENT REQUIREMENTS AND RESPONSIBIL6 ITIES.

7 (a) IN GENERAL.—The Secretary shall adopt rules

8 and regulations necessary to implement the provisions of

9 this Act, including provisions for hearings and imposition

10 of penalties for violations of this Act.

11 (b) POSTING REQUIREMENT.—The Secretary shall

12 cause to be posted in each day labor service agency a no13 tice which informs the public of a toll-free telephone num14 ber for day laborers and the public to file wage dispute

15 complaints and other alleged violations by day labor serv16 ice agencies.

17 (c) FINES.—The Secretary shall have the authority

18 to fine a day labor service agency that fails to register

19 with the Department of Labor in accordance with this Act

20 $1,000 for the first offense and $5,000 for the second of21 fense.

22 (d) SUSPENSIONS AND REVOCATIONS.—The Sec23 retary shall have the authority to suspend or revoke the

24 registration of a day labor service agency if warranted by

25 public health and safety concerns or violations of this Act.
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1 (e) INVESTIGATIONS.—The Secretary shall promptly

2 investigate complaints concerning alleged violations of this

3 Act.

4 SEC. 10. PREVENTION OF DISCRIMINATION DURING AND

5 AT THE CONCLUSION OF LABOR DISPUTES.

6 Section 8(a) of the National Labor Relations Act (29

7 U.S.C. 158(a)) is amended—

8 (1) by striking the period at the end of para9 graph (5) and inserting ‘‘; or’’, and

10 (2) by adding at the end thereof the following

11 new paragraph:

12 ‘‘(6)(i) to offer, or to grant, the status of a per13 manent replacement employee to an individual for

14 performing bargaining unit work for the employer

15 during a labor dispute, or

16 ‘‘(ii) to otherwise offer, or grant, an individual

17 any employment preference based on the fact that

18 such individual was employed, or indicated a willing19 ness to be employed, during a labor dispute over an

20 individual who—

21 ‘‘(A) was an employee of the employer at

22 the commencement of the dispute;

23 ‘‘(B) has exercised the right to join, to as24 sist, or to engage in other concerted activities

25 for the purpose of collective bargaining or other
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1 mutual aid or protection through the labor or2 ganization involved in the dispute; and

3 ‘‘(C) is working for, or has unconditionally

4 offered to return to work for, the employer.’’.

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