I
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. LIPIN-
SKI, 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 Illi-
nois, Mr. BLAGOJEVICH, Mr. COSTELLO, Mr. CONYERS, and Mr. THOMP-
SON 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 Representa-
tives 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 as-
signment 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 pur-
suant to a contract between the day labor service
agency with the third party employer. Day labor
does not include labor or employment of a profes-
sional or clerical nature.
(3) DAY LABOR SERVICE AGENCY.—The term
‘‘day labor service agency’’ means any person or en-
tity engaged in the business of employing day labor-
ers to provide services to or for any third party em-
ployer 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 substan-
tially equivalent work, with due consideration given to se-
niority, 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 appli-
cable 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 administra-
tion and enforcement of this Act, any amounts owing to
any employee that have been withheld in violation of sub-
section (a) shall be deemed to be unpaid minimum wages
or unpaid overtime compensation.
(e) ENFORCEMENT.—Any employer who violates sub-
section (a) shall be liable to any eligible employee affected
for damages equal to—
(1) the amount of any wages, salary, employ-
ment 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 valid-
ity thereof or that the same is due, with intent to
secure for such employer or other person any under-
payment 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 pre-
ceding calendar year, but in no case later than Feb-
ruary 1. A day labor service agency shall, at the
time of each wage payment, give notice to day labor-
ers of the availability of the annual earnings sum-
mary 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 pay-
ments shall provide written notification to all day la-
borers of the right to request weekly or semi-month-
ly checks. The day laborer service agency may pro-
vide 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 agen-
cy.
(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 em-
ployer, or to the Secretary or the Secretary’s author-
ized 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 inves-
tigation 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 agen-
cy shall restrict the right of a day laborer to accept a per-
manent position with a third party employer to whom the
day laborer has been referred for temporary work or re-
strict 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 work-
mens’ compensation law.
(b) TRANSPORTATION LIABILITY.—A day labor serv-
ice 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 oc-
curs 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 recep-
tion 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 labor-
ers.
(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 oppor-
tunity 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.
(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 para-
graph (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 per-
manent 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 willing-
ness 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 as-
sist, or to engage in other concerted activities
for the purpose of collective bargaining or other
mutual aid or protection through the labor or-
ganization involved in the dispute; and
‘‘(C) is working for, or has unconditionally
offered to return to work for, the employer.’’.
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