S 2094 ISCommentsClose CommentsPermalink

To increase the wages and benefits of blue collar workers by strengthening labor provisions in the H-2B program, to provide for labor recruiter accountability, and for other purposesCommentsClose CommentsPermalink

September 26, 2007

Mr. SANDERS introduced the following bill; which was read twice and referred to the Committee on the JudiciaryCommentsClose CommentsPermalink

To increase the wages and benefits of blue collar workers by strengthening labor provisions in the H-2B program, to provide for labor recruiter accountability, and for other purposesCommentsClose CommentsPermalink

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,CommentsClose CommentsPermalink

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) Short Title- This Act may be cited as the `Increasing American Wages and Benefits Act of 2007'.CommentsClose CommentsPermalink





(b) Table of Contents- The table of contents for this Act is as follows:CommentsClose CommentsPermalink





Sec. 1. Short title; table of contents.CommentsClose CommentsPermalink

TITLE I--LABOR PROTECTIONS

Sec. 101. Enforcement of Federal labor laws relating to H-2B nonagricultural guest workers.CommentsClose CommentsPermalink





Sec. 102. Recruitment of United States workers.CommentsClose CommentsPermalink





Sec. 103. Prevailing wages for United States workers and H-2B workers.CommentsClose CommentsPermalink





Sec. 104. Certification requirement.CommentsClose CommentsPermalink





Sec. 105. Protections for workers.CommentsClose CommentsPermalink





Sec. 106. Petitions by employers that have signed labor agreements with unions that operate hiring halls.CommentsClose CommentsPermalink





Sec. 107. H-2B nonimmigrant labor certification application fees.CommentsClose CommentsPermalink

TITLE II--LABOR RECRUITER ACCOUNTABILITY

Sec. 201. Short title.CommentsClose CommentsPermalink





Sec. 202. Definitions..CommentsClose CommentsPermalink





Sec. 203. Protections for workers recruited abroad.CommentsClose CommentsPermalink





Sec. 204. Enforcement provisions.CommentsClose CommentsPermalink





Sec. 205. Procedures in addition to other rights of employees.CommentsClose CommentsPermalink





Sec. 206. Rulemaking.CommentsClose CommentsPermalink

TITLE I--LABOR PROTECTIONS

SEC. 101. ENFORCEMENT OF FEDERAL LABOR LAWS RELATING TO H-2B NONAGRICULTURAL GUEST WORKERS.

(a) In General- Section 214(c)(14) of the Immigration and Nationality Act (8 U.S.C. 1184(c)(14)) is amended--CommentsClose CommentsPermalink





(1) in subparagraph (A), by striking `of Homeland Security' each place it appears and inserting `of Labor';CommentsClose CommentsPermalink





(2) by striking subparagraph (B);CommentsClose CommentsPermalink





(3) by redesignating subparagraphs (C) and (D) as subparagraphs (B) and (C), respectively; andCommentsClose CommentsPermalink





(4) by adding at the end the following:CommentsClose CommentsPermalink





`(D) The Secretary of Labor is authorized to take such actions, including imposing appropriate penalties and seeking appropriate injunctive relief and specific performance of contractual obligations, as may be necessary to assure employer compliance with the terms and conditions required under this Act for employing nonimmigrant workers described in section 101(a)(15)(H)(ii)(b), and as required under the Increasing American Wages and Benefits Act of 2007. The authority of the Secretary of Labor under this subparagraph shall not preempt any other rights which affected persons may have under Federal or State law.CommentsClose CommentsPermalink





`(E) Any aggrieved person whose wages or working conditions have been directly and adversely affected by an employer in violation of applicable laws and regulations governing the employment of nonimmigrant workers described in section 101(a)(15)(H)(ii)(b), or by a violation of the terms and conditions of employment, may bring a civil action against such employer in the appropriate district court of the United States. Such cause of action shall not be subject to exhaustion of administrative remedies and shall be in addition to any other causes of action and remedies that may exist.CommentsClose CommentsPermalink





`(F) Notwithstanding any other provision of law, the Legal Services Corporation may provide legal services on behalf of nonimmigrant workers described in section 101(a)(15)(H)(ii)(b) regarding the terms and conditions of employment, transportation, and housing and other provisions of law applicable to the employment of such nonimmigrants.'.CommentsClose CommentsPermalink





(b) Report- Section 214(g)(10) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(10)) is amended--CommentsClose CommentsPermalink





(1) by inserting `(A)' after `(10)'; andCommentsClose CommentsPermalink





(2) by adding at the end the following:CommentsClose CommentsPermalink





`(B) Each employer that hires a nonimmigrant worker described in section 101(a)(15)(H)(ii)(b) shall--CommentsClose CommentsPermalink





`(i) notify the Secretary of Labor not later than 30 days after the conclusion of each such nonimmigrant's term of employment; andCommentsClose CommentsPermalink





`(ii) submit to the Secretary of Labor employment payroll records and similar documentation showing that the employer paid the required prevailing wage and transportation, and other expenses required under this section and section 212.'.CommentsClose CommentsPermalink

SEC. 102. RECRUITMENT OF UNITED STATES WORKERS.

Section 212 of the Immigration and Nationality Act (8 U.S.C. 1182) is amended--CommentsClose CommentsPermalink





(1) in subsection (p)(3), by striking `(a)(5)(A), (n)(1)(A)(i)(II),' and inserting `(n)(1)(A)(i)(II)';CommentsClose CommentsPermalink





(2) by redesignating subsection (t) (as added by section 1(b)(2)(B) of Public Law 108-449) as subsection (u); andCommentsClose CommentsPermalink





(3) by adding at the end the following:CommentsClose CommentsPermalink





`(v)(1) Except as provided under paragraph (5), an employer that seeks to employ an alien described in section 101(a)(15)(H)(ii)(b) (referred to in this subsection as an `H-2B nonimmigrant') shall take the following steps to recruit United States workers for the position for which the alien is sought not later than 14 days before filing an application under paragraph (3):CommentsClose CommentsPermalink





`(A) The employer shall submit a copy of the job offer, including a description of the wages and other terms and conditions of employment, to the State Workforce Agency that serves the area of employment in the State in which the employer is located (referred to in this subsection as the `SWA'). The SWA shall provide the employer with an acknowledgment of receipt of such documentation in accordance with this paragraph.CommentsClose CommentsPermalink





`(B) The employer shall authorize the SWA to post the job opportunity on the Internet through the web site for `America's Job Bank', with local job banks, and with unemployment agencies and other labor referral and recruitment sources pertinent to such job opportunity.CommentsClose CommentsPermalink





`(C) The employer shall authorize the SWA to provide notification of the job opportunity, and the SWA shall designate that these are job opportunities for which H-2B visas have been requested, to--CommentsClose CommentsPermalink





`(i) the central office of the State Federation of Labor in the State in which the job is located; andCommentsClose CommentsPermalink





`(ii) the office of the local union which represents the employees in the same or substantially equivalent job classification, if applicable.CommentsClose CommentsPermalink





`(D) The employer shall post the availability of the job opportunity for which the employer is seeking a worker in conspicuous locations at the place of employment for all employees to see.CommentsClose CommentsPermalink





`(E) The employer shall advertise the availability of the job opportunity for which the employer is seeking a worker in a publication with the highest circulation in the labor market that is likely to be patronized by a potential worker for at least 5 consecutive days.CommentsClose CommentsPermalink





`(F) Based on recommendations by the local job service, the employer shall advertise the availability of the job opportunity in professional, trade, or local minority and ethnic publications that are likely to be patronized by a potential worker.CommentsClose CommentsPermalink





`(2) An employer that seeks to employ an H-2B nonimmigrant shall--CommentsClose CommentsPermalink





`(A) first offer the job to any eligible United States worker who--CommentsClose CommentsPermalink





`(i) applies;CommentsClose CommentsPermalink





`(ii) is qualified for the job; andCommentsClose CommentsPermalink





`(iii) is available at the time of need; andCommentsClose CommentsPermalink





`(B) maintain, for at least 3 years after the employment relation is terminated, documentation of recruitment efforts and responses conducted and received before filing an application with the Department of Labor, including--CommentsClose CommentsPermalink





`(i) resumes;CommentsClose CommentsPermalink





`(ii) applications; andCommentsClose CommentsPermalink





`(iii) tests of United States workers who applied and were not hired for the job the employer seeks to fill with a nonimmigrant worker, if applicable.CommentsClose CommentsPermalink





`(3) An employer that seeks to hire an H-2B nonimmigrant shall submit an application to the Secretary of Labor that includes a certification, under penalty of perjury, that--CommentsClose CommentsPermalink





`(A) the employer has not made a job offer to a United States worker, which imposed restrictions or obligations that will not be imposed on an H-2B nonimmigrant;CommentsClose CommentsPermalink





`(B) the employer has complied with the recruitment requirements under paragraph (1);CommentsClose CommentsPermalink





`(C) the employer will offer an H-2B nonimmigrant not less than the same benefits and working conditions provided to United States workers similarly employed in the same occupational classification at the same actual place of employment in addition to paying an H-2B nonimmigrant a prevailing wage rate not less than the wage rate offered to United States workers;CommentsClose CommentsPermalink





`(D) there is currently no strike, lockout, or labor dispute (as defined in section 2(9) of the Labor-Management Relations Act (29 U.S.C. 152(9)), at the same place of employment, which affects employees in the same occupational classification in which an H-2B nonimmigrant will be employed;CommentsClose CommentsPermalink





`(E) the employer will comply with all applicable laws and regulations relating to the right of workers to join or organize a union (including rights protected under section 7 of the Labor-Management Relations Act (29 U.S.C. 157));CommentsClose CommentsPermalink





`(F) the employer has--CommentsClose CommentsPermalink





`(i) provided notice of the filing of an application to the bargaining representative of employees, if any, working in the same occupational classification at the place of employment as an H-2B nonimmigrant who the employer intends to employ; orCommentsClose CommentsPermalink





`(ii) if there is no such bargaining representative, posted notice of filing such application in conspicuous locations at the place of employment for all employees to see for not fewer than 14 business days; andCommentsClose CommentsPermalink





`(G) the requirements applicable to the job, which the employer intends to hire an H-2B nonimmigrant to perform, represent the actual minimum requirements applicable to that job and the employer will not hire an H-2B nonimmigrant to perform the job who has less training or experience than the employer's other employees.CommentsClose CommentsPermalink





`(4)(A) An employer that applies to hire an H-2B nonimmigrant shall hire any qualified United States worker who applies for the job for which such nonimmigrant was intended to be employed if such United States worker applies before the date that is 30 days before the date on which the last such H-2B nonimmigrant is scheduled to begin work for such employer.CommentsClose CommentsPermalink





`(B) The Secretary of Labor, through the workforce agency of a State, as appropriate, shall provide information about applications for H-2B nonimmigrants, including information about domestic workers who apply for jobs but are not hired, to a United States worker, nonprofit organization, or union not later than 48 hours after such worker, organization, or union requests such information.'.CommentsClose CommentsPermalink

SEC. 103. PREVAILING WAGES FOR UNITED STATES WORKERS AND H-2B WORKERS.

Section 212 of the Immigration and Nationality Act (8 U.S.C. 1182), as amended by section 102, is further amended by adding at the end the following:CommentsClose CommentsPermalink





`(w)(1) No alien may be admitted or provided status as a nonimmigrant under section 101(a)(15)(H)(ii)(b) in an occupational classification unless the Secretary of Labor certifies that the employer--CommentsClose CommentsPermalink





`(A) is offering and will offer during the period of authorized employment to aliens admitted or provided such status the wage rate set forth in the collective bargaining agreement, if the job opportunity is covered by a collective bargaining agreement;CommentsClose CommentsPermalink





`(B) if the job opportunity is not covered by a collective bargaining agreement, the wage the employer is offering and will offer, to any alien or United States worker employed by or offered employment by the employer, during the period of authorized employment for aliens admitted or provided such status, wages that are not less than the higher of--CommentsClose CommentsPermalink





`(i) the wage determination, if any, issued pursuant to subchapter IV of chapter 31 of title 40, United States Code (commonly known as the `Davis-Bacon Act');CommentsClose CommentsPermalink





`(ii) the wage determination, if any, issued pursuant to the Service Contract Act of 1965 (41 U.S.C. 351 et seq.);CommentsClose CommentsPermalink





`(iii) the median rate of the highest 66 percent of the wage data applicable to such occupational classification under the most recently published Occupational Employment Statistics Survey, compiled by the Bureau of Labor Statistics; orCommentsClose CommentsPermalink





`(iv) a wage that is not less than 150 percent of the Federal minimum wage in effect under the Fair Labor Standards Act (29 U.S.C. 201 et seq.); andCommentsClose CommentsPermalink





`(C) will provide working conditions for such alien that will not adversely affect the working conditions of workers similarly employed.CommentsClose CommentsPermalink





`(2) An employer may not appeal a decision of the Secretary of Labor concerning the wages required to be paid under paragraph (1)(A) unless United States workers and their labor representatives are given the opportunity to submit contrary evidence or appeal that such required wages are too low.CommentsClose CommentsPermalink





`(3) An employer may not hire a nonimmigrant described in section 101(a)(15)(H)(ii)(b) unless--CommentsClose CommentsPermalink





`(A) real prevailing wages in the occupational classification in which such nonimmigrant is to be hired are at least 3 percent higher than such wages during the preceding year under the Occupational Employment Statistics Survey compiled by the Bureau of Labor Statistics; orCommentsClose CommentsPermalink





`(B) the employer offers to pay the H-2B worker or a United States worker a wage in the occupational classification in which such worker is to be hired that is at least 3 percent higher during the preceding year, after adjusting for inflation under the Occupational Employment Survey.'.CommentsClose CommentsPermalink

SEC. 104. CERTIFICATION REQUIREMENT.

Section 214(c)(14) of the Immigration and Nationality Act, as amended by section 101, is further amended by adding at the end the following:CommentsClose CommentsPermalink





`(G) A petition by an employer seeking to hire an alien described in section 101(a)(15)(H)(ii)(b) shall not be approved until the employer has provided written certification, under penalty of perjury, to the Secretary of Labor that--CommentsClose CommentsPermalink





`(i) the employer has not been required under law to provide a notice of a mass layoff pursuant to the Worker Adjustment and Retraining Notification Act (29 U.S.C. 2101 et seq.) during the 12-month period immediately preceding the date on which the alien is to be hired; andCommentsClose CommentsPermalink





`(ii) the employer does not intend to provide a notice of a mass layoff pursuant to such Act.CommentsClose CommentsPermalink





`(H) If an employer is required under law to provide a notice of a mass layoff pursuant to such Act after hiring nonimmigrants granted status under section 101(a)(15)(H)(ii)(b), the status of such nonimmigrants shall expire on the date that is 60 days after the date on which such notice is provided.CommentsClose CommentsPermalink





`(I) An employer shall be exempt from the requirements under subparagraphs (G) and (H) if the employer provides written certification, under penalty of perjury, that the total number of the employer's employees in the United States will not be reduced as a result of a mass layoff.'.CommentsClose CommentsPermalink

SEC. 105. PROTECTIONS FOR WORKERS.

Section 214(c)(14) of the Immigration and Nationality Act, as amended by section 104, is further amended by adding at the end the following:CommentsClose CommentsPermalink





`(J) Employers who hire nonimmigrants described in section 101(a)(15)(H)(ii)(b) shall reimburse the nonimmigrants for the reasonable transportation costs incurred by such nonimmigrants and United States workers to initially reach the job site and, once the period of employment for the job opportunity is completed, to return to their countries of origin or to the next place of employment, if the worker has contracted with a subsequent employer who has not agreed to provide or pay for the worker's transportation to such subsequent employer's place of employment. The amount of reimbursement for such transportation expenses shall not exceed the lesser of--CommentsClose CommentsPermalink





`(i) the actual cost to the worker or alien of the transportation and subsistence involved; orCommentsClose CommentsPermalink





`(ii) the most economical and reasonable common carrier transportation charges and subsistence costs for the distance involved.CommentsClose CommentsPermalink





`(K)(i) Employers who hire nonimmigrants described in section 101(a)(15)(H)(ii)(b) shall guarantee to offer the worker employment for at least 75 percent of the workdays of the total periods during which the work contract and all extensions of such contract are in effect, beginning with the first workday after the arrival of the worker at the place of employment and ending on the expiration date specified in the work contract or in its extensions, if any.CommentsClose CommentsPermalink





`(ii) If the employer affords a worker during the total work contract period less employment than that required under this subparagraph, the employer shall pay the worker the amount which the worker would have earned had the worker worked for the guaranteed number of days.CommentsClose CommentsPermalink





`(iii) In this subparagraph, the term `workday'--CommentsClose CommentsPermalink





`(I) means a day in which the worker is offered the number of hours stated in the job order; andCommentsClose CommentsPermalink





`(II) excludes the worker's Sabbath and Federal holidays.CommentsClose CommentsPermalink





`(iv) A work guarantee does not meet the requirements under this subparagraph unless the number of hours of work offered by the employer is equal to not less than the product of--CommentsClose CommentsPermalink





`(I) 75 percent of the workdays; multiplied byCommentsClose CommentsPermalink





`(II) the average number of hours per day stated in the job order.CommentsClose CommentsPermalink





`(v) A worker may be offered more than the specified hours of work on a single workday.CommentsClose CommentsPermalink





`(vi) The employer may not require, for purposes of meeting the work guarantee, that the worker work longer than the number of hours specified in the job order on a workday, the worker's Sabbath, or a Federal holiday.CommentsClose CommentsPermalink





`(L) If the job opportunity is not covered by the State workers' compensation law, the employer will provide, at no cost to the worker, insurance covering injury and disease arising out of, and in the course of, the worker's employment which will provide benefits at least equal to those provided under the State's workers' compensation law for comparable employment.'.CommentsClose CommentsPermalink

SEC. 106. PETITIONS BY EMPLOYERS THAT HAVE SIGNED LABOR AGREEMENTS WITH UNIONS THAT OPERATE HIRING HALLS.

Section 212(v) of the Immigration and Nationality Act, as added by section 102, is amended by adding at the end the following:CommentsClose CommentsPermalink





`(5) An employer that seeks to hire an H-2B nonimmigrant may file an application with the Secretary of Labor in accordance with this paragraph, instead of complying with paragraphs (1) through (4), if--CommentsClose CommentsPermalink





`(A) the employer has signed a labor agreement with a labor organization (as defined in section 2(5) of the Labor-Management Relations Act (29 U.S.C. 152(5)) under which the labor organization is responsible for referring applicants for employment to the employer under a procedure commonly known as a `hiring hall' or `referral hall'; andCommentsClose CommentsPermalink





`(B) the application is accompanied by a written statement prepared by the labor organization attesting that--CommentsClose CommentsPermalink





`(i) the labor organization operates a hiring hall that, pursuant to contractual agreement and actual practice, is a source of employees in the same or substantially equivalent occupational classification in which the employer seeks to employ an H-2B nonimmigrant;CommentsClose CommentsPermalink





`(ii) the labor organization does not have a sufficient number of qualified applicants available for referral in the same or substantially equivalent occupational classification in which the employer seeks to employ an H-2B nonimmigrant;CommentsClose CommentsPermalink





`(iii) the labor organization has advertised, for at least 5 consecutive days, the availability of the job opportunity for which the employer is seeking to employ an H-2B nonimmigrant in the publication with the highest circulation in the labor market that is likely to be patronized by potential applicants;CommentsClose CommentsPermalink





`(iv) the employer is contractually obligated to pay all employees, in the same or substantially equivalent occupational classification in which the employer seeks to employ an H-2B nonimmigrant, wages and benefits set forth in a labor agreement with the labor organization, which equals or exceeds the prevailing wage rate the employer would be obligated to pay; andCommentsClose CommentsPermalink





`(v) the H-2B nonimmigrants who the employer seeks to employ will be paid not less than the same wages and benefits and be subject to the same terms and conditions of employment set forth in the employer's labor agreement with the labor organization.'.CommentsClose CommentsPermalink

SEC. 107. H-2B NONIMMIGRANT LABOR CERTIFICATION APPLICATION FEES.

(a) Establishment of Fees- Section 212(a)(5)(A) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5)(A)) is amended by adding the following:CommentsClose CommentsPermalink





`(v) ESTABLISHMENT OF H-2B EMPLOYMENT CERTIFICATION APPLICATION FEE-CommentsClose CommentsPermalink





`(I) IN GENERAL- The Secretary of Labor shall impose a fee on an employer that submits an application for an employment certification for aliens granted nonimmigrant status under section 101(a)(15)(H)(ii)(b) to the Secretary of Labor under this subparagraph on or after the date that is 30 days after the date of enactment of the Increasing American Wages and Benefits Act of 2007.CommentsClose CommentsPermalink





`(II) FEE DURING INITIAL YEAR- During the period beginning 30 days after the date of enactment of the Increasing American Wages and Benefits Act of 2007 and ending 1 year after such date, the fee imposed under subclause (I) shall be $800 for each application.CommentsClose CommentsPermalink





`(III) FEE AFTER INITIAL YEAR- After the date that is one year after the date of enactment of the Increasing American Wages and Benefits Act of 2007, the fee imposed under subclause (I) shall be set at a level the Secretary of Labor determines will ensure recovery of the full costs of carrying out labor certification activities under this subparagraph and will recover any additional costs associated with the administration of the fees collected.CommentsClose CommentsPermalink





`(IV) PROHIBITION ON EMPLOYER ACCEPTING REIMBURSEMENT OF FEE-CommentsClose CommentsPermalink

`(aa) IN GENERAL- An employer subject to a fee under this clause shall not require or accept reimbursement, directly or indirectly, of or other compensation for all or part of the cost of such fee.CommentsClose CommentsPermalink

`(bb) CIVIL PENALTY- If the Secretary of Labor determines, after notice and opportunity for a hearing, that a violation of item (aa) has occurred, the Secretary of Labor may impose a civil penalty in an amount not to exceed $5,000 per violation.CommentsClose CommentsPermalink

`(V) DEPOSIT OF FEES AND PENALTIES- Fees and civil penalties collected under this clause shall be deposited in the `H-2B Employment Certification Application Fee Account' established under section 286(w).'.CommentsClose CommentsPermalink





(b) Establishment of Account and Use of Fund- Section 286 of the Immigration and Nationality Act (8 U.S.C. 1356) is amended by adding at the end the following:CommentsClose CommentsPermalink





`(w) H-2B Employment Certification Application Fee Account-CommentsClose CommentsPermalink





`(1) ESTABLISHMENT OF ACCOUNT- There is established in the general fund of the Treasury a separate account, which shall be known as the `H-2B Employment Certification Application Fee Account'. Notwithstanding any other provision of this title, there shall be deposited as offsetting receipts into the account all amounts from the fees and civil penalties collected under section 212(a)(5)(A)(v).CommentsClose CommentsPermalink





`(2) USE OF FEES- Of the amounts deposited into the H-2B Employment Certification Application Fee Account under this subsection in each fiscal year, the Secretary of Labor shall use such amounts as the Secretary of Labor determines are necessary for the costs of Federal administration, including personnel, in carrying out labor certification activities under section 212(a)(5)(A), and to assist the States, as appropriate, in the determination of prevailing wages for purposes of carrying out such section.CommentsClose CommentsPermalink





`(3) AVAILABILITY OF FUNDS- The fees deposited into the H-2B Employment Certification Application Fee Account under this subsection shall remain available until expended for the activities described in paragraph (2).'.CommentsClose CommentsPermalink





(c) Program Integrity- Section 212(a)(5)(A) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5)(A)), as amended by subsection (a), is further amended by adding at the end the following:CommentsClose CommentsPermalink





`(vi) PROGRAM INTEGRITY REGULATIONS- The Secretary of Labor may prescribe such regulations as may be necessary to ensure the integrity of the labor certification process carried out under this subparagraph. Such regulations may include standards and procedures under which employers and their representatives are excluded from participation in the labor certification process under this subparagraph.'.CommentsClose CommentsPermalink

TITLE II--LABOR RECRUITER ACCOUNTABILITY

SEC. 201. SHORT TITLE.

This title may be cited as the `Indentured Servitude Abolition Act of 2007'.CommentsClose CommentsPermalink

SEC. 202. DEFINITIONS.

(a) Fair Labor Standards Act of 1938- Except as otherwise provided by this title, for purposes of this Act the terms used in this Act shall have the same meanings, respectively, as are given those terms in section 3 of the Fair Labor Standards Act of 1938 (29 U.S.C. 203).CommentsClose CommentsPermalink





(b) Other Definitions- In this title:CommentsClose CommentsPermalink





(1) FOREIGN LABOR CONTRACTING ACTIVITY- The term `foreign labor contracting activity' means recruiting, soliciting, hiring, employing, or furnishing, an individual who resides outside of the United States to be employed in the United States.CommentsClose CommentsPermalink





(2) FOREIGN LABOR CONTRACTOR- The term `foreign labor contractor' means any person who for any money or other valuable consideration paid or promised to be paid, performs any foreign labor contracting activity.CommentsClose CommentsPermalink





(3) SECRETARY- The term `Secretary' means the Secretary of Labor.CommentsClose CommentsPermalink





(4) STATE- The term `State' means any State of the United States and includes the District of Columbia, Puerto Rico, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and the Virgin Islands of the United States.CommentsClose CommentsPermalink





(5) WORKER- The term `worker' means an individual who is the subject of foreign labor contracting activity.CommentsClose CommentsPermalink

SEC. 203. PROTECTIONS FOR WORKERS RECRUITED ABROAD.

(a) Basic Requirements-CommentsClose CommentsPermalink





(1) DISCLOSURES OF INFORMATION- Each employer and foreign labor contractor who engages in foreign labor contracting activity shall ascertain and disclose to each such worker who is recruited for employment the following information at the time of the worker's recruitment:CommentsClose CommentsPermalink





(A) The place of employment.CommentsClose CommentsPermalink





(B) The compensation for the employment.CommentsClose CommentsPermalink





(C) A description of employment activities.CommentsClose CommentsPermalink





(D) The period of employment.CommentsClose CommentsPermalink





(E) The transportation, housing, and any other employee benefit to be provided and any costs to be charged for each benefit.CommentsClose CommentsPermalink





(F) The existence of any arrangements with any owner or agent of any establishment in the area of employment under which the contractor or employer is to receive a commission or any other benefit resulting from any sales (including the provision of services) by such establishment to the workers.CommentsClose CommentsPermalink





(G) Whether and the extent to which workers will be compensated through workers' compensation, private insurance, or otherwise for injuries or death, including work related injuries and death, during the period of employment and, if so, the name of the State workers' compensation insurance carrier or the name of the policyholder of the private insurance, the name and the telephone number of each person who must be notified of an injury or death, and the time period within which such notice must be given.CommentsClose CommentsPermalink





(H) Any education or training to be provided or made available, including the nature and cost of such training, who will pay such costs, and whether the training is a condition of employment, continued employment, or future employment.CommentsClose CommentsPermalink





(I) A statement, approved by the Secretary of Labor, describing the protections of this Act for workers recruited abroad.CommentsClose CommentsPermalink





(2) PROHIBITION ON PROVIDING FALSE INFORMATION- No foreign labor contractor or employer shall knowingly provide false or misleading information to any worker concerning any matter required to be disclosed in paragraph (1).CommentsClose CommentsPermalink





(3) FORM OF DISCLOSURE- The information required to be disclosed by paragraph (1) to workers shall be provided in written form. Such information shall be provided in English or, as necessary and reasonable, in the language of the worker being recruited. The Department of Labor shall make forms available in English, Spanish, and other languages, as necessary, which may be used in providing workers with information required under this section.CommentsClose CommentsPermalink





(4) PROHIBITION ON RECRUITMENT FEES- No fees may be charged to a worker for recruitment.CommentsClose CommentsPermalink





(5) PROHIBITION ON VIOLATING THE TERMS OF A WORKING ARRANGEMENT- No employer or foreign labor contractor shall, without justification, violate the terms of any working arrangement made by that contractor or employer.CommentsClose CommentsPermalink





(6) PROHIBITION ON DISCRIMINATION-CommentsClose CommentsPermalink





(A) IN GENERAL- It shall be unlawful for an employer or a foreign labor contractor to fail or refuse to hire or to discharge any individual, or otherwise discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment because such individual's race, color, creed, sex, national origin, religion, age, or disability.CommentsClose CommentsPermalink





(B) CONSIDERATIONS- For the purposes of determining the existence of unlawful discrimination under subparagraph (A)--CommentsClose CommentsPermalink





(i) in the case of a claim of discrimination based on race, color, creed, sex, national origin, or religion, the same legal standards shall apply as are applicable under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.);CommentsClose CommentsPermalink





(ii) in the case of a claim of discrimination based on unlawful discrimination based on age, the same legal standards shall apply as are applicable under the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621 et seq.); andCommentsClose CommentsPermalink





(iii) in the case of a claim of discrimination based on disability, the same legal standards shall apply as are applicable under title I of the Americans With Disabilities Act (42 U.S.C. 12101 et seq.).CommentsClose CommentsPermalink





(b) Other Worker Protections-CommentsClose CommentsPermalink





(1) NOTIFICATION REQUIREMENTS- Each employer shall notify the Secretary of the identity of any foreign labor contractor involved in any foreign labor contractor activity for or on behalf of the employer. The employer shall be subject to the civil remedies of this Act for violations committed by such foreign labor contractor to the same extent as if the employer had committed the violation. The employer shall notify the Secretary of the identity of such a foreign labor contractor whose activities do not comply with this Act.CommentsClose CommentsPermalink





(2) LIST OF VIOLATORS- The Secretary shall maintain a list of all foreign labor contractors whom the Secretary knows or believes have been involved in violations of this Act, and make that list publicly available. The Secretary shall provide a procedure by which an employer, a foreign labor contractor, or someone acting on behalf of such contractor may seek to have a foreign labor contractor's name removed from such list by demonstrating to the Secretary's satisfaction that the foreign labor contractor has not violated this Act in the previous five years.CommentsClose CommentsPermalink





(3) PROHIBITION ON VIOLATION OF WRITTEN AGREEMENTS- No foreign labor contractor shall violate, without justification, the terms of any written agreements made with an employer pertaining to any contracting activity or worker protection under this Act.CommentsClose CommentsPermalink





(c) Discrimination Prohibited Against Workers Seeking Relief Under This Act- No person shall intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner discriminate against any worker because such worker has, with just cause, filed any complaint or instituted, or caused to be instituted, any proceeding under or related to this Act, or has testified or is about to testify in any such proceedings, or because of the exercise, with just cause, by such worker on behalf of himself or others of any right or protection afforded by this Act.CommentsClose CommentsPermalink

SEC. 204. ENFORCEMENT PROVISIONS.

(a) Criminal Sanctions- Whoever knowingly violates this Act shall be fined under title 18, United States Code, or imprisoned not more than one year, or both. Upon conviction, after a first conviction under this section, for a second or subsequent violation of this Act, the defendant shall be fined under title 18, United States Code, or imprisoned not more than three years, or both.CommentsClose CommentsPermalink





(b) Administrative Sanctions-CommentsClose CommentsPermalink





(1) CIVIL PENALTIES-CommentsClose CommentsPermalink





(A) IN GENERAL- Subject to subparagraph (B), the Secretary may assess a civil money penalty of not more than $5,000 on any person who violates this Act.CommentsClose CommentsPermalink





(B) CONSIDERATIONS- In determining the amount of any penalty to be assessed under subparagraph (A), the Secretary shall take into account--CommentsClose CommentsPermalink





(i) the previous record of the person in terms of compliance with this Act and with comparable requirements of the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.), and with regulations promulgated under such Acts; andCommentsClose CommentsPermalink





(ii) the gravity of the violation.CommentsClose CommentsPermalink





(2) USE OF PROHIBITED CONTRACTOR- Any employer who uses the services of a foreign labor contractor who is on the list maintained by the Secretary pursuant to section 203(b)(2), shall, if the actions of such foreign labor contractor have contributed to a violation of this Act by the employer, be fined $10,000 per violation in addition to any other fines or penalties for which the employer may be liable for the violation.CommentsClose CommentsPermalink





(c) Actions by Secretary- The Secretary may take such actions, including seeking appropriate injunctive relief and specific performance of contractual obligations, as may be necessary to assure employer compliance with terms and conditions of employment under this Act and with this Act.CommentsClose CommentsPermalink





(d) Waiver of Rights- Agreements by employees purporting to waive or to modify their rights under this Act shall be void as contrary to public policy.CommentsClose CommentsPermalink





(e) Representation in Court- Except as provided in section 518(a) of title 28, United States Code, relating to litigation before the Supreme Court, the Solicitor of Labor may appear for and represent the Secretary in any civil litigation brought under this Act, but all such litigation shall be subject to the direction and control of the Attorney General.CommentsClose CommentsPermalink

SEC. 205. PROCEDURES IN ADDITION TO OTHER RIGHTS OF EMPLOYEES.

The rights and remedies provided to workers by this Act are in addition to, and not in lieu of, any other contractual or statutory rights and remedies of the workers, and are not intended to alter or affect such rights and remedies.CommentsClose CommentsPermalink

SEC. 206. RULEMAKING.

The Secretary shall prescribe such regulations as may be necessary to carry out this Act.CommentsClose CommentsPermalink