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H0564...............................................by AGRICULTURAL AFFAIRS
FARM LABOR CONTRACTORS - Adds to existing law to provide for the licensure
and bonding of farm labor contractors by the Department of Labor.
02/14 House intro - 1st rdg - to printing
02/15 Rpt prt - to Agric Aff
H0564
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-fifth Legislature Second Regular Session - 2000
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 564
BY AGRICULTURAL AFFAIRS COMMITTEE
1 AN ACT
2 RELATING TO LICENSING OF FARM LABOR CONTRACTORS; AMENDING TITLE 44, IDAHO
3 CODE, BY THE ADDITION OF A NEW CHAPTER 16, TITLE 44, IDAHO CODE, TO PRO-
4 VIDE APPLICABILITY, TO PROVIDE DEFINITIONS, TO PROVIDE FOR LICENSING OF
5 FARM LABOR CONTRACTORS, TO PROVIDE AN APPLICATION PROCESS AND QUALIFICA-
6 TIONS FOR ISSUANCE OF A LICENSE, TO PROVIDE BONDING, TO PROVIDE CLAIMS FOR
7 WAGES, TO PROVIDE GROUNDS FOR DENIAL OF A LICENSE, TO PROVIDE FOR REVOCA-
8 TION, SUSPENSION, REFUSAL TO ISSUE AND REFUSAL TO RENEW A LICENSE, TO
9 SPECIFY INFORMATION TO BE CONTAINED ON THE LICENSE, TO PROVIDE FOR EXPIRA-
10 TION AND RENEWAL OF LICENSES, TO PROVIDE DUTIES OF FARM LABOR CONTRACTORS,
11 TO SPECIFY PROHIBITED ACTS BY FARM LABOR CONTRACTORS, TO PROVIDE FOR
12 ASSESSMENT OF CIVIL PENALTIES AND DUE PROCESS, TO PROVIDE FOR CIVIL
13 ACTIONS, TO PROVIDE FOR SERVICE OF PROCESS ON AN UNLICENSED CONTRACTOR AND
14 TO PROHIBIT RETALIATION AGAINST AN EMPLOYEE; AND PROVIDING AN EFFECTIVE
15 DATE.
16 Be It Enacted by the Legislature of the State of Idaho:
17 SECTION 1. That Title 44, Idaho Code, be, and the same is hereby amended
18 by the addition thereto of a NEW CHAPTER, to be known and designated as Chap-
19 ter 16, Title 44, Idaho Code, and to read as follows:
20 CHAPTER 16
21 LICENSING OF FARM LABOR CONTRACTORS
22 44-1601. APPLICABILITY. The provisions of this chapter shall not apply to
23 employees of the department of labor acting in their official capacity or
24 their agents, nor to agricultural employers, nor to any common carrier or
25 employees thereof while transporting agricultural employees, only within the
26 scope of his regular employment for one (1) agricultural employer on whose
27 behalf he is so acting, unless he is receiving a commission or fee which is
28 determined by the number of workers recruited.
29 44-1602. DEFINITIONS. As used in this chapter:
30 (1) "Agricultural employee" means any person who renders personal ser-
31 vices to, or under the direction of, an agricultural employer in connection
32 with the employer's agricultural activity.
33 (2) "Agricultural employer" means any person engaged in agricultural
34 activity, including the growing, producing, or harvesting of farm or nursery
35 products, or engaged in the forestation or reforestation of lands.
36 (3) "Director" means the director of the department of labor of the state
37 of Idaho.
38 (4) "Farm labor contracting activity" means recruiting, soliciting,
39 employing, supplying, transporting or hiring agricultural employees.
40 (5) "Farm labor contractor" means any person, or his or her agent or sub-
41 contractor, who, for a fee, performs any farm labor contracting activity.
2
1 (6) "Fee" means:
2 (a) Any money or other valuable consideration paid or promised to be paid
3 for services rendered by a farm labor contractor.
4 (b) Any valuable consideration received or to be received by a farm labor
5 contractor for or in connection with any of the services described in sub-
6 section (4) of this section, and shall include the difference between any
7 amount paid out by him or her in connection with the rendering of such
8 services.
9 (7) "Person" includes any individual, firm, partnership, association or
10 corporation.
11 44-1603. LICENSE REQUIRED -- DUPLICATES. No person shall act as a farm
12 labor contractor until a license to do so has been issued to him or her by the
13 director, and unless such license is in full force and effect and is in the
14 contractor's possession. The director shall, by rule, provide a means of issu-
15 ing duplicate licenses in case of loss of the original license or any other
16 appropriate instances. The director shall issue on a monthly basis a list of
17 currently licensed farm labor contractors.
18 44-1604. APPLICANTS -- QUALIFICATIONS -- FEE -- LIABILITY INSURANCE. The
19 director shall not issue to any person a license to act as a farm labor con-
20 tractor until:
21 (1) Such person has executed a written application on a form prescribed
22 by the director, subscribed and sworn to by the applicant, and containing:
23 (a) A statement by the applicant of all the facts required by the direc-
24 tor concerning the applicant's character, competency, responsibility, and
25 the manner and method by which he or she proposes to conduct operations as
26 a farm labor contractor if such license is issued; and
27 (b) The names and addresses of all persons financially interested, either
28 as partners, shareholders, associates or profit sharers, in the proposed
29 operation as a labor contractor, together with the amount of their respec-
30 tive interests;
31 (2) The director, after investigation, is satisfied as to the character,
32 competency and responsibility of the applicant;
33 (3) The applicant has paid to the director a license fee of thirty-five
34 dollars ($35.00), or such other sum as the director finds necessary, and
35 adopts by rule, for the administrative costs of evaluating applications;
36 (4) The applicant has filed proof satisfactory to the director of the
37 existence of a policy of insurance with any insurance carrier authorized to do
38 business in the state of Idaho, in an amount satisfactory to the director,
39 which insures the contractor against liability for damage to persons or prop-
40 erty arising out of the contractor's operation of, or ownership of, any vehi-
41 cle for the transportation of individuals in connection with the contractor's
42 activities as a farm labor contractor;
43 (5) The applicant has filed a surety bond or other security which meets
44 the requirements set forth in section 44-1605, Idaho Code;
45 (6) The applicant executes a written statement which shall be subscribed
46 and sworn to and shall contain the following declaration: "With regards to any
47 action filed against me concerning my activities as a farm labor contractor, I
48 appoint the director of the Idaho Department of Labor as my lawful agent to
49 accept service of summons when I am not present in the jurisdiction in which
50 the action is commenced or have in any other way become unavailable to accept
51 service.";
52 (7) The applicant has stated on his or her application whether or not his
53 or her contractor's license or the license of his or her agents, partners,
3
1 associates, stockholders or profit sharers has ever been suspended, revoked or
2 denied by any state or federal agency, and whether or not there are any out-
3 standing judgments against him or her or any of his or her agents, partners,
4 associates, stockholders or profit sharers in any state or federal court aris-
5 ing out of activities as a farm labor contractor; and
6 (8) The applicant has filed proof satisfactory to the director of the
7 existence of a policy of worker's compensation insurance covering the employ-
8 ees of the applicant as required by chapter 2, title 72, Idaho Code.
9 44-1605. SURETY BOND -- SECURITY. (1) The director shall require the
10 deposit of a surety bond by any person acting as a farm labor contractor under
11 this chapter to insure compliance with the provisions of this chapter. Such
12 bond shall be in an amount of ten thousand dollars ($10,000) if the contractor
13 employs no more than twenty (20) employees, and thirty thousand dollars
14 ($30,000) if the contractor employs more than twenty (20) employees. The bond
15 shall be payable to the state of Idaho and be conditioned on payment of sums
16 legally owing under contract or statute to an agricultural employee. The
17 aggregate liability of the surety upon such bond for all claims which may
18 arise thereunder shall not exceed the face amount of the bond.
19 (2) The amount of the bond may be raised or additional security required
20 by the director, upon his or her own motion or upon petition to the director
21 by any person, when it is shown that the security or bond is insufficient to
22 satisfy the contractor's potential liability for the licensed period.
23 (3) No surety insurer may provide any bond, undertaking, recognizance, or
24 other obligation for the purpose of securing or guaranteeing any act, duty or
25 obligation, or the refraining from any act with respect to a contract using
26 the services of a farm labor contractor unless the farm labor contractor has
27 made application for or has a valid license issued under section 44-1604,
28 Idaho Code, at the time of issuance of the bond, undertaking, recognizance or
29 other obligation.
30 (4) Surety bonds may not be canceled or terminated during the period in
31 which the bond is executed unless thirty (30) days' notice is provided by the
32 surety to the department. The bond is written for a one (1) year term and may
33 be renewed or extended by continuation certification at the option of the
34 surety.
35 (5) In lieu of the surety bond required in this section, the contractor
36 may file with the director a deposit consisting of cash or other security
37 acceptable to the director. The deposit shall not be less than ten thousand
38 dollars ($10,000) if the contractor employs no more than twenty (20) employees
39 and not less than thirty thousand dollars ($30,000) if the contractor employs
40 more than twenty (20) employees. The security deposited with the director in
41 lieu of the surety bond shall be returned to the contractor at the expiration
42 of three (3) years after the farm labor contractor's license has expired or
43 been revoked, if no legal action has been instituted against the contractor or
44 on the security deposit at the expiration of the three (3) years.
45 (6) If a contractor has deposited a bond with the director and has failed
46 to comply with the conditions of the bond as provided in this section, and has
47 departed from this state, service may be made upon the surety.
48 44-1606. CLAIM FOR WAGES -- ACTION UPON SURETY BOND OR SECURITY. (1) Any
49 person, having a claim for wages pursuant to this chapter, may bring suit upon
50 the surety bond or security deposit filed by the contractor pursuant to sec-
51 tion 44-1605, Idaho Code, in any court of competent jurisdiction for the
52 county in which the claim arose, or in which either the claimant or contractor
53 resides.
4
1 (2) The right of action is assignable in the name of the director or any
2 other person.
3 44-1607. LICENSE -- GROUNDS FOR DENYING. A license to operate as a farm
4 labor contractor shall be denied to a person whose license has been revoked
5 within three (3) years from the date of application.
6 44-1608. LICENSE -- REVOCATION, SUSPENSION, REFUSAL TO ISSUE OR RENEW.
7 Any person may protest the grant or renewal of a license under this section.
8 The director may revoke, suspend or refuse to issue or renew any license when
9 it is shown that:
10 (1) The farm labor contractor or any agent of the contractor has violated
11 or failed to comply with any of the provisions of this chapter;
12 (2) The farm labor contractor has made any misrepresentations or false
13 statements in his or her application for a license;
14 (3) The conditions under which the license was issued have changed or no
15 longer exist;
16 (4) The farm labor contractor, or any agent of the contractor, has vio-
17 lated or willfully aided or abetted any person in the violation of, or failed
18 to comply with, any law of the state of Idaho regulating employment in agri-
19 culture, the payment of wages to farm employees, or the conditions, terms or
20 places of employment affecting the health and safety of farm employees, which
21 is applicable to the business activities, or operations of the contractor in
22 his or her capacity as a farm contractor.
23 (5) The farm labor contractor or any agent of the contractor has an
24 unsatisfied judgment against him or her in any state or federal court, arising
25 out of his or her farm labor contracting activities.
26 44-1609. LICENSE -- CONTENTS. Each license shall contain on the face
27 thereof;
28 (1) The name and address of the licensee and the fact that he or she is
29 licensed to act as a farm labor contractor for the period upon the face of the
30 license only;
31 (2) The number, date of issuance and date of expiration of the license;
32 (3) The amount of the surety bond deposited by the licensee;
33 (4) The fact that the license may not be transferred or assigned; and
34 (5) A statement that the licensee is or is not licensed to transport
35 workers.
36 44-1610. EXPIRATION AND RENEWAL OF LICENSES. (1) Each license shall
37 expire one (1) year following the date of its issuance unless sooner revoked
38 by the director.
39 (2) Applications for renewal of the license shall be made thirty (30)
40 days prior to the expiration date by payment of the fee required in section
41 44-1604, Idaho Code, but the director may require any person seeking renewal
42 to file a new application under section 44-1604, Idaho Code, and may conduct a
43 new investigation of the applicant's character, competence and reliability,
44 and of any other matter relating to the manner by which the applicant proposes
45 to conduct and has conducted operations as a farm labor contractor.
46 44-1611. FARM LABOR CONTRACTOR -- DUTIES. Every person acting as a farm
47 labor contractor shall:
48 (1) Carry a current farm labor contractor's license at all times and
49 exhibit it to all persons with whom the contractor intends to deal in the
50 capacity of a farm labor contractor prior to so dealing.
5
1 (2) File at the United States post office serving the address of the con-
2 tractor, as noted on the face of the farm labor contractor's license, a cor-
3 rect change of address immediately upon each occasion the contractor perma-
4 nently moves his or her address, and notify the director within ten (10) days
5 after an address change is made.
6 (3) Promptly when due, pay or distribute to the individual entitled
7 thereto all moneys or other things of value entrusted to the contractor by any
8 third person for such purpose.
9 (4) Comply with the terms and provisions of all legal and valid agree-
10 ments and contracts entered into between the contractor in the capacity of a
11 farm labor contractor and third persons.
12 (5) File information regarding work offers with the nearest department of
13 labor job service office, such information to include wages to be paid, work
14 to be performed, and any other conditions or terms of employment.
15 (6) On a form prescribed by the director, furnish to each worker at the
16 time of hiring, recruiting, soliciting or supplying, whichever occurs first, a
17 written statement in English and any other language common to workers who are
18 not fluent or literate in English that contains a description of:
19 (a) The compensation to be paid and the method of computing the rate of
20 compensation;
21 (b) The terms and conditions of any bonus offered, including the manner
22 of determining when the bonus is earned;
23 (c) The terms and conditions of any loan made to the worker;
24 (d) The conditions of any transportation, housing, board, health and day
25 care services or any other employee benefit to be provided by the farm
26 labor contractor or by his or her agents, and the costs to be charged for
27 each of them;
28 (e) The terms and conditions of employment, including the approximate
29 length of season or period of employment and the approximate starting and
30 ending dates thereof;
31 (f) The terms and conditions under which the worker is furnished clothing
32 or equipment;
33 (g) The place of employment;
34 (h) The name and address of the owner of all operations, or the owner's
35 agent, where the worker will be working as a result of being recruited,
36 solicited, supplied or employed by the farm labor contractor;
37 (i) The name and address of the farm labor contractor;
38 (j) The name and address of the surety on the contractor's bond and the
39 worker's right to claim against the bond.
40 (7) Furnish to the worker each time the worker receives a compensation
41 payment from the farm labor contractor, a written statement itemizing the
42 total payment and the amount and purpose of each deduction therefrom, hours
43 worked, rate of pay, and pieces done if the work is done on a piece rate
44 basis, and if the work is done under the service contract act, 41 U.S.C. sec-
45 tions 351 through 401, or related federal or state law, a written statement of
46 any applicable prevailing wage.
47 44-1612. FARM LABOR CONTRACTOR -- PROHIBITED ACTS. No person acting as a
48 farm labor contractor shall:
49 (1) Make any misrepresentation or false statement in an application for a
50 license.
51 (2) Make or cause to be made, to any person, any false, fraudulent, or
52 misleading representation, or publish or circulate or cause to be published or
53 circulated any false, fraudulent or misleading information concerning the
54 terms or conditions or existence of any employment.
6
1 44-1613. CIVIL PENALTY -- HEARING -- COURT ACTION. (1) The director may
2 assess against any person who violates this chapter, or any rule adopted under
3 this chapter, a civil penalty of not more than one thousand dollars ($1,000)
4 for each violation.
5 (2) The person shall be afforded the opportunity for a hearing, upon
6 request to the director made within twenty-eight (28) days after the date of
7 issuance of the notice of assessment. The hearing shall be conducted in accor-
8 dance with section 67-5242, Idaho Code. The person shall be afforded a right
9 of judicial review of the director's final order pursuant to section 67-5270,
10 Idaho Code.
11 (3) If any person fails to pay an assessment after it has become a final
12 and unappealable order, or after a district court has entered final judgment
13 in favor of the director, the director shall attempt to recover the amount
14 assessed in the appropriate district court. In such action, the validity and
15 appropriateness of the final order imposing the penalty shall not be subject
16 to review.
17 (4) Without regard to other remedies provided in this chapter, the direc-
18 tor may bring suit upon the surety bond filed by the farm labor contractor on
19 behalf of a worker whose rights under this chapter have been violated by the
20 contractor. The action may be commenced in any court of competent jurisdic-
21 tion.
22 44-1614. CIVIL ACTIONS -- DAMAGES, COSTS, ATTORNEY'S FEES -- ACTIONS UPON
23 BOND OR SECURITY DEPOSIT. (1) In addition to any other penalty provided by
24 law, any person aggrieved by a violation of this chapter may bring suit in any
25 court of competent jurisdiction for the county in which the claim arose, or in
26 which either the plaintiff or respondent resides, without regard to the
27 exhaustion of any alternative administrative remedies provided in this chap-
28 ter. No such action may be commenced later than three (3) years after the date
29 of the violation giving rise to the right of action. In any such action the
30 court may award to the prevailing party, in addition to costs and disburse-
31 ments, reasonable attorney's fees at trial and appeal.
32 (2) In any action under subsection (1) of this section, if the court
33 finds that the respondent has violated this chapter or any rule adopted under
34 this chapter, it may award damages equal to the amount of actual damages, or
35 statutory damages of one thousand dollars ($1,000) per plaintiff per viola-
36 tion, whichever is greater, or other equitable relief.
37 (3) Without regard to other remedies provided in this chapter, a person
38 having a claim against the farm labor contractor for any violation of this
39 chapter may bring suit against the farm labor contractor and the surety bond
40 or security deposit filed by the contractor pursuant to section 44-1605, Idaho
41 Code, in any court of competent jurisdiction for the county in which the claim
42 arose, or in which either the claimant or contractor resides.
43 (4) An action upon the bond or security deposit shall be commenced by
44 serving and filing the summons and complaint within three (3) years from the
45 date of expiration or cancellation of the bond, or in the case of a security
46 deposit, within three (3) years of the date of expiration or revocation of the
47 license.
48 (5) The surety upon the bond may, upon notice to the director and the
49 parties, tender to the clerk of the court having jurisdiction of the action an
50 amount equal to the claims, or the amount equal to the claims or the amount of
51 the bond less the amount of judgments, if any, previously satisfied therefrom
52 and to the extent of such tender the surety upon the bond shall be exonerated.
53 (6) If the actions commenced and pending, at any one (1) time exceed the
54 amount of the bond then unimpaired, the claims shall be satisfied from the
7
1 bond in the following order:
2 (a) Wages, including employee benefits;
3 (b) Other contractual and statutory damages owed to the employee;
4 (c) Any costs and attorney's fees the claimant may be entitled to recover
5 by contract or statute.
6 (7) If any final judgment impairs the bond so furnished so that there is
7 not in effect a bond undertaking in the full amount required under section
8 44-1605, Idaho Code, the director shall suspend the license of the contractor
9 until the bond liability in the required amount unimpaired by unsatisfied
10 judgment claims has been furnished. If such bond becomes fully impaired, a new
11 bond must be furnished.
12 (8) If the farm labor contractor has filed other security with the direc-
13 tor in lieu of a surety bond, any person having an unsatisfied final judgment
14 against the contractor for any violation of this chapter may execute upon the
15 security deposit held by the director by serving a certified copy of the
16 unsatisfied final judgment by registered or certified mail upon the director.
17 Upon the receipt of service of such certified copy, the director shall pay or
18 order paid from the deposit, through the registry of the court which rendered
19 judgment, towards the amount of the unsatisfied judgment. The priority of pay-
20 ment by the director shall be the order of receipt by the director, but the
21 director shall have no liability for payment in excess of the amount of the
22 deposit. When the director pays or orders paid a judgment from the deposit,
23 the director shall suspend the license of the contractor until the contractor
24 files with the director a new deposit bringing the total deposit up to the
25 amount required under section 44-1605, Idaho Code.
26 44-1615. SERVICE OF PROCESS WHEN UNLICENSED CONTRACTOR IS UNAVAILABLE. In
27 any action arising out of the activities of an unlicensed farm labor contrac-
28 tor within this state who is not in the state or is otherwise unavailable for
29 service of process in this state, the unlicensed farm labor contractor may be
30 served by mailing a certified true copy of the summons and complaint to:
31 (1) The director of the department of labor;
32 (2) The last-known address, if any, of the unlicensed farm labor contrac-
33 tor; and
34 (3) Any other address the use of which the plaintiff knows, or on the
35 basis of reasonable inquiry, has reason to believe is most likely to result in
36 actual notice.
37 44-1616. RETALIATION AGAINST EMPLOYEE PROHIBITED. No farm labor contrac-
38 tor may discharge or in any other manner discriminate against any employee
39 because:
40 (1) The employee has made a claim against the farm labor contractor for
41 compensation for the employee's personal services or for other damages pursu-
42 ant to this chapter.
43 (2) The employee has testified or is about to testify in any proceedings
44 on any penalty assessed or civil actions brought pursuant to this chapter.
45 (3) The employee has discussed or consulted with anyone concerning the
46 employee's rights under this chapter.
47 SECTION 2. This act shall be in full force and effect on and after Janu-
48 ary 1, 2002.
STATEMENT OF PURPOSE
RS 09696C1
This Farm Labor Contractor Registration legislation would protect both farm
workers and farmers by requiring farm labor contractors ("FLCs") to obtain a
license and comply with such requirements as payment of wages, filing of a surety
bond, provision of worker's compensation insurance, and provision of motor
vehicles insurance on vehicles used to transport workers. The effective date of the
legislation would be January 1, 2002. The legislation:
1. Is based almost entirely on Washington's FLC Registration Act, with some
additions from the Oregon FLC Registration Act. Some of the less important
aspects of the Washington law were omitted to simply the statue. The Washington
statute was based on the Oregon statute, but was made shorter and simpler.
2. Place no liability or requirements on agricultural employers (unlike the
Washington and Oregon laws.)
3. Requires FLCs to obtain a license to act as an FLC. To obtain the license, the
FLC must: (A) fill out a license application; (B) show proof of liability insurance
on vehicles used to transport workers; (C) file a surety bond or other security to
ensure compliance with the statute; and (D) show proof of worker's compensation
insurance for their employees.
4. Requires FLCs to: (A) show their license to all persons they deal with as an
FLC; (B) comply with all contracts they enter into as an FLC; (C) file information
regarding job offers with the Job Service; (D) furnish written statements to
employees regarding the terms and conditions of employment; and (E) furnish
written statements showing the wages paid and deductions made
each time the employee is paid. The legislation prohibits FLCs from making false,
misleading, or fraudulent job offers.
5. Allows any person having a claim against the FLC for any violation of the act
to bring an action against the FLC and the surety bond or other security.
6. Charges the Idaho Department of Labor (IDOL) with conducting the
registration process and gives the IDOL discretion to assess civil penalties against
FLCs for violations of the act. The IDOL is authorized to charge a $50
registration fee or other sum as it finds necessary to cover its administrative costs.
FISCAL NOTE
There would be no impact on the general fund as the cost of the registration
process would be covered by the registration fee. The IDOL may, at its discretion,
assess civil penalties for violations of the act. Collection of civil penalties could
be used by the IDOL to cover the cost of assessing such civil penalties.
CONTACT: Rep. Tom Trail, 332-1000
Rep. Ken Robison, 332-1000
Rep. David Bieter, 332-1000
Erik Johnson, 345-4733
STATEMENT OF PURPOSE/ FISCAL NOTE H 564