BILL REQ. #: S-4089.1
| State of Washington | 59th Legislature | 2006 Regular Session |
Read first time 01/11/2006. Referred to Committee on Labor, Commerce, Research & Development.
AN ACT Relating to protecting agricultural workers who are recruited, solicited, employed, supplied, transported, or hired by farm labor contractors; amending RCW 19.30.010, 19.30.030, 19.30.040, 19.30.050, 19.30.060, 19.30.070, 19.30.081, 19.30.110, 19.30.170, 19.30.190, 19.31.020, and 19.31.170; adding new sections to chapter 19.30 RCW; adding a new section to chapter 50.13 RCW; creating a new section; and repealing RCW 19.30.090.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 19.30.010 and 1985 c 280 s 1 are each amended to read
as follows:
(1) "Person" includes any individual, firm, partnership,
association, corporation, or unit or agency of state or local
government.
(2) "Applicant" means any person who has submitted a written
application to operate as a farm labor contractor, but who has not yet
been issued a license to operate as a farm labor contractor, as
specified in RCW 19.30.030.
(3) "Farm labor contractor" means any person, or his or her agent
or subcontractor, who, for a fee, performs any farm labor contracting
activity either in the state of Washington or for agricultural
employers in the state of Washington.
(((3))) (4) "Farm labor contracting activity" means recruiting,
soliciting, employing, supplying, transporting, or hiring agricultural
((employees)) workers.
(((4))) (5) "Agricultural employer" means any person engaged in
agricultural activity, including but not limited to: The growing,
producing, or harvesting of farm or nursery products((, or engaged
in)); the forestation or reforestation of lands, ((which includes but
is)) including but not limited to the planting, transplanting, tubing,
precommercial thinning, and thinning of trees and seedlings, the
clearing, piling, and disposal of brush and slash, and the harvest of
Christmas trees((,)); and other related activities.
(((5))) (6) "Agricultural ((employee)) worker" means any person who
seeks to render((s)) personal services to((,)) or is under the
direction of((,)) an agricultural employer in connection with the
employer's agricultural activity.
(((6))) (7) "H-2A worker" is an agricultural worker who is
temporarily present in the United States as a nonimmigrant under
subparagraph (H)(ii) of section 101(a)(15) of the federal immigration
and naturalization act.
(8) This chapter shall not apply to employees of the employment
security department acting in their official capacity or their agents,
nor to any common carrier or full time regular employees thereof while
transporting agricultural ((employees)) workers, nor to any person who
performs any of the services enumerated in subsection (((3))) (4) of
this section only within the scope of his or her regular employment for
one agricultural employer on whose behalf he or she is so acting,
unless he or she is receiving a commission or fee, which commission or
fee is determined by the number of workers recruited, or to a nonprofit
corporation or organization which performs the same functions for its
members. Such nonprofit corporation or organization shall be one in
which:
(a) None of its directors, officers, or employees are deriving any
profit beyond a reasonable salary for services performed in its behalf.
(b) Membership dues and fees are used solely for the maintenance of
the association or corporation.
(((7))) (9) "Fee" means:
(a) Any money or other valuable consideration paid or promised to
be paid for services rendered or to be rendered by a farm labor
contractor.
(b) Any valuable consideration received or to be received by a farm
labor contractor for or in connection with any of the services
described in subsection (((3))) (4) of this section, and shall include
the difference between any amount received or to be received by him or
her, and the amount paid out by him or her for or in connection with
the rendering of such services.
(((8))) (10) "Director" as used in this chapter means the director
of the department of labor and industries of the state of Washington.
Sec. 2 RCW 19.30.030 and 1985 c 280 s 3 are each amended to read
as follows:act)) operate as a farm labor contractor
until:
(1) Such person has executed a written application for each year
that the applicant seeks to operate as a farm labor contractor. The
written application shall be on a form prescribed by the director, be
subscribed and sworn to by the applicant, and contain((ing)): (a) A
statement by the applicant of all facts required by the director
concerning the applicant's character, competency, responsibility, and
the manner and method by which he or she proposes to conduct operations
as a farm labor contractor if such license is issued((,)); and (b) the
names and addresses of all persons financially interested, either as
partners, stockholders, associates, profit sharers, or providers of
board or lodging to agricultural ((employees)) workers in the proposed
operation as a labor contractor, together with the amount of their
respective interests;
(2) ((The director, after investigation, is satisfied as to the
character, competency, and responsibility of the applicant)) Such
person demonstrates that the applicant is in full compliance with this
chapter and other federal and state laws;
(3) The applicant has paid to the director a license fee of:
(((1))) (a) Thirty-five dollars in the case of a farm labor contractor
not engaged in forestation or reforestation((,)); or (((2))) (b) one
hundred dollars in the case of a farm labor contractor engaged in
forestation or reforestation or such other sum as the director finds
necessary, and adopts by rule, for the administrative costs of
evaluating applications;
(4) The applicant has filed proof satisfactory to the director of
the existence of a policy of insurance with any insurance carrier
authorized to do business in the state of Washington in an amount
satisfactory to the director, which insures the contractor against
liability for damage to persons or property arising out of the
contractor's operation of, or ownership of, any vehicle or vehicles for
the transportation of individuals in connection with the contractor's
business, activities, or operations as a farm labor contractor;
(5) The applicant has filed a surety bond or other security which
meets the requirements set forth in RCW 19.30.040;
(6) The applicant has filed a repatriation bond, if required under
section 4 of this act, which meets the requirements set forth in
section 4 of this act;
(7) The applicant executes a written statement which shall be
subscribed and sworn to and shall contain the following declaration:
"With regards to any action filed against me concerning my
activities as a farm labor contractor, I appoint the director of the
Washington department of labor and industries as my lawful agent to
accept service of summons when I am not present in the jurisdiction in
which the action is commenced or have in any other way become
unavailable to accept service"; and
(((7))) (8) The applicant has stated on his or her application
whether or not his or her contractor's license or the license of any of
his or her agents, partners, associates, stockholders, or profit
sharers has ever been suspended, revoked, or denied by any state or
federal agency, and whether or not there are any debts owed by or
outstanding judgments from administrative or judicial determinations
against him or her or any of his or her agents, partners, associates,
stockholders, or profit sharers ((in any state or federal court))
arising out of activities as a farm labor contractor in any state or
country.
Sec. 3 RCW 19.30.040 and 1987 c 216 s 1 are each amended to read
as follows:employee)) worker. The aggregate liability of the
surety upon such bond for all claims which may arise thereunder shall
not exceed the face amount of the bond.
(2) The amount of the bond may be raised or additional security
required by the director, upon his or her own motion or upon petition
to the director by any person, when it is shown that the security or
bond is insufficient to satisfy the contractor's potential liability
for the licensed period.
(3) No surety insurer may provide any bond, undertaking,
recognizance, or other obligation for the purpose of securing or
guaranteeing any act, duty, or obligation, or the refraining from any
act with respect to a contract using the services of a farm labor
contractor unless the farm labor contractor has made application for or
has a valid license issued under RCW 19.30.030 at the time of issuance
of the bond, undertaking, recognizance, or other obligation.
(4) Surety bonds may not be canceled or terminated during the
period in which the bond is executed unless thirty days' notice is
provided by the surety to the department. The bond is written for a
one-year term and may be renewed or extended by continuation
certification at the option of the surety.
(5) In lieu of the surety bond required by this section, the
contractor may file with the director a deposit consisting of cash or
other security acceptable to the director. The deposit shall not be
less than five thousand dollars in value. The security deposited with
the director in lieu of the surety bond shall be returned to the
contractor at the expiration of three years after the farm labor
contractor's license has expired or been revoked if no legal action has
been instituted against the contractor or on the security deposit at
the expiration of the three years.
(6) If a contractor has deposited a bond with the director and has
failed to comply with the conditions of the bond as provided by this
section, and has departed from this state, service may be made upon the
surety as prescribed in RCW 4.28.090.
NEW SECTION. Sec. 4 A new section is added to chapter 19.30 RCW
to read as follows:
(2) The amount of the bond may be raised or additional security
required by the director, upon his or her own motion or upon petition
to the director by any person, when it is shown that the security or
bond is insufficient to satisfy the contractor's potential liability
for repatriation of H-2A workers.
(3) No insurer may provide any bond, undertaking, recognizance, or
other obligation for the purpose of securing or guaranteeing any act,
duty, or obligation, or the refraining from any act with respect to a
contract using the services of a farm labor contractor unless the farm
labor contractor has made application for or has a valid license issued
under RCW 19.30.030 at the time of issuance of the bond, undertaking,
recognizance, or other obligation.
(4) The repatriation bond shall be written for a one-year term and
may be renewed or extended by continuation certification at the option
of the insurer.
(5)(a) In lieu of the repatriation bond required by this section,
the farm labor contractor may file with the director a deposit
consisting of cash or other security acceptable to the director. The
deposit shall not be less than one thousand dollars per H-2A worker in
value. The security deposited with the director in lieu of the
repatriation bond shall be returned to the farm labor contractor at the
expiration of three years after the farm labor contractor's license has
expired or been revoked if no legal action has been instituted against
the farm labor contractor or on the security deposit at the expiration
of the three years.
(b) If a farm labor contractor has filed with the director a
deposit as set forth in (a) of this subsection and has failed to comply
with the conditions of the bond as provided by this section:
(i) The director may hold a hearing in accordance with chapter
34.05 RCW or issue a written decision, determine whether the H-2A
worker is a proven claimant under the repatriation bond, and distribute
the proceeds of the repatriation bond to a proven claimant.
(ii) The state or an H-2A worker may also bring an action against
the deposit in any court of competent jurisdiction of the county in
which the claim arose, or in which either the claimant or contractor
resides.
Sec. 5 RCW 19.30.050 and 1985 c 280 s 5 are each amended to read
as follows:shall be
denied)) if the director determines that:
(1) ((To any person who)) The applicant has made any
misrepresentations or false statements in his or her application for a
license;
(2) The applicant owes any debts or has any outstanding judgments
from administrative or judicial determinations against him or her or
any of his or her agents, partners, associates, stockholders, or profit
sharers arising out of his or her farm labor contracting activities in
this or any other state or country;
(3) The applicant has repeatedly violated, or willfully aided or
abetted any person in the violation of, any laws, including
international laws, federal or state laws, or laws of other nations, or
any agreements with agricultural workers or third parties, related to
his or her farm labor contracting activities in this or any other state
or country;
(4) The applicant's character, competency, or responsibility are
not satisfactory;
(5) The applicant violated this chapter on or after January 1st of
the year preceding the year of application;
(6) The applicant sells or proposes to sell intoxicating liquors in
a building or on premises where he or she operates or proposes to
operate as a farm labor contractor((,)); or
(((2) To a person whose)) (7) The applicant's license has been
revoked within three years from the date of application.
Sec. 6 RCW 19.30.060 and 1997 c 58 s 846 are each amended to read
as follows:the
grant or renewal of a license)) any action or inaction by the director
under this section.
(2) The director may immediately revoke((,)) or suspend((, or
refuse to issue or renew any)) a license ((when it is shown)) to
operate as a farm labor contractor if the director determines that:
(((1) The farm labor contractor or any agent of the contractor has
violated or failed to comply with any of the provisions of this
chapter;)) (a) The farm labor contractor has made any misrepresentations
or false statements in his or her application for a license;
(2)
(((3))) (b) The farm labor contractor owes any debts or has any
outstanding judgments from administrative or judicial determinations
against him or her, or any of his or her agents, partners, associates,
stockholders, or profit sharers arising out of his or her farm labor
contracting activities in this or any other state or country;
(c) The farm labor contractor has violated, or willfully aided or
abetted any person in the violation of, any laws, including
international laws, federal or state laws, or laws of other nations, or
any agreements with agricultural workers or third parties, related to
his or her farm labor contracting activities in this or any other state
or country;
(d) The farm labor contractor's character, competency, or
responsibility are not satisfactory;
(e) The conditions under which the license was issued have changed
or no longer exist;
(((4) The farm labor contractor, or any agent of the contractor,
has violated or wilfully aided or abetted any person in the violation
of, or failed to comply with, any law of the state of Washington
regulating employment in agriculture, the payment of wages to farm
employees, or the conditions, terms, or places of employment affecting
the health and safety of farm employees, which is applicable to the
business activities, or operations of the contractor in his or her
capacity as a farm labor contractor;)) (f) The farm labor contractor ((
(5)or any agent of the
contractor)) has in recruiting ((farm labor)) agricultural workers
solicited or induced the violation of any then existing contract of
employment of such ((laborers; or)) workers;
(6) The farm labor contractor or any agent of the contractor has an
unsatisfied judgment against him or her in any state or federal court,
arising out of his or her farm labor contracting activities
(g) The farm labor contractor has violated or failed to comply with
the terms of any working arrangement with an agricultural worker; or
(h) There is a danger to the public health, safety, or welfare from
the continued operations of the farm labor contractor.
(3) If the director revokes or suspends a license, the director may
permit the farm labor contractor to continue to operate solely to
complete any existing contract period where agricultural workers have
commenced work. In this event, the contractor may not represent that
it is licensed as a farm labor contractor for any purpose other than
completing existing contracts. The director shall monitor the
contractor's compliance with this chapter while the contractor
completes any contracts under this subsection. The existing contract
period may not extend beyond the end of the current crop or activity
season or the calendar year in which the revocation or suspension
occurs, as determined by the director.
(4) The director shall immediately suspend the license or
certificate of a person who has been certified pursuant to RCW
74.20A.320 by the department of social and health services as a person
who is not in compliance with a support order ((or a residential or
visitation order)). If the person has continued to meet all other
requirements for reinstatement during the suspension, reissuance of the
license or certificate shall be automatic upon the director's receipt
of a release issued by the department of social and health services
stating that the licensee is in compliance with the order.
Sec. 7 RCW 19.30.070 and 1985 c 280 s 7 are each amended to read
as follows:
(1) The name and address of the licensee and the fact that he or
she is licensed to ((act)) operate as a farm labor contractor for the
period upon the face of the license only;
(2) The number, date of issuance, and date of expiration of the
license;
(3) The amount of the surety bond deposited by the licensee;
(4) The amount of the repatriation bond, if required under section
4 of this act, deposited by the licensee;
(5) The fact that the license may not be transferred or assigned;
and
(((5))) (6) A statement that the licensee is or is not licensed to
transport workers.
Sec. 8 RCW 19.30.081 and 1987 c 216 s 3 are each amended to read
as follows:Farm labor contractors may hold either)) The
director may issue a one-year license ((or a two-year license)) to
operate as a farm labor contractor, at the director's discretion. The
one-year license ((shall run to and include)) expires on the 31st day
of December next following the date thereof unless sooner revoked by
the director. ((A license may be renewed each year upon the payment of
the annual license fee, but the director shall require that evidence of
a renewed bond be submitted and that the contractor have a bond in full
force and effect.))
The two-year license shall run to and include the 31st day of
December of the year following the year of issuance unless sooner
revoked by the director. This license may be renewed every two years
under the same terms as the one-year license, except that a farm labor
contractor possessing a two-year license shall have evidence of a bond
in full force and effect, and file an application on which he or she
shall disclose all information required by RCW 19.30.030 (1)(b), (4),
and (7).
Sec. 9 RCW 19.30.110 and 1985 c 280 s 9 are each amended to read
as follows:
(1) Carry a current farm labor contractor's license at all times
and exhibit it to all persons with whom the contractor intends to deal
in the capacity of a farm labor contractor prior to so dealing.
(2) Disclose to every person with whom he or she deals in the
capacity of a farm labor contractor the amount of his or her bond and
the existence and amount of any claims against the bond.
(3) File at the United States post office serving the address of
the contractor, as noted on the face of the farm labor contractor's
license, a correct change of address immediately upon each occasion the
contractor permanently moves his or her address, and notify the
director within ten days after an address change is made.
(4) Promptly when due, pay or distribute to the individuals
entitled thereto all moneys or other things of value entrusted to the
contractor by any third person for such purpose.
(5) Comply with the terms and provisions of all ((legal and valid))
agreements, working arrangements, and contracts entered into between
the contractor in the capacity of a farm labor contractor and third
persons.
(6) File information regarding work offers with the nearest
employment service office, such information to include wages and work
to be performed and any other information prescribed by the director.
(7) On a form prescribed by the director, furnish to each worker,
at the time of hiring, recruiting, soliciting, or supplying, whichever
occurs first, a written statement in English and any other language
common to workers who are not fluent or literate in English that
contains a description of:
(a) The compensation to be paid and the method of computing the
rate of compensation;
(b) The terms and conditions of any bonus offered, including the
manner of determining when the bonus is earned;
(c) The terms and conditions of any loan made to the worker;
(d) The conditions of any transportation, housing, board, health,
and day care services or any other employee benefit to be provided by
the farm labor contractor ((or by his or her agents)), and the costs to
be charged for each of them;
(e) The terms and conditions of employment, including the
approximate length of season or period of employment and the
approximate starting and ending dates thereof, and the crops on which
and kinds of activities in which the worker may be employed;
(f) The terms and conditions under which the worker is furnished
clothing or equipment;
(g) The place of employment;
(h) The name and address of the owner of all operations, or the
owner's agent, where the worker will be working as a result of being
recruited, solicited, supplied, or employed by the farm labor
contractor;
(i) The existence of a labor dispute at the worksite;
(j) The name and address of the farm labor contractor;
(k) The existence of any arrangements with any owner or agent of
any establishment at the place of employment under which the farm labor
contractor is to receive a fee or any other benefit resulting from any
sales by such establishment to the workers; ((and))
(l) The name and address of the surety on the contractor's bond and
the workers' right to claim against the bond; and
(m) A statement that section 13 of this act prohibits farm labor
contractors, agricultural employers, and agricultural workers from
exempting themselves from the burdens or waiving the benefits of this
chapter by any contract, agreement, rule, or regulation, and that
section 13 of this act provides that any such contract, agreement,
rule, or regulation is void to the extent it allows for such exemptions
or waivers.
(8) Furnish to the worker each time the worker receives a
compensation payment from the farm labor contractor, a written
statement itemizing the total payment and the amount and purpose of
each deduction therefrom, hours worked, rate of pay, and pieces done if
the work is done on a piece rate basis, and if the work is done under
the Service Contract Act (41 U.S.C. Secs. 351 through 401) or related
federal or state law, a written statement of any applicable prevailing
wage.
(9) With respect to each worker recruited, solicited, employed,
supplied, or hired by the farm labor contractor:
(a) Make, keep, and preserve for three years a record of the
following information:
(i) The basis on which wages are paid;
(ii) The number of piecework units earned, if paid on a piecework
basis;
(iii) The number of hours worked;
(iv) The total pay period earnings;
(v) The specific sums withheld and the purpose of each sum
withheld; and
(vi) The net pay; and
(b) Provide to any other farm labor contractor and to any user of
farm labor for whom he or she recruits, solicits, supplies, hires, or
employs workers copies of all records, with respect to each such
worker, which the contractor is required by this chapter to make, keep,
and preserve. The recipient of such records shall keep them for a
period of three years from the end of the period of employment. When
necessary to administer this chapter, the director may require that any
farm labor contractor provide the director with certified copies of his
or her payroll records for any payment period.
The record-keeping requirements of this chapter shall be met if
either the farm labor contractor or any user of the contractor's
services makes, keeps, and preserves for the requisite time period the
records required under this section, and so long as each worker
receives the written statements specified in subsection (8) of this
section.
Sec. 10 RCW 19.30.170 and 1987 c 216 s 5 are each amended to read
as follows:
(2) In any action under subsection (1) of this section, if the
court finds that the respondent has violated this chapter or any rule
adopted under this chapter, it may award damages up to and including an
amount equal to the amount of actual damages, or statutory damages of
five hundred dollars per plaintiff per violation, whichever is greater,
or other equitable relief.
(3) Without regard to other remedies provided in this chapter, a
person having a claim against the farm labor contractor for any
violation of this chapter may bring suit against the farm labor
contractor and the surety bond or security deposit filed by the
contractor pursuant to RCW 19.30.040, in any court of competent
jurisdiction of the county in which the claim arose, or in which either
the claimant or contractor resides.
(4) An action upon the bond or security deposit shall be commenced
by serving and filing the summons and complaint within three years from
the date of expiration or cancellation of the bond or expiration or
cancellation of the license, whichever is sooner, or in the case of a
security deposit, within three years of the date of expiration or
revocation of the license.
(5) A copy of the summons and complaint in any such action shall be
served upon the director at the time of commencement of the action and
the director shall maintain a record, available for public inspection,
of all suits so commenced. Such service shall constitute service on
the farm labor contractor and the surety for suit upon the bond and the
director shall transmit the complaint or a copy thereof to the
contractor at the address listed in his or her application and to the
surety within forty-eight hours after it has been received.
(6) The surety upon the bond may, upon notice to the director and
the parties, tender to the clerk of the court having jurisdiction of
the action an amount equal to the claims or the amount of the bond less
the amount of judgments, if any, previously satisfied therefrom and to
the extent of such tender the surety upon the bond shall be exonerated.
(7) If the actions commenced and pending at any one time exceed the
amount of the bond then unimpaired, the claims shall be satisfied from
the bond in the following order:
(a) Wages, including employee benefits;
(b) Other contractual damage owed to the ((employee)) worker;
(c) Any costs and attorneys' fees the claimant may be entitled to
recover by contract or statute.
(8) If any final judgment impairs the bond so furnished so that
there is not in effect a bond undertaking in the full amount prescribed
by the director, the director shall suspend the license of the
contractor until the bond liability in the required amount unimpaired
by unsatisfied judgment claims has been furnished. If such bond
becomes fully impaired, a new bond must be furnished.
(9) A claimant against a security deposit shall be entitled to
damages under subsection (2) of this section. If the farm labor
contractor has filed other security with the director in lieu of a
surety bond, any person having an unsatisfied final judgment against
the contractor for any violation of this chapter may execute upon the
security deposit held by the director by serving a certified copy of
the unsatisfied final judgment by registered or certified mail upon the
director. Upon the receipt of service of such certified copy, the
director shall pay or order paid from the deposit, through the registry
of the court which rendered judgment, towards the amount of the
unsatisfied judgment. The priority of payment by the director shall be
the order of receipt by the director, but the director shall have no
liability for payment in excess of the amount of the deposit.
Sec. 11 RCW 19.30.190 and 1985 c 280 s 13 are each amended to
read as follows:employee)) worker because:
(((1))) (a) The ((employee)) worker has made a claim against the
farm labor contractor or agricultural employer for compensation for the
((employee's)) worker's personal services.
(((2))) (b) The ((employee)) worker has caused to be instituted any
proceedings under ((or related to RCW 19.30.180)) this chapter.
(((3))) (c) The ((employee)) worker has testified or is about to
testify in any ((such)) proceedings under this chapter.
(((4))) (d) The ((employee)) worker has discussed or consulted with
anyone concerning the ((employee's)) worker's rights under this
chapter.
(2) If any person takes any action described under subsection (1)
of this section against any worker within ninety days of the worker, or
a government agency acting on behalf of a worker, engaging in conduct
protected under subsection (1) of this section, a rebuttable
presumption is created that such action is in violation of this
section.
NEW SECTION. Sec. 12 A new section is added to chapter 19.30 RCW
to read as follows:
(2) When using, or causing to be used, any vehicle for the
transportation of any agricultural worker, a farm labor contractor
shall:
(a) Ensure that the vehicle conforms to applicable federal and
state safety standards, including the standards adopted by the director
under subsection (1) of this section;
(b) Ensure that the driver of the vehicle has a valid and
appropriate license to operate the vehicle; and
(c) Have an insurance policy or a liability bond that is in effect
and that insures the farm labor contractor against liability for damage
to persons or property arising from the ownership, operations, or the
causing to be operated of any vehicle used to transport any
agricultural worker.
(3) This section applies to the transportation of any agricultural
worker by a farm labor contractor, but not to the transportation of any
agricultural worker on a tractor, combine, harvester, picker, or other
similar machinery and equipment while such worker is actually engaged
in the planting, cultivating, or harvesting of any agricultural
commodity or the care of livestock or poultry.
NEW SECTION. Sec. 13 A new section is added to chapter 19.30 RCW
to read as follows:
Sec. 14 RCW 19.31.020 and 1998 c 228 s 1 are each amended to read
as follows:
(1) "Employment agency" is synonymous with "agency" and ((shall))
means any business in which any part of the business gross or net
income is derived from a fee received from applicants, and in which any
of the following activities are engaged in:
(a) The offering, promising, procuring, or attempting to procure
employment for applicants;
(b) The giving of information regarding where and from whom
employment may be obtained; or
(c) The sale of a list of jobs or a list of names of persons or
companies accepting applications for specific positions, in any form.
In addition the term "employment agency" ((shall)) means and
includes any person, bureau, employment listing service, employment
directory, farm labor contractor, organization, or school which for
profit, by advertisement or otherwise, offers, as one of its main
objects or purposes, to procure employment for any person who pays for
its services, or which collects tuition, or charges for service of any
nature, where the main object of the person paying the same is to
secure employment. It also includes any business that provides a
resume to an individual and provides that person with a list of names
to whom the resume may be sent or provides that person with
preaddressed envelopes to be mailed by the individual or by the
business itself, if the list of names or the preaddressed envelopes
have been compiled and are represented by the business as having job
openings. The term "employment agency" shall not include labor union
organizations, temporary service contractors, proprietary schools
operating within the scope of activities for which the school is
licensed under chapter 28C.10 RCW, nonprofit schools and colleges,
career guidance and counseling services, employment directories that
are sold in a manner that allows the applicant to examine the directory
before purchase, theatrical agencies, ((farm labor contractors,)) or
the Washington state employment agency.
(2) "Temporary service contractors" ((shall)) means any person,
firm, association, or corporation conducting a business which consists
of employing individuals directly for the purpose of furnishing such
individuals on a part time or temporary help basis to others.
(3) "Theatrical agency" means any person who, for a fee or
commission, procures on behalf of an individual or individuals,
employment or engagements for circus, vaudeville, the variety field,
the legitimate theater, motion pictures, radio, television, phonograph
recordings, transcriptions, opera, concert, ballet, modeling, or other
entertainments, exhibitions, or performances. The term "theatrical
agency" does not include any person charging an applicant a fee prior
to or in advance of:
(a) Procuring employment for the applicant;
(b) Giving or providing the applicant information regarding where
or from whom employment may be obtained;
(c) Allowing or requiring the applicant to participate in any
instructional class, audition, or career guidance or counseling; or
(d) Allowing the applicant to be eligible for employment through
the person.
(4) "Farm labor contractor" ((means any person, or his agent, who,
for a fee, employs workers to render personal services in connection
with the production of any farm products, to, for, or under the
direction of an employer engaged in the growing, producing, or
harvesting of farm products, or who recruits, solicits, supplies, or
hires workers on behalf of an employer engaged in the growing,
producing, or harvesting of farm products or who provides in connection
with recruiting, soliciting, supplying, or hiring workers engaged in
the growing, producing, or harvesting of farm products, one or more of
the following services: Furnishes board, lodging, or transportation
for such workers, supervises, times, checks, counts, sizes, or
otherwise directs or measures their work; or disburses wage payments to
such persons)) has the meaning provided in RCW 19.30.010.
(5) "Employer" means any person, firm, corporation, partnership, or
association employing or seeking to enter into an arrangement to employ
a person through the medium or service of an employment agency.
(6) "Applicant", except when used to describe an applicant for an
employment agency license, means any person, whether employed or
unemployed, seeking or entering into any arrangement for his or her
employment or change of his or her employment through the medium or
service of an employment agency.
(7) "Person" includes any individual, firm, corporation,
partnership, association, company, society, manager, contractor,
subcontractor, bureau, agency, service, office, or an agent or employee
of any of the foregoing.
(8) "Director" ((shall)) means the director of licensing.
(9) "Resume" means a document of the applicant's employment history
that is approved, received, and paid for by the applicant.
(10) "Fee" means anything of value. The term includes money or
other valuable consideration or services or the promise of money or
other valuable consideration or services, received directly or
indirectly by an employment agency from a person seeking employment, in
payment for the service.
(11) "Employment listing service" means any business operated by
any person that provides in any form, including written or verbal,
lists of specified positions of employment available with any employer
other than itself or that holds itself out to applicants as able to
provide information about specific positions of employment available
with any employer other than itself, and that charges a fee to the
applicant for its services and does not set up interviews or otherwise
intercede between employer and applicant.
(12) "Employment directory" means any business operated by any
person that provides in any form, including written or verbal, lists of
employers, does not provide lists of specified positions of employment,
that holds itself out to applicants as able to provide information on
employment in specific industries or geographical areas, and that
charges a fee to the applicant for its services.
(13) "Career guidance and counseling service" means any person,
firm, association, or corporation conducting a business that engages in
any of the following activities:
(a) Career assessment, planning, or testing through individual
counseling or group seminars, classes, or workshops;
(b) Skills analysis, resume writing, and preparation through
individual counseling or group seminars, classes, or workshops;
(c) Training in job search or interviewing skills through
individual counseling or group seminars, classes, or workshops((:
PROVIDED, That)). However, the career guidance and counseling service
does not engage in any of the following activities:
(i) Contacts employers on behalf of an applicant or in any way
intercedes between employer and applicant;
(ii) Provides information on specific job openings;
(iii) Holds itself out as able to provide referrals to specific
companies or individuals who have specific job openings.
Sec. 15 RCW 19.31.170 and 1993 c 499 s 6 are each amended to read
as follows:
(2) If an applicant accepts employment on a commission basis
without any drawing account, then the gross fee charged such applicant
shall be a percentage of commissions actually earned.
(3) If an applicant accepts employment and if within sixty days of
his or her reporting for work the employment is terminated, then the
gross fee charged such applicant shall not exceed twenty percent of the
gross salary, wages or commission received by him or her.
(4) If an applicant accepts temporary employment as a domestic,
household employee, baby sitter, agricultural worker, or day laborer,
then the gross fee charged such applicant shall not be in excess of
twenty-five percent of the first full month's gross salary or wages((:
PROVIDED, That)). However, where an applicant accepts employment as a
domestic or household employee for a period of less than one month,
then the gross fee charged such applicant shall not exceed twenty-five
percent of the gross salary or wages paid.
(5) Any applicant requesting a refund of a fee paid to an
employment agency in accordance with the terms of the approved fee
schedule of the employment agency pursuant to this section shall file
with the employment agency a form requesting such refund on which shall
be set forth information reasonably needed and requested by the
employment agency, including but not limited to the following:
Circumstances under which employment was terminated, dates of
employment, and gross earnings of the applicant.
(((6))) (a) Refund requests which are not in dispute shall be made
by the employment agency within thirty days of receipt.
(((7))) (b) If a refund request involving a farm labor contractor
is in dispute, the director may hold a hearing in accordance with
chapter 34.05 RCW, determine whether a refund of a fee paid to the farm
labor contractor is proper, and order the farm labor contractor to make
the refund within thirty days. The state or an agricultural worker may
also bring an action for the refund against the farm labor contractor
in any court of competent jurisdiction of the county in which the claim
arose, or in which either the claimant or contractor resides.
(6) Subsections (1) through (((6))) (5) of this section do not
apply to employment listing services or employment directories.
NEW SECTION. Sec. 16 A new section is added to chapter 50.13 RCW
to read as follows:
(a) Applications submitted by an agricultural employer or the
employer's agent for H-2A certification for temporary or seasonal
agricultural work and received by the department;
(b) Any correspondence between the department and the agricultural
employer or the employer's agent related to an H-2A application that
exists at the time of a written request;
(c) Any documents regarding housing inspections and
employer-provided transportation, if applicable, that exist at the time
of the written request; and
(d) Any job orders listed with the department in response to an
H-2A application for H-2A certification for temporary or seasonal
agricultural work.
(2) If applicable, RCW 42.56.210 applies to these records.
(3) If a request for these records relates to an H-2A application
for which workers are being recruited or employed at the time of the
request or may be recruited or employed in the future, the department
shall respond to a request for these records within five business days
by providing the requested records by facsimile or in scanned form in
an electronic mail to the requesting party, unless additional time is
required to respond to a request based upon the need to clarify the
intent of the request, to locate and assemble the requested records, or
to determine whether any of the requested records are exempt and
whether all or part of the request should be denied. If the department
is unable to fully respond within five business days, the department
shall respond to as much of the request as feasible. The department
shall also send a copy of its response by regular mail within eight
business days from the date the request was received if it provided an
initial response by facsimile.
(4) This chapter governs any information or records concerning a
specific worker possessed by the department under the H-2A visa
program.
NEW SECTION. Sec. 17 RCW 19.30.090 (License -- Application for
renewal) and 1955 c 392 s 9 are each repealed.
NEW SECTION. Sec. 18