Chapter 6. Division of Labor Standards Enforcement
Subchapter 9. Farm Labor Contractors
Article 4. Farmworker Remedial Account (Refs & Annos)

§ 13667. Procedure to Obtain Damages from the Farmworker Remedial Account.

(a) An employee of a licensed farm labor contractor or an unlicensed farm labor contractor who has been recruited, solicited, supplied, hired, furnished or transported by the contractor on behalf of an employer engaged in the growing or producing of farm products and who has suffered damages in the form of non-payment of all or part of the wages owed to the employees may seek recovery from the Farmworker Remedial Account.

(b) A claim for recovery from the Farmworker Remedial Account must be addressed to the Labor Commissioner by an employee(s), or his or her (their) representative or a farm labor contractor on behalf of his or her employees or their representatives. The history and current status of the claim submitted against the Farmworker Remedial Account will determine what additional information, if any, will be required by the Labor Commissioner. Information necessary to satisfy this section does not need to be in any particular format. Claims may originate from an Order, Decision or Award, the judgment of a civil court or other tribunal, or from other final determinations. F or claims originating from an Order, Decision or Award of the Labor Commissioner, civil court, or other tribunal, a copy of the final decision and findings may satisfy the requirements of this section.

(c) To file a claim for recovery from the Farmworker Remedial Account, the following information is required:

(1) a list naming each employee or claimant for whom recovery is sought and the time period for which recovery is sought;

(2) the name and address of the farm labor contractor(s), grower(s) or packer(s) whose conduct has damaged the employee(s) or claimant(s);

(3) valid form of identification, including a Social Security or taxpayer identification number, if available, of each employee for whom recovery is sought;

(4) a copy of the written authorization of claimant to his or her representative authorizing the representative to act on his or her behalf that bears the claimant's signature, if applicable, and mailing instructions for payment of the claim;

(5) a copy of a final Order, Decision or Award of the Labor Commissioner, or final judgment filed in a court or other tribunal, if applicable; and,

(6) a declaration or affidavit under penalty of perjury which complies with the provisions of Code of Civil Procedure Section 2015.5 containing information regarding attempts made to satisfy the claim by demand against the surety bond (if the contractor was licensed) as provided in Labor Code Section 1684(a)(3) and the results of that demand. The declaration or affidavit must also disclose what attempts, if any, were made to collect the recovery sought directly from the farm labor contractor, grower or packer and the results of those attempts. If no attempts have been made to collect either from the surety bond or the farm labor contractor, grower, or packer, the declaration must explain the reasons for such inaction. The fact that no attempts have been made will not of itself defeat recovery from the Farmworker Remedial Account, if it is shown that any attempt would have been futile. The declaration or affidavit required herein may be signed by the representative of the employee(s), claimant(s), or farm labor contractor if the information submitted does not require the personal knowledge of the employee(s), claimant(s), or farm labor contractor.

(d) If the declarations submitted in support of application for recovery are insufficient to sustain a recovery from the Farmworker Remedial Account either due to lack of information or due to a belief that the information submitted is potentially inaccurate, the Labor Commissioner may order an investigatory hearing.

(e) Subject to the discretion of the Labor Commissioner, a farm labor contractor may seek recovery on behalf of his or her employees from the Farmworker Remedial Account if he or she is unable to pay the employees due to the failure of a grower or packer to pay the contractor. When such a claim is submitted, the farm labor contractor must also satisfy the requirements regarding the loss to employees or other claimants and must first exhaust remedies against his or her bond before applying to the fund on behalf of his or her employees.

(f) In exercising discretion under Labor Code section 1684(a)(4), the Labor Commissioner may review the following criteria: all materials submitted pursuant to section 13667(a) and (b); any evidence submitted by the farm labor contractor which can establish a grower or packer's failure to pay for farm labor contracting services as defined in Labor Code section 1682(b); and any evidence which reflects upon a farm labor contractor's character, competency, or responsibility.

Note: Authority cited: Section 1699, Labor Code. Reference: Sections 1684 and 1699, Labor Code.

HISTORY

1. New article 4 (sections 13667-13667.4) and section filed 5-30-2014; operative 7-1-2014 (Register 2014, No. 22).