1. (a) The requirements set forth in this subchapter shall apply to any person who performs as a Foreign Labor Contractor and who is not exempt from coverage pursuant to this subchapter or Chapter 21.5 of Division 3 (commencing with section 9998) of the Business and Professions Code.

2. (b) A person is not required to be registered as a foreign labor contractor if the person who directly solicits or recruits a foreign worker for employment is:

   1. (1) the actual business employer who will employ the foreign worker, or

   2. (2) an employee of the business employer who meets all of the following requirements:

      1. (A) The person is an employee of the employer no later than the first day of engagement in, and at all times during, soliciting or recruiting of foreign workers;
      2. (B) The person provides soliciting or recruiting services directly to foreign workers without using the services of another person (who is not an employee of the employer) to perform a “foreign labor contracting activity,” as defined in B&P Code section 9998.1; and,
      3. (C) The recruitment or solicitation activities performed by the person are solely to find workers for the employer's own use.
3. (c) Any person who acts as an agent on behalf of a business to directly solicit or recruit foreign workers and who is not an employee of the business employer pursuant to subdivision (b)(2) is a non-employee agent and required to be registered as a foreign labor contractor with the Labor Commissioner. A staffing agency who performs foreign labor contracting activities, as defined in B&P Code section 9998.1(b), by providing workers to an employer for compensation, is a non-employee agent of the business employer and is required to be registered regardless of whether the staffing agency is a joint employer pursuant to any applicable provision of the Labor Code or order of the Industrial Welfare Commission.
4. (d) If an employer who uses an employee to solicit or recruit foreign workers and that employee subsequently uses the services of a non-employee agent to solicit or recruit workers, the non-employee agent is a foreign labor contractor of the employer and is required to be registered with the Labor Commissioner.

5. (e) The use of a non-employee agent by an employer under subdivision (c) or (d) of this section shall result in the following:

   1. (1) The non-employee agent shall be subject to all obligations of a foreign labor contractor, including but not limited to registration as a foreign labor contractor under the Act and this subchapter.
   2. (2) Any employer using the agent is subject to the disclosure requirement in B&P Code 9998.2(b), and all other obligations and liabilities of an employer under the Act and this subchapter.

Note: Authority cited: Section 9998.11, Business and Professions Code. Reference: Sections 9998, 9998.1, 9998.1.5, 9998.2, 9998.2.5, 9998.8 and 9998.11, Business and Professions Code.

History

1. New section filed 10-8-2018; operative 1-1-2019 (Register 2018, No. 41).