HR 3070 IH

To amend the Fair Labor Standards Act of 1938 to ensure the protection of employees in travelling sales crews, and for other purposes.

October 9, 2001

Mr. PETRI (for himself and Mr. LANTOS) introduced the following bill; which was referred to the Committee on Education and the Workforce

To amend the Fair Labor Standards Act of 1938 to ensure the protection of employees in travelling sales crews, and for other purposes.

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

SECTION 1. SHORT TITLE.

This Act may be cited as the `Travelling Sales Crew Protection Act'.

SEC. 2. APPLICATION OF FAIR LABOR STANDARDS ACT OF 1938 TO CERTAIN OUTSIDE SALESMEN.

(a) IN GENERAL- Section 13 of the Fair Labor Standards Act of 1938 (29 U.S.C. 213) is amended by adding at the end the following:

`(k) For purposes of subsection (a)(1), and notwithstanding any other provision of law, the term `outside salesman' does not include any individual employed in the position of a salesman, if the individual travels with a group of salespeople, including a supervisor, team leader or crew leader, and the employees in the group do not return to their permanent residences at the end of the work day.'.

(b) LIMITATION ON CHILD LABOR- Section 12 of the Fair Labor Standards Act of 1938 (29 U.S.C. 212) is amended by adding at the end the following:

`(e) No individual under 18 years of age may be employed in a position requiring the individual to engage in door-to-door sales or in related support work in a manner that requires the individual to remain away from the individual's permanent residence for more than 24 hours.'.

SEC. 3. PROTECTION OF TRAVELLING SALES CREWS.

(a) TRAVELLING SALES CREW WORKER DEFINED- (1) Except as provided in paragraph (2), the term `travelling sales crew worker' means an individual who--

(A) is employed as a salesperson or in related support work;

(B) travels with a group of salespersons, including a supervisor; and

(C) is required to be absent overnight from his or her permanent place of residence-

(2) Such term does not include--

(D) any individual who meets the requirements of subparagraph (A) if such individual is travelling to a trade show or convention; or

(E) any immediate family member of a travelling sales crew employer.

(b) SECRETARY TO PRESCRIBE RULES- Not later than 180 days after the date of enactment of this Act, the Secretary of Labor (hereinafter in this Act, the `Secretary') shall prescribe rules governing the protection of travelling sales crews. Such rules shall contain the following requirements:

(1) REGISTRATION- Each employer or supervisor of a travelling sales crew worker must obtain a certificate of registration from the Secretary. The Secretary shall prescribe the manner of application and the standards for issuance for such a certificate, including a reasonable fee for such application.

(2) EMPLOYER REQUIREMENTS- An employer of travelling sales crew workers must carry out the following duties, in accordance with the rules prescribed by the Secretary:

(A) DISCLOSURE OF CONDITIONS OF EMPLOYMENT- The employer must disclose to each travelling sales crew worker employed by such employer, in writing, information related to such worker's conditions of employment, including the rate of pay, applicable pay period, duration of employment, and whether the employer provides workers' compensation insurance coverage for the worker.

(B) PAYMENT OF WAGES, RECORDKEEPING- For each pay period, the employer must--

(i) pay to each travelling sales crew worker employed by such employer wages owed such worker when due;

(ii) make such payment in United States currency or by negotiable instrument; and

(iii) provide a written statement to each travelling sales crew worker employed by such employer, and maintain records

(which must be kept for at least 3 years), relating to the earnings of (and any withholdings of earnings from) each such worker.

(C) EMPLOYER PAYMENT OF EMPLOYEE BUSINESS EXPENSES- Other than a deduction from wages for the actual cost to the employer of any board, lodging, or other facilities provided by the employer to a travelling sales crew worker employed by such employer, the employer may not require the worker--

(i) to purchase any goods or services solely from the employer; or

(ii) to pay for any of the employer's business expenses.

(D) VEHICLE INSURANCE- The employer must maintain liability insurance coverage in compliance with any applicable State law and sufficient (as determined by the Secretary) to protect any travelling sales crew workers transported in such a vehicle and to ensure against liability to other persons and property arising from the use of such vehicle for such purpose, except that if the Secretary determines that such workers are covered under an applicable workers' compensation insurance policy provided by the employer, additional vehicle insurance covering such workers may be waived by the Secretary.

(E) TRANSPORTATION SAFETY- The employer must maintain any motor vehicle used to transport a travelling sales crew worker employed by such employer in compliance with any applicable Federal, State, or local vehicle safety standards and with any additional safety rules prescribed by the Secretary.

(F) HOUSING SAFETY- The employer must maintain any lodging owned or controlled by the employer in compliance with any applicable Federal, State, or local housing, sanitation, health, building, or other safety standards and with any additional safety rules prescribed by the Secretary.

(G) PROHIBITION ON DISCRIMINATION- An employer, or an agent of the employer, may not intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner discriminate against any travelling sales crew 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 proceeding, or because of the exercise, with just cause, by such worker on behalf of the worker or others of any right or protection afforded by this Act.

SEC. 4. ENFORCEMENT.

(a) CRIMINAL SANCTIONS- An employer that willfully and knowingly violates a rule prescribed under this Act shall be imprisoned for not more than one year or fined not more than $10,000, or both. Upon conviction for a subsequent violation of a rule prescribed under this Act, an employer shall be imprisoned for not more than 3 years or fined not more than $50,000, or both.

(b) CIVIL PENALTY- An employer that violates a rule prescribed under this Act shall be liable to the United States for a civil penalty of not more than $10,000 for each such violation. The Secretary may assess and collect such civil penalty after a determination, made on the record after opportunity for an agency hearing, of--

(1) liability for such violation; and

(2) the appropriate amount of the penalty, based on the previous compliance record of the employer and the gravity of the violation.

(c) ADMINISTRATIVE ACTIONS- The Secretary shall prescribe rules providing a procedure for an aggrieved travelling sales crew worker to file an administrative complaint with the Secretary, which the Secretary shall investigate and follow up with any appropriate enforcement action against the employer of such worker, including referral to the Attorney General of such employer for criminal sanctions under subsection (a), the imposition by the Secretary of a civil penalty under subsection (b), or the filing of a civil action on behalf of such worker to enjoin such employer under subsection (d).

(d) CIVIL ACTION- Any person aggrieved by a violation of a rule prescribed under this Act (or the Secretary, on behalf of any such person) may bring, in an appropriate United States district court (without regard to the amount in controversy, the citizenship of the parties, or the exhaustion of administrative remedies), a civil action--

(1) to enjoin such violation;

(2) to recover the greater of--

(A) actual damages; or

(B) not more than $1,000 for each such violation for each plaintiff (which may not exceed $1,000,000 for all plaintiffs in a class); and

(3) for other equitable relief; and

(4) to recover the costs of the litigation and a reasonable attorney fee.

END