Cal. Code Regs. Tit. 8, § 13851 - Coverage; Exemption for Business Directly Recruiting Workers; Non-Employee Agents as Foreign Labor Contractors
(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.
(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) the
actual business employer who will employ the foreign worker, or
(2) an employee of the business employer who
meets all of the following requirements:
(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;
(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,
(C) The recruitment or
solicitation activities performed by the person are solely to find workers for
the employer's own use.
(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.
(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.
(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) 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) 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.
Notes
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.
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