§ 3610 : ENFORCEMENT PROVISIONS

COMPLAINTS AND INVESTIGATIONS.—The Secretary—

1.

shall establish a process for the receipt, investigation, and disposition of complaints filed by any person, including complaints respecting a foreign labor contractor’s compliance with this subtitle; and

2.

either pursuant to the process required by paragraph (1) or otherwise, may investigate employers or foreign labor contractors, including actions occurring in a foreign country, as necessary to determine compliance with this subtitle.

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ENFORCEMENT.—

1.

IN GENERAL.—A worker who believes that he or she has suffered a violation of this subtitle may seek relief from an employer by—

A.

filing a complaint with the Secretary within 3 years after the date on which the violation occurred or date on which the employee became aware of the violation; or

B.

if the Secretary has not issued a final decision within 120 days of the filing of the complaint and there is no showing that such delay is due to the bad faith of the claimant, bringing an action at law or equity for de novo review in the appropriate district court of the United States, which shall have jurisdiction over such an action without regard to the amount in controversy.

2.

PROCEDURE.—

A.

IN GENERAL.—Unless otherwise provided herein, a complaint under paragraph (1)(A) shall be governed under the rules and procedures set forth in paragraphs (1) and (2)(A) of section 42121(b) of title 49, United States Code.

B.

EXCEPTION.—Notification of a complaint under paragraph (1)(A) shall be made to each person or entity named in the complaint as a defendant and to the employer.

C.

STATUTE OF LIMITATIONS.—An action filed in a district court of the United States under paragraph (1)(B) shall be commenced not later than 180 days after the last day of the 120-day period referred to in that paragraph.

D.

JURY TRIAL.—A party to an action brought under paragraph (1)(B) shall be entitled to trial by jury.

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ADMINISTRATIVE ENFORCEMENT.—

1.

IN GENERAL.—If the Secretary finds, after notice and an opportunity for a hearing, any foreign labor contractor or employer failed to comply with any of the requirements of this subtitle, the Secretary may impose the following against such contractor or employer—

A.

a fine in an amount not more than $10,000 per violation; and

B.

upon the occasion of a third violation or a failure to comply with representations, a fine of not more than $25,000 per violation.

AUTHORITY TO ENSURE COMPLIANCE.—The Secretary is authorized to take other such actions, including issuing subpoenas and seeking appropriate injunctive relief and recovery of damages, as may be necessary to assure compliance with the terms and conditions of this subtitle.

BONDING.—Pursuant to the bonding requirement in section 3606, bond liquidation and forfeitures shall be in addition to other remedies under this section or any other law.

CIVIL ACTION.—

1.

IN GENERAL.—The Secretary or any person aggrieved by a violation of this subtitle may bring a civil action against any foreign labor contractor that does not meet the requirements under subsection (f)(2) in any court of competent jurisdiction—

A.

to seek remedial action, including injunctive relief;

B.

to recover damages on behalf of any worker harmed by a violation of this subsection; and,

C.

to ensure compliance with requirements of this section.

2.

ACTIONS BY THE SECRETARY OF HOMELAND SECURITY.—

A.

SUMS RECOVERED.—Any sums recovered by the Secretary on behalf of a worker under paragraph (1) or through liquidation of the bond held pursuant to section 3606shall be held in a special deposit account and shall be paid, on order of the Secretary, directly to each worker affected. Any such sums not paid to a worker because of inability to do so within a period of 5 years shall be credited as an offsetting collection to the appropriations account of the Secretary for expenses for the administration of this section and shall remain available to the Secretary until expended or may be used for enforcement of the laws within the jurisdiction of the wage and hour division or may be transferred to the Secretary of Health and Human Services for the purpose of providing support to programs that provide assistance to victims of trafficking in persons or other exploited persons. The Secretary shall work with any attorney or organization representing workers to locate workers owed sums under this section.

B.

REPRESENTATION.—Except as provided in section 518(a) of title 28, United States Code, the Attorney General may appear for and represent the Secretary in any civil litigation brought under this paragraph. All such litigation shall be subject to the direction and control of the Attorney General.

3.

ACTIONS BY INDIVIDUALS.—

A.

AWARD.—If the court finds in a civil action filed by an individual under this section that the defendant has violated any provision of this subtitle (or any regulation issued pursuant to this subtitle), the court may award—

i.

damages, up to and including an amount equal to the amount of actual damages, and statutory damages of up to $1,000 per plaintiff per violation, or other equitable relief, except that with respect to statutory damages—

I.

multiple infractions of a single provision of this subtitle (or of a regulation under this subtitle) shall constitute only 1 violation for purposes of section 3602(a)to determine the amount of statutory damages due a plaintiff; and

II.

if such complaint is certified as a class action the court may award—

aa.

damages up to an amount equal to the amount of actual damages; and

bb.

statutory damages of no t more than the lesser of up to $1,000 per class member per violation, or up to $500,000; and other equitable relief;

ii.

reasonable attorneys’ fees and costs; and

iii.

such other and further relief, including declaratory and injunctive relief, as necessary to effectuate the purposes of this subtitle.

B.

CRITERIA.—In determining the amount of statutory damages to be awarded under subparagraph (A), the court is authorized to consider whether an attempt was made to resolve the issues in dispute before the resort to litigation.

C.

BOND.—To satisfy the damages, fees, and costs found owing under this clause, the Secretary shall release as much of the bond held pursuant to section 3606as necessary.

D.

APPEAL.—Any civil action brought under this section shall be subject to appeal as provided in chapter 83 of title 28, United States Code (28 U.S.C. 1291 et seq.).

E.

ACCESS TO LEGAL SERVICES CORPORATION.—Notwithstanding any other provision of law, the Legal Services Corporation and recipients of its funding may provide legal assistance on behalf of any alien with respect to any provision of this subtitle.

AGENCY LIABILITY.—

1.

IN GENERAL.—Beginning 180 days after the Secretary has promulgated regulations pursuant to section 3605(c), an employer who retains the services of a foreign labor contractor shall only use those foreign labor contractors who are registered under section 3605.

2.

SAFE HARBOR.—An employer shall not have any liability under this section if the employer hires workers referred by a foreign labor contractor that has a valid registration with the Department pursuant to section 3604.

3.

LIABILITY FOR AGENTS.—Foreign labor contractors shall be subject to the provisions of this section for violations committed by the foreign labor contractor’s agents or subcontractees of any level in relation to their foreign labor contracting activity to the same extent as if the foreign labor contractor had committed the violation.

RETALIATION.—

1.

IN GENERAL.—No person shall intimidate, threaten, restrain, coerce, discharge or in any other manner discriminate or retaliate against any worker or their family members (including a former employee or an applicant for employment) because such worker disclosed information to any person that the worker reasonably believes evidences a violation of this section (or any rule or regulation pertaining to this section), including seeking legal assistance of counsel or cooperating with an investigation or other proceeding concerning compliance with this section (or any rule or regulation pertaining to this section).

2.

ENFORCEMENT.—An individual who is subject to any conduct described in paragraph (1) may, in a civil action, recover appropriate relief, including reasonable attorneys’ fees and costs, with respect to that violation. Any civil action under this subparagraph shall be stayed during the pendency of any criminal action arising out of the violation.

WAIVER OF RIGHTS.—Agreements by employees purporting to waive or to modify their rights under this subtitle shall be void as contrary to public policy.

PRESENCE DURING PENDENCY OF ACTIONS.—

1.

IN GENERAL.—If other immigration relief is not available, the Attorney General and the Secretary shall grant advance parole to permit a nonimmigrant to remain legally in the United States for time sufficient to fully and effectively participate in all legal proceedings related to any action taken pursuant to this section.

2.

REGULATIONS.—Not later than 180 days after the date of the enactment of this Act, the Secretary shall promulgate regulations to carry out paragraph (1).