Sec. 107. Enforcement
1,137 words·~5 min read·
/bill/113/hr/4586/ih/section-107A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
A worker who believes that the worker has suffered harm as a result of a material violation of this title by a third-party foreign labor recruiter or by a foreign labor contractor may, not later than the later of 180 days after the date on which such violation occurs or the worker becomes aware of such violation, but not later than two years after the date of such violation, file a complaint with the Secretary alleging such material violation. Upon receipt of such a complaint, the Secretary shall notify, in writing, the third-party foreign labor recruiter or foreign labor contractor named in the complaint of the filing of the complaint, of the allegations contained in the complaint, of the substance of evidence supporting the complaint, and of the opportunities that will be afforded to such third-party foreign labor recruiter or foreign labor contractor under subsection (b).
Not later than 60 days after the date of receipt of a complaint filed under subsection
(a)and after affording the person named in the complaint an opportunity to submit to the Secretary a written response to the complaint and an opportunity to meet with a representative of the Secretary to present statements from witnesses, the Secretary shall conduct an investigation and determine whether there is reasonable cause to believe that the complaint has merit and notify, in writing, by certified or registered mail, the complainant and the third-party foreign labor recruiter or foreign labor contractor alleged to have committed a material violation of this title of the Secretary’s findings. If the Secretary concludes that there is a reasonable cause to believe that a material violation of this title has occurred, the Secretary shall accompany the Secretary’s findings with a preliminary order providing the relief prescribed by subsection (c)(2). Not later than 30 days after the date of notification of findings under this subsection, either the person alleged to have committed the violation or the complainant may file objections to the findings or preliminary order, or both, and request a hearing on the record. Such hearings shall be conducted expeditiously. If objections are not filed or a hearing is not requested in such 30-day period, the preliminary order shall be deemed a final order that is not subject to judicial review. The Secretary shall dismiss a complaint filed under this subsection and shall not conduct an investigation otherwise required under paragraph
(1)unless the complainant makes a prima facie showing that any alleged violation of this title is a material violation and that the complainant suffered harm as a result of such alleged material violation. The Secretary may determine that a violation of this title has occurred only if the complainant demonstrates by a preponderance of the evidence that the violation was material and that the complainant suffered harm as a result of the violation. Not later than 120 days after the date of conclusion of a hearing under subsection (b)(1), the Secretary shall issue a final order providing the relief prescribed by paragraph
(2)or denying the complaint. At any time before issuance of a final order, a proceeding under this subsection may be terminated on the basis of a settlement agreement entered into by the Secretary, the complainant, and the third-party foreign labor recruiter or foreign labor contractor alleged to have committed the violation. If, in response to a complaint filed under subsection (a), the Secretary determines that a material violation of this title has occurred, the Secretary shall order the third-party foreign labor recruiter or foreign labor contractor who committed such violation to— take affirmative action to abate the violation; provide compensatory damages to the complainant; and at the request of the complainant, shall assess against the third-party foreign labor recruiter or foreign labor contractor a sum equal to the aggregate amount of all costs and expenses (including attorneys’ fees) reasonably incurred, as determined by the Secretary, by the complainant for, or in connection with, the bringing the complaint upon which the order was issued. If the Secretary determines that a complaint under subsection
(a)is frivolous or has been brought in bad faith, the Secretary shall award to the prevailing third-party foreign labor recruiter foreign labor contractor reasonable attorneys’ fees and costs associated with defending against such frivolous complaint. A complainant or third-party foreign labor recruiter or foreign labor contractor adversely affected or aggrieved by an order issued under subsection
(c)may obtain review of the order in the United States Court of Appeals for the circuit in which the violation, with respect to which the order was issued, allegedly occurred or the circuit in which the complainant resided on the date of such alleged violation. The petition for review must be filed not later than 60 days after the date of the issuance of the final order of the Secretary. Review shall conform to chapter 7 of title 5, United States Code. An order of the Secretary with respect to which review could have been obtained under subparagraph
(A)shall not be subject to judicial review in any criminal or other civil proceeding. Whenever any person has failed to comply with an order issued under subsection (c), the Secretary may file a civil action in the United States district court for the district in which the violation was found to have occurred to enforce such order. The Department of Justice shall represent the Department of Homeland Security in any such action. In actions brought under this paragraph, the district courts shall have jurisdiction to grant all appropriate relief including, but not limited to, injunctive relief and compensatory damages. A person on whose behalf an order was issued under subsection
(c)may commence a civil action against the person to whom such order was issued to require compliance with such order. The appropriate United States district court shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such order. The district court, in issuing any final order under this paragraph, may award costs of litigation (including reasonable attorneys’ fees) to any party whenever the court determines such award is appropriate. An employer who hires a third-party foreign labor recruiter that is not registered under section 104 shall, for purposes of this section, be treated as the third-party foreign labor recruiter (including with regard to notice, opportunity to be heard, and the right to appeal) if the unregistered third-party foreign labor recruiter is not subject to the jurisdiction of the courts of the United States or if the Secretary determines that the circumstances are such that enforcing the provisions of this section against the unregistered foreign labor recruiter would be unreasonably difficult. Paragraph
(1)shall not apply if, in retaining the third-party labor recruiter, the employer relied upon inaccurate or outdated information maintained by the Secretary pursuant to section 106.