29 U.S.C. § 1854 — Private right of action

Page 754 TITLE 29—LABOR § 1852 § 1852. Judicial enforcement (a) Injunctive relief The Secretary may petition any appropriate district court of the United States for tem- porary or permanent injunctive relief if the Sec- retary determines that this chapter, or any reg- ulation under this chapter, has been violated. (b) Control of civil litigation Except as provided in section 518(a) of title 28, relating to litigation before the Supreme Court, the Solicitor of Labor may appear for and rep- resent the Secretary in any civil litigation brought under this chapter, but all such litiga- tion shall be subject to the direction and control of the Attorney General. (Pub. L. 97–470, title V, § 502, Jan. 14, 1983, 96 Stat. 2596.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 90 days from Jan. 14, 1983, see sec- tion 524 of Pub. L. 97–470, set out as a note under sec- tion 1801 of this title. § 1853. Administrative sanctions (a) Civil money penalties for violations; criteria for assessment (1) Subject to paragraph (2), any person who commits a violation of this chapter or any regu- lation under this chapter, may be assessed a civil money penalty of not more than $1,000 for each violation. (2) In determining the amount of any penalty to be assessed under paragraph (1), the Sec- retary shall take into account (A) the previous record of the person in terms of compliance with this chapter and with comparable requirements of the Farm Labor Contractor Registration Act of 1963 [7 U.S.C. 2041 et seq.], and with regula- tions promulgated under this chapter and such Act, and (B) the gravity of the violation. (b) Administrative review (1) The person assessed shall be afforded an op- portunity for agency hearing, upon request made within thirty days after the date of issuance of the notice of assessment. In such hearing, all issues shall be determined on the record pursuant to section 554 of title 5. If no hearing is requested as herein provided, the as- sessment shall constitute a final and unappealable order. (2) If a hearing is requested, the initial agency decision shall be made by an administrative law judge, and such decision shall become the final order unless the Secretary modifies or vacates the decision. Notice of intent to modify or va- cate the decision of the administrative law judge shall be issued to the parties within thirty days after the decision of the administrative law judge. A final order which takes effect under this paragraph shall be subject to review only as provided under subsection (c). (c) Judicial review Any person against whom an order imposing a civil money penalty has been entered after an agency hearing under this section may obtain review by the United States district court for any district in which he is located or the United States District Court for the District of Colum- bia by filing a notice of appeal in such court within thirty days from the date of such order, and simultaneously sending a copy of such no- tice by registered mail to the Secretary. The Secretary shall promptly certify and file in such court the record upon which the penalty was im- posed. The findings of the Secretary shall be set aside only if found to be unsupported by sub- stantial evidence as provided by section 706(2)(E) of title 5. Any final decision, order, or judgment of such District Court concerning such review shall be subject to appeal as provided in chapter 83 of title 28. (d) Failure to pay assessment; maintenance of ac- tion If any person fails to pay an assessment after it has become a final and unappealable order, or after the court has entered final judgment in favor of the agency, the Secretary shall refer the matter to the Attorney General, who shall recover the amount assessed by action in the ap- propriate United States district court. In such action the validity and appropriateness of the final order imposing the penalty shall not be subject to review. (e) Payment of penalties into Treasury of United States All penalties collected under authority of this section shall be paid into the Treasury of the United States. (Pub. L. 97–470, title V, § 503, Jan. 14, 1983, 96 Stat. 2596.) Editorial Notes REFERENCES IN TEXT The Farm Labor Contractor Registration Act of 1963, referred to in subsec. (a)(2), is Pub. L. 88–582, Sept. 7, 1964, 78 Stat. 920, which was classified generally to chapter 52 (§ 2041 et seq.) of Title 7, Agriculture, and was repealed by Pub. L. 97–470, title V, § 523, Jan. 14, 1983, 96 Stat. 2600. See section 1801 et seq. of this title. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 90 days from Jan. 14, 1983, see sec- tion 524 of Pub. L. 97–470, set out as a note under sec- tion 1801 of this title. § 1854. Private right of action (a) Maintenance of civil action in district court by aggrieved person Any person aggrieved by a violation of this chapter or any regulation under this chapter by a farm labor contractor, agricultural employer, agricultural association, or other person may file suit in any district court of the United States having jurisdiction of the parties, with- out respect to the amount in controversy and without regard to the citizenship of the parties and without regard to exhaustion of any alter- native administrative remedies provided herein. (b) Appointment of attorney and commencement of action Upon application by a complainant and in such circumstances as the court may deem just, Page 755 TITLE 29—LABOR § 1854 the court may appoint an attorney for such complainant and may authorize the commence- ment of the action. (c) Award of damages or other equitable relief; amount; criteria; appeal (1) If the court finds that the respondent has intentionally violated any provision of this chapter or any regulation under this chapter, it may award damages up to and including an amount equal to the amount of actual damages, or statutory damages of up to $500 per plaintiff per violation, or other equitable relief, except that (A) multiple infractions of a single provi- sion of this chapter or of regulations under this chapter shall constitute only one violation for purposes of determining the amount of statu- tory damages due a plaintiff; and (B) if such complaint is certified as a class action, the court shall award no more than the lesser of up to $500 per plaintiff per violation, or up to $500,000 or other equitable relief. (2) In determining the amount of damages to be awarded under paragraph (1), the court is au- thorized to consider whether an attempt was made to resolve the issues in dispute before the resort to litigation. (3) Any civil action brought under this section shall be subject to appeal as provided in chapter 83 of title 28. (d) Workers’ compensation benefits; exclusive remedy (1) Notwithstanding any other provision of this chapter, where a State workers’ compensa- tion law is applicable and coverage is provided for a migrant or seasonal agricultural worker, the workers’ compensation benefits shall be the exclusive remedy for loss of such worker under this chapter in the case of bodily injury or death in accordance with such State’s workers’ com- pensation law. (2) The exclusive remedy prescribed by para- graph (1) precludes the recovery under sub- section (c) of actual damages for loss from an in- jury or death but does not preclude recovery under subsection (c) for statutory damages or equitable relief, except that such relief shall not include back or front pay or in any manner, di- rectly or indirectly, expand or otherwise alter or affect (A) a recovery under a State workers’ compensation law or (B) rights conferred under a State workers’ compensation law. (e) Expansion of statutory damages If the court finds in an action which is brought by or for a worker under subsection (a) in which a claim for actual damages is precluded because the worker’s injury is covered by a State work- ers’ compensation law as provided by subsection (d) that— (1)(A) the defendant in the action violated section 1841(b) of this title by knowingly re- quiring or permitting a driver to drive a vehi- cle for the transportation of migrant or sea- sonal agricultural workers while under the in- fluence of alcohol or a controlled substance (as defined in section 802 of title 21) and the de- fendant had actual knowledge of the driver’s condition, and (B) such violation resulted in injury to or death of the migrant or seasonal worker by or for whom the action was brought and such in- jury or death arose out of and in the course of employment as determined under the State workers’ compensation law, (2)(A) the defendant violated a safety stand- ard prescribed by the Secretary under section 1841(b) of this title which the defendant was determined in a previous judicial or adminis- trative proceeding to have violated, and (B) such safety violation resulted in an in- jury or death described in paragraph (1)(B), (3)(A)(i) the defendant willfully disabled or removed a safety device prescribed by the Sec- retary under section 1841(b) of this title, or (ii) the defendant in conscious disregard of the requirements of section 1841(b) of this title failed to provide a safety device required under such section, and (B) such disablement, removal, or failure to provide a safety device resulted in an injury or death described in paragraph (1)(B), or (4)(A) the defendant violated a safety stand- ard prescribed by the Secretary under section 1841(b) of this title, (B) such safety violation resulted in an in- jury or death described in paragraph (1)(B), and (C) the defendant at the time of the viola- tion of section 1841(b) of this title also was— (i) an unregistered farm labor contractor in violation of section 1811(a) of this title, or (ii) a person who utilized the services of a farm labor contractor of the type specified in clause (i) without taking reasonable steps to determine that the farm labor contractor possessed a valid certificate of registration authorizing the performance of the farm labor contracting activities which the con- tractor was requested or permitted to per- form with the knowledge of such person, the court shall award not more than $10,000 per plaintiff per violation with respect to whom the court made the finding described in paragraph (1), (2), (3), or (4), except that multiple infrac- tions of a single provision of this chapter shall constitute only one violation for purposes of de- termining the amount of statutory damages due to a plaintiff under this subsection and in the case of a class action, the court shall award not more than the lesser of up to $10,000 per plaintiff or up to $500,000 for all plaintiffs in such class action. (f) Tolling of statute of limitations If it is determined under a State workers’ compensation law that the workers’ compensa- tion law is not applicable to a claim for bodily injury or death of a migrant or seasonal agricul- tural worker, the statute of limitations for bringing an action for actual damages for such injury or death under subsection (a) shall be tolled for the period during which the claim for such injury or death under such State workers’ compensation law was pending. The statute of limitations for an action for other actual dam- ages, statutory damages, or equitable relief aris- ing out of the same transaction or occurrence as the injury or death of the migrant or seasonal agricultural worker shall be tolled for the period during which the claim for such injury or death was pending under the State workers’ compensa- tion law. Page 756 TITLE 29—LABOR § 1855 (Pub. L. 97–470, title V, § 504, Jan. 14, 1983, 96 Stat. 2597; Pub. L. 102–392, title III, § 325(a), Oct. 6, 1992, 106 Stat. 1728; Pub. L. 104–49, §§ 1(a)(2), 2(a), 3, Nov. 15, 1995, 109 Stat. 432, 433.) Editorial Notes AMENDMENTS 1995—Subsec. (d). Pub. L. 104–49, § 1(a)(2), amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows: ‘‘(d)(1) Notwithstanding any other provision of this chapter, where a State workers’ compensation law is applicable and coverage is provided for a migrant or seasonal agricultural worker, the workers’ compensa- tion benefits shall be the exclusive remedy for loss of such worker under this chapter in the case of bodily in- jury or death. ‘‘(2) The exclusive remedy prescribed by paragraph (1) precludes the recovery under subsection (c) of actual damages for loss from an injury or death but does not preclude recovery under subsection (c) for statutory damages or an injunction.’’ Subsec. (e). Pub. L. 104–49, § 2(a), added subsec. (e). Subsec. (f). Pub. L. 104–49, § 3, added subsec. (f). 1992—Subsec. (d). Pub. L. 102–392 added subsec. (d). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1995 AMENDMENT Pub. L. 104–49, § 1(b), Nov. 15, 1995, 109 Stat. 432, pro- vided that: ‘‘The amendment made by subsection (a)(2) [amending this section] shall apply to all cases in which a final judgment has not been entered.’’ Pub. L. 104–49, § 2(b), Nov. 15, 1995, 109 Stat. 433, pro- vided that: ‘‘The amendment made by subsection (a) [amending this section] shall apply to all cases in which a final judgment has not been entered.’’ EFFECTIVE DATE OF 1992 AMENDMENT Pub. L. 102–392, title III, § 325(c), Oct. 6, 1992, 106 Stat. 1728, provided that the amendment of this section by section 325(a) of Pub. L. 102–392 would apply to actions commenced after Oct. 6, 1992, but not after the expira- tion of 9 months after such date, with waiver and ex- tension provisions for certain actions, prior to repeal by Pub. L. 104–49, § 1(a)(1), Nov. 15, 1995, 109 Stat. 432. EFFECTIVE DATE Section effective 90 days from Jan. 14, 1983, see sec- tion 524 of Pub. L. 97–470, set out as a note under sec- tion 1801 of this title. § 1855. Discrimination prohibited (a) Prohibited activities No person shall intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner discriminate against any migrant or seasonal agricultural worker because such worker has, with just cause, filed any complaint or insti- tuted, or caused to be instituted, any proceeding under or related to this chapter, or has testified or is about to testify in any such proceedings, or because of the exercise, with just cause, by such worker on behalf of himself or others of any right or protection afforded by this chapter. (b) Proceedings for redress of violations A migrant or seasonal agricultural worker who believes, with just cause, that he has been discriminated against by any person in violation of this section may, within 180 days after such violation occurs, file a complaint with the Sec- retary alleging such discrimination. Upon re- ceipt of such complaint, the Secretary shall cause such investigation to be made as he deems appropriate. If upon such investigation, the Sec- retary determines that the provisions of this section have been violated, the Secretary shall bring an action in any appropriate United States district court against such person. In any such action the United States district courts shall have jurisdiction, for cause shown, to restrain violation of subsection (a) and order all appro- priate relief, including rehiring or reinstate- ment of the worker, with back pay, or damages. (Pub. L. 97–470, title V, § 505, Jan. 14, 1983, 96 Stat. 2598.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 90 days from Jan. 14, 1983, see sec- tion 524 of Pub. L. 97–470, set out as a note under sec- tion 1801 of this title. § 1856. Waiver of rights Agreements by employees purporting to waive or to modify their rights under this chapter shall be void as contrary to public policy, except that a waiver or modification of rights in favor of the Secretary shall be valid for purposes of enforcement of this chapter. (Pub. L. 97–470, title V, § 506, Jan. 14, 1983, 96 Stat. 2598.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 90 days from Jan. 14, 1983, see sec- tion 524 of Pub. L. 97–470, set out as a note under sec- tion 1801 of this title. PART B—ADMINISTRATIVE PROVISIONS § 1861. Rules and regulations The Secretary may issue such rules and regu- lations as are necessary to carry out this chap- ter, consistent with the requirements of chapter 5 of title 5. (Pub. L. 97–470, title V, § 511, Jan. 14, 1983, 96 Stat. 2598.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 90 days from Jan. 14, 1983, see sec- tion 524 of Pub. L. 97–470, set out as a note under sec- tion 1801 of this title. § 1862. Authority to obtain information (a) Investigation and inspection authority con- cerning places, records, etc. To carry out this chapter the Secretary, either pursuant to a complaint or otherwise, shall, as may be appropriate, investigate, and in connec- tion therewith, enter and inspect such places (including housing and vehicles) and such records (and make transcriptions thereof), ques- tion such persons and gather such information to determine compliance with this chapter, or regulations prescribed under this chapter. (b) Attendance and testimony of witnesses, and production of evidence; subpena authority The Secretary may issue subpenas requiring the attendance and testimony of witnesses or