BILL NUMBER: AB 276 CHAPTERED
BILL TEXT
CHAPTER 329
FILED WITH SECRETARY OF STATE SEPTEMBER 8, 2003
APPROVED BY GOVERNOR SEPTEMBER 6, 2003
PASSED THE ASSEMBLY AUGUST 21, 2003
PASSED THE SENATE JULY 24, 2003
AMENDED IN SENATE JUNE 17, 2003
AMENDED IN ASSEMBLY MAY 8, 2003
AMENDED IN ASSEMBLY MARCH 13, 2003
INTRODUCED BY Assembly Member Koretz
FEBRUARY 5, 2003
An act to amend Sections 210, 225.5, 226, 605, 752, 1021, 1021.5,
and 1197.1 of the Labor Code, relating to employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 276, Koretz. Penalties for Labor Code violations.
Under existing law, if an employer fails to pay wages or
unlawfully withholds wages, the penalty for a first violation is $50,
and the penalty for subsequent or willful or intentional violations
is $100 and the penalty recovered is placed in the General Fund.
This bill would increase the penalties to $100 for the first
violation and $200 for subsequent or willful or intentional
violations. This bill would provide that 12.5% of the penalty would
be placed in a fund within the Labor and Workforce Development Agency
to educate employers about state labor laws, and the remainder would
be placed in the General Fund.
Under existing law, a railroad corporation that violates laws
regulating employee work hours is subject to a penalty of not more
than $200.
This bill would increase the maximum penalty to $500.
Under existing law, the penalty for violating the laws regulating
work hours of employees in underground mines, smelters, or plants for
the reduction or refining of ores or metals is $50 for the first
intentional violation, and $100 for every subsequent violation.
This bill would increase the penalty to $100 for the first
intentional violation and $200 for each subsequent violation.
Under existing law, the penalty for any person who does not hold a
state contractor's license employing workers to perform services for
which a license is required and for any person with a state
contractor's license who knowingly enters into a contract with a
person to perform services for which a contract is required and that
person does not meet the status of independent contractor or does not
hold a state license is $100.
This bill would increase the penalty to $200.
Under existing law, any employer who pays less than the minimum
wage is subject to a civil penalty of $50 for each underpaid employee
for each pay period.
This bill would increase the penalty to $100.
The bill would also make other technical, nonsubstantive changes
to existing law.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 210 of the Labor Code is amended to read:
210. In addition to, and entirely independent and apart from, any
other penalty provided in this article, every person who fails to
pay the wages of each employee as provided in Sections 204, 204b,
204.1, 204.2, 205, 205.5, and 1197.5, shall be subject to a civil
penalty as follows:
(a) For any initial violation, one hundred dollars ($100) for each
failure to pay each employee.
(b) For each subsequent violation, or any willful or intentional
violation, two hundred dollars ($200) for each failure to pay each
employee, plus 25 percent of the amount unlawfully withheld.
The penalty shall be recovered by the Labor Commissioner as part
of a hearing held to recover unpaid wages and penalties pursuant to
this chapter or in an independent civil action. The action shall be
brought in the name of the people of the State of California and the
Labor Commissioner and the attorneys thereof may proceed and act for
and on behalf of the people in bringing these actions. Twelve and
one-half percent of the penalty recovered shall be paid into a fund
within the Labor and Workforce Development Agency dedicated to
educating employers about state labor laws, and the remainder shall
be paid into the State Treasury to the credit of the General Fund.
SEC. 2. Section 225.5 of the Labor Code is amended to read:
225.5. In addition to, and entirely independent and apart from,
any other penalty provided in this article, every person who
unlawfully withholds wages due any employee in violation of Section
212, 216, 221, 222, or 223 shall be subject to a civil penalty as
follows:
(a) For any initial violation, one hundred dollars ($100) for each
failure to pay each employee.
(b) For each subsequent violation, or any willful or intentional
violation, two hundred dollars ($200) for each failure to pay each
employee, plus 25 percent of the amount unlawfully withheld.
The penalty shall be recovered by the Labor Commissioner as part
of a hearing held to recover unpaid wages and penalties or in an
independent civil action. The action shall be brought in the name of
the people of the State of California and the Labor Commissioner and
attorneys thereof may proceed and act for and on behalf of the
people in bringing the action. Twelve and one-half percent of the
penalty recovered shall be paid into a fund within the Labor and
Workforce Development Agency dedicated to educating employers about
state labor laws, and the remainder shall be paid into the State
Treasury to the credit of the General Fund.
SEC. 3. Section 226 of the Labor Code is amended to read:
226. (a) Every employer shall, semimonthly or at the time of each
payment of wages, furnish each of his or her employees, either as a
detachable part of the check, draft, or voucher paying the employee's
wages, or separately when wages are paid by personal check or cash,
an accurate itemized statement in writing showing (1) gross wages
earned, (2) total hours worked by the employee, except for any
employee whose compensation is solely based on a salary and who is
exempt from payment of overtime under subdivision (a) of Section 515
or any applicable order of the Industrial Welfare Commission, (3) the
number of piece-rate units earned and any applicable piece rate if
the employee is paid on a piece-rate basis, (4) all deductions,
provided that all deductions made on written orders of the employee
may be aggregated and shown as one item, (5) net wages earned, (6)
the inclusive dates of the period for which the employee is paid, (7)
the name of the employee and his or her social security number, (8)
the name and address of the legal entity that is the employer, and
(9) all applicable hourly rates in effect during the pay period and
the corresponding number of hours worked at each hourly rate by the
employee. The deductions made from payments of wages shall be
recorded in ink or other indelible form, properly dated, showing the
month, day, and year, and a copy of the statement or a record of the
deductions shall be kept on file by the employer for at least three
years at the place of employment or at a central location within the
State of California.
(b) An employer that is required by this code or any regulation
adopted pursuant to this code to keep the information required by
subdivision (a) shall afford current and former employees the right
to inspect or copy the records pertaining to that current or former
employee, upon reasonable request to the employer. The employer may
take reasonable steps to assure the identity of a current or former
employee. If the employer provides copies of the records, the actual
cost of reproduction may be charged to the current or former
employee.
(c) An employer who receives a written or oral request to inspect
or copy records pursuant to subdivision (b) pertaining to a current
or former employee shall comply with the request as soon as
practicable, but no later than 21 calendar days from the date of the
request. A violation of this subdivision is an infraction.
Impossibility of performance, not caused by or a result of a
violation of law, shall be an affirmative defense for an employer in
any action alleging a violation of this subdivision. An employer may
designate the person to whom a request under this subdivision will
be made.
(d) This section does not apply to any employer of any person
employed by the owner or occupant of a residential dwelling whose
duties are incidental to the ownership, maintenance, or use of the
dwelling, including the care and supervision of children, or whose
duties are personal and not in the course of the trade, business,
profession, or occupation of the owner or occupant.
(e) An employee suffering injury as a result of a knowing and
intentional failure by an employer to comply with subdivision (a) is
entitled to recover the greater of all actual damages or fifty
dollars ($50) for the initial pay period in which a violation occurs
and one hundred dollars ($100) per employee for each violation in a
subsequent pay period, not exceeding an aggregate penalty of four
thousand dollars ($4,000), and is entitled to an award of costs and
reasonable attorney's fees.
(f) A failure by an employer to permit a current or former
employee to inspect or copy records within the time set forth in
subdivision (c) entitles the current or former employee or the Labor
Commissioner to recover a seven hundred fifty dollar ($750) penalty
from the employer.
(g) An employee may also bring an action for injunctive relief to
ensure compliance with this section, and is entitled to an award of
costs and reasonable attorney's fees.
(h) This section does not apply to the state, or any city, county,
city and county, district, or any other governmental entity.
SEC. 4. Section 605 of the Labor Code is amended to read:
605. Any railroad corporation that violates any of the provisions
of this chapter is liable to the state in a penalty of not less than
five hundred dollars ($500) nor more than five thousand dollars
($5,000) for each offense. The penalty shall be recovered and suit
therefor shall be brought in the name of the state in a court of
competent jurisdiction in any county into or through which said
railroad may pass. The suit may be brought either by the Attorney
General of the state or under his or her direction by the district
attorney of any county in the state into or through which said
railroad passes.
SEC. 5. Section 752 of the Labor Code is amended to read:
752. (a) Any affected employee, or his or her representative, may
file a complaint with the Labor Commissioner concerning the conduct
of an election pursuant to subdivision (b) of Section 750.5 within 14
days following notice of the outcome of the election. The Labor
Commissioner shall investigate the complaint and shall invalidate the
election if the commissioner finds that misconduct has occurred that
could have affected the outcome of the election. If the election is
invalidated, the commissioner shall prohibit the employer from
conducting a similar election for a period of 12 months.
(b) Any employer, or representative of an employer, that violates
Section 750 or 751.8 shall be subject to a civil penalty as follows:
(1) For any initial violation that is intentionally committed, one
hundred dollars ($100) for each affected employee for each violation
for each pay period.
(2) For each subsequent violation for the same offense, two
hundred dollars ($200) for each violation for each affected employee
for each pay period, regardless of whether the initial violation is
intentionally committed.
(c) If the Labor Commissioner determines that an employer has
failed to comply with paragraph (6) of subdivision (b) of Section
750.5, the Labor Commissioner shall order the employer to comply.
The order, in appropriate cases, shall include provisions for
reinstatement and backpay.
(d) An employer shall not retaliate in any way against an employee
for exercising any right pursuant to this chapter.
SEC. 6. Section 1021 of the Labor Code is amended to read:
1021. Any person who does not hold a valid state contractor's
license issued pursuant to Chapter 9 (commencing with Section 7000)
of Division 3 of the Business and Professions Code, and who employs
any worker to perform services for which a license is required, shall
be subject to a civil penalty in the amount of two hundred dollars
($200) per employee for each day of employment. The civil penalties
provided for by this section are in addition to any other penalty
provided by law.
SEC. 7. Section 1021.5 of the Labor Code is amended to read:
1021.5. Any person who holds a valid state contractor's license
issued pursuant to Chapter 9 (commencing with Section 7000) of
Division 3 of the Business and Professions Code, and who willingly
and knowingly enters into a contract with any person to perform
services for which a license is required as an independent
contractor, and that person does not meet the burden of proof of
independent contractor status pursuant to Section 2750.5 or hold a
valid state contractor's license, shall be subject to a civil penalty
in the amount of two hundred dollars ($200) per person so contracted
with for each day of the contract. The civil penalties provided for
by this section are in addition to any other penalty provided by
law.
SEC. 8. Section 1197.1 of the Labor Code is amended to read:
1197.1. (a) Any employer or other person acting either
individually or as an officer, agent, or employee of another person,
who pays or causes to be paid to any employee a wage less than the
minimum fixed by an order of the commission shall be subject to a
civil penalty as follows:
(1) For any initial violation that is intentionally committed, one
hundred dollars ($100) for each underpaid employee for each pay
period for which the employee is underpaid.
(2) For each subsequent violation for the same specific offense,
two hundred fifty dollars ($250) for each underpaid employee for each
pay period for which the employee is underpaid regardless of whether
the initial violation is intentionally committed.
(b) If, upon inspection or investigation, the Labor Commissioner
determines that a person has paid or caused to be paid a wage less
than the minimum, the Labor Commissioner may issue a citation to the
person in violation. The citation may be served personally or by
registered mail in accordance with subdivision (c) of Section 11505
of the Government Code. Each citation shall be in writing and shall
describe the nature of the violation, including reference to the
statutory provision alleged to have been violated. The Labor
Commissioner promptly shall take all appropriate action, in
accordance with this section, to enforce the citation and to recover
the civil penalty assessed in connection with the citation.
(c) If a person desires to contest a citation or the proposed
assessment of a civil penalty therefor, the person shall, within 15
business days after service of the citation, notify the office of the
Labor Commissioner that appears on the citation of his or her
request for an informal hearing. The Labor Commissioner or his or
her deputy or agent shall, within 30 days, hold a hearing at the
conclusion of which the citation or proposed assessment of a civil
penalty shall be affirmed, modified, or dismissed.
The decision of the Labor Commissioner shall consist of a notice
of findings, findings, and an order, all of which shall be served on
all parties to the hearing within 15 days after the hearing by
regular first-class mail at the last known address of the party on
file with the Labor Commissioner. Service shall be completed
pursuant to Section 1013 of the Code of Civil Procedure. Any amount
found due by the Labor Commissioner as a result of a hearing shall
become due and payable 45 days after notice of the findings and
written findings and order have been mailed to the party assessed. A
writ of mandate may be taken from this finding to the appropriate
superior court. The party shall pay any judgment and costs
ultimately rendered by the court against the party for the
assessment. The writ shall be taken within 45 days of service of the
notice of findings, findings, and order thereon.
(d) A person to whom a citation has been issued shall, in lieu of
contesting a citation pursuant to this section, transmit to the
office of the Labor Commissioner designated on the citation the
amount specified for the violation within 15 business days after
issuance of the citation.
(e) When no petition objecting to a citation or the proposed
assessment of a civil penalty is filed, a certified copy of the
citation or proposed civil penalty may be filed by the Labor
Commissioner in the office of the clerk of the superior court in any
county in which the person assessed has or had a place of business.
The clerk, immediately upon the filing, shall enter judgment for the
state against the person assessed in the amount shown on the citation
or proposed assessment of a civil penalty.
(f) When findings and the order thereon are made affirming or
modifying a citation or proposed assessment of a civil penalty after
hearing, a certified copy of these findings and the order entered
thereon may be entered by the Labor Commissioner in the office of the
clerk of the superior court in any county in which the person
assessed has property or in which the person assessed has or had a
place of business. The clerk, immediately upon the filing, shall
enter judgment for the state against the person assessed in the
amount shown on the certified order.
(g) A judgment entered pursuant to this section shall bear the
same rate of interest and shall have the same effect as other
judgments and be given the same preference allowed by the law on
other judgments rendered for claims for taxes. The clerk shall make
no charge for the service provided by this section to be performed by
him or her.
(h) The civil penalties provided for in this section are in
addition to any other penalty provided by law.
(i) This section shall not apply to any order of the commission
relating to household occupations.