BILL NUMBER: AB 1688 CHAPTERED
BILL TEXT
CHAPTER 825
FILED WITH SECRETARY OF STATE OCTOBER 11, 2003
APPROVED BY GOVERNOR OCTOBER 10, 2003
PASSED THE ASSEMBLY SEPTEMBER 11, 2003
PASSED THE SENATE SEPTEMBER 9, 2003
AMENDED IN SENATE SEPTEMBER 8, 2003
AMENDED IN SENATE SEPTEMBER 2, 2003
AMENDED IN SENATE JULY 15, 2003
AMENDED IN SENATE JULY 3, 2003
AMENDED IN SENATE JUNE 19, 2003
AMENDED IN ASSEMBLY APRIL 30, 2003
AMENDED IN ASSEMBLY APRIL 21, 2003
INTRODUCED BY Assembly Member Goldberg
(Coauthors: Assembly Members Koretz and Montanez)
FEBRUARY 21, 2003
An act to add and repeal Part 8.5 (commencing with Section 2050)
of Division 2 of the Labor Code, relating to car washes.
LEGISLATIVE COUNSEL'S DIGEST
AB 1688, Goldberg. Car washes.
Existing law regulates various aspects of workplace and employee
safety and health.
This bill would, until January 1, 2007, regulate the industry of
car washing and polishing by providing specific recordkeeping
requirements that employers of car washers must implement with regard
to car washer wages, hours, and working conditions. The bill would
require employers of car washers to register with the Labor
Commissioner and pay a specified registration fee. Failure to
register pursuant to these provisions would be subject to a civil
fine of $100 for each calendar day of violation not to exceed
$10,000. These fines and registration fees would be deposited in the
Car Wash Worker Restitution Fund and the Car Wash Worker Fund, which
this bill would create, for disbursement by the commissioner, upon
appropriation by the Legislature.
The bill would state the intent of the Legislature to require the
Labor Commissioner to report on labor law violations and enforcement
in the car washing and polishing industry.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) California is home to hundreds of full-time car washes that
employ tens of thousands of car wash workers.
(b) The work performed by car wash employees is laborious, fast
paced, and potentially hazardous.
(c) Car wash employees work long hours and may service hundreds of
vehicles on any given workday.
(d) According to various legal advocates, the car wash industry is
plagued with labor law violations, including minimum wage, overtime,
and rest and meal period violations.
(e) Some car wash employees, commonly known as "propineros,"are
not paid a wage by their employers and receive only the tips given by
customers.
(f) Some other car wash employees are paid below the minimum wage
and not paid at an overtime rate for overtime hours worked.
(g) A number of car wash employees have been harassed,
intimidated, and mistreated by their employers because of their
immigration status.
(h) As a result of low wages and widespread labor law violations,
some car wash employees are forced to work in substandard working
conditions.
(i) Existing labor laws and enforcement efforts have failed to
remedy these problems.
(j) Therefore, it is the intent of the Legislature, in enacting
this act, to establish a system of registration, bonding
requirements, and enforcement to impose prompt and effective civil
sanctions for the violation of the provisions set forth in this act
or any provision of law applicable to the employment of workers in
the car washing and polishing industry.
SEC. 2. Part 8.5 (commencing with Section 2050) is added to
Division 2 of the Labor Code, to read:
PART 8.5. CAR WASHES
CHAPTER 1. GENERAL PROVISIONS
2050. The enactment of this part is an exercise of the police
power of the State of California for the protection for the public
welfare, prosperity, health, safety, and peace of its people. The
civil penalties provided by this chapter are in addition to any other
penalty provided by law.
2051. As used in this part:
(a) "Car washing and polishing" means washing, cleaning, drying,
polishing, detailing, servicing, or otherwise providing cosmetic care
to vehicles. "Car washing and polishing" does not include motor
vehicle repair, as defined in Section 9880.1 of the Business and
Professions Code.
(b) (1) "Employer" means any individual, partnership, corporation,
limited liability company, joint venture, or association engaged in
the business of car washing and polishing that engages any other
individual in providing those services.
(2) "Employer" does not include any charitable, youth, service,
veteran, or sports group, club, or association that conducts car
washing and polishing on an intermittent basis to raise funds for
charitable, education, or religious purposes. "Employer" does not
include any licensed vehicle dealer, car rental agency, or automotive
repair business that conducts car washing and polishing ancillary to
its primary business of selling, leasing, or servicing vehicles.
"Employer" does not include any self-service car wash or automated
car wash that has employees for cashiering or maintenance purposes
only.
(c) "Employee" means any person, including an alien or minor, who
renders actual car washing and polishing services in any business for
an employer, whether for tips or for wages, and whether wages are
calculated by time, piece, task, commission, or other method of
calculation, and whether the services are rendered on a commission,
concessionaire, or other basis.
(d) "Commissioner" means the Labor Commissioner.
2052. Every employer shall keep accurate records for three years,
showing all of the following:
(a) The names and addresses of all employees engaged in rendering
actual services for any business of the employer.
(b) The hours worked daily by each employee, including the times
the employee begins and ends each work period.
(c) All gratuities received daily by the employer, whether
received directly from the employee or indirectly by deduction from
the wages of the employee or otherwise.
(d) The wage and wage rate paid each payroll period.
(e) The age of all minor employees.
(f) Any other conditions of employment.
2053. The Division of Labor Standards and Enforcement shall
enforce this chapter. The commissioner may adopt any regulations
necessary to carry out the provisions of this chapter.
CHAPTER 2. REGISTRATION
2054. Every employer shall register with the commissioner
annually.
2055. The commissioner may not permit any employer to register,
nor may the commissioner permit any employer to renew registration
until all of the following conditions are satisfied:
(a) The employer has applied for registration to the commissioner
by presenting proof of compliance with the local government's
business licensing or regional regulatory requirements.
(b) The employer has obtained a surety bond issued by a surety
company admitted to do business in this state. The principal sum of
the bond shall be not less than fifteen thousand dollars ($15,000).
The employer shall file a copy of the bond with the commissioner.
(1) The bond required by this section shall be in favor of, and
payable to the people of the State of California and shall be for the
benefit of any employee damaged by his or her employer's failure to
pay wages, interest on wages, or fringe benefits, or damaged by
violation of Section 351 or 353.
(2) Thirty days prior to the cancellation or termination of any
surety bond required by this section, the surety shall send written
notice to both the employer and the commissioner, identifying the
bond and the date of the cancellation or termination.
(3) An employer may not conduct any business until the employer
obtains a new surety bond and files a copy of it with the
commissioner.
(c) The employer has documented that a current workers'
compensation insurance policy is in effect for the employees.
(d) The employer has paid the fees established pursuant to Section
2059.
2056. When a certificate of registration is originally issued or
renewed under this chapter, the commissioner shall provide related
and supplemental information to the registrant regarding business
administration and applicable labor laws.
2057. Proof of registration shall be by an official Division of
Labor Standards Enforcement registration form. Each employer shall
post the registration form where it may be read by the employees
during the workday.
2058. At least 30 days prior to the expiration of each registrant'
s registration, the commissioner shall mail a renewal notice to the
last known address of the registrant. However, omission of the
commissioner to provide the renewal notice in accordance with this
subdivision may not excuse a registrant from making timely
application for renewal of registration, may not be a defense in any
action or proceeding involving failure to renew registration, and may
not subject the commissioner to any legal liability.
2059. (a) The commissioner shall collect from employers a
registration fee of two hundred fifty dollars ($250) for each branch
location. The commissioner may periodically adjust the registration
fee for inflation to ensure that the fee is sufficient to fund all
costs to administer and enforce the provisions of this part.
(b) In addition to the fee specified in subdivision (a), each
employer shall be assessed an annual fee of fifty dollars ($50) for
each branch location which shall be deposited in the Car Wash Worker
Restitution Fund.
2060. No employer may conduct any business without complying with
the registration and bond requirements of this chapter.
2061. The commissioner may not approve the registration of any
employer until all of the following conditions are satisfied:
(a) The employer has executed a written application, in a form
prescribed by the commissioner, subscribed, and sworn by the employer
containing the following:
(1) The name of the business entity and, if applicable, its
fictitious or "doing business as" name.
(2) The form of the business entity and, if a corporation, all of
the following:
(A) The date of incorporation.
(B) The state in which incorporated.
(C) If a foreign corporation, the date the articles of
incorporation were filed with the California Secretary of State.
(D) Whether the corporation is in good standing with the Secretary
of State.
(3) The federal employer identification number (FEIN) and the
state employer identification number (SEIN) of the business.
(4) The business' address and telephone number and, if applicable,
the addresses and telephone numbers of any branch locations.
(5) Whether the application is for a new or renewal registration
and, if the application is for a renewal, the prior registration
number.
(6) The names, residential addresses, telephone numbers, and
Social Security numbers of the following persons:
(A) All corporate officers, if the business entity is a
corporation.
(B) All persons exercising management responsibility in the
applicant's office, regardless of form of business entity.
(C) All persons, except bona fide employees on regular salaries,
who have a financial interest of 10 percent or more in the business,
regardless of the form of business entity, and the actual percent
owned by each of those persons.
(7) The policy number, effective date, expiration date, and name
and address of the carrier of the applicant business' current workers'
compensation coverage.
(8) Whether any persons named in response to subparagraphs (A),
(B), or (C) of subparagraph (6) of this section presently:
(A) Owe any unpaid wages.
(B) Have unpaid judgments outstanding.
(C) Have any liens or suits pending in court against himself or
herself.
(D) Owe payroll taxes, or personal, partnership, or corporate
income taxes, Social Security taxes, or disability insurance.
An applicant who answers affirmatively to any item described in
paragraph (8) shall provide, as part of the application, additional
information on the unpaid amounts, including the name and address of
the party owed, the amount owed, and any existing payment
arrangements.
(9) Whether any persons named in response to subparagraphs (A),
(B), or (C) of paragraph (6) of this section have ever been cited or
assessed any penalty for violating any provision of the Labor Code.
An applicant who answers affirmatively to any item described in
paragraph (9) shall provide additional information, as part of the
application, on the date, nature of citation, amount of penalties
assessed for each citation, and the disposition of the citation, if
any. The application shall describe any appeal filed. If the
citation was not appealed, or if it was upheld on appeal, the
applicant shall state whether the penalty assessment was paid.
(b) The employer has paid a registration fee to the commissioner
pursuant to subdivision (d) of Section 2055.
2062. The commissioner may not register or renew the registration
of an employer in any of the following circumstances:
(a) The employer has not fully satisfied any final judgment for
unpaid wages due to an employee or former employee of a business for
which the employer is required to register under this chapter.
(b) The employer has failed to remit the proper amount of
contributions required by the Unemployment Insurance Code or the
Employment Development Department had made an assessment for those
unpaid contributions against the employer that has become final and
the employer has not fully paid the amount of delinquency for those
unpaid contributions.
(c) The employer has failed to remit the amount of Social Security
and Medicare tax contributions required by the Federal Insurance
Contributions Act (FICA) to the Internal Revenue Service and the
employer has not fully paid the amount or delinquency for those
unpaid contributions.
2063. On the Web site of the Department of Industrial Relations
the Labor Commissioner shall post a list of registered car washing
and polishing businesses, including the name, address, registration
number, and effective dates of registration.
2064. An employer who fails to register pursuant to Section 2054
is subject to a civil fine of one hundred dollars ($100) for each
calendar day, not to exceed ten thousand dollars ($10,000), the
employer conducts car washing and polishing while unregistered.
2065. (a) (1) The Car Wash Worker Restitution Fund is established
in the State Treasury. Fifty dollars ($50) of each registrant's
annual registration fee required pursuant to Section 2059 shall be
deposited into this fund. In addition, 50 percent of the fines
collected pursuant to Section 2064 shall be deposited into the fund.
(2) Moneys from the fund shall be disbursed, upon appropriation by
the Legislature, by the commissioner only to persons determined by
the commissioner to have been damaged by the failure to pay wages and
penalties and other related damages by any employer, to ensure the
payment of wages and penalties and other related damages. Any
disbursed funds subsequently recovered by the commissioner shall be
returned to the fund.
(3) The Department of Industrial Relations may establish through
regulation any procedures necessary to carry out the provisions of
this section.
(b) The Car Wash Worker Fund is established in the State Treasury.
Upon appropriation by the Legislature, the remainder of the
registrant's annual registration fee collected pursuant to Section
2059 shall be applied to costs incurred by the commissioner in
administering the provisions of this part and enforcement and
investigation of the car washing and polishing industry.
CHAPTER 3. SUCCESSORSHIP
2066. A successor to any employer that is engaged in car washing
and polishing that owed wages and penalties to the predecessor's
former employee or employees is liable for those wages and penalties
if the successor meets any of the following criteria:
(a) Uses substantially the same facilities or workforce to offer
substantially the same services as the predecessor employer.
(b) Shares in the ownership, management, control of the labor
relations, or interrelations of business operations with the
predecessor employer.
(c) Employs in a managerial capacity any person who directly or
indirectly controlled the wages, hours, or working conditions of the
affected employees of the predecessor employer.
(d) Is an immediate family member of any owner, partner, officer,
or director of the predecessor employer of any person who had a
financial interest in the predecessor employer.
CHAPTER 4. OPERATION
2067. This part shall remain in effect only until January 1,
2007, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2007, deletes or extends
that date.
SEC. 3. It is the intent of the Legislature to instruct the Labor
Commissioner, prior to January 1, 2007, to study and report to the
Legislature on the status of labor law violations and enforcement in
the car washing and polishing industry.