BILL NUMBER: SB 796 CHAPTERED
BILL TEXT
CHAPTER 906
FILED WITH SECRETARY OF STATE OCTOBER 12, 2003
APPROVED BY GOVERNOR OCTOBER 12, 2003
PASSED THE SENATE SEPTEMBER 12, 2003
PASSED THE ASSEMBLY SEPTEMBER 11, 2003
AMENDED IN ASSEMBLY SEPTEMBER 2, 2003
AMENDED IN ASSEMBLY JULY 16, 2003
AMENDED IN ASSEMBLY JULY 2, 2003
AMENDED IN SENATE MAY 12, 2003
AMENDED IN SENATE MAY 1, 2003
AMENDED IN SENATE APRIL 22, 2003
AMENDED IN SENATE MARCH 26, 2003
INTRODUCED BY Senator Dunn
FEBRUARY 21, 2003
An act to add Part 13 (commencing with Section 2698) to Division 2
of the Labor Code, relating to employment.
LEGISLATIVE COUNSEL'S DIGEST
SB 796, Dunn. Employment.
Under existing law, the Labor and Workforce Development Agency and
its departments, divisions, commissions, boards, agencies, or
employees may assess and collect penalties for violations of the
Labor Code.
This bill would allow aggrieved employees to bring civil actions
to recover these penalties, if the agency or its departments,
divisions, commissions, boards, agencies, or employees do not do so.
The penalties collected in these actions would be distributed 50% to
the General Fund, 25% to the agency for education, to be available
for expenditure upon appropriation by the Legislature, and 25% to the
aggrieved employee, except that if the person does not employ one or
more persons, the penalties would be distributed 50% to the General
Fund and 50% to the agency. In addition, the aggrieved employee
would be authorized to recover attorney's fees and costs and, in some
cases, penalties. For any violation of the code for which no civil
penalty is otherwise established, the bill would establish a civil
penalty, but no penalty is established for any failure to act by the
Labor and Workplace Development Agency, or any of its departments,
divisions, commissions, boards, agencies, or employees.
Existing law provides an exclusive remedy under workers'
compensation for an employer's liability for compensation for an
employee's injury or death arising in the course of employment.
This bill would not affect that exclusive remedy.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) Adequate financing of essential labor law enforcement
functions is necessary to achieve maximum compliance with state labor
laws in the underground economy and to ensure an effective
disincentive for employers to engage in unlawful and anticompetitive
business practices.
(b) Although innovative labor law education programs and
self-policing efforts by industry watchdog groups may have some
success in educating some employers about their obligations under
state labor laws, in other cases the only meaningful deterrent to
unlawful conduct is the vigorous assessment and collection of civil
penalties as provided in the Labor Code.
(c) Staffing levels for state labor law enforcement agencies have,
in general, declined over the last decade and are likely to fail to
keep up with the growth of the labor market in the future.
(d) It is therefore in the public interest to provide that civil
penalties for violations of the Labor Code may also be assessed and
collected by aggrieved employees acting as private attorneys general,
while also ensuring that state labor law enforcement agencies'
enforcement actions have primacy over any private enforcement efforts
undertaken pursuant to this act.
SEC. 2. Part 13 (commencing with Section 2698) is added to
Division 2 of the Labor Code, to read:
PART 13. THE LABOR CODE PRIVATE ATTORNEYS GENERAL ACT OF 2004
2698. This part shall be known and may be cited as the Labor Code
Private Attorneys General Act of 2004.
2699. (a) Notwithstanding any other provision of law, any
provision of this code that provides for a civil penalty to be
assessed and collected by the Labor and Workforce Development Agency
or any of its departments, divisions, commissions, boards, agencies,
or employees, for a violation of this code, may, as an alternative,
be recovered through a civil action brought by an aggrieved employee
on behalf of himself or herself and other current or former
employees.
(b) For purposes of this part, "person" has the same meaning as
defined in Section 18.
(c) For purposes of this part, "aggrieved employee" means any
person who was employed by the alleged violator and against whom one
or more of the alleged violations was committed.
(d) For purposes of this part, whenever the Labor and Workforce
Development Agency, or any of its departments, divisions,
commissions, boards, agencies, or employees has discretion to assess
a civil penalty, a court is authorized to exercise the same
discretion, subject to the same limitations and conditions, to assess
a civil penalty.
(e) For all provisions of this code except those for which a civil
penalty is specifically provided, there is established a civil
penalty for a violation of these provisions, as follows:
(1) If, at the time of the alleged violation, the person does not
employ one or more employees, the civil penalty is five hundred
dollars ($500).
(2) If, at the time of the alleged violation, the person employs
one or more employees, the civil penalty is one hundred dollars
($100) for each aggrieved employee per pay period for the initial
violation and two hundred dollars ($200) for each aggrieved employee
per pay period for each subsequent violation.
(3) If the alleged violation is a failure to act by the Labor and
Workplace Development Agency, or any of its departments, divisions,
commissions, boards, agencies, or employees, there shall be no civil
penalty.
(f) An aggrieved employee may recover the civil penalty described
in subdivision (e) in a civil action filed on behalf of himself or
herself and other current or former employees against whom one or
more of the alleged violations was committed. Any employee who
prevails in any action shall be entitled to an award of reasonable
attorney's fees and costs. Nothing in this section shall operate to
limit an employee's right to pursue other remedies available under
state or federal law, either separately or concurrently with an
action taken under this section.
(g) No action may be maintained under this section by an aggrieved
employee if the agency or any of its departments, divisions,
commissions, boards, agencies, or employees, on the same facts and
theories, cites a person for a violation of the same section or
sections of the Labor Code under which the aggrieved employee is
attempting to recover a civil penalty on behalf of himself or herself
or others or initiates a proceeding pursuant to Section 98.3.
(h) Except as provided in subdivision (i), civil penalties
recovered by aggrieved employees shall be distributed as follows: 50
percent to the General Fund, 25 percent to the Labor and Workforce
Development Agency for education of employers and employees about
their rights and responsibilities under this code, available for
expenditure upon appropriation by the Legislature, and 25 percent to
the aggrieved employees.
(i) Civil penalties recovered under paragraph (1) of subdivision
(e) shall be distributed as follows: 50 percent to the General Fund
and 50 percent to the Labor and Workforce Development Agency
available for expenditure upon appropriation by the Legislature.
(j) Nothing contained in this part is intended to alter or
otherwise affect the exclusive remedy provided by the workers'
compensation provisions of this code for liability against an
employer for the compensation for any injury to or death of an
employee arising out of and in the course of employment.