BILL NUMBER: SB 1809	CHAPTERED
	BILL TEXT

	CHAPTER  221
	FILED WITH SECRETARY OF STATE  AUGUST 11, 2004
	APPROVED BY GOVERNOR  AUGUST 11, 2004
	PASSED THE SENATE  JULY 29, 2004
	PASSED THE ASSEMBLY  JULY 28, 2004
	AMENDED IN ASSEMBLY  JULY 27, 2004
	AMENDED IN SENATE  MAY 26, 2004
	AMENDED IN SENATE  MAY 20, 2004
	AMENDED IN SENATE  MAY 11, 2004
	AMENDED IN SENATE  MAY 4, 2004
	AMENDED IN SENATE  APRIL 12, 2004

INTRODUCED BY   Senator Dunn

                        FEBRUARY 20, 2004

   An act to amend Sections 98.6 and 2699 of, to add Sections 2699.3
and 2699.5 to, and to repeal Section 431 of, the Labor Code, relating
to private employment, making an appropriation therefor, and
declaring the urgency thereof, to take effect immediately.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 1809, Dunn.  Labor Code Private Attorneys General Act of 2004.
   (1) Existing law allows aggrieved employees to bring civil actions
to recover penalties for violations of the Labor Code if the Labor
and Workforce Development Agency or its departments, divisions,
commissions, boards, agencies, or employees do not do so.  The
penalties collected in these actions are 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 are distributed 50% to the General Fund
and 50% to the agency.  In addition, existing law provides that the
aggrieved employee is authorized to recover attorney's fees and costs
and, in some cases, penalties.
   This bill would redistribute these penalties, so that 75% is
distributed to the agency to be continuously appropriated for
purposes of enforcement and education and 25% to the aggrieved
employee, except that if the person does not employ one or more
persons, 100% of the penalties are distributed to the agency by
continuous appropriation.
   This bill would provide that an aggrieved employee may recover
these penalties only after complying with specified procedural and
administrative requirements and providing specified written notice to
the agency and to the employer.
   This bill would authorize a court, in any action by an aggrieved
employee seeking recovery of a civil penalty pursuant to the act, to
award a lesser amount than the maximum civil penalty amount specified
by the underlying applicable statute and would require a court to
review and authorize any settlement.  The bill would provide that a
civil penalty for any violation of a posting or notice requirement of
the Labor Code, other than a requirement relating to mandatory
payroll or workplace injuries, may be recovered only by the agency or
its subdivisions.  The bill would provide that these provisions are
retroactive to January 1, 2004.
   The bill would require the Joint Committee on Boards, Commissions,
and Consumer Protection, in consultation with the standing
committees of the Legislature with jurisdiction over employment
matters, to review certain functions created by this bill.
   The bill would appropriate $150,000 from the General Fund to the
agency for the purpose of implementing these provisions.
   (2) Existing provisions prohibit an employer from discriminating
against an employee because the employee has specified existing
rights.  This bill would include among those protected rights the
bringing of an action to collect penalties for the violation of labor
laws pursuant to the provisions described in (1) above.
   (3) Existing law requires an employer to file in the office of the
Director of Labor Standards Enforcement a copy of any application
for employment that the employer requires an applicant to sign.
   This bill would repeal that requirement.
   (4) This bill would declare that it is to take effect immediately
as an urgency statute.
   Appropriation:  yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 98.6 of the Labor Code is amended to read:
   98.6.  (a) No person shall discharge an employee or in any manner
discriminate against any employee or applicant for employment because
the employee or applicant engaged in any conduct delineated in this
chapter, including the conduct described in subdivision (k) of
Section 96, and Chapter 5 (commencing with Section 1101) of Part 3 of
Division 2, or because the employee or applicant for employment has
filed a bona fide complaint or claim or instituted or caused to be
instituted any proceeding under or relating to his or her rights,
which are under the jurisdiction of the Labor Commissioner, or
because the employee has initiated any action or notice pursuant to
Section 2699, or has testified or is about to testify in any such
proceeding or because of the exercise by the employee or applicant
for employment on behalf of himself, herself, or others of any rights
afforded him or her.
   (b) Any employee who is discharged, threatened with discharge,
demoted, suspended, or in any other manner discriminated against in
the terms and conditions of his or her employment because the
employee engaged in any conduct delineated in this chapter, including
the conduct described in subdivision (k) of Section 96, and Chapter
5 (commencing with Section 1101) of Part 3 of Division 2, or because
the employee has made a bona fide complaint or claim to the division
pursuant to this part, or because the employee has initiated any
action or notice pursuant to Section 2699 shall be entitled to
reinstatement and reimbursement for lost wages and work benefits
caused by such acts of the employer.  Any employer who willfully
refuses to hire, promote, or otherwise restore an employee or former
employee who has been determined to be eligible for such rehiring or
promotion by a grievance procedure, arbitration, or hearing
authorized by law, is guilty of a misdemeanor.
   (c) (1) Any applicant for employment who is refused employment,
who is not selected for a training program leading to employment, or
who in any other manner is discriminated against in the terms and
conditions of any offer of employment because the applicant engaged
in any conduct delineated in this chapter, including the conduct
described in subdivision (k) of Section 96, and Chapter 5 (commencing
with Section 1101) of Part 3 of Division 2, or because the applicant
has made a bona fide complaint or claim to the division pursuant to
this part, or because the employee has initiated any action or notice
pursuant to Section 2699 shall be entitled to employment and
reimbursement for lost wages and work benefits caused by the acts of
the prospective employer.
   (2) This subdivision shall not be construed to invalidate any
collective bargaining agreement that requires an applicant for a
position that is subject to the collective bargaining agreement to
sign a contract that protects either or both of the following as
specified in paragraphs (A) and (B), nor shall this subdivision be
construed to invalidate any employer requirement of an applicant for
a position that is not subject to a collective bargaining agreement
to sign an employment contract that protects either or both of the
following:
   (A) An employer against any conduct that is actually in direct
conflict with the essential enterprise-related interests of the
employer and where breach of that contract would actually constitute
a material and substantial disruption of the employer's operation.
   (B) A firefighter against any disease that is presumed to arise in
the course and scope of employment, by limiting his or her
consumption of tobacco products on and off the job.
   (d) The provisions of this section creating new actions or
remedies that are effective on January 1, 2002, to employees or
applicants for employment do not apply to any state or local law
enforcement agency, any religious association or corporation
specified in subdivision (d) of Section 12926 of the Government Code,
except as provided in Section 12926.2 of the Government Code, or any
person described in Section 1070 of the Evidence Code.
  SEC. 2.  Section 431 of the Labor Code is repealed.
  SEC. 3.  Section 2699 of the Labor Code is amended to read:
   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
pursuant to the procedures specified in Section 2699.3.
   (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, "cure" means that the employer
abates each violation alleged by any aggrieved employee, the employer
is in compliance with the underlying statutes as specified in the
notice required by this part, and any aggrieved employee is made
whole.
   (e) (1) 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.
   (2) In any action by an aggrieved employee seeking recovery of a
civil penalty available under subdivision (a) or (f), a court may
award a lesser amount than the maximum civil penalty amount specified
by this part if, based on the facts and circumstances of the
particular case, to do otherwise would result in an award that is
unjust, arbitrary and oppressive, or confiscatory.
   (f) 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.
   (g) (1) Except as provided in paragraph (2), an aggrieved employee
may recover the civil penalty described in subdivision  (f) in a
civil action pursuant to the procedures specified in Section 2699.3
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 part shall operate to limit an employee's right to pursue or
recover other remedies available under state or federal law, either
separately or concurrently with an action taken under this part.
   (2) No action shall be brought under this part for any violation
of a posting, notice, agency reporting, or filing requirement of this
code, except where the filing or reporting requirement involves
mandatory payroll or workplace injury reporting.
   (h) No action may be  brought 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 within the timeframes set forth in Section
2699.3 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.
   (i) Except as provided in subdivision  (j), civil penalties
recovered by aggrieved employees shall be distributed as follows:  75
percent to the Labor and Workforce Development Agency for
enforcement of labor laws and education of employers and employees
about their rights and responsibilities under this code, to be
continuously appropriated to supplement and not supplant the funding
to the agency for those purposes; and 25 percent to the aggrieved
employees.
   (j) Civil penalties recovered under paragraph (1) of subdivision
(f) shall be distributed to the Labor and Workforce Development
Agency  for enforcement of labor laws and education of employers and
employees about their rights and responsibilities under this code, to
be continuously appropriated to supplement and not supplant the
funding to the agency for those purposes.
   (k) 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.
   (l) The superior court shall review and approve any penalties
sought as part of a proposed settlement agreement pursuant to this
part.
   (m) This section shall not apply to the recovery of administrative
and civil penalties in connection with the workers' compensation law
as contained in Division 1 (commencing with Section 50) and Division
4 (commencing with Section 3200), including, but not limited to,
Sections 129.5 and 132a.
   (n) The agency or any of its departments, divisions, commissions,
boards, or agencies may promulgate regulations to implement the
provisions of this part.
  SEC. 4.  Section 2699.3 is added to the Labor Code, to read:
   2699.3.  (a) A civil action by an aggrieved employee pursuant to
subdivision (a) or (f) of Section 2699 alleging a violation of any
provision listed in Section 2699.5 shall commence only after the
following requirements have been met:
   (1) The aggrieved employee or representative shall give written
notice by certified mail to the Labor and Workforce Development
Agency and the employer of the specific provisions of this code
alleged to have been violated, including the facts and theories to
support the alleged violation.
   (2) (A) The agency shall notify the employer and the aggrieved
employee or representative by certified mail that it does not intend
to investigate the alleged violation within 30 calendar days of the
postmark date of the notice received pursuant to paragraph (1).  Upon
receipt of that notice or if no notice is provided within 33
calendar days of the postmark date of the notice given pursuant to
paragraph (1), the aggrieved employee may commence a civil action
pursuant to Section 2699.
   (B) If the agency intends to investigate the alleged violation, it
shall notify the employer and the aggrieved employee or
representative by certified mail of its decision within 33 calendar
days of the postmark date of the notice received pursuant to
paragraph (1).  Within 120 calendar days of that decision, the agency
may investigate the alleged violation and issue any appropriate
citation.  If the agency determines that no citation will be issued,
it shall notify the employer and aggrieved employee of that decision
within five business days thereof by certified mail.  Upon receipt of
that notice or if no citation is issued by the agency within the
158-day period prescribed by subparagraph (A) and this subparagraph
or if the agency fails to provide timely or any notification, the
aggrieved employee may commence a civil action pursuant to Section
2699.
   (C) Notwithstanding any other provision of law, a plaintiff may as
a matter of right amend an existing complaint to add a cause of
action arising under this part at any time within 60 days of the time
periods specified in this part.
   (b) A civil action by an aggrieved employee pursuant to
subdivision (a) or (f) of Section 2699 alleging a violation of any
provision of Division 5 (commencing with Section 6300) other than
those listed in Section 2699.5 shall commence only after the
following requirements have been met:
   (1) The aggrieved employee or representative shall give notice by
certified mail to the Division of Occupational Safety and Health and
the employer, with a copy to the Labor and Workforce Development
Agency, of the specific provisions of Division 5 (commencing with
Section 6300) alleged to have been violated, including the facts and
theories to support the alleged violation.
   (2) (A) The division shall inspect or investigate the alleged
violation pursuant to the procedures specified in Division 5
(commencing with Section 6300).
   (i) If the division issues a citation, the employee may not
commence an action pursuant to Section 2699.  The division shall
notify the aggrieved employee and employer in writing within 14
calendar days of certifying that the employer has corrected the
violation.
   (ii) If by the end of the period for inspection or investigation
provided for in Section 6317, the division fails to issue a citation
and the aggrieved employee disputes that decision, the employee may
challenge that decision in the superior court.  In such an action,
the superior court shall follow precedents of the Occupational Safety
and Health Appeals Board.  If the court finds that the division
should have issued a citation and orders the division to issue a
citation, then the aggrieved employee may not commence a civil action
pursuant to Section 2699.
   (iii) A complaint in superior court alleging a violation of
Division 5 (commencing with Section 6300) other than those listed in
Section 2699.5 shall include therewith a copy of the notice of
violation provided to the division and employer pursuant to paragraph
(1).
   (iv) The superior court shall not dismiss the action for
nonmaterial differences in facts or theories between those contained
in the notice of violation provided to the division and employer
pursuant to paragraph (1) and the complaint filed with the court.
   (B) If the division fails to inspect or investigate the alleged
violation as provided by Section 6309, the provisions of subdivision
(c) shall apply to the determination of the alleged violation.
   (3) (A) Nothing in this subdivision shall be construed to alter
the authority of the division to permit long-term abatement periods
or to enter into memoranda of understanding or joint agreements with
employers in the case of long-term abatement issues.
   (B) Nothing in this subdivision shall be construed to authorize an
employee to file a notice or to commence a civil action pursuant to
Section 2699 during the period that an employer has voluntarily
entered into consultation with the division to ameliorate a condition
in that particular worksite.
   (C) An employer who has been provided notice pursuant to this
section may not then enter into consultation with the division in
order to avoid an action under this section.
   (4) The superior court shall review and approve any proposed
settlement of alleged violations of the provisions of Division 5
(commencing with Section 6300) to ensure that the settlement
provisions are at least as effective as the protections or remedies
provided by state and federal law or regulation for the alleged
violation.  The provisions of the settlement relating to health and
safety laws shall be submitted to the division at the same time that
they are submitted to the court.  This requirement shall be construed
to authorize and permit the division to comment on those settlement
provisions, and the court shall grant the division's commentary the
appropriate weight.
   (c) A civil action by an aggrieved employee pursuant to
subdivision (a) or (f) of Section 2699 alleging a violation of any
provision other than those listed in Section 2699.5 or Division 5
(commencing with Section 6300) shall commence only after the
following requirements have been met:
   (1) The aggrieved employee or representative shall give written
notice by certified mail to the Labor and Workforce Development
Agency and the employer of the specific provisions of this code
alleged to have been violated, including the facts and theories to
support the alleged violation.
   (2) (A) The employer may cure the alleged violation within 33
calendar days of the postmark date of the notice.  The employer shall
give written notice by certified mail within that period of time to
the aggrieved employee or representative and the agency if the
alleged violation is cured, including a description of actions taken,
and no civil action pursuant to Section 2699 may commence.  If the
alleged violation is not cured within the 33-day period, the employee
may commence a civil action pursuant to Section 2699.
   (B) No employer may avail himself or herself of the notice and
cure provisions of this subdivision more than three times in a
12-month period for the same violation or violations contained in the
notice, regardless of the location of the worksite.
   (3) If the aggrieved employee disputes that the alleged violation
has been cured, the aggrieved employee or representative shall
provide written notice by certified mail, including specified grounds
to support that dispute, to the employer and the agency.  Within 17
calendar days of the postmark date of that notice, the agency shall
review the actions taken by the employer to cure the alleged
violation, and provide written notice of its decision by certified
mail to the aggrieved employee and the employer.  The agency may
grant the employer three additional business days to cure the alleged
violation.  If the agency determines that the alleged violation has
not been cured or if the agency fails to provide timely or any
notification, the employee may proceed with the civil action pursuant
to Section 2699.  If the agency determines that the alleged
violation has been cured, but the employee still disagrees, the
employee may appeal that determination to the superior court.
   (d) The periods specified in this section are not counted as part
of the time limited for the commencement of the civil action to
recover penalties under this part.
  SEC. 5.  Section 2699.5 is added to the Labor Code, to read:
   2699.5.  The provisions of subdivision (a) of Section 2699.3 shall
apply to any alleged violation of the following provisions:
subdivision (k) of Section 96, Section 98.6, 201, 201.5, 201.7, 202,
203, 203.1, 203.5, 204, 204a, 204b, 204.1, 204.2, 205, 205.5, 206,
206.5, 208, 209, 212, subdivision (d) of Section 213, 221, 222,
222.5, 223, 224, subdivision (a) of Section 226, 226.7, 227, 227.3,
230, 230.1, 230.2, 230.3, 230.4, 230.7, 230.8, 231, subdivision (c)
of Section 232, subdivision (c) of Section 232.5, 233, 234, 351, 353,
403, subdivision (b) of Section 404, 432.2, 432.5, 432.7, 435, 450,
510, 511, 512, 513, 551, 552, 601, 602, 603, 604, 750, 751.8, 800,
850, 851, 851.5, 852, 921, 922, 923, 970, 973, 976, 1021, 1021.5,
1025, 1026, 1101, 1102, 1102.5, 1153, subdivision (c) or (d) of
Section 1174, 1194, 1197, 1197.1, 1197.5, 1198, subdivision (b) of
Section 1198.3, 1199, 1199.5, 1290, 1292, 1293, 1293.1, 1294, 1294.1,
1294.5, 1296, 1297, 1298, 1301, 1308, 1308.1, 1308.7, 1309, 1309.5,
1391, 1391.1, 1391.2, 1392, 1683, 1695, subdivision (a) of Section
1695.5, 1695.55, 1695.6, 1695.7, 1695.8, 1695.9, 1696, 1696.5,
1696.6, 1697.1, 1700.25, 1700.26, 1700.31, 1700.32, 1700.40, 1700.47,
paragraph (1), (2), or (3) of subdivision (a) of or subdivision (e)
of Section 1701.4, subdivision (a) of Section 1701.5, 1701.8,
1701.10, 1701.12, 1735, 1771, 1774, 1776, 1777.5, 1811, 1815, 2651,
2673, subdivision (a) of Section 2673.1, 2695.2, 2800, 2801, 2802,
2806, 2810, subdivision (b) of Section 2929, 3095, 6310, 6311, or
6399.7.
  SEC. 6.  (a) The Legislature finds and declares that, as enunciated
in long-standing judicial precedent, its inherent authority to
create causes of action or remedies necessarily includes the
authority to abolish them.  Therefore, a plaintiff seeking recovery
upon a legislatively created cause of action runs the risk that the
Legislature may repeal or alter that cause during the pendency of the
claim.  Thus, the Legislature further finds and declares that the
alteration of the right to recover civil penalties for violations of
the Labor Code made by this act may be applied retroactively to any
applicable pending proceeding without depriving any person of a
substantive right without due process of law.
   (b) (1) The provisions of paragraph (2) of subdivision (g) of
Section 2699 of the Labor Code shall apply retroactively to January
1, 2004, the effective date of Chapter 906 of the Statutes of 2003,
and shall affect all applicable pending proceedings.
   (2) The provisions of subdivision (l) of Section 2699 of the Labor
Code shall apply retroactively to January 1, 2004, the effective
date of Chapter 906 of the Statutes of 2003, and shall affect all
applicable pending proceedings.
  SEC. 7.  The provisions of this act are severable.  If any
provision of this act or its application is held invalid, that
invalidity shall not affect other provisions or applications that can
be given effect without the invalid provision or application.
  SEC. 8.  Notwithstanding any other provision of law, the provisions
of Section 5 of this act relating to the duties and functions of the
Division of Occupational Safety and Health shall be subject to
review by the Joint Committee on Boards, Commissions, and Consumer
Protection pursuant to Chapter 2 (commencing with Section 474) of
Division 1.2 of the Business and Professions Code in consultation
with the Senate Committee on Labor and Industrial Relations and the
Assembly Committee on Labor and Employment.  The first review shall
be completed no later than three years from the effective date of
this act.
  SEC. 9.  There is appropriated from the General Fund one hundred
fifty thousand dollars ($150,000) to the Labor and Workforce
Development Agency for the purposes of implementing the purposes of
this act.
  SEC. 10.  This act is an urgency statute necessary for the
immediate preservation of the public peace, health, or safety within
the meaning of Article IV of the Constitution and shall go into
immediate effect.  The facts constituting the necessity are:
   To provide relief to some employers who may be adversely affected
by frivolous lawsuits brought pursuant to the Labor Code Private
Attorneys General Act of 2004 and to provide meaningful remedies to
employees suffering from egregious violations of the Labor Code at
the earliest possible time, it is necessary for this act to take
effect immediately.