BILL NUMBER: AB 1311 CHAPTERED
BILL TEXT
CHAPTER 405
FILED WITH SECRETARY OF STATE SEPTEMBER 29, 2005
APPROVED BY GOVERNOR SEPTEMBER 29, 2005
PASSED THE ASSEMBLY SEPTEMBER 7, 2005
PASSED THE SENATE SEPTEMBER 6, 2005
AMENDED IN SENATE AUGUST 29, 2005
AMENDED IN SENATE AUGUST 25, 2005
AMENDED IN SENATE JUNE 27, 2005
INTRODUCED BY Committee on Labor and Employment (Koretz (Chair),
Chan, Chu, Klehs, Laird, and Leno)
FEBRUARY 22, 2005
An act to amend Sections 98 and 98.1 of the Labor Code, relating
to labor standards.
LEGISLATIVE COUNSEL'S DIGEST
AB 1311, Committee on Labor and Employment Labor standards:
enforcement hearings.
Existing law authorizes the Labor Commissioner to investigate
employee complaints and to provide for a hearing in any action to
recover wages, penalties, and other demands for compensation and to
determine all matters arising under his or her jurisdiction. Existing
law requires that, when one of these hearings is set, a copy of the
complaint, together with a notice of time and place of the hearing,
shall be served on all parties, personally or by certified mail.
Existing law provides that, following an order, decision, or award in
one of these hearings, the commissioner shall serve a copy of the
decision on the parties personally or by first-class mail. Existing
law provides a separate set of rules for valid service of a summons
in a civil action, including a rule permitting service by leaving a
copy of the summons and complaint at the home or office of the person
being served, as specified, and thereafter mailing a copy of the
summons and complaint to the person at the place where a copy of the
summons and complaint were left.
This bill would additionally permit the service of the complaint,
notice, or decision relating to one of these labor hearings to be
served as provided in the rule permitting service of a summons in a
civil action by leaving a copy at the home or office of the person
being served, and thereafter mailing a copy to the person at the
place where a copy was left.
This bill would incorporate additional changes in Section 98 of
the Labor Code proposed by AB 879 that would become operative only if
AB 879 and this bill are both chaptered and become effective on or
before January 1, 2006, and this bill is chaptered last.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 98 of the Labor Code is amended to read:
98. (a) The Labor Commissioner shall have the authority to
investigate employee complaints. The Labor Commissioner may provide
for a hearing in any action to recover wages, penalties, and other
demands for compensation properly before the division or the Labor
Commissioner including orders of the Industrial Welfare Commission,
and shall determine all matters arising under his or her
jurisdiction. It shall be within the jurisdiction of the Labor
Commissioner to accept and determine claims from holders of payroll
checks or payroll drafts returned unpaid because of insufficient
funds, if, after a diligent search, the holder is unable to return
the dishonored check or draft to the payee and recover the sums paid
out. Within 30 days of filing of the complaint, the Labor
Commissioner shall notify the parties as to whether a hearing will be
held, or whether action will be taken in accordance with Section
98.3, or whether no further action will be taken on the complaint. If
the determination is made by the Labor Commissioner to hold a
hearing, the hearing shall be held within 90 days of the date of that
determination. However, the Labor Commissioner may postpone or grant
additional time before setting a hearing if the Labor Commissioner
finds that it would lead to an equitable and just resolution of the
dispute.
It is the intent of the Legislature that hearings held pursuant to
this section be conducted in an informal setting preserving the
right of the parties.
(b) When a hearing is set, a copy of the complaint, which shall
include the amount of compensation requested, together with a notice
of time and place of the hearing, shall be served on all parties,
personally or by certified mail, or in the manner specified in
Section 415.20 of the Code of Civil Procedure.
(c) Within 10 days after service of the notice and the complaint,
a defendant may file an answer with the Labor Commissioner in any
form as the Labor Commissioner may prescribe, setting forth the
particulars in which the complaint is inaccurate or incomplete and
the facts upon which the defendant intends to rely.
(d) No pleading other than the complaint and answer of the
defendant or defendants shall be required. Both shall be in writing
and shall conform to the form and the rules of practice and procedure
adopted by the Labor Commissioner.
(e) Evidence on matters not pleaded in the answer shall be allowed
only on terms and conditions the Labor Commissioner shall impose. In
all these cases, the claimant shall be entitled to a continuance for
purposes of review of the new evidence.
(f) If the defendant fails to appear or answer within the time
allowed under this chapter, no default shall be taken against him or
her, but the Labor Commissioner shall hear the evidence offered and
shall issue an order, decision, or award in accordance with the
evidence. A defendant failing to appear or answer, or subsequently
contending to be aggrieved in any manner by want of notice of the
pendency of the proceedings, may apply to the Labor Commissioner for
relief in accordance with Section 473 of the Code of Civil Procedure.
The Labor Commissioner may afford this relief. No right to relief,
including the claim that the findings or award of the Labor
Commissioner or judgment entered thereon are void upon their face,
shall accrue to the defendant in any court unless prior application
is made to the Labor Commissioner in accordance with this chapter.
(g) All hearings conducted pursuant to this chapter are governed
by the division and by the rules of practice and procedure adopted by
the Labor Commissioner.
(h) Whenever a claim is filed under this chapter against a person
operating or doing business under a fictitious business name, as
defined in Section 17900 of the Business and Professions Code, which
relates to the person's business, the division shall inquire at the
time of the hearing whether the name of the person is the legal name
under which the business or person has been licensed, registered,
incorporated, or otherwise authorized to do business.
The division may amend an order, decision, or award to conform to
the legal name of the business or the person who is the defendant to
a wage claim, provided it can be shown that proper service was made
on the defendant or his or her agent, unless a judgment had been
entered on the order, decision, or award pursuant to subdivision (d)
of Section 98.2. The Labor Commissioner may apply to the clerk of
the superior court to amend a judgment that has been issued pursuant
to a final order, decision, or award to conform to the legal name of
the defendant, provided it can be shown that proper service was made
on the defendant or his or her agent.
SEC. 1.5. Section 98 of the Labor Code is amended to read:
98. (a) The Labor Commissioner is authorized to investigate
employee complaints. The Labor Commissioner may provide for a hearing
in any action to recover wages, penalties, and other demands for
compensation properly before the division or the Labor Commissioner
including orders of the Industrial Welfare Commission, and shall
determine all matters arising under his or her jurisdiction. It is
within the jurisdiction of the Labor Commissioner to accept and
determine claims from holders of payroll checks or payroll drafts
returned unpaid because of insufficient funds, if, after a diligent
search, the holder is unable to return the dishonored check or draft
to the payee and recover the sums paid out. Within 30 days of filing
of the complaint, the Labor Commissioner shall notify the parties as
to whether a hearing will be held, or whether action will be taken in
accordance with Section 98.3, or whether no further action will be
taken on the complaint. If the determination is made by the Labor
Commissioner to hold a hearing, the hearing shall be held within 90
days of the date of that determination. However, the Labor
Commissioner may postpone or grant additional time before setting a
hearing if the Labor Commissioner finds that it would lead to an
equitable and just resolution of the dispute.
It is the intent of the Legislature that hearings held pursuant to
this section be conducted in an informal setting preserving the
rights of the parties.
(b) When a hearing is set, a copy of the complaint, which shall
include the amount of compensation requested, together with a notice
of time and place of the hearing, shall be served on all parties,
personally or by certified mail, or in the manner specified in
Section 415.20 of the Code of Civil Procedure.
(c) Within 10 days after service of the notice and the complaint,
a defendant may file an answer with the Labor Commissioner in any
form the Labor Commissioner prescribes, setting forth the particulars
in which the complaint is inaccurate or incomplete and the facts
upon which the defendant intends to rely.
(d) No pleading other than the complaint and answer of the
defendant or defendants shall be required. Both shall be in writing
and shall conform to the form and the rules of practice and procedure
adopted by the Labor Commissioner.
(e) Evidence on matters not pleaded in the answer shall be allowed
only on terms and conditions the Labor Commissioner shall impose. In
all these cases, the claimant shall be entitled to a continuance for
purposes of review of the new evidence.
(f) If the defendant fails to appear or answer within the time
allowed under this chapter, no default shall be taken against him or
her, but the Labor Commissioner shall hear the evidence offered and
shall issue an order, decision, or award in accordance with the
evidence. A defendant failing to appear or answer, or subsequently
contending to be aggrieved in any manner by want of notice of the
pendency of the proceedings, may apply to the Labor Commissioner for
relief in accordance with Section 473 of the Code of Civil Procedure.
The Labor Commissioner may afford this relief. No right to relief,
including the claim that the findings or award of the Labor
Commissioner or judgment entered thereon is void upon its face, shall
accrue to the defendant in any court unless prior application is
made to the Labor Commissioner in accordance with this chapter.
(g) All hearings conducted pursuant to this chapter are governed
by the division and by the rules of practice and procedure adopted by
the Labor Commissioner.
(h) Whenever a claim is filed under this chapter against a person
operating or doing business under a fictitious business name, as
defined in Section 17900 of the Business and Professions Code, which
relates to the person's business, the division shall inquire at the
time of the hearing whether the name of the person is the legal name
under which the business or person has been licensed, registered,
incorporated, or otherwise authorized to do business.
The division may amend an order, decision, or award to conform to
the legal name of the business or the person who is the defendant to
a wage claim, provided it can be shown that proper service was made
on the defendant or his or her agent, unless a judgment had been
entered on the order, decision, or award pursuant to subdivision (e)
of Section 98.2. The Labor Commissioner may apply to the clerk of
the superior court to amend a judgment that has been issued pursuant
to a final order, decision, or award to conform to the legal name of
the defendant, provided it can be shown that proper service was made
on the defendant or his or her agent.
SEC. 2. Section 98.1 of the Labor Code is amended to read:
98.1. (a) Within 15 days after the hearing is concluded, the
Labor Commissioner shall file in the office of the division a copy of
the order, decision, or award. The order, decision, or award shall
include a summary of the hearing and the reasons for the decision.
Upon filing of the order, decision, or award, the Labor Commissioner
shall serve a copy of the decision personally, by first-class mail,
or in the manner specified in Section 415.20 of the Code of Civil
Procedure on the parties. The notice shall also advise the parties of
their right to appeal the decision or award and further advise the
parties that failure to do so within the period prescribed by this
chapter shall result in the decision or award becoming final and
enforceable as a judgment by the superior court.
(b) For the purpose of this section, an award shall include any
sums found owing, damages proved, and any penalties awarded pursuant
to this code.
(c) All awards granted pursuant to a hearing under this chapter
shall accrue interest on all due and unpaid wages at the same rate as
prescribed by subdivision (b) of Section 3289 of the Civil Code. The
interest shall accrue until the wages are paid from the date that
the wages were due and payable as provided in Part 1 (commencing with
Section 200) of Division 2.
SEC. 3. Section 1.5 of this bill incorporates amendments to
Section 98 of the Labor Code proposed by both this bill and AB 879.
It shall only become operative if (1) both bills are enacted and
become effective on or before January 1, 2006, (2) each bill amends
Section 98 of the Labor Code, and (3) this bill is enacted after AB
879, in which case Section 1 of this bill shall not become operative.