BILL NUMBER: SB 404 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 19, 2009
AMENDED IN SENATE APRIL 14, 2009
INTRODUCED BY Senator Benoit
FEBRUARY 26, 2009
An act to amend Section 226 of the Labor Code, and to
amend Section 19853 of the Revenue and Taxation Code, relating to
relating to employment.
LEGISLATIVE COUNSEL'S DIGEST
SB 404, as amended, Benoit. Employment: information for employees.
Existing law requires an employer to provide its employees with
specified information regarding their wages either semimonthly or at
the time of each wage payment. Under existing law, an
employer is also required, in connection with the annual wage
statement, to notify all of its employees that they may be eligible
for the earned income tax credit (EITC).
This bill would clarify that the employer may provide the wage
information either on a detachable part of the payment made to the
employee or on a separate page and would specify that the
employer is not required to include the hours worked by employees who
are exempt from certain overtime requirements. The bill would limit
the EITC notification, requiring the employer to notify only those
employees to whom it pays a gross annual salary of $50,000 or less
.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. 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 on a separate page, an accurate itemized statement in
writing showing the following:
(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 the last four digits of his or
her social security number or an employee identification number other
than a social security number.
(8) The name and address of the legal entity that is the employer.
(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 an 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, to any city, county,
city and county, district, or to any other governmental entity,
except that if the state or a city, county, city and county,
district, or other governmental entity furnishes its employees with a
check, draft, or voucher paying the employee's wages, the state or a
city, county, city and county, district, or other governmental
entity shall use no more than the last four digits of the employee's
social security number or shall use an employee identification number
other than the social security number on the itemized statement
provided with the check, draft, or voucher.
SEC. 2. Section 19853 of the Revenue and
Taxation Code is amended to read:
19853. (a) An employer shall notify all employees to whom the
employer pays a gross annual salary of fifty thousand dollars
($50,000) or less that they may be eligible for the EITC within one
week before or after, or at the same time, that the employer provides
an annual wage summary, including, but not limited to, a Form W-2 or
a Form 1099, to any employee.
(b) The employer shall provide the notification required by
subdivision (a) by handing directly to the employee or mailing to the
employee's last known address either of the following:
(1) Instructions on how to obtain any notices available from the
Internal Revenue Service for this purpose, including, but not limited
to, the IRS Notice 797 and Form W-5, or any successor notice or
form.
(2) Any notice created by the employer, as long as it contains
substantially the same language as the notice described in paragraph
(1) or in Section 19854.
(c) The employer shall not satisfy the notification required by
subdivision (a) by posting a notice on an employee bulletin board or
sending it through office mail. However, these methods of
notification are encouraged to help inform all employees of the EITC.
(d) Every employer shall process, in accordance with federal law,
Form W-5 for advance payments of the EITC, upon the request of the
employee.