BILL NUMBER: AB 240	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Bonilla

                        FEBRUARY 3, 2011

   An act to amend Sections 98 and 1194.2 of the Labor Code, relating
to employment.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 240, as introduced, Bonilla. Compensation recovery actions:
liquidated damages.
   Existing law authorizes the Labor Commissioner, who is the Chief
of the Division of Labor Standards Enforcement, to investigate
employee complaints and to provide for a hearing in any action to
recover wages, penalties, and other demands for compensation properly
before the commissioner or the division and to determine all matters
arising under his or her jurisdiction.
   Existing law permits an employee to recover liquidated damages in
a court action alleging payment of less than the state minimum wage.
   This bill would permit an employee to recover liquidated damages
pursuant to a complaint brought before the Labor Commissioner
alleging payment of less than the state minimum wage.
   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 98 of the Labor Code is amended to read:
   98.  (a) The Labor Commissioner  shall have the authority
  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  , including liquidated damages if the complaint
alleges payment of a wage less than the minimum wage fixed by an
  order of the Industrial Welfare Commission,  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 
 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 the filing of the complaint, the Labor Commissioner shall notify
the parties as to whether a hearing will be held, 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) (1) 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.
   (2) 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, if 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, if it can be shown that proper service was made on the
defendant or his or her agent.
  SEC. 2.  Section 1194.2 of the Labor Code is amended to read:
   1194.2.  (a) In any action under Section  98,  1193.6
 ,  or  Section  1194 to recover wages
because of the payment of a wage less than the minimum wage fixed by
an order of the commission, an employee shall be entitled to recover
liquidated damages in an amount equal to the wages unlawfully unpaid
and interest thereon. Nothing in this subdivision shall be construed
to authorize the recovery of liquidated damages for failure to pay
overtime compensation.
   (b) Notwithstanding subdivision (a), if the employer demonstrates
to the satisfaction of the court  or the Labor Commissioner 
that the act or omission giving rise to the action was in good faith
and that the employer had reasonable grounds for believing that the
act or omission was not a violation of any provision of the Labor
Code relating to minimum wage, or an order of the commission, the
court  or the Labor Commissioner  may,  in its
  as a matter of  discretion, refuse to award
liquidated damages or award any amount of liquidated damages not
exceeding the amount specified in subdivision (a).
   (c) This section  applies  only  shall apply
 to civil actions commenced on or after January 1, 1992.