BILL NUMBER: AB 243 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 29, 2011
AMENDED IN ASSEMBLY APRIL 4, 2011
INTRODUCED BY Assembly Member Alejo
( Coauthor: Assembly Member
Davis )
FEBRUARY 3, 2011
An act to amend Section 226 of the Labor Code, relating to
employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 243, as amended, Alejo. Labor contractors.
Existing law requires an employer to furnish each employee with an
accurate itemized statement showing, among other things, the name
and address of the legal entity that is the employer. Existing law
provides that a knowing and intentional violation of this provision
is a misdemeanor.
This bill would require an employer who is a farm labor
contractor, as defined, to disclose in the itemized statement the
name and address of the legal entity that secured the employer's
services.
This bill would incorporate additional changes to Section 226 of
the Labor Code proposed by AB 469, that would become operative only
if AB 469 and this bill are both enacted, both bills become effective
on or before January 1, 2012, and this bill is enacted last.
Because a willful violation of the bill's provisions would be a
crime, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
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 separately when wages are paid by personal check or cash,
an accurate itemized statement in writing showing (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 and, if the employer is a farm labor
contractor, as defined in subdivision (b) of Section 1682, the name
and address of the legal entity that secured the services of the
employer, and (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 payment 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 records pertaining to their employment, upon
reasonable request to the employer. The employer may take reasonable
steps to ensure 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 any 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) The listing by an employer of the name and address of the
legal entity that secured the services of the employer in the
itemized statement required by subdivision (a) shall not create any
liability on the part of that legal entity.
(h) 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.
(i) 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. 1.5. 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 separately when wages are paid by personal check or cash,
an accurate itemized statement in writing showing (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 his or her social security
number, except that by January 1, 2008, only the last four
digits of his or her social security number or an employee
identification number other than a social security number
may be shown on the itemized statement , (8) the name and
address of the legal entity that is the employer and, if the
employer is a farm labor contractor, as defined in subdivision (b) of
Section 1682, the name and address of the legal entity that secured
the services of the employer, and (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 payment 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 and the 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 their
employment , upon reasonable request to the employer. The
employer may take reasonable steps to assure
ensure 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 any 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) The listing by an employer of the name and address of the
legal entity that secured the services of the employer in the
itemized statement required by subdivision (a) shall not create any
liability on the part of that legal entity.
(g)
(h) 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)
(i) 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 , by January 1, 2008, 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 1.5 of this bill incorporates
amendments to Section 226 of the Labor Code proposed by both this
bill and Assembly Bill 469. It shall only become operative if (1)
both bills are enacted and become effective on or before January 1,
2012, (2) each bill amends Section 226 of the Labor Code, and (3)
this bill is enacted after Assembly Bill 469, in which case Section 1
of this bill shall not become operative.
SEC. 2. SEC. 3. No reimbursement is
required by this act pursuant to Section 6 of Article XIII B of the
California Constitution because the only costs that may be incurred
by a local agency or school district will be incurred because this
act creates a new crime or infraction, eliminates a crime or
infraction, or changes the penalty for a crime or infraction, within
the meaning of Section 17556 of the Government Code, or changes the
definition of a crime within the meaning of Section 6 of Article XIII
B of the California Constitution.