BILL ANALYSIS Ó
AB 469
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CONCURRENCE IN SENATE AMENDMENTS
AB 469 (Swanson)
As Amended August 29, 2011
Majority vote
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|ASSEMBLY: |50-25|(June 1, 2011) |SENATE: |21-14|(August 31, |
| | | | | |2011) |
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Original Committee Reference: L. & E.
SUMMARY : Makes a number of changes related to "theft" of wages,
employee wage claims and related provisions.
The Senate amendments :
1)Extend the period of time for which the Labor Commissioner (LC)
can collect a final penalty or fee from one year to three years.
2)Specify that a judgment or order is "final" for various purposes
of the bill when the time to appeal has expired and there is no
appeal pending.
3)Eliminate the criminal penalty provisions of the bill related to
the willful failure to pay minimum wage or overtime.
4)Eliminate the requirement that an employer must translate a
specified notice into an employee's primary language and instead
provide that the employer must provide the notice in the
language the employer normally communicates employment-related
information to the employee.
5)Eliminate the requirement that the LC shall translate the notice
template in languages other than English.
6)Specify that the requirement to provide written notice where
there is a change in terms does not apply where:
a) All changes are reflected on a timely wage statement
furnished in accordance with existing law; or,
b) Notice of all changes is provided in another writing
required by law within seven days of the changes.
7)Require the written notice to include the name, address and
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telephone number of the employer's workers' compensation
insurance carrier.
8)Avoid chaptering out conflicts with other bills.
9)Specify that an employer who fails to pay minimum wage shall be
subject to paying restitution to the affected employee.
10)Make other technical and conforming changes.
AS PASSED BY THE ASSEMBLY , this bill:
1)Required an employer, at the time of hiring, to provide each
employee with a written disclosure of specified basic job terms,
including the rate of pay, the regular pay day, and the address
and phone number of the employer.
2)Required the employer to notify employees in writing of any
changes to such terms within seven days of the change.
3)Required the LC to prepare templates for employer use in
complying with the disclosure requirements.
4)Provided that these written disclosure requirements do not apply
to the following:
a) An employee directly employed by the state or any
political subdivision thereof, including any city, county,
city and county, or special district;
b) An employee who is exempt from the payment of overtime
wages by statute or the wage orders of the Industrial Welfare
Commission; or,
c) An employee who is covered by a valid collective
bargaining agreement, as specified.
5)Required any party that has received notice of a claim before
the LC to notify the LC within 10 days of any change in the
party's business or personal address.
6)Extended the time period the LC may require a wage bond from a
previously convicted employer from not more than six months to
not more than two years.
7)Provided that if an order to post a bond remains unsatisfied for
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10 days after the time to appeal has expired, the LC may require
the employer to provide an accounting of assets, as specified.
8)Authorized a court to request a similar accounting of assets, as
specified, in relation to bond requirements of existing law
arising after a second conviction or unsatisfied judgment within
a 10-year period.
9)Extended the time period for which an employer must maintain pay
records from two years to three years.
10)Specified that an employer shall not prohibit an employee from
maintaining a personal record of their own hours worked or
piece-rate units earned.
11)Authorized an employee to recover attorneys' fees and costs
incurred to enforce a court judgment for unpaid wages due.
12)Clarified that notwithstanding any other provision of law, the
Labor Code establishes minimum penalties for the failure to
comply with wage-related statutes and regulations.
13)Established criminal penalties against an employer who
willfully violates provisions of law requirement payment of the
minimum wage or overtime. If the amount of unpaid minimum or
overtime wages is less than $1,000, the bill establishes a
misdemeanor penalty and a fine of between $1,000 and $10,000.
If the amount of unpaid minimum or overtime wages is more than
$1,000, the bill establishes a misdemeanor and fine of between
$10,000 and $20,000.
14)Established similar criminal penalties against an employer who
willfully fails to pay and has the ability to pay a final court
judgment or final order issued by the LC for all wages due to an
employee who has been discharged or quits within 90 days of the
date that the judgment was entered or the order became final.
15)Provided that an employer found guilty of the aforementioned
crimes shall pay restitution to the aggrieved employee in an
amount equal to the amount of unpaid wages.
16)Made other related changes.
FISCAL EFFECT : According to the Senate Appropriations Committee,
pursuant to Senate Rule 28.8, negligible state costs.
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COMMENTS : This bill proposes a number of changes aimed at
preventing or combating the intentional theft of earned wages by
unscrupulous employers.
This bill is co-sponsored by the California Labor Federation,
AFL-CIO and the California Rural Legal Assistance Foundation.
They contend that this bill is a response to widespread wage theft
in California, and draws on anti-wage theft initiatives recently
enacted in other states (e.g., New York, Illinois, Wisconsin and
Washington). This bill adapts a number of these states' new laws
to fit California's unique employment landscape, and proposes
common sense solutions to some significant weaknesses in current
state law.
The sponsors note that there is substantial evidence of widespread
theft of wages in California, particularly in the underground
economy. The sponsors also argue that this bill is needed because
enforcement of California labor laws related to wage violations is
weak and largely ineffective. In 2009, only 216 employers in the
entire state of California were cited by the Division of Labor
Standards Enforcement (DLSE) for violating minimum wage and
overtime laws. DLSE assessed $650,550 in penalties for these
violations but collected only $230,154. During that same year,
DLSE found $22,381,286 in wages due, but recovered only
$13,062,164. When these results are put in the context of the
billions of dollars stolen in the underground economy, it is clear
they are too feeble to constitute a meaningful deterrent.
Finally, the sponsors note that other states and local
jurisdictions facing widespread non-compliance with wage laws have
also acted to strengthen both criminal and civil laws.
Specifically, they indicate that among the states that have
addressed wage theft in 2009-2010 are: New Mexico, where the
state legislature passed a bill granting treble damages to victims
of wage violations; New York, where the Legislature passed a
disclosure law aimed at prevention of wage theft; Maryland, where
the Governor established a task force on workplace fraud; and,
Illinois, which increased criminal penalties for wage violations.
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091
FN: 0001818
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