INTRODUCED BY   Assembly Member Roger Hernández

                        FEBRUARY 15, 2011

   An act to amend Section 98 of the Labor Code, relating to the
Labor Commissioner.


   AB 514, as introduced, Roger Hernández. Employment: Labor
Commissioner: hearings.
   Existing law authorizes the Labor Commissioner to investigate
employee complaints and hold hearings on those complaints, including
complaints regarding payroll checks or drafts returned unpaid, as
specified. Existing law specifies the procedures to be used by the
Labor Commissioner when conducting those hearings.
   This bill would make a nonsubstantive change to that provision of
existing law.
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


  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 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
   It is the intent of the Legislature that hearings held pursuant to
this section be conducted in an informal setting preserving the
 right   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 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.