BILL NUMBER: AB 889 AMENDED BILL TEXT AMENDED IN SENATE JULY 12, 2011 AMENDED IN SENATE JUNE 23, 2011 AMENDED IN ASSEMBLY MAY 27, 2011 AMENDED IN ASSEMBLY MAY 4, 2011 AMENDED IN ASSEMBLY APRIL 6, 2011 INTRODUCED BY Assembly Members Ammiano and V. Manuel Pérez (Coauthors: Assembly Members Allen, Cedillo, Fuentes, Ma, and Monning) (Coauthor: Senator De León) FEBRUARY 17, 2011 An act to amend Sections 226, 3351, 3352, 3551, 3708, and 3715 of, to repeal Section 4156 of, and to add Part 4.5 (commencing with Section 1450) to Division 2 of, the Labor Code, relating to domestic work employees. LEGISLATIVE COUNSEL'S DIGEST AB 889, as amended, Ammiano. Domestic work employees. Existing law regulates the wages, hours, and working conditions of any man, woman, and minor employed in any occupation, trade, or industry, whether compensation is measured by time, piece, or otherwise, except for individuals employed as outside salesmen and individuals participating in specified national service programs. Under existing law, the Industrial Welfare Commission within the Department of Industrial Relations is authorized to adopt rules, regulations, and orders to ensure that employers comply with those provisions of law. This bill would specially regulate the wages, hours, and working conditions of domestic work employees, as defined. Specifically, this bill would, among other things, provide a private right of action for a domestic work employee when those regulations are violated by his or her employer
;and provide an overtime compensation rate for domestic work employees ; and require paid vacation for domestic work employees. This bill would also expressly state that the provisions of Wage Order Number 15 of the Industrial Welfare Commission, with specified exceptions, apply to a domestic work employee, but would provide that these new domestic work provisions shall prevail over protections in that order or any other law that afford less protection to a domestic work employee. 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, this requirement does not apply to employers of persons who engage in specified types of household domestic service. This bill would delete the exclusion for employers of persons who engage in specified types of household domestic service, thereby requiring those employers to provide the above-described information. Existing law requires employers to secure the payment of workers' compensation for injuries incurred by their employees that arise out of and in the course of employment. The failure to secure workers' compensation as required by the workers' compensation law is a misdemeanor. Under existing law, employers of persons who engage in specified types of household domestic service and who work less than a specified number of hours are excluded from that definition of employer and are therefore excluded from the requirement to secure the payment of workers' compensation, as specified. This bill would remove that exclusion and require all domestic work employers, as defined, to secure the payment of workers' compensation and would make conforming changes. By expanding the definition of 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. The Legislature finds and declares all of the following: (a) As recognized by the State of California in Resolution Chapter 119 of the Statutes of 2010, it is the policy of the state to encourage and protect the rights of domestic work employees. (b) California's domestic workers, which includes housekeepers, nannies, and caregivers for children, persons with disabilities, and the elderly, work in private households to care for the health, safety, and well-being of the most important aspects of Californians' lives: their families and homes. (c) Domestic workers play a critical role in California's economy, working to ensure the health and prosperity of California families and freeing others to participate in the workforce, which is increasingly necessary in these difficult economic times. The labor of domestic workers is central to the ongoing prosperity of the state but, despite the value of their work, domestic workers have not received the same protection under state laws as workers in other industries. Most domestic workers labor to support families and children of their own, and more than half are primary income earners, but two-thirds of domestic workers earn low wages or wages below the poverty line. (d) Because domestic workers care for the most important elements of their employers' lives, their families and homes, it is in the interest of employees, employers, and the people of the State of California to ensure that the rights of domestic workers are respected, protected, and enforced. (e) The vast majority of domestic workers are women of color and immigrants and are particularly vulnerable to unlawful employment practices and abuses. Domestic workers usually work alone, behind closed doors, and out of the public eye, leaving them isolated, vulnerable to abuse and exploitation, and unable to advocate collectively for better working conditions. Domestic workers often labor under harsh conditions, work long hours for low wages without benefits or job security, and face termination without notice or severance pay, leaving many suddenly without both a job and a home. In the worst cases, domestic workers are verbally and physically abused or sexually assaulted, forced to sleep in conditions unfit for human habitation, and stripped of their privacy and dignity. (f) Domestic workers are still excluded from the most basic protections afforded the rest of the labor force under state and federal law, including the rights to fair wages, safe and healthy working conditions, workers' compensation, and protection from discriminatory and abusive treatment. The treatment of domestic workers under federal and state laws has historically reflected stereotypical assumptions about the nature of domestic work, specifically that the relationship between employer and "servant" was "personal," rather than commercial, in character, that employment within a household was not "real" productive work, and that women did not work to support their families. (g) Given the limited legal protections historically provided to domestic workers, and bearing in mind the unique conditions and demands of this private, home-based industry, the Legislature, as an exercise of the police power of the State of California for the protection of the public welfare, prosperity, health, safety, and peace of its people, further finds that domestic workers are entitled to industry-specific protections and labor standards that eliminate discriminatory provisions in the labor laws and guarantee domestic workers basic workplace rights to ensure that domestic workers are treated with equality, respect, and dignity. SEC. 2. 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 (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) 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. (e) 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. (f) 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. (g) 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. 3. Part 4.5 (commencing with Section 1450) is added to Division 2 of the Labor Code, to read: PART 4.5. Domestic Work Employees CHAPTER 1. GENERAL PROVISIONS AND DEFINITIONS 1450. This part shall be known and may be cited as the Domestic Work Employee Equality, Fairness, and Dignity Act. 1451. As used in this part, the following definitions apply: (a) "Domestic work" means services related to the care of persons in private households or maintenance of private households or their premises. Domestic work occupations include childcare providers, caregivers of sick, convalescing, or elderly persons, house cleaners, housekeepers, maids, and other household occupations. (b) (1) "Domestic work employee" means an individual who performs domestic work and includes live-in domestic work employees and personal attendants. (2) "Domestic work employee" does not include any of the following: (A) Any person who performs services through the In-Home Supportive Services program under Article 7 (commencing with Section 12300) of Chapter 3 of Part 3 of Division 9 of the Welfare and Institutions Code. (B) Any person who is the parent, grandparent, spouse, sibling, child, or legally adopted child of the domestic work employer. (C) Any person under 18 years of age who is employed as a babysitter for a minor child of the domestic work employer. (D) Any person employed by a licensed health facility, as defined in Section 1250 of the Health and Safety Code. (E) Any person who is employed by, or contracts with, an organization vendored or contracted through a regional center or the State Department of Developmental Services pursuant to the Lanterman Developmental Disabilities Services Act (Division 4.5 (commencing with Section 4500) of the Welfare and Institutions Code) and the California Early Intervention Services Act (Title 14 (commencing with Section 95000) of the Government Code) to provide services and support for persons with developmental disabilities, as defined in Section 4512 of the Welfare and Institutions Code, when funding for those services is provided through the State Department of Developmental Services. (F) Any person who provides child care and who, pursuant to subdivision (d) or (f) of Section 1596.792 of the Health and Safety Code, is exempt from the licensing requirements of Chapters 3.4 (commencing with Section 1596.70), 3.5 (commencing with Section 1596.90), and 3.6 (commencing with Section 1597.30) of Division 2 of the Health and Safety Code, if the parent or guardian of the child to whom child care is provided receives child care and development services pursuant to any program authorized under the Child Care and Development Services Act (Chapter 2 (commencing with Section 8200) of Part 6 of Division 1 of Title 1 of the Education Code) or the California Work Opportunity and Responsibility to Kids Act (Chapter 2 (commencing with Section 11200) of Part 3 of Division 9 of the Welfare and Institutions Code). (c) (1) "Domestic work employer" means a person, including corporate officers or executives, who directly or indirectly, or through an agent or any other person, including through the services of a third-party employer, temporary service, or staffing agency or similar entity, employs or exercises control over the wages, hours, or working conditions of a domestic work employee. (2) "Domestic work employer" does not include any of the following: (A) The State of California or individuals who receive domestic work services through the In-Home Supportive Services program under Article 7 (commencing with Section 12300) of Chapter 3 of Part 3 of Division 9 of the Welfare and Institutions Code. (B) An employment agency that complies with Section 1812.5095 of the Civil Code and that operates solely to procure, offer, refer, provide, or attempt to provide work to domestic workers if the relationship between the employment agency and the domestic workers for whom the agency procures, offers, refers, provides, or attempts to provide domestic work is characterized by all of the factors listed in subdivision (b) of Section 1812.5095 of the Civil Code and Section 687.2 of the Unemployment Insurance Code. (C) A licensed health facility, as defined in Section 1250 of the Health and Safety Code. (d) "Emergency" means an unpredictable or unavoidable occurrence of a serious nature that occurs unexpectedly requiring immediate action. (e) "Hours worked" means the time during which a domestic work employee is subject to the control of a domestic work employer, and includes all time the domestic work employee is suffered or permitted to work, whether or not required to do so. (f) "Live-in domestic work employee" means a domestic work employee who lives in the establishment where he or she works. (g) "Personal attendant" means a person who performs domestic work related to the supervision, feeding, or dressing of a child or other person who, by reason of advanced age, physical disability, or mental deficiency, needs supervision. Personal attendant includes babysitters. The status of "personal attendant" applies if no significant amount of work other than the foregoing is required. 1452. The Division of Labor Standards Enforcement shall enforce this part. 1453. (a) Any domestic work employee aggrieved by a violation of this part may bring an administrative action pursuant to Section 98 or may bring a civil action in a court of competent jurisdiction against the domestic work employer violating this part. (b) Upon prevailing, a domestic work employee bringing an action pursuant to this section shall be entitled to any legal or equitable relief as may be appropriate to remedy the violation, including the payment of any back wages unlawfully withheld, the payment of an additional sum as liquidated damages or penalties as specified in this part, reinstatement of employment, interest, or injunctive relief, or any combination of these remedies, as appropriate. A domestic work employee bringing a civil action pursuant to this section shall also be entitled to recover an award of reasonable attorney's fees and costs, including expert witness fees. (c) The rights and remedies specified in this part are cumulative and nonexclusive and are in addition to any other rights or remedies afforded by contract or under other provisions of law. If a provision of Wage Order Number 15 of the Industrial Welfare Commission or any other provision of law affords less protection to a domestic work employee, this part shall prevail. (d) Notwithstanding any provision of this code or Section 340 of the Code of Civil Procedure, to commence an action for a violation of this part a domestic work employee shall file an administrative or civil complaint within three years of the violation. CHAPTER 2. DOMESTIC WORK EMPLOYEE RIGHTS 1454. Except where otherwise provided in this chapter, Section 510 applies to a domestic work employee. 1455. (a) A domestic work employee who is required to be on duty for 24 consecutive hours or more shall have a minimum of eight consecutive hours for uninterrupted sleep, except in an emergency. (b) If a domestic work employee is required to be on duty for 24 consecutive hours or more, the domestic work employer and the domestic work employee may agree in writing to exclude a bona fide regularly scheduled sleeping period of not more than eight hours for uninterrupted sleep from hours worked, provided that the domestic work employer otherwise complies with this section and Section 1457. If no written agreement to the contrary is present, the eight hours of sleeping time shall constitute hours worked. (c) There is a rebuttable presumption that a domestic work employee did not receive eight consecutive hours for uninterrupted sleep if he or she is required to be on duty for 24 consecutive hours or more and the domestic work employer does not hire a replacement worker for at least eight consecutive hours in the 24-hour work period. (d) A domestic work employer shall pay a sum of fifty dollars ($50) to the domestic work employee for each day that the domestic employer violates this section. 1456. (a) A live-in domestic work employee who is not required to be on duty for 24 consecutive hours or more shall have at least 12 consecutive hours free of duty during each workday of 24 hours, of which a minimum of eight consecutive hours are for uninterrupted sleep. A live-in domestic work employee suffered or permitted to work during the 12 consecutive off-duty hours shall be compensated in accordance with Section 510. (b) A live-in domestic work employee shall not be required to work more than five days in any one workweek without a day off of not less than 24 consecutive hours, except in an emergency. A live-in domestic work employee who is suffered or permitted to work in excess of five workdays in any workweek shall be compensated in accordance with Section 510. (c) A domestic work employer shall pay a sum of fifty dollars ($50) to the domestic work employee for each day that the domestic work employer violates this section. 1457. Live-in domestic work employees and domestic work employees who work 24 consecutive hours or more shall be provided sleeping accommodations that are adequate, decent, and sanitary according to usual customary standards. Domestic work employees shall not be required to share a bed. 1458. Except as otherwise provided in this part, the provisions of Industrial Welfare Commission Wage Order Number 15, except Section 6, shall apply to a domestic work employee. 1460. (a) A domestic work employer shall permit a domestic work employee who works five hours or more to choose the food he or she eats and to prepare his or her own meals. A domestic work employer shall permit a domestic work employee to use the job site's kitchen facilities and kitchen appliances without charge or deduction from pay. (b) If a domestic work employer and the domestic work employee agree that the domestic work employer will provide meals and the domestic work employer wishes to offset the costs of those meals pursuant to Industrial Welfare Commission Wage Order Number 15, the domestic work employee may request and receive specific food items for those meals. (c) A domestic work employer who violates this section shall pay a sum of fifty dollars ($50) to each domestic work employee for each day that he or she violated this section. 1461. (a) (1) A domestic work employee shall accrue paid vacation benefits at the rate of not less than one hour per every 30 hours worked, beginning at the commencement of employment or the operative date of this provision, whichever occurs first. A domestic work employer shall permit a domestic work employee to use accrued paid vacation after one year of service. One year of service is completed on the 365th calendar day of employment. (2) Unused accrued paid vacation benefits shall carry over from year to year. However, a domestic work employer may limit a domestic work employee's use of accrued paid vacation as follows: (A) After the first year of service, a domestic work employee may use 40 hours or five days of paid vacation in each calendar year, whichever is greater. (B) After the fifth year of service, a domestic work employee may use 80 hours or 10 days of paid vacation in each calendar year, whichever is greater. (C) After the tenth year of service, a domestic work employee may use 120 hours or 15 days of paid vacation in each calendar year, whichever is greater. (b) A domestic work employer shall not require, as a condition of taking paid vacation, that the domestic work employee search for or find a replacement worker to cover the hours during which the domestic work employee is on paid vacation leave. (c) (1) A domestic work employee aggrieved by a violation of this section shall be entitled to all of the following: (A) The amount of any paid vacation unlawfully withheld. (B) A penalty of two hundred fifty dollars ($250). (C) Appropriate equitable relief. (2) A domestic work employee is not aggrieved by a violation of this section if the domestic work employer can demonstrate that it denied a request to use paid vacation because of an emergency and provided another opportunity for the domestic work employee to take vacation time within three months of the date the domestic work employee originally requested to use paid vacation. (d) Upon request, a domestic work employer shall provide to a domestic work employee an annual statement indicating the amount and periods of accrued vacation.SEC. 4. Section 3351 of the Labor Code is amended to read: 3351. "Employee" means every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and includes: (a) Aliens and minors. (b) All elected and appointed paid public officers. (c) All officers and members of boards of directors of quasi-public or private corporations while rendering actual service for the corporations for pay; provided that, where the officers and directors of the private corporation are the sole shareholders thereof, the corporation and the officers and directors shall come under the compensation provisions of this division only by election as provided in subdivision (a) of Section 4151. (d) A 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, persons of advanced age, or persons with physical or mental disabilities, or whose duties are personal and not in the course of the trade, business, profession, or occupation of the owner or occupant. (e) All persons incarcerated in a state penal or correctional institution while engaged in assigned work or employment or engaged in work performed under contract. (f) All working members of a partnership or limited liability company receiving wages irrespective of profits from the partnership or limited liability company, provided that where the working members of the partnership or limited liability company are general partners or managers, the partnership or limited liability company and the partners or managers shall come under the compensation provisions of this division only by election as provided in subdivision (a) of Section 4151. If a private corporation is a general partner or manager, "working members of a partnership or limited liability company" shall include the corporation and the officers and directors of the corporation, provided that the officers and directors are the sole shareholders of the corporation. If a limited liability company is a partner or member, "working members of the partnership or limited liability company" shall include the managers of the limited liability company. (g) For the purposes of subdivisions (c) and (f), the persons holding the power to revoke a trust as to shares of a private corporation or as to general partnership or limited liability company interests held in the trust, shall be deemed to be the shareholders of the private corporation, or the general partners of the partnership, or the managers of the limited liability company. SEC. 5. Section 3352 of the Labor Code is amended to read: 3352. "Employee" excludes the following: (a) Any person defined in subdivision (d) of Section 3351 who is employed by his or her parent, spouse, or child. (b) Any person performing services in return for aid or sustenance only, received from any religious, charitable, or relief organization. (c) Any person holding an appointment as deputy clerk or deputy sheriff appointed for his or her own convenience, and who receives no compensation from the county or municipal corporation or from the citizens thereof for his or her services as the deputy. This exclusion is operative only as to employment by the county or municipal corporation and does not deprive any person so deputized from recourse against a private person employing him or her for injury occurring in the course of and arising out of the employment. (d) Any person performing voluntary services at or for a recreational camp, hut, or lodge operated by a nonprofit organization, exempt from federal income tax under Section 501 of the Internal Revenue Code, of which he or she or a member of his or her family is a member and who receives no compensation for those services other than meals, lodging, or transportation. (e) Any person performing voluntary service as a ski patrolman who receives no compensation for those services other than meals or lodging or the use of ski tow or ski lift facilities. (f) Any person employed by a ski lift operator to work at a snow ski area who is relieved of and not performing any prescribed duties, while participating in recreational activities on his or her own initiative. (g) Any person, other than a regular employee, participating in sports or athletics who receives no compensation for the participation other than the use of athletic equipment, uniforms, transportation, travel, meals, lodgings, or other expenses incidental thereto. (h) Any person performing voluntary service for a public agency or a private, nonprofit organization who receives no remuneration for the services other than meals, transportation, lodging, or reimbursement for incidental expenses. (i) Any person, other than a regular employee, performing officiating services relating to amateur sporting events sponsored by any public agency or private, nonprofit organization, who receives no remuneration for these services other than a stipend for each day of service no greater than the amount established by the Department of Personnel Administration as a per diem expense for employees or officers of the state. The stipend shall be presumed to cover incidental expenses involved in officiating, including, but not limited to, meals, transportation, lodging, rule books and courses, uniforms, and appropriate equipment. (j) Any student participating as an athlete in amateur sporting events sponsored by any public agency, public or private nonprofit college, university, or school, who receives no remuneration for the participation other than the use of athletic equipment, uniforms, transportation, travel, meals, lodgings, scholarships, grants-in-aid, or other expenses incidental thereto. (k) Any law enforcement officer who is regularly employed by a local or state law enforcement agency in an adjoining state and who is deputized to work under the supervision of a California peace officer pursuant to paragraph (4) of subdivision (a) of Section 832.6 of the Penal Code. (l) Any law enforcement officer who is regularly employed by the Oregon State Police, the Nevada Department of Motor Vehicles and Public Safety, or the Arizona Department of Public Safety and who is acting as a peace officer in this state pursuant to subdivision (a) of Section 830.39 of the Penal Code. (m) Any person, other than a regular employee, performing services as a sports official for an entity sponsoring an intercollegiate or interscholastic sports event, or any person performing services as a sports official for a public agency, public entity, or a private nonprofit organization, which public agency, public entity, or private nonprofit organization sponsors an amateur sports event. For purposes of this subdivision, "sports official" includes an umpire, referee, judge, scorekeeper, timekeeper, or other person who is a neutral participant in a sports event. (n) Any person who is an owner-builder, as defined in subdivision (a) of Section 50692 of the Health and Safety Code, who is participating in a mutual self-help housing program, as defined in Section 50087 of the Health and Safety Code, sponsored by a nonprofit corporation. SEC. 6. Section 3551 of the Labor Code is amended to read: 3551. (a) Every employer subject to the compensation provisions of this code shall give every new employee, either at the time the employee is hired or by the end of the first pay period, written notice of the information contained in Section 3550. The content of the notice required by this section shall be prescribed by the administrative director after consultation with the Commission on Health and Safety and Workers' Compensation. (b) The notice required by this section shall be easily understandable and available in both English and Spanish. In addition to the information contained in Section 3550, the content of the notice required by this section shall include: (1) Generally, how to obtain appropriate medical care for a job injury. (2) The role and function of the primary treating physician. (3) A form that the employee may use as an optional method for notifying the employer of the name of the employee's "personal physician," as defined by Section 4600, or "personal chiropractor," as defined by Section 4601. (c) The content of the notice required by this section shall be made available to employers and insurers by the administrative director. Insurers shall provide this notice to each of their policyholders, with advice concerning the requirements of this section and the penalties for a failure to provide this notice to all employees. SEC. 7. Section 3708 of the Labor Code is amended to read: 3708. In such action it is presumed that the injury to the employee was a direct result and grew out of the negligence of the employer, and the burden of proof is upon the employer, to rebut the presumption of negligence. It is not a defense to the employer that the employee was guilty of contributory negligence, or assumed the risk of the hazard complained of, or that the injury was caused by the negligence of a fellow servant. No contract or regulation shall restore to the employer any of the foregoing defenses. SEC. 8. Section 3715 of the Labor Code is amended to read: 3715. (a) Any employee whose employer has failed to secure the payment of compensation as required by this division, or his or her dependents in case death has ensued, may, in addition to proceeding against his or her employer by civil action in the courts as provided in Section 3706, file his or her application with the appeals board for compensation and the appeals board shall hear and determine the application for compensation in like manner as in other claims and shall make the award to the claimant as he or she would be entitled to receive if the employer had secured the payment of compensation as required, and the employer shall pay the award in the manner and amount fixed thereby or shall furnish to the appeals board a bond, in any amount and with any sureties as the appeals board requires, to pay the employee the award in the manner and amount fixed thereby. (b) (1) In any claim in which it is alleged that the employer has failed to secure the payment of compensation, the director, only for purposes of this section and Section 3720, shall determine, on the basis of the evidence available to him or her, whether the employer was prima facie illegally uninsured. A finding that the employer was prima facie illegally uninsured shall be made when the director determines that there is sufficient evidence to constitute a prima facie case that the employer employed an employee on the date of the alleged injury and had failed to secure the payment of compensation, and that the employee was injured arising out of, and occurring in the course of, the employment. (2) Failure of the employer to furnish within 10 days the written statement in response to a written demand for a written statement prescribed in Section 3711, addressed to the employer at its address as shown on the official address record of the appeals board, shall constitute in itself sufficient evidence for a prima facie case that the employer failed to secure the payment of compensation. (3) A written denial by the insurer named in the statement furnished by the employer as prescribed in Section 3711, that the employer was so insured as claimed, or the nonexistence of a valid certificate of consent to self-insure for the time of the claimed injury, if the statement furnished by the employer claims the employer was self-insured, shall constitute in itself sufficient evidence for a prima facie case that the employer had failed to secure the payment of compensation. (4) The nonexistence of a record of the employer's insurance with the Workers' Compensation Insurance Rating Bureau shall constitute in itself sufficient evidence for a prima facie case that the employer failed to secure the payment of compensation. (5) The unrebutted written declaration under penalty of perjury by the injured employee, or applicant other than the employee, that the employee was employed by the employer at the time of the injury, and that he or she was injured in the course of his or her employment, shall constitute, in itself, sufficient evidence for a prima facie case that the employer employed the employee at the time of the injury, and that the employee was injured arising out of, and occurring in the course of, the employment. (c) (1) When the director determines that an employer was prima facie illegally uninsured, the director shall mail a written notice of the determination to the employer at his or her address as shown on the official address record of the appeals board, and to any other more recent address the director may possess. The notice shall advise the employer of its right to appeal the finding, and that a lien may be placed against the employer's and any parent corporation' s property, or the property of substantial shareholders of a corporate employer as defined by Section 3717. (2) Any employer aggrieved by a finding of the director that it was prima facie illegally uninsured may appeal the finding by filing a petition before the appeals board. The petition shall be filed within 20 days after the finding is issued. The appeals board shall hold a hearing on the petition within 20 days after the petition is filed with the appeals board. The appeals board shall have exclusive jurisdiction to determine appeals of the findings by the director, and no court of this state has jurisdiction to review, annul, or suspend the findings or the liens created thereunder, except as provided by Article 2 (commencing with Section 5950) of Chapter 7 of Part 4 of Division 4. (d) (1) Any claim brought against an employer under this section may be resolved by the director by compromise and release or stipulated findings and award as long as the appeals board has acquired jurisdiction over the employer and the employer has been given notice and an opportunity to object. (2) Notice may be given by service on the employer of an appeals board notice of intention to approve the compromise and release or stipulated findings and award. The employer shall have 20 days after service of the notice of intention to file an objection with the appeals board and show good cause therefor. (3) If the employer objects, the appeals board shall determine if there is good cause for the objection. (4) If the appeals board finds good cause for the objection, the director may proceed with the compromise and release or stipulated findings and award if doing so best serves the interest of the Uninsured Employers Fund, but shall have no cause of action against the employer under Section 3717 unless the appeals board case is tried to its conclusion and the employer is found liable. (5) If the appeals board does not find good cause for the objection, and the compromise and release or stipulated findings and award is approved, the Uninsured Employers Fund shall have a cause of action against the employer pursuant to Section 3717. (e) The director may adopt regulations to implement and interpret the procedures provided for in this section. SEC. 9. Section 4156 of the Labor Code is repealed. SEC. 10. 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.