California Legislature—2013–14 Regular Session

Assembly BillNo. 155


Introduced by Assembly Member Alejo

January 22, 2013


An act to amend Section 226 of the Labor Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

AB 155, as introduced, Alejo. Employment: payroll records: right to inspect.

Existing law requires an employer to furnish each employee with an accurate itemized statement showing, among other things, the gross and net wages earned, the inclusive dates of the pay period, and all deductions. Existing law requires the employer to keep on file a copy of the statement for at least 3 years at a specified location. Existing law affords current and former employees the right to inspect or copy records pertaining to their employment, upon reasonable request to the employer. Existing law authorizes the employer to charge any costs of reproduction of the employee’s records to the current or former employee.

This bill would require the employee to elect to inspect or copy, or receive a copy of, or any combination thereof, his or her employment records. The bill would also declare the Legislature’s intent in this regard.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

The Legislature finds and declares all of the
2following:

3(a) In 1988, the Legislature passed, and the Governor signed
4into law Senate Bill 2155 that amended employees’ preexisting
5statutory right to inspect their itemized pay records under Section
6226 of the Labor Code and extended to them a new right to receive
7a copy of these basic pay records upon reasonable request to their
8employer.

9(b) Senate Bill 2155 was sponsored by California Rural Legal
10Assistance, Inc., and was supported by the Alien Legalization
11Program for Agriculture (whose membership included the
12California Farm Bureau Federation and the Western Growers
13Association), the California Labor Federation, and others. There
14was no opposition to Senate Bill 2155, which passed by 37 “Aye”
15and no “No” votes in the Senate and by 70 “Aye” and 1 “No” votes
16in the Assembly.

17(c) According to the Senate Committee on Labor and Industrial
18Relations March 1988 analysis of Senate Bill 2155, as introduced,
19the bill’s proponents contended that Senate Bill 2155 was
20“necessary to ensure that workers have the right to obtain copies
21of their payroll records, especially in the case of undocumented
22workers who are applying for amnesty under the federal
23Immigration Reform and Control Act of 1986 (IRCA).”

24(d) The Senate Rules Committee’s August 11, 1988, Senate
25Floor Analysis (for final passage of the bill as amended in the
26Assembly) stated: “This bill would permit current or former
27employees to copy payroll deduction records that are maintained
28by the employer. ... Employers would be empowered to charge
29 former and current employees for the actual costs of reproducing
30the records.”

31(e) The Department of Industrial Relations, in its August 26,
321988, Enrolled Bill Report recommending that the Governor sign
33the bill, stated: “This bill would require an employer, who is
34mandated by law to keep wage deduction records, to allow
35employees to inspect and/or copy such records. [The bill also]
36 permits employers to charge employees for the actual costs of
37reproducing the records.”

P3    1(f) The Department of Finance, in its August 29, 1988, Bill
2Analysis recommending that the Governor sign the bill, stated:
3“[Senate Bill] 2155 gives employees or former employees the right
4to copy these records and allows the employer to take reasonable
5steps to verify the identity of the employee and to charge for the
6reproduction of the records.”

7(g) The author of the bill, Senator Nicolas C. Petris, in his
8September 6, 1988, letter urging Governor Deukmejian to sign
9Senate Bill 2155 into law, stated “Senate Bill 2155 clarifies current
10law by spelling out that when employers are required to make basic
11pay records ‘available’ to workers, that means they are required
12to provide a copy, upon reasonable request.”

13(h) Despite more than 20 years of consistent interpretation of
14these provisions of the Labor Code, the California Superior Court
15in the County of Riverside determined, in Esteban v. JSO, Inc.
16d.b.a. America’s Labor Supply, Inc., Docket No. INC-1104544,
17that the Labor Code provisions enacted by Senate Bill 2155 do not
18obligate an employer to make copies: “If the Legislature wanted
19to require an employer to copy records on request, it could easily
20have said so.”

21(i) The amendments made by this bill to provisions of Section
22226 of the Labor Code enacted by Senate Bill 2155 are expressly
23intended to overturn Esteban v. JSO, Inc., and are further intended
24to make clear that these provisions afforded a current or former
25employee the right to inspect or copy, or receive copies of, his or
26her payroll records, or any combination thereof; that it was solely
27the employee, and not the employer, who was authorized to make
28that election under the statute; and that the amendments to these
29provisions made by this bill are declaratory of existing law.

30

SEC. 2.  

Section 226 of the Labor Code is amended to read:

31

226.  

(a) Every employer shall, semimonthly or at the time of
32each payment of wages, furnish each of his or her employees,
33either as a detachable part of the check, draft, or voucher paying
34the employee’s wages, or separately when wages are paid by
35personal check or cash, an accurate itemized statement in writing
36showing (1) gross wages earned, (2) total hours worked by the
37employee, except for any employee whose compensation is solely
38based on a salary and who is exempt from payment of overtime
39under subdivision (a) of Section 515 or any applicable order of
40the Industrial Welfare Commission, (3) the number of piece-rate
P4    1units earned and any applicable piece rate if the employee is paid
2on a piece-rate basis, (4) all deductions, provided that all deductions
3made on written orders of the employee may be aggregated and
4shown as one item, (5) net wages earned, (6) the inclusive dates
5of the period for which the employee is paid, (7) the name of the
6employee and only the last four digits of his or her social security
7number or an employee identification number other than a social
8security number, (8) the name and address of the legal entity that
9is the employer and, if the employer is a farm labor contractor, as
10defined in subdivision (b) of Section 1682, the name and address
11of the legal entity that secured the services of the employer, and
12(9) all applicable hourly rates in effect during the pay period and
13the corresponding number of hours worked at each hourly rate by
14the employee and, beginning July 1, 2013, if the employer is a
15temporary services employer as defined in Section 201.3, the rate
16of pay and the total hours worked for each temporary services
17assignment. The deductions made from payment of wages shall
18be recorded in ink or other indelible form, properly dated, showing
19the month, day, and year, and a copy of the statement and the
20record of the deductions shall be kept on file by the employer for
21at least three years at the place of employment or at a central
22location within the State of California. For purposes of this
23subdivision, “copy” includes a duplicate of the itemized statement
24provided to an employee or a computer-generated record that
25accurately shows all of the information required by this subdivision.

26(b) An employer that is required by this code or any regulation
27adopted pursuant to this code to keep the information required by
28subdivision (a) shall afford current and former employees the right
29to inspect or copy records pertaining to their employment, upon
30reasonable request to the employer. The employer may take
31reasonable steps to ensure the identity of a current or former
32employee.begin insert In making a request under this subdivision, an employee end insert
33begin insertshall elect to inspect or copy the records, or to receive a copy of end insert
34begin insertthe records, or any combination thereof.end insert If the employer provides
35copies of the records, the actual cost of reproduction may be
36charged to the current or former employee.

37(c) An employer who receives a written or oral request to inspect
38or copy recordsbegin insert, or to receive a copy of the records, or any end insert
39begin insertcombination thereof, as specified by the employeeend insert pursuant to
40subdivision (b) pertaining to a current or former employee shall
P5    1comply with the request as soon as practicable, but no later than
221 calendar days from the date of the request. A violation of this
3subdivision is an infraction. Impossibility of performance, not
4caused by or a result of a violation of law, shall be an affirmative
5defense for an employer in any action alleging a violation of this
6subdivision. An employer may designate the person to whom a
7request under this subdivision will be made.

8(d) This section does not apply to any employer of any person
9employed by the owner or occupant of a residential dwelling whose
10duties are incidental to the ownership, maintenance, or use of the
11dwelling, including the care and supervision of children, or whose
12duties are personal and not in the course of the trade, business,
13profession, or occupation of the owner or occupant.

14(e) (1) An employee suffering injury as a result of a knowing
15and intentional failure by an employer to comply with subdivision
16(a) is entitled to recover the greater of all actual damages or fifty
17dollars ($50) for the initial pay period in which a violation occurs
18and one hundred dollars ($100) per employee for each violation
19in a subsequent pay period, not to exceed an aggregate penalty of
20four thousand dollars ($4,000), and is entitled to an award of costs
21and reasonable attorney’s fees.

22(2) (A) An employee is deemed to suffer injury for purposes
23of this subdivision if the employer fails to provide a wage
24statement.

25(B) An employee is deemed to suffer injury for purposes of this
26subdivision if the employer fails to provide accurate and complete
27information as required by any one or more of items (1) to (9),
28inclusive, of subdivision (a) and the employee cannot promptly
29and easily determine from the wage statement alone one or more
30of the following:

31(i) The amount of the gross wages or net wages paid to the
32employee during the pay period or any of the other information
33required to be provided on the itemized wage statement pursuant
34to items (2) to (4), inclusive, (6), and (9) of subdivision (a).

35(ii) Which deductions the employer made from gross wages to
36determine the net wages paid to the employee during the pay
37period. Nothing in this subdivision alters the ability of the employer
38to aggregate deductions consistent with the requirements of item
39(4) of subdivision (a).

P6    1(iii) The name and address of the employer and, if the employer
2is a farm labor contractor, as defined in subdivision (b) of Section
31682, the name and address of the legal entity that secured the
4services of the employer during the pay period.

5(iv) The name of the employee and only the last four digits of
6his or her social security number or an employee identification
7number other than a social security number.

8(C) For purposes of this paragraph, “promptly and easily
9 determine” means a reasonable person would be able to readily
10ascertain the information without reference to other documents or
11information.

12(3) For purposes of this subdivision, a “knowing and intentional
13failure” does not include an isolated and unintentional payroll error
14due to a clerical or inadvertent mistake. In reviewing for
15compliance with this section, the factfinder may consider as a
16relevant factor whether the employer, prior to an alleged violation,
17has adopted and is in compliance with a set of policies, procedures,
18and practices that fully comply with this section.

19(f) A failure by an employer to permit a current or former
20employee to inspect or copy recordsbegin insert, or to receive a copy of the end insert
21begin insertrecords, or any combination thereof, as specified by the employee end insert
22begin insertpursuant to subdivision (b)end insert within the time set forth in subdivision
23(c) entitles the current or former employee or the Labor
24Commissioner to recover a seven-hundred-fifty-dollar ($750)
25penalty from the employer.

26(g) The listing by an employer of the name and address of the
27legal entity that secured the services of the employer in the itemized
28statement required by subdivision (a) shall not create any liability
29on the part of that legal entity.

30(h) An employee may also bring an action for injunctive relief
31to ensure compliance with this section, and is entitled to an award
32of costs and reasonable attorney’s fees.

33(i) This section does not apply to the state, to any city, county,
34city and county, district, or to any other governmental entity, except
35that if the state or a city, county, city and county, district, or other
36 governmental entity furnishes its employees with a check, draft,
37or voucher paying the employee’s wages, the state or a city, county,
38city and county, district, or other governmental entity shall use no
39more than the last four digits of the employee’s social security
40number or shall use an employee identification number other than
P7    1the social security number on the itemized statement provided with
2the check, draft, or voucher.



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