BILL NUMBER: AB 442 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Nazarian
FEBRUARY 19, 2013
An act to amend Sections 1194.2 and 1197.1 of the Labor Code,
relating to employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 442, as introduced, Nazarian. Employees: wages.
Existing law authorizes the Labor Commissioner to investigate and
enforce statutes and orders of the Industrial Welfare Commission
that, among other things, specify the requirements for the payment of
wages by employers. Existing law provides for criminal and civil
penalties for violations of statutes and orders of the commission
regarding payment of wages. Existing law authorizes the Labor
Commissioner to recover liquidated damages for an employee who brings
a complaint alleging payment of less than the minimum wage fixed by
an order of the commission or by statute.
Existing law subjects any employer, who pays or causes to be paid
to any employee a wage less than the minimum fixed by an order of the
commission or by statute, to a citation that includes a civil
penalty and the payment of restitution of wages to the employee.
This bill would expand that penalty and restitution provision for
a citation to also subject the employer to payment of liquidated
damages to the employee.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1194.2 of the Labor Code is amended to read:
1194.2. (a) In any action under Section 98, 1193.6, or
1194 , or 1197.1 to recover wages because of the
payment of a wage less than the minimum wage fixed by an order of
the commission or by statute, an employee shall be entitled to
recover liquidated damages in an amount equal to the wages unlawfully
unpaid and interest thereon. Nothing in this subdivision shall be
construed to authorize the recovery of liquidated damages for failure
to pay overtime compensation.
(b) Notwithstanding subdivision (a), if the employer demonstrates
to the satisfaction of the court or the Labor Commissioner that the
act or omission giving rise to the action was in good faith and that
the employer had reasonable grounds for believing that the act or
omission was not a violation of any provision of the Labor Code
relating to minimum wage, or an order of the commission, the court or
the Labor Commissioner may, as a matter of discretion, refuse to
award liquidated damages or award any amount of liquidated damages
not exceeding the amount specified in subdivision (a).
(c) This section applies only to civil actions commenced on or
after January 1, 1992.
SEC. 2. Section 1197.1 of the Labor Code is amended to read:
1197.1. (a) Any employer or other person acting either
individually or as an officer, agent, or employee of another person,
who pays or causes to be paid to any employee a wage less than the
minimum fixed by an order of the commission shall be subject to a
civil penalty and , restitution of
wages , and liquidated damages payable to the employee, as
follows:
(1) For any initial violation that is intentionally committed, one
hundred dollars ($100) for each underpaid employee for each pay
period for which the employee is underpaid. This amount shall be in
addition to an amount sufficient to recover underpaid wages and
liquidated damages pursuant to Section 1194.2 .
(2) For each subsequent violation for the same specific offense,
two hundred fifty dollars ($250) for each underpaid employee for each
pay period for which the employee is underpaid regardless of whether
the initial violation is intentionally committed. This amount shall
be in addition to an amount sufficient to recover underpaid wages
and liquidated damages pursuant to Section 1194.2 .
(3) Wages and liquidated damages recovered
pursuant to this section shall be paid to the affected employee.
(b) If, upon inspection or investigation, the Labor Commissioner
determines that a person has paid or caused to be paid a wage less
than the minimum, the Labor Commissioner may issue a citation to the
person in violation. The citation may be served personally or by
registered mail in accordance with subdivision (c) of Section 11505
of the Government Code. Each citation shall be in writing and shall
describe the nature of the violation, including reference to the
statutory provision alleged to have been violated. The Labor
Commissioner promptly shall take all appropriate action, in
accordance with this section, to enforce the citation and to recover
the civil penalty assessed and , wages
, and liquidated damages in connection with the citation.
(c) (1) If a person desires to contest a
citation or the proposed assessment of a civil penalty and
, wages , and liquidated damages
therefor, the person shall, within 15 business days after service of
the citation, notify the office of the Labor Commissioner that
appears on the citation of his or her request for an informal
hearing. The Labor Commissioner or his or her deputy or agent shall,
within 30 days, hold a hearing at the conclusion of which the
citation or proposed assessment of a civil penalty and
, wages , and liquidated damages
shall be affirmed, modified, or dismissed.
The
(2) The decision of the Labor
Commissioner shall consist of a notice of findings, findings, and an
order, all of which shall be served on all parties to the hearing
within 15 days after the hearing by regular first-class mail at the
last known address of the party on file with the Labor Commissioner.
Service shall be completed pursuant to Section 1013 of the Code of
Civil Procedure. Any amount found due by the Labor Commissioner as a
result of a hearing shall become due and payable 45 days after notice
of the findings and written findings and order have been mailed to
the party assessed. A writ of mandate may be taken from this finding
to the appropriate superior court. The party shall pay any judgment
and costs ultimately rendered by the court against the party for the
assessment. The writ shall be taken within 45 days of service of the
notice of findings, findings, and order thereon.
(d) A person to whom a citation has been issued shall, in lieu of
contesting a citation pursuant to this section, transmit to the
office of the Labor Commissioner designated on the citation the
amount specified for the violation within 15 business days after
issuance of the citation.
(e) When no petition objecting to a citation or the proposed
assessment of a civil penalty and ,
wages , and liquidated damages is filed, a certified copy
of the citation or proposed civil penalty and
, wages , and liquidated damages may be filed by
the Labor Commissioner in the office of the clerk of the superior
court in any county in which the person assessed has or had a place
of business. The clerk, immediately upon the filing, shall enter
judgment for the state against the person assessed in the amount
shown on the citation or proposed assessment of a civil penalty
and , wages , and liquidated
damages .
(f) When findings and the order thereon are made affirming or
modifying a citation or proposed assessment of a civil penalty
and , wages , and liquidated
damages after hearing, a certified copy of these findings and
the order entered thereon may be entered by the Labor Commissioner in
the office of the clerk of the superior court in any county in which
the person assessed has property or in which the person assessed has
or had a place of business. The clerk, immediately upon the filing,
shall enter judgment for the state against the person assessed in the
amount shown on the certified order.
(g) A judgment entered pursuant to this section shall bear the
same rate of interest and shall have the same effect as other
judgments and be given the same preference allowed by the law on
other judgments rendered for claims for taxes. The clerk shall make
no charge for the service provided by this section to be performed by
him or her.
(h) The civil penalties provided for in this section are in
addition to any other penalty provided by law.
(i) This section shall not apply to any order of the commission
relating to household occupations.