Amended in Assembly March 19, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 519

Introduced by Assembly Member Logue

February 20, 2013

An act to amend Section begin delete 512 of the Labor end delete begin insert 17206 of the Business and Professions end insert Code, relating to begin delete employment end delete begin insert unfair competition end insert .

LEGISLATIVE COUNSEL’S DIGEST

AB 519, as amended, Logue. begin delete Working hours: meal periods. end delete begin insert Unfair competition. end insert

begin insert

Existing law makes a person who engages in unfair competition, as defined, liable for civil penalties. Existing law requires a court, in assessing the amount of the civil penalty, to consider one or more of specified relevant circumstances presented by any of the parties to the case.

end insert begin insert

This bill would additionally require the court, prior to the imposition of any civil penalty, to consider all factors in mitigation of both the imposition and amount of any civil penalty.

end insert begin delete

Existing law, subject to certain exceptions, prohibits an employer from requiring an employee to work more than 5 hours per day without providing a meal period and, notwithstanding that provision, authorizes the Industrial Welfare Commission to adopt a working condition order permitting a meal period to commence after 6 hours of work if the commission determines the order is consistent with the health and welfare of affected employees. Existing law exempts employees in certain occupations from these provisions.

end delete begin delete

This bill would make technical, nonsubstantive changes to the above provisions.

end delete

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

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

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 17206 of the end insert begin insert Business and Professions
Code end insert begin insert is amended to read: end insert

17206.  

Civil Penalty for Violation of Chapter

(a) Any person who engages, has engaged, or proposes to engage
in unfair competition shall be liable for a civil penalty not to exceed
two thousand five hundred dollars ($2,500) for each violation,
which shall be assessed and recovered in a civil action brought in
the name of the people of the State of California by the Attorney
General, by any district attorney, by any county counsel authorized
by agreement with the district attorney in actions involving
violation of a county ordinance, by any city attorney of a city
having a population in excess of 750,000, by any city attorney of
any city and county, or, with the consent of the district attorney,
by a city prosecutor in any city having a full-time city prosecutor,
in any court of competent jurisdiction.

(b) The court shall impose a civil penalty for each violation of
this chapter. In assessing the amount of the civil penalty, the court
shall consider any one or more of the relevant circumstances
presented by any of the parties to the case, including, but not
limited to, the following: the nature and seriousness of the
misconduct, the number of violations, the persistence of the
misconduct, the length of time over which the misconduct occurred,
the willfulness of the defendant’s misconduct, and the defendant’s
assets, liabilities, and net worth. begin insert Prior to the imposition of any
civil penalty, the court shall consider all factors in mitigation of
both the imposition and amount of any civil penalty, including,
but not limited to, the magnitude of any actual harm to persons,
the reasonable efforts taken by the defendant to prevent any actual
harm to persons, and efforts undertaken by the defendant to
remediate or prevent future actual harm to persons. end insert

(c) If the action is brought by the Attorney General, one-half of
the penalty collected shall be paid to the treasurer of the county in
which the judgment was entered, and one-half to the General Fund.
If the action is brought by a district attorney or county counsel,
the penalty collected shall be paid to the treasurer of the county in
which the judgment was entered. Except as provided in subdivision
(e), if the action is brought by a city attorney or city prosecutor,
one-half of the penalty collected shall be paid to the treasurer of
the city in which the judgment was entered, and one-half to the
treasurer of the county in which the judgment was entered. The
aforementioned funds shall be for the exclusive use by the Attorney
General, the district attorney, the county counsel, and the city
attorney for the enforcement of consumer protection laws.

(d) The Unfair Competition Law Fund is hereby created as a
special account within the General Fund in the State Treasury. The
portion of penalties that is payable to the General Fund or to the
Treasurer recovered by the Attorney General from an action or
settlement of a claim made by the Attorney General pursuant to
this chapter or Chapter 1 (commencing with Section 17500) of
Part 3 shall be deposited into this fund. Moneys in this fund, upon
appropriation by the Legislature, shall be used by the Attorney
General to support investigations and prosecutions of California’s
consumer protection laws, including implementation of judgments
obtained from such prosecutions or investigations and other
activities which are in furtherance of this chapter or Chapter 1
(commencing with Section 17500) of Part 3. Notwithstanding
Section 13340 of the Government Code, any civil penalties
deposited in the fund pursuant to the National Mortgage Settlement,
as provided in Section 12531 of the Government Code, are
continuously appropriated to the Department of Justice for the
purpose of offsetting General Fund costs incurred by the
Department of Justice.

(e) If the action is brought at the request of a board within the
Department of Consumer Affairs or a local consumer affairs
agency, the court shall determine the reasonable expenses incurred
by the board or local agency in the investigation and prosecution
of the action.

Before any penalty collected is paid out pursuant to subdivision
(c), the amount of any reasonable expenses incurred by the board
shall be paid to the Treasurer for deposit in the special fund of the
board described in Section 205. If the board has no such special
fund, the moneys shall be paid to the Treasurer. The amount of
any reasonable expenses incurred by a local consumer affairs
agency shall be paid to the general fund of the municipality or
county that funds the local agency.

(f) If the action is brought by a city attorney of a city and county,
the entire amount of the penalty collected shall be paid to the
treasurer of the city and county in which the judgment was entered
for the exclusive use by the city attorney for the enforcement of
consumer protection laws. However, if the action is brought by a
city attorney of a city and county for the purposes of civil
enforcement pursuant to Section 17980 of the Health and Safety
Code or Article 3 (commencing with Section 11570) of Chapter
10 of Division 10 of the Health and Safety Code, either the penalty
collected shall be paid entirely to the treasurer of the city and
county in which the judgment was entered or, upon the request of
the city attorney, the court may order that up to one-half of the
penalty, under court supervision and approval, be paid for the
purpose of restoring, maintaining, or enhancing the premises that
were the subject of the action, and that the balance of the penalty
be paid to the treasurer of the city and county.

begin delete

SECTION 1.  

Section 512 of the Labor Code is amended to
read:

512.  

(a) An employer shall not employ an employee for a work
period of more than five hours per day without providing the
employee with a meal period of not less than 30 minutes, except
that if the total work period per day of the employee is no more
than six hours, the meal period may be waived by mutual consent
of both the employer and employee. An employer shall not employ
an employee for a work period of more than 10 hours per day
without providing the employee with a second meal period of not
less than 30 minutes, except that if the total hours worked is no
more than 12 hours, the second meal period may be waived by
mutual consent of the employer and the employee only if the first
meal period was not waived.

(b) Notwithstanding subdivision (a), the Industrial Welfare
Commission may adopt a working condition order permitting a
meal period to commence after six hours of work if the commission
determines that the order is consistent with the health and welfare
of the affected employees.

(c) Subdivision (a) does not apply to an employee in the
wholesale baking industry who is subject to an Industrial Welfare
Commission wage order and who is covered by a valid collective
bargaining agreement that provides for a 35-hour workweek
consisting of five 7-hour days, payment of one and one-half times
the regular rate of pay for time worked in excess of seven hours
per day, and a rest period of not less than 10 minutes every two
hours.

(d) If an employee in the motion picture industry or the
broadcasting industry, as those industries are defined in Industrial
Welfare Commission Wage Order Numbers 11 and 12, is covered
by a valid collective bargaining agreement that provides for meal
periods and includes a monetary remedy if the employee does not
receive a meal period required by the agreement, then the terms,
conditions, and remedies of the agreement pertaining to meal
periods apply in lieu of the applicable provisions pertaining to
meal periods of subdivision (a), Section 226.7, and Industrial
Welfare Commission Wage Order Numbers 11 and 12.

(e) Subdivisions (a) and (b) do not apply to an employee
specified in subdivision (f) if both of the following conditions are
satisfied:

(1) The employee is covered by a valid collective bargaining
agreement.

(2) The valid collective bargaining agreement expressly provides
for the wages, hours of work, and working conditions of
employees, and expressly provides for meal periods for those
employees, final and binding arbitration of disputes concerning
application of its meal period provisions, premium wage rates for
all overtime hours worked, and a regular hourly rate of pay of not
less than 30 percent more than the state minimum wage rate.

(f) Subdivision (e) applies to each of the following employees:

(1) An employee employed in a construction occupation.

(2) An employee employed as a commercial driver.

(3) An employee employed in the security services industry as
a security officer, who is registered pursuant to Chapter 11.5
(commencing with Section 7580) of Division 3 of the Business
and Professions Code, and who is employed by a private patrol
operator registered pursuant to that chapter.

(4) An employee employed by an electrical corporation, a gas
corporation, or a local publicly owned electric utility.

(g) The following definitions apply for the purposes of this
section:

(1) “Commercial driver” means an employee who operates a
vehicle described in Section 260 or 462 of, or subdivision (b) of
Section 15210 of, the Vehicle Code.

(2) “Construction occupation” means all job classifications
associated with construction by Article 2 (commencing with
Section 7025) of Chapter 9 of Division 3 of the Business and
Professions Code, including work involving alteration, demolition,
building, excavation, renovation, remodeling, maintenance,
improvement, and repair, and any other similar or related
occupation or trade.

(3) “Electrical corporation” has the same meaning as provided
in Section 218 of the Public Utilities Code.

(4) “Gas corporation” has the same meaning as provided in
Section 222 of the Public Utilities Code.

(5) “Local publicly owned electric utility” has the same meaning
as provided in Section 224.3 of the Public Utilities Code.

end delete