BILL NUMBER: AB 1138 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 21, 2013
INTRODUCED BY Assembly Member Chau
FEBRUARY 22, 2013
An act to amend Section 106 of the Labor Code, relating
to employment. An act to amend Sections 3550, 3551,
and 3602 of, and to add Sections 3554, 3555, and 3556 to, the Labor
Code, relating to workers' compensation.
LEGISLATIVE COUNSEL'S DIGEST
AB 1138, as amended, Chau. Joint Enforcement Strike Force
on the Underground Economy. Workers' compensation:
notice: records: liability.
(1) Existing law establishes a workers' compensation system,
administered by the Administrative Director of the Division of
Workers' Compensation, to compensate an employee for injuries
sustained in the course of his or her employment. Existing law
establishes the Department of Industrial Relations. Existing law
provides for specified procedures to be used in notifying employees
regarding workers' compensation benefits and required actions in
pursuing a workers' compensation claim.
This bill would require employers to post a notice of covered
employees showing the full names of employees covered by the employer'
s workers' compensation carrier, and updated quarterly, as specified.
The employer would also be required to keep separate lists of
covered employees, that would include specified identifying
information for each covered employee, and make those lists available
in written and electronic form, as specified, upon request, to
specified governmental entities and the workers' compensation
insurer. The bill would require the employer to retain a copy of each
notice and each list for 5 years. Except as provided, failure by an
employer to retain or provide copies to specified government agencies
of these notices or lists and the absence of the name of any
employee from the notices or lists would conclusively establish that
the employer did not obtain workers' compensation insurance as
required by law. The bill would provide that these lists are not
public records subject to California Public Record Act.
(2) Existing law requires every employer required to obtain
workers' compensation coverage, except as provided, to give every new
employee, either at the time the employee is hired or by the end of
the first pay period, a written notice of specified workers'
compensation information.
This bill would require every notice required to be given to the
employee to contain his or her name and last four digits of the
employee's social security number. Every employer would be required
to retain a copy for 5 years thereafter, and make it available to
specified governmental entities and the insurer upon request. These
notices would not be public records subject to California Public
Record Act.
This bill would provide that any employer that violates these new
notice provisions would be subject to citation and civil penalty by
the Labor Commissioner, as provided.
(3) Existing law, except as provided, requires workers'
compensation benefits to be the exclusive remedy for workers injured
on the job.
This bill would add an exception to the exclusive remedy provision
when the compensable injury or illness was suffered during a period
that the employee was not listed on the notice of covered employees
or the list of covered employees or the employee was not provided
with the required written notice of specified workers' compensation
information.
(4) Existing constitutional provisions require that a statute that
limits the right of access to the writings of public officials and
agencies be adopted with findings demonstrating the interest
protected by the limitation and the need for protecting that
interest.
This bill would make legislative findings to that effect.
Existing law establishes the Joint Enforcement Strike Force on the
Underground Economy to combat tax violations and cash-pay
employment. Existing law authorizes the Labor Commissioner to
authorize an employee of any of the agencies that participate in the
strike force to issue citations and issue and serve a penalty
assessment order. Existing law prohibits an employee from issuing
citations or penalty assessment orders unless the employee has been
specifically designated, authorized, and trained by the Labor
Commissioner for this purpose.
This bill would make nonsubstantive changes to that prohibition.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 3550 of the Labor
Code is amende d to read:
3550. (a) (1) Every employer subject to the
compensation provisions of this division shall post and keep posted
in a conspicuous location frequented by employees, and where the
notice may be easily read by employees during the hours of the
workday, a notice that states the name of the current compensation
insurance carrier of the employer, or when such is
the fact, fact that the employer is
self-insured, if applicable, and who is responsible for
claims adjustment.
(2) (A) Every employer that secures payment of compensation from
an insurer duly authorized to write compensation insurance in this
state shall post a notice of covered employees that lists only the
full name of each person that is covered by the policy with the
compensation insurance carrier identified in paragraph (1),
immediately adjacent to the notice required in paragraph (1). This
notice of covered employees shall be updated quarterly, or if there
are no changes, upon each addition or removal of a covered employee.
(B) A list of covered employees, including name, address, last
four numbers of the employee's social security number, and the
employee identification number shall be made available to the
Director of Industrial Relations, the Division of Labor Standards
Enforcement, the Department of Insurance, the Employment Development
Department, and the insurer, upon request. The list of covered
employees shall be made available in written form, and also in
electronic form by employers that utilize a computerized payroll
system. These lists are not public records subject to the California
Public Records Act (Chapter 3.5 (commencing with Section 6250) of
Division 7 of Title 1 of the Government Code).
(C) Every employer shall retain copies of all notices of covered
employees required by subparagraph (A) and copies of all lists of
covered employees required by subparagraph (B) for a period of not
less than five years.
(3) (A) Except where an employer establishes workers' compensation
coverage for an employee that is provided by another employer
pursuant to subdivision (d) of Section 3602, absence of the name of
any employee on any notice of covered employees or any list of
covered employees required by paragraph (2) conclusively establishes
that the employer did not secure payment of compensation from an
insurance carrier, as required by Section 3700, for the purposes of
any proceeding pursuant to Sections 3710.1, 3710.2, and 3722.
(B) Failure by an employer to retain each notice of covered
employees or each list of covered employees or provide copies to the
Director of Industrial Relations or the Division of Labor Standards
Enforcement in compliance with paragraph (2) conclusively establishes
that the employer failed to secure payment of compensation from an
insurance carrier, as required by Section 3700, for the purposes of
any proceeding pursuant to Sections 3710.1, 3710.2, and 3722, unless
the employer establishes that there was coverage pursuant to
subdivision (d) of Section 3602.
(b) Failure to keep any notice required by this section
paragraph (1) of subdivision (a) conspicuously
posted shall constitute a misdemeanor, and shall be prima facie
evidence of noninsurance.
(c) This section shall not apply with respect to the employment of
employees as defined in subdivision (d) of Section 3351.
(d) The form and content of the notice required by this
section paragraph (1) of subdivision (a) shall
be prescribed by the administrative director, after consultation with
the Commission on Health and Safety and Workers' Compensation, and
shall advise employees that all injuries should be reported to their
employer. The notice shall be easily understandable. It shall be
posted in both English and Spanish where there are Spanish-speaking
employees. The notice shall include the following information:
(1) How to get emergency medical treatment, if needed.
(2) The kinds of events, injuries, and illnesses covered by
workers' compensation.
(3) The injured employee's right to receive medical care.
(4) The rights of the employee to select and change the treating
physician pursuant to the provisions of Section 4600.
(5) The rights of the employee to receive temporary disability
indemnity, permanent disability indemnity, supplemental job
displacement, and death benefits, as appropriate.
(6) To whom injuries should be reported.
(7) The existence of time limits for the employer to be notified
of an occupational injury.
(8) The protections against discrimination provided pursuant to
Section 132a.
(9) The Internet Web site address and contact information that
employees may use to obtain further information about the workers'
compensation claims process and an injured employee's rights and
obligations, including the location and telephone number of the
nearest information and assistance officer.
(e) Failure of an employer to provide the notice required by
this section paragraph (1) of subdivision (a)
shall automatically permit the employee to be treated by his
or her personal physician with respect to an injury occurring during
that failure.
(f) The form and content of the notice required to be posted by
this section paragraph (1) of subdivision (a)
shall be made available to self-insured 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 post
this notice.
SEC. 2. Section 3551 of the Labor Code
is amended to read:
3551. (a) Every employer subject to the compensation provisions
of this code, except employers of employees defined in subdivision
(d) of Section 3351, 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 subdivision (d)
of 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 subdivision (d) of
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.
(d) Notices required by this section shall be made available to
the Director of Industrial Relations, the Division of Labor Standards
Enforcement, the Department of Insurance, the Employment Development
Department, and the insurer upon request. These documents are not
public records subject to the California Public Records Act (Chapter
3.5 (commencing with Section 6250) of Division 7 of Title 1 of the
Government Code).
SEC. 3. Section 3554 is added to the
Labor Code , to read:
3554. (a) Any employer who violates subparagraph (A) of paragraph
(2) of subdivision (a) of Section 3550 shall be subject to citation,
pursuant to Section 3555, and a civil penalty in the amount of one
hundred dollars ($100) per employee for the first violation, and five
hundred dollars ($500) per employee for each violation in a
subsequent citation.
(b) Any employer that fails to turn over records pursuant to
subparagraph (B) of paragraph (2) of subdivision (a) of Section 3550
shall be subject to citation, pursuant to Section 3555, and a civil
penalty in the amount of two hundred fifty dollars ($250) per
employee for the first violation, and one thousand dollars ($1,000)
per employee for each violation in a subsequent citation.
SEC. 4. Section 3555 is added to the
Labor Code , to read:
3555. If, upon inspection or investigation, the Labor
Commissioner determines that an employer is in violation of Section
3550, the Labor Commissioner may issue a citation to that person. 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.
SEC. 5. Section 3556 is added to the
Labor Code , to read:
3556. The procedures for contesting and enforcing judgments for
citations or civil penalties issued by the Labor Commissioner for a
violation of this chapter shall be the same as those set out in
Section 226.5.
SEC. 6. Section 3602 of the Labor Code
is amended to read:
3602. (a) Where the conditions of compensation set forth in
Section 3600 concur, the right to recover compensation is, except as
specifically provided in this section and Sections 3706 and 4558, the
sole and exclusive remedy of the employee or his or her dependents
against the employer. The fact that either the employee or the
employer also occupied another or dual capacity prior to, or at the
time of, the employee's industrial injury shall not permit the
employee or his or her dependents to bring an action at law for
damages against the employer.
(b) An employee, or his or her dependents in the event of his or
her death, may bring an action at law for damages against the
employer, as if this division did not apply, in the following
instances:
(1) Where the employee's injury or death is proximately caused by
a willful physical assault by the employer.
(2) Where the employee's injury is aggravated by the employer's
fraudulent concealment of the existence of the injury and its
connection with the employment, in which case the employer's
liability shall be limited to those damages proximately caused by the
aggravation. The burden of proof respecting apportionment of damages
between the injury and any subsequent aggravation thereof is upon
the employer.
(3) Where the employee's injury or death is proximately caused by
a defective product manufactured by the employer and sold, leased, or
otherwise transferred for valuable consideration to an independent
third person, and that product is thereafter provided for the
employee's use by a third person.
(c) In all cases where the conditions of compensation set forth in
Section 3600 do not concur, the liability of the employer shall be
the same as if this division had not been enacted.
(d) (1) For the purposes of this division, including Sections 3700
and 3706, an employer may secure the payment of compensation on
employees provided to it by agreement by another employer by entering
into a valid and enforceable agreement with that other employer
under which the other employer agrees to obtain, and has, in fact,
obtained workers' compensation coverage for those employees. In those
cases, both employers shall be considered to have secured the
payment of compensation within the meaning of this section and
Sections 3700 and 3706 if there is a valid and enforceable agreement
between the employers to obtain that coverage, and that coverage, as
specified in subdivision (a) or (b) of Section 3700, has been in fact
obtained, and the coverage remains in effect for the duration of the
employment providing legally sufficient coverage to the employee or
employees who form the subject matter of the coverage. That agreement
shall not be made for the purpose of avoiding an employer's
appropriate experience rating as defined in subdivision (c) of
Section 11730 of the Insurance Code.
(2) Employers who have complied with this subdivision shall not be
subject to civil, criminal, or other penalties for failure to
provide workers' compensation coverage or tort liability in the event
of employee injury, but may, in the absence of compliance, be
subject to all three.
(e) Notwithstanding the provisions of subdivisions (a) to (c),
inclusive, the exclusive remedy provision shall not apply for
compensable injuries and illnesses suffered during a period that an
employee is not included in a notice of covered employees or list of
covered employees as required pursuant to Section 3550.
(e)
(f) As provided in paragraph (12) of subdivision (f) of
Section 1202.4 of the Penal Code, in cases where an employer is
convicted of a crime against an employee, a payment to the employee
or the employee's dependent that is paid by the employer's workers'
compensation insurance carrier shall not be used to offset the amount
of the restitution order unless the court finds that the defendant
substantially met the obligation to pay premiums for that insurance
coverage.
SEC. 7. The Legislature finds and declares that
Sections 1 and 2 of this act impose a limitation on the public's
right of access to the writings of public officials and agencies
within the meaning of Section 3 of Article I of the California
Constitution. Pursuant to that constitutional provision, the
Legislature makes the following findings to demonstrate the interest
protected by this limitation and the need for protecting that
interest:
In order to protect the inalienable right to privacy pursuant to
Section 1 of Article I of the California Constitution, it is
necessary to enact legislation that the documents containing employee
personal information provided pursuant to this act are maintained
confidential.
SECTION 1. Section 106 of the Labor Code is
amended to read:
106. (a) The Labor Commissioner may authorize an employee of any
of the agencies that participate in the Joint Enforcement Strike
Force on the Underground Economy, as defined in Section 329 of the
Unemployment Insurance Code, to issue citations pursuant to Sections
226.4 and 1022 and issue and serve a penalty assessment order
pursuant to subdivision (a) of Section 3722.
(b) An employee shall not issue a citation or penalty assessment
order pursuant to this section unless the employee has been
specifically designated, authorized, and trained by the Labor
Commissioner for this purpose. Appeals of all citations or penalty
assessment orders shall follow the procedures prescribed in Section
226.5, 1023, or 3725, as applicable.