California Legislature—2013–14 Regular Session

Assembly BillNo. 1386


Introduced by Committee on Labor and Employment (Roger Hernández (Chair), Alejo, Chau, and Holden)

March 4, 2013


An act to amend Section 98.2 of the Labor Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

AB 1386, as introduced, Committee on Labor and Employment. Employment: employee complaints: final orders.

Existing law vests with the Labor Commissioner the authority to hear employee complaints regarding the payment of wages and other employment-related issues. Existing law requires the Labor Commissioner to file an order, decision, or award within 15 days of hearing an employee complaint. If no party to the action appeals the order, decision, or award within 10 days after its service, existing law provides that the order, decision, or award becomes the final order for the action. The Labor Commissioner is required to file the final order with the clerk of the superior court of the appropriate county within 10 days of the order, decision, or award becoming the final order for the action, unless the parties reach a settlement approved by the Labor Commissioner. Existing law then requires the clerk of the superior court to enter judgment in conformity with the final order, which has the same force and effect as a judgment entered in a civil action.

This bill would authorize the Labor Commissioner to file a certified copy of the order within 10 days of its becoming final with the county recorder of any county in which the employer’s property may be located. The bill would provide that the amount due under the final order shall be a lien on the employer’s personal and real property, as specified, and would require the county recorder to record and index the order as a mortgage on real estate and to file and index the order as a security interest, as specified. By requiring a higher level of service on a local agency, 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:

P2    1

SECTION 1.  

Section 98.2 of the Labor Code is amended to
2read:

3

98.2.  

(a) Within 10 days after service of notice of an order,
4decision, or award the parties may seek review by filing an appeal
5to the superior court, where the appeal shall be heard de novo. The
6court shall charge the first paper filing fee under Section 70611 of
7the Government Code to the party seeking review. The fee shall
8be distributed as provided in Section 68085.3 of the Government
9Code. A copy of the appeal request shall be served upon the Labor
10Commissioner by the appellant. For purposes of computing the
1110-day period after service, Section 1013 of the Code of Civil
12Procedure is applicable.

13(b) As a condition to filing an appeal pursuant to this section,
14an employer shall first post an undertaking with the reviewing
15court in the amount of the order, decision, or award. The
16undertaking shall consist of an appeal bond issued by a licensed
17surety or a cash deposit with the court in the amount of the order,
18decision, or award. The employer shall provide written notification
19to the other parties and the Labor Commissioner of the posting of
20the undertaking. The undertaking shall be on the condition that, if
21any judgment is entered in favor of the employee, the employer
22shall pay the amount owed pursuant to the judgment, and if the
23appeal is withdrawn or dismissed without entry of judgment, the
24employer shall pay the amount owed pursuant to the order,
25decision, or award of the Labor Commissioner unless the parties
P3    1have executed a settlement agreement for payment of some other
2amount, in which case the employer shall pay the amount that the
3employer is obligated to pay under the terms of the settlement
4agreement. If the employer fails to pay the amount owed within
510 days of entry of the judgment, dismissal, or withdrawal of the
6appeal, or the execution of a settlement agreement, a portion of
7the undertaking equal to the amount owed, or the entire undertaking
8if the amount owed exceeds the undertaking, is forfeited to the
9employee.

10(c) If the party seeking review by filing an appeal to the superior
11court is unsuccessful in the appeal, the court shall determine the
12costs and reasonable attorney’s fees incurred by the other parties
13to the appeal, and assess that amount as a cost upon the party filing
14the appeal. An employee is successful if the court awards an
15amount greater than zero.

16(d) If no notice of appeal of the order, decision, or award is filed
17within the period set forth in subdivision (a), the order, decision,
18or award shall, in the absence of fraud, be deemed the final order.

19(e) The Labor Commissioner shall file, within 10 days of the
20order becoming final pursuant to subdivision (d), a certified copy
21of the final order with the clerk of the superior court of the
22appropriate county unless a settlement has been reached by the
23parties and approved by the Labor Commissioner. Judgment shall
24be entered immediately by the court clerk in conformity therewith.
25The judgment so entered has the same force and effect as, and is
26subject to all of the provisions of law relating to, a judgment in a
27civil action, and may be enforced in the same manner as any other
28judgment of the court in which it is entered. Enforcement of the
29judgment shall receive court priority.

30(f) (1) In order to ensure that judgments are satisfied, the Labor
31Commissioner may serve upon the judgment debtor, personally
32or by first-class mail at the last known address of the judgment
33debtor listed with the division, a form similar to, and requiring the
34reporting of the same information as, the form approved or adopted
35by the Judicial Council for purposes of subdivision (a) of Section
36116.830 of the Code of Civil Procedure to assist in identifying the
37nature and location of any assets of the judgment debtor.

38(2) The judgment debtor shall complete the form and cause it
39to be delivered to the division at the address listed on the form
40within 35 days after the form has been served on the judgment
P4    1debtor, unless the judgment has been satisfied. In case of willful
2failure by the judgment debtor to comply with this subdivision,
3the division or the judgment creditor may request the court to apply
4the sanctions provided in Section 708.170 of the Code of Civil
5Procedure.

begin insert

6(g) The Labor Commissioner may file, within 10 days of the
7order becoming final pursuant to subdivision (d), a certified copy
8of the final order with the county recorder of any county in which
9the employer’s property may be located. The order may be filed
10in any and all counties of the state, at the Labor Commissioner’s
11discretion and depending upon information the Labor
12Commissioner obtains concerning the employer’s assets. The
13amount found due under the order shall be a lien in favor of the
14employee named in the order, and against the personal and real
15property of the employer named in the order, within the county in
16which the order is filed. The recorder shall accept and file the
17order and record it as a mortgage on real estate, shall file the
18same as a security interest, and shall index the same as a mortgage
19on real estate and as a security interest. The recorder shall include
20all charges for the services to be performed by him or her, as
21required by this section, in the amount due under the lien.

end insert
begin delete

22(g)

end delete

23begin insert(h)end insert Notwithstanding subdivision (e), the Labor Commissioner
24may stay execution of any judgment entered upon an order,
25decision, or award that has become final upon good cause appearing
26therefor and may impose the terms and conditions of the stay of
27execution. A certified copy of the stay of execution shall be filed
28with the clerk entering the judgment.

begin delete

29(h)

end delete

30begin insert(i)end insert When a judgment is satisfied in fact, other than by execution,
31the Labor Commissioner may, upon the motion of either party or
32on its own motion, order entry of satisfaction of judgment. The
33clerk of the court shall enter a satisfaction of judgment upon the
34filing of a certified copy of the order.

begin delete

35(i)

end delete

36begin insert(j)end insert The Labor Commissioner shall make every reasonable effort
37to ensure that judgments are satisfied, including taking all
38appropriate legal action and requiring the employer to deposit a
39bond as provided in Section 240.

begin delete

40(j)

end delete

P5    1begin insert(k)end insert The judgment creditor, or the Labor Commissioner as
2assignee of the judgment creditor, is entitled to court costs and
3reasonable attorney’s fees for enforcing the judgment that is
4rendered pursuant to this section.

5

SEC. 2.  

No reimbursement is required by this act pursuant to
6Section 6 of Article XIII B of the California Constitution because
7a local agency or school district has the authority to levy service
8charges, fees, or assessments sufficient to pay for the program or
9level of service mandated by this act, within the meaning of Section
1017556 of the Government Code.



O

    99