Amended in Senate September 4, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 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 amended, 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 begin delete authorize the Labor Commissioner to file a certified copy of the order within 10 days of its becoming final end delete begin insert provide that, under the above provisions, upon an order becoming final, a lien is created and the Labor Commissioner may record end insert begin insert a certificate of lien, as specified, end insert with the county recorder of any county in which the employer’s property may be located. begin insert The bill would require the certificate to contain specified information. end insert The bill would provide that begin delete the amount due under the final order shall be a end delete begin insert the end insert lien begin insert would continue end insert on the employer’s begin delete personal and end delete real property begin insert until satisfied or released, as provided, or for 10 years end insert , as specified, and would require the county recorder to begin insert accept, end insert record begin insert , end insert and index the begin delete order as a mortgage on real estate and to file and index the order as a security interest, end delete begin insert certificate of lien, end insert as specified. begin delete By requiring a higher level of service on a local agency, this bill would impose a state-mandated local program. end delete

begin delete

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.

end delete begin delete

This bill would provide that no reimbursement is required by this act for a specified reason.

end delete

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program:  begin delete yes end delete begin insert no end insert .

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

SECTION 1.  

Section 98.2 of the Labor Code is amended to
read:

98.2.  

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

(b) As a condition to filing an appeal pursuant to this section,
an employer shall first post an undertaking with the reviewing
court in the amount of the order, decision, or award. The
undertaking shall consist of an appeal bond issued by a licensed
surety or a cash deposit with the court in the amount of the order,
decision, or award. The employer shall provide written notification
to the other parties and the Labor Commissioner of the posting of
the undertaking. The undertaking shall be on the condition that, if
any judgment is entered in favor of the employee, the employer
shall pay the amount owed pursuant to the judgment, and if the
appeal is withdrawn or dismissed without entry of judgment, the
employer shall pay the amount owed pursuant to the order,
decision, or award of the Labor Commissioner unless the parties
have executed a settlement agreement for payment of some other
amount, in which case the employer shall pay the amount that the
employer is obligated to pay under the terms of the settlement
agreement. If the employer fails to pay the amount owed within
10 days of entry of the judgment, dismissal, or withdrawal of the
appeal, or the execution of a settlement agreement, a portion of
the undertaking equal to the amount owed, or the entire undertaking
if the amount owed exceeds the undertaking, is forfeited to the
employee.

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

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

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

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

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

begin delete

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

end delete begin insert

(g) (1) As an alternative to a judgment lien, upon the order
becoming final pursuant to subdivision (d), a lien on real property
may be created by the Labor Commissioner recording a certificate
of lien, for amounts due under the final order and in favor of the
employee or employees named in the order, with the county
recorder of any county in which the employer’s real property may
be located, at the Labor Commissioner’s discretion and depending
upon information the Labor Commissioner obtains concerning the
employer’s assets. The lien attaches to all interests in real property
of the employer located in the county where the lien is created to
which a judgment lien may attach pursuant to Section 697.340 of
the Code of Civil Procedure.

end insert begin insert

(2) The certificate of lien shall include information as prescribed
by Section 27288.1 of the Government Code.

end insert begin insert

(3) The recorder shall accept and record the certificate of lien
and shall index it as prescribed by law.

end insert begin insert

(4) Upon payment of the amount due under the final order, the
Labor Commissioner shall issue a certificate of release, releasing
the lien created under paragraph (1). The certificate of release
may be recorded by the employer at the employer’s expense.

end insert begin insert

(5) Unless the lien is satisfied or released, a lien under this
section shall continue until 10 years from the date of its creation.

end insert

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

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

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

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

begin delete

SEC. 2.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
a local agency or school district has the authority to levy service
charges, fees, or assessments sufficient to pay for the program or
level of service mandated by this act, within the meaning of Section
17556 of the Government Code.

end delete