California Legislature—2013–14 Regular Session

Assembly BillNo. 1723


Introduced by Assembly Member Nazarian

February 14, 2014


An act to amend Section 1197.1 of the Labor Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

AB 1723, 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 to a citation that includes a civil penalty, the payment of restitution of wages, and payment of liquidated damages to the employee. Existing law also provides for a penalty imposed upon an employer for the willful failure to timely pay wages of an employee who resigns or is discharged.

This bill would expand that penalty, restitution, and liquidated damages provision for a citation to also subject the employer to payment of any applicable penalties for the willful failure to timely pay wages of a resigned or discharged employee.

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

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

P2    1

SECTION 1.  

Section 1197.1 of the Labor Code is amended to
2read:

3

1197.1.  

(a) Any employer or other person acting either
4individually or as an officer, agent, or employee of another person,
5who pays or causes to be paid to any employee a wage less than
6the minimum fixed by an order of the commission shall be subject
7to a civil penalty, restitution of wages,begin delete andend delete liquidated damages
8payable to the employee,begin insert and any applicable penalties imposed
9pursuant to Section 203end insert
as follows:

10(1) For any initial violation that is intentionally committed, one
11hundred dollars ($100) for each underpaid employee for each pay
12period for which the employee is underpaid. This amount shall be
13in addition to an amount sufficient to recover underpaidbegin delete wages
14andend delete
begin insert wages,end insert liquidated damages pursuant to Section 1194.2begin insert, and
15any applicable penalties imposed pursuant to Section 203end insert
.

16(2) For each subsequent violation for the same specific offense,
17two hundred fifty dollars ($250) for each underpaid employee for
18each pay period for which the employee is underpaid regardless
19of whether the initial violation is intentionally committed. This
20amount shall be in addition to an amount sufficient to recover
21underpaidbegin delete wages andend deletebegin insert wages,end insert liquidated damages pursuant to
22Section 1194.2begin insert, and any applicable penalties imposed pursuant
23to Section 203end insert
.

24(3)  begin deleteWages and end delete begin insertWages, end insertliquidated damagesbegin insert, and any applicable
25penalties imposed pursuant to Section 203,end insert
recovered pursuant to
26this section shall be paid to the affected employee.

27(b) If, upon inspection or investigation, the Labor Commissioner
28determines that a person has paid or caused to be paid a wage less
29than the minimum, the Labor Commissioner may issue a citation
30to the person in violation. The citation may be served personally
31or by registered mail in accordance with subdivision (c) of Section
3211505 of the Government Code. Each citation shall be in writing
33and shall describe the nature of the violation, including reference
34to the statutory provision alleged to have been violated. The Labor
35Commissioner promptly shall take all appropriate action, in
P3    1accordance with this section, to enforce the citation and to recover
2the civil penalty assessed, wages,begin delete andend delete liquidated damagesbegin insert, and any
3applicable penalties imposed pursuant to Section 203end insert
in connection
4with the citation.

5(c) (1) If a person desires to contest a citation or the proposed
6assessment of a civil penalty, wages,begin delete andend delete liquidated damagesbegin insert, and
7any applicable penalties imposed pursuant to Section 203end insert
therefor,
8the person shall, within 15 business days after service of the
9citation, notify the office of the Labor Commissioner that appears
10on the citation of his or her request for an informal hearing. The
11Labor Commissioner or his or her deputy or agent shall, within 30
12days, hold a hearing at the conclusion of which the citation or
13proposed assessment of a civil penalty, wages,begin delete andend delete liquidated
14damagesbegin insert, and any applicable penalties imposed pursuant to Section
15203end insert
shall be affirmed, modified, or dismissed.

16(2) The decision of the Labor Commissioner shall consist of a
17notice of findings, findings, and an order, all of which shall be
18served on all parties to the hearing within 15 days after the hearing
19by regular first-class mail at the last known address of the party
20on file with the Labor Commissioner. Service shall be completed
21pursuant to Section 1013 of the Code of Civil Procedure. Any
22amount found due by the Labor Commissioner as a result of a
23hearing shall become due and payable 45 days after notice of the
24findings and written findings and order have been mailed to the
25party assessed. A writ of mandate may be taken from this finding
26to the appropriate superior court. The party shall pay any judgment
27and costs ultimately rendered by the court against the party for the
28assessment. The writ shall be taken within 45 days of service of
29the notice of findings, findings, and order thereon.

30(d) A person to whom a citation has been issued shall, in lieu
31of contesting a citation pursuant to this section, transmit to the
32office of the Labor Commissioner designated on the citation the
33amount specified for the violation within 15 business days after
34issuance of the citation.

35(e) When no petition objecting to a citation or the proposed
36assessment of a civil penalty, wages,begin delete andend delete liquidated damagesbegin insert, and
37any applicable penalties imposed pursuant to Section 203end insert
is filed,
38a certified copy of the citation or proposed civil penalty, wages,
39begin delete andend delete liquidated damagesbegin insert, and any applicable penalties imposed
40pursuant to Section 203end insert
may be filed by the Labor Commissioner
P4    1in the office of the clerk of the superior court in any county in
2which the person assessed has or had a place of business. The
3clerk, immediately upon the filing, shall enter judgment for the
4state against the person assessed in the amount shown on the
5citation or proposed assessment of a civil penalty, wages,begin delete andend delete
6 liquidated damagesbegin insert, and any applicable penalties imposed pursuant
7to Section 203end insert
.

8(f) When findings and the order thereon are made affirming or
9modifying a citation or proposed assessment of a civil penalty,
10wages,begin delete andend delete liquidated damagesbegin insert, and any applicable penalties
11imposed pursuant to Section 203end insert
after hearing, a certified copy of
12these findings and the order entered thereon may be entered by
13the Labor Commissioner in the office of the clerk of the superior
14court in any county in which the person assessed has property or
15in which the person assessed has or had a place of business. The
16clerk, immediately upon the filing, shall enter judgment for the
17state against the person assessed in the amount shown on the
18certified order.

19(g) A judgment entered pursuant to this section shall bear the
20same rate of interest and shall have the same effect as other
21judgments and be given the same preference allowed by the law
22on other judgments rendered for claims for taxes. The clerk shall
23make no charge for the service provided by this section to be
24performed by him or her.

25(h) The civil penalties provided for in this section are in addition
26to any other penalty provided by law.

27(i) This section shall not apply to any order of the commission
28relating to household occupations.



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