AB 2095, as introduced, Wagner. Employee compensation: itemized statements.
Existing law requires every employer, semimonthly or at the time of each payment of wages, to furnish each employee with an accurate itemized statement in writing showing specified information. Existing law requires an employer to afford current and former employees the right to inspect or copy records pertaining to their employment, as specified.
Existing law authorizes an employee to bring an action for injunctive relief to ensure compliance with these requirements, and provides that this employee is entitled to an award of costs and reasonable attorney’s fees.
This bill would prohibit an employee from receiving an award of costs and reasonable attorney’s fees if the employer is the prevailing party and the court determines that the action was brought in bad faith, in which case the bill would require the employer to be awarded attorney’s fees and costs.
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 226 of the Labor Code is amended to
2read:
(a) Every employer shall, semimonthly or at the time of
4each payment of wages, furnish each of his or her employees,
5either as a detachable part of the check, draft, or voucher paying
6the employee’s wages, or separately when wages are paid by
7personal check or cash, an accurate itemized statement in writing
8showing (1) gross wages earned, (2) total hours worked by the
9employee, except for any employee whose compensation is solely
10based on a salary and who is exempt from payment of overtime
11under subdivision (a) of Section 515 or any applicable order of
12the Industrial Welfare Commission, (3) the number of piece-rate
13units earned and any applicable piece rate if the employee is paid
14on a piece-rate basis, (4) all deductions, provided that all deductions
15made on written orders of the employee may be aggregated and
16shown as one item,
(5) net wages earned, (6) the inclusive dates
17of the period for which the employee is paid, (7) the name of the
18employee and only the last four digits of his or her social security
19number or an employee identification number other than a social
20security number, (8) the name and address of the legal entity that
21is the employer and, if the employer is a farm labor contractor, as
22defined in subdivision (b) of Section 1682, the name and address
23of the legal entity that secured the services of the employer, and
24(9) all applicable hourly rates in effect during the pay period and
25the corresponding number of hours worked at each hourly rate by
26the employee and, beginning July 1, 2013, if the employer is a
27temporary services employer as defined in Section 201.3, the rate
28of pay and the total hours worked for each temporary services
29assignment. The deductions made from payment of wages shall
30be recorded in ink or other indelible form, properly dated, showing
31the month, day, and year, and a copy of the statement and
the
32record of the deductions shall be kept on file by the employer for
33at least three years at the place of employment or at a central
34location within the State of California. For purposes of this
35subdivision, “copy” includes a duplicate of the itemized statement
36provided to an employee or a computer-generated record that
37accurately shows all of the information required by this subdivision.
P3 1(b) An employer that is required by this code or any regulation
2adopted pursuant to this code to keep the information required by
3subdivision (a) shall afford current and former employees the right
4to inspect or copy records pertaining to their employment, upon
5reasonable request to the employer. The employer may take
6reasonable steps to ensure the identity of a current or former
7employee. If the employer provides copies of the records, the actual
8cost of reproduction may be charged to the current or former
9employee.
10(c) An employer who receives a written or oral request to inspect
11or copy records pursuant to subdivision (b) pertaining to a current
12or former employee shall comply with the request as soon as
13practicable, but no later than 21 calendar days from the date of the
14request. A violation of this subdivision is an infraction.
15Impossibility of performance, not caused by or a result of a
16violation of law, shall be an affirmative defense for an employer
17in any action alleging a violation of this subdivision. An employer
18may designate the person to whom a request under this subdivision
19will be made.
20(d) This section does not apply to any employer of any person
21employed by the owner or occupant of a residential dwelling whose
22duties are incidental to the ownership, maintenance, or use of the
23dwelling, including the care and supervision of children, or whose
24duties are personal and not in the
course of the trade, business,
25profession, or occupation of the owner or occupant.
26(e) (1) An employee suffering injury as a result of a knowing
27and intentional failure by an employer to comply with subdivision
28(a) is entitled to recover the greater of all actual damages or fifty
29dollars ($50) for the initial pay period in which a violation occurs
30and one hundred dollars ($100) per employee for each violation
31in a subsequent pay period, not to exceed an aggregate penalty of
32four thousand dollars ($4,000), and is entitled to an award of costs
33and reasonable attorney’s fees.
34(2) (A) An employee is deemed to suffer injury for purposes
35of this subdivision if the employer fails to provide a wage
36statement.
37(B) An employee is deemed to suffer injury for purposes of this
38
subdivision if the employer fails to provide accurate and complete
39information as required by any one or more of items (1) to (9),
40inclusive, of subdivision (a) and the employee cannot promptly
P4 1and easily determine from the wage statement alone one or more
2of the following:
3(i) The amount of the gross wages or net wages paid to the
4employee during the pay period or any of the other information
5required to be provided on the itemized wage statement pursuant
6to items (2) to (4), inclusive, (6), and (9) of subdivision (a).
7(ii) Which deductions the employer made from gross wages to
8determine the net wages paid to the employee during the pay
9period. Nothing in this subdivision alters the ability of the employer
10to aggregate deductions consistent with the requirements of item
11(4) of subdivision (a).
12(iii) The name and
address of the employer and, if the employer
13is a farm labor contractor, as defined in subdivision (b) of Section
141682, the name and address of the legal entity that secured the
15services of the employer during the pay period.
16(iv) The name of the employee and only the last four digits of
17his or her social security number or an employee identification
18number other than a social security number.
19(C) For purposes of this paragraph, “promptly and easily
20determine” means a reasonable person would be able to readily
21ascertain the information without reference to other documents or
22information.
23(3) For purposes of this subdivision, a “knowing and intentional
24failure” does not include an isolated and unintentional payroll error
25due to a clerical or inadvertent mistake. In reviewing for
26compliance with this section, the
factfinder may consider as a
27relevant factor whether the employer, prior to an alleged violation,
28has adopted and is in compliance with a set of policies, procedures,
29and practices that fully comply with this section.
30(f) A failure by an employer to permit a current or former
31employee to inspect or copy records within the time set forth in
32subdivision (c) entitles the current or former employee or the Labor
33Commissioner to recover a seven-hundred-fifty-dollar ($750)
34penalty from the employer.
35(g) The listing by an employer of the name and address of the
36legal entity that secured the services of the employer in the itemized
37statement required by subdivision (a) shall not create any liability
38on the part of that legal entity.
39(h) An employee may also bring an action for injunctive relief
40to ensure compliance with thisbegin delete section, andend deletebegin insert
section. An employee
P5 1who brings this actionend insert is entitled to an award of costs and
2reasonable attorney’s feesbegin insert, unless the employer is the prevailing
3party and the court determines that the action was brought in bad
4faith, in which case the employer shall be awarded reasonable
5attorney’s fees and costsend insert.
6(i) This section does not apply to the state, to any city, county,
7city and county, district, or to any other governmental entity, except
8that if the state or a city, county, city and county, district, or other
9governmental entity furnishes its employees with a check, draft,
10or voucher paying the employee’s wages, the state or a city, county,
11city and county, district, or other governmental entity shall use no
12more than the last four digits of the employee’s social security
13number or shall use an
employee identification number other than
14the social security number on the itemized statement provided with
15the check, draft, or voucher.
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