BILL NUMBER: AB 2271 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Ian Calderon
FEBRUARY 21, 2014
An act to amend Section 98 of the Labor Code, relating to
employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 2271, as introduced, Ian Calderon. Employment: employee
complaints.
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.
This bill would make technical, nonsubstantive changes to this
provision.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 98 of the Labor Code is amended to read:
98. (a) The Labor Commissioner is authorized to investigate
employee complaints. The Labor Commissioner may provide for a hearing
in any an action to recover wages,
penalties, and other demands for compensation, including liquidated
damages if the complaint alleges payment of a wage less than the
minimum wage fixed by an order of the Industrial Welfare Commission
or by statute, properly before the division or the Labor
Commissioner, including orders of the Industrial Welfare Commission,
and shall determine all matters arising under his or her
jurisdiction. It is within the jurisdiction of the Labor Commissioner
to accept and determine claims from holders of payroll checks or
payroll drafts returned unpaid because of insufficient funds, if,
after a diligent search, the holder is unable to return the
dishonored check or draft to the payee and recover the sums paid out.
Within 30 days of the filing of the complaint, the Labor
Commissioner shall notify the parties as to whether a hearing will be
held, whether action will be taken in accordance with Section 98.3,
or whether no further action will be taken on the complaint. If the
determination is made by the Labor Commissioner to hold a hearing,
the hearing shall be held within 90 days of the date of that
determination. However, the Labor Commissioner may postpone or grant
additional time before setting a hearing if the Labor Commissioner
finds that it would lead to an equitable and just resolution of the
dispute. A party who has received actual notice of a claim before the
Labor Commissioner shall, while the matter is before the Labor
Commissioner, notify the Labor Commissioner in writing of
any a change in that party's business or
personal address within 10 days after the change in address occurs.
It is the intent of the Legislature that hearings held pursuant to
this section be conducted in an informal setting preserving the
rights of the parties.
(b) When a hearing is set, a copy of the complaint, which shall
include the amount of compensation requested, together with a notice
of time and place of the hearing, shall be served on all parties,
personally or by certified mail, or in the manner specified in
Section 415.20 of the Code of Civil Procedure.
(c) Within 10 days after service of the notice and the complaint,
a defendant may file an answer with the Labor Commissioner in
any a form as the Labor Commissioner
may prescribe, setting forth the particulars in which the complaint
is inaccurate or incomplete and the facts upon which the defendant
intends to rely.
(d) No A pleading other than the
complaint and answer of the defendant or defendants shall not
be required. Both shall be in writing and shall conform to the
form and the rules of practice and procedure adopted by the Labor
Commissioner.
(e) Evidence on matters not pleaded in the answer shall be allowed
only on terms and conditions the Labor Commissioner shall impose. In
all these cases, the claimant shall be entitled to a continuance for
purposes of review of the new evidence.
(f) If the defendant fails to appear or answer within the time
allowed under this chapter, no a
default shall not be taken against him or her, but the
Labor Commissioner shall hear the evidence offered and shall issue an
order, decision, or award in accordance with the evidence. A
defendant failing to appear or answer, or subsequently contending to
be aggrieved in any a manner by want of
notice of the pendency of the proceedings, may apply to the Labor
Commissioner for relief in accordance with Section 473 of the Code of
Civil Procedure. The Labor Commissioner may afford this relief.
No A right to relief, including the
claim that the findings or award of the Labor Commissioner or
judgment entered thereon are void upon their face, shall not
accrue to the defendant in any court unless prior application
is made to the Labor Commissioner in accordance with this chapter.
(g) All hearings A hearing conducted
pursuant to this chapter are is
governed by the division and by the rules of practice and procedure
adopted by the Labor Commissioner.
(h) (1) Whenever a claim is filed under this chapter against a
person operating or doing business under a fictitious business name,
as defined in Section 17900 of the Business and Professions Code,
which relates to the person's business, the division shall inquire at
the time of the hearing whether the name of the person is the legal
name under which the business or person has been licensed,
registered, incorporated, or otherwise authorized to do business.
(2) The division may amend an order, decision, or award to conform
to the legal name of the business or the person who is the defendant
to a wage claim, if it can be shown that proper service was made on
the defendant or his or her agent, unless a judgment had been entered
on the order, decision, or award pursuant to subdivision (d) of
Section 98.2. The Labor Commissioner may apply to the clerk of the
superior court to amend a judgment that has been issued pursuant to a
final order, decision, or award to conform to the legal name of the
defendant, if it can be shown that proper service was made on the
defendant or his or her agent.