Senate Bill No. 242

Introduced by Senator Wyland

February 12, 2013

An act to amend Section 2699 of the Labor Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

SB 242, as introduced, Wyland. Employees: civil penalties.

Under existing law, the Labor Code Private Attorneys General Act of 2004, a provision providing for a civil penalty to be assessed and collected by the Labor and Workforce Development Agency or any of its departments, divisions, commissions, boards, agencies, or employees, for a violation of certain provisions affecting employees, may, as an alternative, be recovered through a civil action brought by an aggrieved employee on behalf of himself or herself and other current or former employees pursuant to specified procedures.

This bill would make nonsubstantive changes to the provision referenced above.

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 2699 of the Labor Code is amended to
read:

2699.  

(a) Notwithstanding any other begin delete provision of end delete law, any
provision of this code begin delete that provides end delete begin insert providing end insert for a civil penalty
to be assessed and collected by the Labor and Workforce
Development Agency or any of its departments, divisions,
commissions, boards, agencies, or employees, for a violation of
this code, may, as an alternative, be recovered through a civil action
brought by an aggrieved employee on behalf of himself or herself
and other current or former employees pursuant to the procedures
specified in Section 2699.3.

(b) For purposes of this part, “person” has the same meaning
as defined in Section 18.

(c) For purposes of this part, “aggrieved employee” means any
person who was employed by the alleged violator and against
whom one or more of the alleged violations was committed.

(d) For purposes of this part, “cure” means that the employer
abates each violation alleged by any aggrieved employee, the
employer is in compliance with the underlying statutes as specified
in the notice required by this part, and any aggrieved employee is
made whole.

(e) (1) For purposes of this part, whenever the Labor and
Workforce Development Agency, or any of its departments,
divisions, commissions, boards, agencies, or employees, has
discretion to assess a civil penalty, a court is authorized to exercise
the same discretion, subject to the same limitations and conditions,
to assess a civil penalty.

(2) In any action by an aggrieved employee seeking recovery
of a civil penalty available under subdivision (a) or (f), a court
may award a lesser amount than the maximum civil penalty amount
specified by this part if, based on the facts and circumstances of
the particular case, to do otherwise would result in an award that
is unjust, arbitrary and oppressive, or confiscatory.

(f) For all provisions of this code except those for which a civil
penalty is specifically provided, there is established a civil penalty
for a violation of these provisions, as follows:

(1) If, at the time of the alleged violation, the person does not
employ one or more employees, the civil penalty is five hundred
dollars ($500).

(2) If, at the time of the alleged violation, the person employs
one or more employees, the civil penalty is one hundred dollars
($100) for each aggrieved employee per pay period for the initial
violation and two hundred dollars ($200) for each aggrieved
employee per pay period for each subsequent violation.

(3) If the alleged violation is a failure to act by the Labor and
Workplace Development Agency, or any of its departments,
divisions, commissions, boards, agencies, or employees, there shall
be no civil penalty.

(g) (1) Except as provided in paragraph (2), an aggrieved
employee may recover the civil penalty described in subdivision
(f) in a civil action pursuant to the procedures specified in Section
2699.3 filed on behalf of himself or herself and other current or
former employees against whom one or more of the alleged
violations was committed. Any employee who prevails in any
action shall be entitled to an award of reasonable attorney’s fees
and costs. begin delete Nothing in this end delete begin insert This end insert part shall begin insert not end insert operate to limit an
employee’s right to pursue or recover other remedies available
under state or federal law, either separately or concurrently with
an action taken under this part.

(2)  begin delete No end delete begin insert An end insert action shall begin insert not end insert be brought under this part for any
violation of a posting, notice, agency reporting, or filing
requirement of this code, except where the filing or reporting
requirement involves mandatory payroll or workplace injury
reporting.

(h)  begin delete No end delete begin insert An end insert action begin delete may end delete begin insert shall not end insert be brought under this section
by an aggrieved employee if the agency or any of its departments,
divisions, commissions, boards, agencies, or employees, on the
same facts and theories, cites a person within the timeframes set
forth in Section 2699.3 for a violation of the same section or
sections of the Labor Code under which the aggrieved employee
is attempting to recover a civil penalty on behalf of himself or
herself or others or initiates a proceeding pursuant to Section 98.3.

(i) Except as provided in subdivision (j), civil penalties
recovered by aggrieved employees shall be distributed as follows:
75 percent to the Labor and Workforce Development Agency for
enforcement of labor laws and education of employers and
employees about their rights and responsibilities under this code,
to be continuously appropriated to supplement and not supplant
the funding to the agency for those purposes; and 25 percent to
the aggrieved employees.

(j) Civil penalties recovered under paragraph (1) of subdivision
(f) shall be distributed to the Labor and Workforce Development
Agency for enforcement of labor laws and education of employers
and employees about their rights and responsibilities under this
code, to be continuously appropriated to supplement and not
supplant the funding to the agency for those purposes.

(k)  begin delete Nothing contained in this part is end delete begin insert This part is not end insert intended
to alter or otherwise affect the exclusive remedy provided by the
workers’ compensation provisions of this code for liability against
an employer for the compensation for any injury to or death of an
employee arising out of and in the course of employment.

(l) The superior court shall review and approve any penalties
sought as part of a proposed settlement agreement pursuant to this
part.

(m) This section shall not apply to the recovery of administrative
and civil penalties in connection with the workers’ compensation
law as contained in Division 1 (commencing with Section 50) and
Division 4 (commencing with Section 3200), including, but not
limited to, Sections 129.5 and 132a.

(n) The agency or any of its departments, divisions,
commissions, boards, or agencies may promulgate regulations to
implement begin delete the provisions of end delete this part.