BILL ANALYSIS                                                                                                                                                                                                    Ó




                   Senate Appropriations Committee Fiscal Summary
                            Senator Kevin de León, Chair


          SB 462 (Monning) - Employment: compensation.
          Amended: April 15, 2013         Policy Vote: Judiciary 5-2 
          Urgency: No                     Mandate: No
          Hearing Date: May 6, 2013       Consultant: Jolie Onodera
          
          This bill meets the criteria for referral to the Suspense File.
          
          
          Bill Summary: SB 462 would revise the existing two-way fee  
          shifting provision under Labor Code § 218.5, where either party  
          is authorized by statute to an award of attorney's fees and  
          costs, and provide that the non-employee prevailing party (the  
          defendant employer) could only be awarded attorney's fees and  
          costs upon a judicial finding that the employee brought the  
          action in bad faith.

          Fiscal Impact:
           To the extent the provisions of this bill remove existing  
            barriers for employees seeking to pursue wage claims,  
            potential ongoing increased costs to the courts for increased  
            civil filings. For every 500 additional limited civil filings  
            (less than 10 filings per county annually), annual costs to  
            the courts are estimated at $230,000 (General Fund*).
           To the extent a state agency acts as employer, there could be  
            potential future lost recovery of attorneys' fees and costs  
            that a state agency otherwise could have been awarded. Given  
            the vast range of attorney's fees and costs specific to any  
            one case, the potential impact of a single suit in which a  
            state agency is the prevailing party could range from minor to  
            very substantial.

            *Trial Court Trust Fund

          Background: Under current law, when an employee files an action  
          to recover minimum wages or overtime, the employee who prevails  
          in the action is entitled to recover reasonable attorney's fees  
          and costs of the suit. (LC § 1194) Alternatively, if an employee  
          files an action to recover wages, fringe benefits, or health and  
          welfare or pension fund contributions, the court is required to  
          award reasonable attorney's fees and costs to the prevailing  
          party, as specified. (LC § 218.5.)  "Wages" under this statute  
          are defined as straight-time wages above the minimum wage and  








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          contractually agreed-upon or bargained-for wages."  
          
          Proposed Law: This bill would revise the existing two-way fee  
          shifting provision under LC § 218.5, where either party is  
          authorized by statute to an award of attorney's fees and costs,  
          and provide that the non-employee prevailing party (likely the  
          defendant employer) could only be awarded attorney's fees and  
          costs upon a judicial finding that the employee brought the  
          action in bad faith.

          Related Legislation: AB 2509 (Steinberg) Chapter 876/2000  
          revised statutes relating to the administrative and civil  
          enforcement of wage and hour laws including wage collection and  
          enforcement procedures before the Labor Commissioner. Provided  
          that the two-way attorney's fees provisions do not apply to  
          minimum wage and overtime wage claims under LC § 1194.
          
          SB 2570 (Lockyer) Chapter 1211/1986, among other things,  
          established the two-way fee shifting provision in LC § 218.5. 
          
          Staff Comments: The proposed amendment to LC § 218.5 would  
          change the two-way prevailing party attorney's fees provision  
          for actions involving straight time wages above the minimum wage  
          and contractually agreed-upon or bargained for wages, such that  
          an employer would only be awarded attorney's fees as a  
          prevailing party upon on a finding that the employee brought the  
          action in bad faith. This does not apply to minimum wage and  
          overtime claims which are subject to a separate one-way attorney  
          fee provision under LC § 1194.

          Local governmental employers would be exempt from this proposed  
          change to statute, as LC § 220 provides, as follows:

               "220.  (a) Sections 201.3, 201.5, 201.7, 203.1, 203.5, 204,  
               204a, 204b, 204c, 204.1, 205, and 205.5 do not apply to the  
               payment of wages of employees directly employed by the  
               State of California. Except as provided in subdivision (b),  
               all other employment is subject to these provisions.
                    (b) Sections 200 to 211, inclusive, and  Sections 215  
               to 219, inclusive, do not apply to the payment of wages of  
               employees directly employed by any county, incorporated  
               city, or town or other municipal corporation. All other  
               employments are subject to these provisions."  









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          As LC § 220 expressly exempts certain local public employment  
          from the application of Sections 215 to 219, inclusive, and  
          specifically subjects all other employments to those provisions,  
          the application of LC § 218.5 is presumed to include state  
          employment. In addition, staff notes that AB 2410 (Machado)  
          Chapter 885/2000 amended LC § 220 to remove an exemption for the  
          state that existed at the time. Although the provisions of this  
          bill could potentially impact state agencies acting as employer,  
          it is assumed that the Regents of the University of California  
          would be exempt, as they are constitutionally immune (Goldbaum  
          v. Regents of the University of California (2011) 191  
          Cal.App.4th 703) 

          Because this bill would restrict an employer's award of  
          attorney's fees if it prevailed in an action for contractually  
          agreed-upon wages, fringe benefits, or health and welfare or  
          pension fund contributions, this bill could alter the  
          contracting parties' agreement on attorney's fees awards and  
          could create uncertainty for the contracting parties.  

          To the extent the provisions of this bill affect state agencies  
          as an employer in actions brought for the nonpayment of wages,  
          fringe benefits, or health and welfare or pension fund  
          contributions, it could make it more difficult for the state to  
          get an award of attorney's fees, resulting in increased costs  
          (General Fund) to the state. The estimated fiscal impact would  
          be dependent upon the frequency of suits in which state  
          employers have been involved for the nonpayment of wages, have  
          prevailed in such actions, and have pursued awards of attorney's  
          fees. At the time of this analysis, it was undetermined how many  
          suits involving the state acting as employer to date would have  
          been affected under the provisions of this bill. Given the range  
          of attorney's fees and costs unique to any one case, the  
          potential impact of a single suit in which the state agency was  
          the prevailing party could range from minor to very substantial.
          
          Although claims filed under LC under LC § 1194 for minimum wage  
          and overtime costs are provided a one-way fee-shifting award to  
          the prevailing plaintiff, a recent court decision in Plancich v.  
          United Parcel Service, Inc. (2011) 198 Cal.App.4th 308 held that  
          it does not expressly exclude an award of defendant attorney's  
          fees. The court cited Code of Civil Procedure § 1032, which  
          requires express statutory language exempting a prevailing party  
          from recovering costs. Because LC § 1194 has no express  








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          exemption against an award of attorney's fees to a prevailing  
          defendant, the court awarded the defendant its attorney's fees  
          and costs. 

          Of note from the Senate Judiciary Committee analysis of this  
          measure: "As asserted by CELA [California Employment Lawyers  
          Association], plaintiff attorneys primarily limit their wage  
          claims to LC § 1194, rather than claiming LC § 218.5 claims due  
          to the two-way fee shifting liability. In light of the Plancich  
          two-way fee-shifting holding, this bill may encourage plaintiff  
          attorneys to file all wage claims under LC § 218.5 in order to  
          avoid a potential award of attorney's fees to the defendant. In  
          this regard, this bill would expressly limit the defendant's  
          attorney's fees to only those prevailing employers who prove the  
          plaintiff's bad faith in bringing the claim." 

          To the extent the provisions of this bill result in an increase  
          in court filings due to the removal of existing barriers for  
          employees to pursue wage claims, there would be an impact to  
          existing court workload. For every 500 additional limited civil  
          filings (less than 10 filings per county annually) resulting  
          from the provisions of this bill, annual costs to the courts are  
          estimated at $230,000.