AB 970, as introduced, Nazarian. Labor Commissioner: enforcement of employee claims.
(1) 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, in addition, authorize the Labor Commissioner to enforce local laws regarding overtime hours or minimum wage provisions and to issue citations and penalties for violations. This bill also would make related conforming changes. By expanding the definition of a crime, this bill would create a state-mandated local program.
(2) Existing law requires an employer to indemnify his or her employees for all that the employee necessarily expends or loses in direct consequence of the discharge of the employee’s duties or as a result of obeying the employer’s directions. Existing law provides an aggrieved employee with a private right of action to recover these expenditures.
This bill would, additionally, authorize the Labor Commissioner to enforce these provisions by issuing citations and penalties to employers for violations of this requirement, as specified.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.
The people of the State of California do enact as follows:
Section 558 of the Labor Code is amended to
(a) Any employer or other person acting on behalf of an
4employer who violates, or causes to be violated, a section of this
5chapter or any provision regulating hours and days of work in any
6order of the Industrial Welfare Commission shall be subject to a
7civil penalty as follows:
8(1) For any initial violation, fifty dollars ($50) for each
9underpaid employee for each pay period for which the employee
10was underpaid in addition to an amount sufficient to recover
12(2) For each subsequent violation, one hundred dollars ($100)
13for each underpaid employee for each pay period for which the
14employee was underpaid in addition to an amount sufficient to
15 recover underpaid wages.
16(3) Wages recovered pursuant to this section shall be paid to
17the affected employee.
18(b) If upon inspection or investigation the Labor Commissioner
19determines that a person had paid or caused to be paid a wage for
20overtime work in violation of any provision of this chapter,
begin delete orend delete any
21provision regulating hours and days of work in any order of the
22Industrial Welfare Commission, the Labor Commissioner may issue a citation. The procedures
24for issuing, contesting, and enforcing judgments for citations or
25civil penalties issued by the Labor Commissioner for a violation
26of this chapter shall be the same as those set out in Section 1197.1.
P3 1(c) The civil penalties provided for in this section are in addition
2to any other civil or criminal penalty provided by law.
Section 1197 of the Labor Code is amended to read:
The minimum wage for employees fixed by the
5commission is the
6minimum wage to be paid to employees, and the payment of a less
7wage than the minimum so fixed is unlawful.
Section 1197.1 of the Labor Code is amended to read:
(a) Any employer or other person acting either
10individually or as an officer, agent, or employee of another person,
11who pays or causes to be paid to any employee a wage less than
12the minimum fixed by an
13order of the commission shall be subject to a civil penalty,
14restitution of wages, liquidated damages payable to the employee,
15and any applicable penalties imposed pursuant to Section 203 as
17(1) For any initial violation that is intentionally committed, one
18hundred dollars ($100) for each underpaid employee for each pay
19period for which the employee is underpaid. This amount shall be
20in addition to an amount sufficient to recover underpaid wages,
21liquidated damages pursuant to Section 1194.2, and any applicable
22penalties imposed pursuant to Section 203.
23(2) For each subsequent violation for the same specific offense,
24two hundred fifty dollars ($250) for each underpaid employee for
25each pay period for which the employee is underpaid regardless
26of whether the initial violation is intentionally committed. This
27amount shall be in addition to an amount sufficient to recover
28underpaid wages, liquidated damages pursuant to Section 1194.2,
29and any applicable penalties imposed pursuant to Section 203.
30(3) Wages, liquidated damages, and any applicable penalties
31imposed pursuant to Section 203, recovered pursuant to this section
32shall be paid to the affected employee.
33(b) If, upon inspection or investigation, the Labor Commissioner
34 determines that a person has paid or caused to be paid a wage less
begin delete minimum,end delete the Labor
36Commissioner may issue a citation to the person in violation. The
37citation may be served personally or by registered mail in
38accordance with subdivision (c) of Section 11505 of the
39Government Code. Each citation shall be in writing and shall
40describe the nature of the violation, including reference to the
P4 1statutory provision alleged to have been violated. The Labor
2Commissioner promptly shall take all appropriate action, in
3accordance with this section, to enforce the citation and to recover
4the civil penalty assessed, wages, liquidated damages, and any
5applicable penalties imposed pursuant to Section 203 in connection
6with the citation.
7(c) (1) If a person desires to contest a citation or the proposed
8assessment of a civil penalty, wages, liquidated damages, and any
9applicable penalties imposed pursuant to Section 203 therefor, the
10person shall, within 15 business days after service of the citation,
11notify the office of the Labor Commissioner that appears on the
12citation of his or her request for an informal hearing. The Labor
13Commissioner or his or her deputy or agent shall, within 30 days,
14hold a hearing at the conclusion of which the citation or proposed
15assessment of a civil penalty, wages, liquidated damages, and any
16applicable penalties imposed pursuant to Section 203 shall be
17affirmed, modified, or dismissed.
18(2) The decision of the Labor Commissioner shall consist of a
19notice of findings, findings, and an order, all of which shall be
20served on all parties to the hearing within 15 days after the hearing
21by regular first-class mail at the last known address of the party
22on file with the Labor Commissioner. Service shall be completed
23pursuant to Section 1013 of the Code of Civil Procedure. Any
24amount found due by the Labor Commissioner as a result of a
25hearing shall become due and payable 45 days after notice of the
26findings and written findings and order have been mailed to the
27party assessed. A writ of mandate may be taken from this finding
28to the appropriate superior court. The party shall pay any judgment
29and costs ultimately rendered by the court against the party for the
30assessment. The writ shall be taken within 45 days of service of
31the notice of findings, findings, and order thereon.
32(d) A person to whom a citation has been issued shall, in lieu
33of contesting a citation pursuant to this section, transmit to the
34office of the Labor Commissioner designated on the citation the
35amount specified for the violation within 15 business days after
36issuance of the citation.
37(e) When no petition objecting to a citation or the proposed
38assessment of a civil penalty, wages, liquidated damages, and any
39applicable penalties imposed pursuant to Section 203 is filed, a
40certified copy of the citation or proposed civil penalty, wages,
P5 1liquidated damages, and any applicable penalties imposed pursuant
2to Section 203 may be filed by the Labor Commissioner in the
3office of the clerk of the superior court in any county in which the
4person assessed has or had a place of business. The clerk,
5immediately upon the filing, shall enter judgment for the state
6against the person assessed in the amount shown on the citation
7or proposed assessment of a civil penalty, wages, liquidated
8damages, and any applicable penalties imposed pursuant to Section
10(f) When findings and the order thereon are made affirming or
11modifying a citation or proposed assessment of a civil penalty,
12wages, liquidated damages, and any applicable penalties imposed
13pursuant to Section 203 after hearing, a certified copy of these
14findings and the order entered thereon may be entered by the Labor
15Commissioner in the office of the clerk of the superior court in
16any county in which the person assessed has property or in which
17the person assessed has or had a place of business. The clerk,
18immediately upon the filing, shall enter judgment for the state
19against the person assessed in the amount shown on the certified
21(g) A judgment entered pursuant to this section shall bear the
22same rate of interest and shall have the same effect as other
23judgments and be given the same preference allowed by the law
24on other judgments rendered for claims for taxes. The clerk shall
25make no charge for the service provided by this section to be
26performed by him or her.
27(h) The civil penalties provided for in this section are in addition
28to any other penalty provided by law.
29(i) This section shall not apply to any order of the commission
30relating to household occupations.
Section 2802 of the Labor Code is amended to read:
(a) An employer shall indemnify his or her employee
33for all necessary expenditures or losses incurred by the employee
34in direct consequence of the discharge of his or her duties, or of
35his or her obedience to the directions of the employer, even though
36unlawful, unless the employee, at the time of obeying the
37directions, believed them to be unlawful.
38(b) All awards made by a court or by the Division of Labor
39Standards Enforcement for reimbursement of necessary
40expenditures under this section shall carry interest at the same rate
P6 1as judgments in civil actions. Interest shall accrue from the date
2on which the employee incurred the necessary expenditure or loss.
3(c) For purposes of this section, the term “necessary expenditures
4or losses” shall include all reasonable costs, including, but not
5limited to, attorney’s fees incurred by the employee enforcing the
6rights granted by this section.
No reimbursement is required by this act pursuant to
18Section 6 of Article XIII B of the California Constitution because
19the only costs that may be incurred by a local agency or school
20district will be incurred because this act creates a new crime or
21infraction, eliminates a crime or infraction, or changes the penalty
22for a crime or infraction, within the meaning of Section 17556 of
23the Government Code, or changes the definition of a crime within
24the meaning of Section 6 of Article XIII B of the California