AB 970, as amended, 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
begin delete violations.end delete 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, any
21provision regulating hours and days of work in any order of the
22Industrial Welfare Commission, or any applicable local overtime
23law, the Labor Commissioner may issue a citation. The procedures
24for issuing, contesting, and enforcing judgments for citations or
P3 1civil penalties issued by the Labor Commissioner for a violation
2of this chapter shall be the same as those set out in Section 1197.1.
9 The civil penalties provided for in this section are in addition
10to 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
13commission or by any applicable state or local law, is the minimum
14wage to be paid to employees, and the payment of a less wage than
15the minimum so fixed is unlawful.
Section 1197.1 of the Labor Code is amended to read:
(a) Any employer or other person acting either
18individually or as an officer, agent, or employee of another person,
19who pays or causes to be paid to any employee a wage less than
20the minimum fixed by an applicable state or local law, or by an
21order of the commission shall be subject to a civil penalty,
22restitution of wages, liquidated damages payable to the employee,
23and any applicable penalties imposed pursuant to Section 203 as
25(1) For any initial violation that is intentionally committed, one
26hundred dollars ($100) for each underpaid employee for each pay
27period for which the employee is underpaid. This amount shall be
28in addition to an amount sufficient to recover underpaid wages,
29liquidated damages pursuant to Section 1194.2, and any applicable
30penalties imposed pursuant to Section 203.
31(2) For each subsequent violation for the same specific offense,
32two hundred fifty dollars ($250) for each underpaid employee for
33each pay period for which the employee is underpaid regardless
34of whether the initial violation is intentionally committed. This
35amount shall be in addition to an amount sufficient to recover
36underpaid wages, liquidated damages pursuant to Section 1194.2,
37and any applicable penalties imposed pursuant to Section 203.
38(3) Wages, liquidated damages, and any applicable penalties
39imposed pursuant to Section 203, recovered pursuant to this section
40shall be paid to the affected employee.
P4 1(b) If, upon inspection or investigation, the Labor Commissioner
2 determines that a person has paid or caused to be paid a wage less
3than the minimum under applicable law, the Labor Commissioner
4may issue a citation to the person in violation. The citation may
5be served personally or by registered mail in accordance with
6subdivision (c) of Section 11505 of the Government Code. Each
7citation shall be in writing and shall describe the nature of the
8violation, including reference to the statutory provision alleged to
9have been violated. The Labor Commissioner promptly shall take
10all appropriate action, in accordance with this section, to enforce
11the citation and to recover the civil penalty assessed, wages,
12liquidated damages, and any applicable penalties imposed pursuant
13to Section 203 in connection with the citation.
14(c) (1) If a person desires to contest a citation or
15assessment of a civil penalty, wages, liquidated damages, and any
16applicable penalties imposed pursuant to Section 203 therefor, the
17person shall, within 15 business days after service of the citation,
18notify the office of the Labor Commissioner that appears on the
19citation of his or her request for an informal hearing. The Labor
20Commissioner or his or her deputy or agent shall, within 30 days,
21hold a hearing at the conclusion of which the citation or proposed
22assessment of a civil penalty, wages, liquidated damages, and any
23applicable penalties imposed pursuant to Section 203 shall be
24affirmed, modified, or dismissed.
25(2) The decision of the Labor Commissioner shall consist of a
26notice of findings, findings, and an order, all of which shall be
27served on all parties to the hearing within 15 days after the hearing
28by regular first-class mail at the last known address of the party
29on file with the Labor Commissioner. Service shall be completed
30pursuant to Section 1013 of the Code of Civil Procedure. Any
31amount found due by the Labor Commissioner as a result of a
32hearing shall become due and payable 45 days after notice of the
33findings and written findings and order have been mailed to the
34party assessed. A writ of mandate may be taken from this finding
35to the appropriate superior court. The party shall pay any judgment
36and costs ultimately rendered by the court against the party for the
37assessment. The writ shall be taken within 45 days of service of
38the notice of findings, findings, and order thereon.
39(d) A person to whom a citation has been issued shall, in lieu
40of contesting a citation pursuant to this section, transmit to the
P5 1office of the Labor Commissioner designated on the citation the
2amount specified for the violation within 15 business days after
3issuance of the citation.
4(e) When no petition objecting to a citation or the proposed
5assessment of a civil penalty, wages, liquidated damages, and any
6applicable penalties imposed pursuant to Section 203 is filed, a
7certified copy of the citation or proposed civil penalty, wages,
8liquidated damages, and any applicable penalties imposed pursuant
9to Section 203 may be filed by the Labor Commissioner in the
10office of the clerk of the superior court in any county in which the
11person assessed has or had a place of business. The clerk,
12immediately upon the filing, shall enter judgment for the state
13against the person assessed in the amount shown on the citation
14or proposed assessment of a civil penalty, wages, liquidated
15damages, and any applicable penalties imposed pursuant to Section
17(f) When findings and the order thereon are made affirming or
18modifying a citation or proposed assessment of a civil penalty,
19wages, liquidated damages, and any applicable penalties imposed
20pursuant to Section 203 after hearing, a certified copy of these
21findings and the order entered thereon may be entered by the Labor
22Commissioner in the office of the clerk of the superior court in
23any county in which the person assessed has property or in which
24the person assessed has or had a place of business. The clerk,
25immediately upon the filing, shall enter judgment for the state
26against the person assessed in the amount shown on the certified
28(g) A judgment entered pursuant to this section shall bear the
29same rate of interest and shall have the same effect as other
30judgments and be given the same preference allowed by the law
31on other judgments rendered for claims for taxes. The clerk shall
32make no charge for the service provided by this section to be
33performed by him or her.
P6 1 The civil
penalties provided for in this section are in addition
2to any other penalty provided by law.
4 This section shall not apply to any order of the commission
5relating to household occupations.
Section 2802 of the Labor Code is amended to read:
(a) An employer shall indemnify his or her employee
8for all necessary expenditures or losses incurred by the employee
9in direct consequence of the discharge of his or her duties, or of
10his or her obedience to the directions of the employer, even though
11unlawful, unless the employee, at the time of obeying the
12directions, believed them to be unlawful.
13(b) All awards made by a court or by the Division of Labor
14Standards Enforcement for reimbursement of necessary
15expenditures under this section shall carry interest at the same rate
16as judgments in civil actions. Interest shall accrue from the date
17on which the employee incurred the necessary expenditure or loss.
18(c) For purposes of this section, the term “necessary expenditures
19or losses” shall include all reasonable costs, including, but not
20limited to, attorney’s fees incurred by the employee enforcing the
21rights granted by this section.
22(d) In addition to recovery of penalties under this section in a
23court action or proceedings pursuant to Section 98, the
24commissioner may issue a citation against an employer or other
25person acting on behalf of the employer who violates
26reimbursement obligations for an amount determined to be due to
27an employee under this section. The procedures for issuing,
28contesting, and enforcing judgments for citations or civil penalties
29issued by the commissioner shall be the same as those set forth in
30Section 1197.1. Amounts recovered pursuant to this section shall
31be paid to the affected employee.
No reimbursement is required by this act pursuant to
33Section 6 of Article XIII B of the California Constitution because
34the only costs that may be incurred by a local agency or school
35district will be incurred because this act creates a new crime or
36infraction, eliminates a crime or infraction, or changes the penalty
37for a crime or infraction, within the meaning of Section 17556 of
38the Government Code, or changes the definition of a crime within
P7 1the meaning of Section 6 of Article XIII B of the California