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