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