BILL ANALYSIS Ó SENATE COMMITTEE ON APPROPRIATIONS Senator Ricardo Lara, Chair 2015 - 2016 Regular Session AB 970 (Nazarian) - Labor Commissioner: enforcement of employee claims. ----------------------------------------------------------------- | | | | | | ----------------------------------------------------------------- |--------------------------------+--------------------------------| | | | |Version: April 15, 2015 |Policy Vote: L. & I.R. 3 - 1 | | | | |--------------------------------+--------------------------------| | | | |Urgency: No |Mandate: Yes | | | | |--------------------------------+--------------------------------| | | | |Hearing Date: June 22, 2015 |Consultant: Robert Ingenito | | | | ----------------------------------------------------------------- This bill does not meet the criteria for referral to the Suspense File. Bill Summary: AB 970 would authorize the Labor Commissioner (1) to issue a citation to enforce local minimum wage and overtime laws, and (2) to issue a citation against an employer or person acting on behalf of an employer for violations of existing law related to reimbursements for expenses. Fiscal Impact: The Department of Industrial Relations (DIR) indicates that it would incur annual ongoing costs of $125,000 (special funds) to implement the provisions of the bill. Background: Wage theft is a term used to describe labor law violations such as not paying an employee minimum wages or overtime, not paying for off-the-clock work, tip stealing, and AB 970 (Nazarian) Page 1 of ? not paying final wages. Under current law, when an employer fails to pay wages due, the employee has the right to file a claim against the employer with DIR's Division of Labor Standards Enforcement (DLSE), which is directed by the Labor Commissioner. After conducting an investigation, the Labor Commissioner may hold an administrative conference or hearing, or both. If a party is dissatisfied with the Commissioner's decision, it can appeal to the appropriate civil court. When a worker wins a favorable decision, the process of collecting the award can be difficult and ineffective. Some employers may have already hidden their cash assets, declared bankruptcy, or otherwise become judgment-proof. Under current law, the Labor Commissioner has the authority to cite for violations of state minimum wage but not for higher local minimum wage violations. The only way to address such claims currently is through the wage claim hearing process. A worker may also recover owed wages as a result from an inspection from the Division of Labor Standards and Enforcement's Bureau of Field Enforcement (BOFE) within DIR. BOFE conducts inspections of industries to ensure compliance with the Labor Code. While BOFE does not pursue individual wage claims, at times the investigation results in an audit of the employer's time and payroll records. If this occurs, the Division will attempt to collect wages for all employees found to have been underpaid. However, the Division cannot collect liquidated damages. Additionally, current law requires an employer to compensate employees for "all necessary expenditures or losses" incurred in direct consequence of duty. A common violation of this provision involves illegal charges for tools or equipment necessary to perform the job, but which are deducted from workers' pay notwithstanding. Workers may file a civil action to recover these illegal deductions from their pay, or may seek to recover them in a wage claim hearing. Proposed Law: This bill would do all of the following: Authorize the Labor Commissioner to issue a citation if, AB 970 (Nazarian) Page 2 of ? upon inspection or investigation, it is determined that a person has violated overtime requirements of existing law, including any applicable local overtime law. Authorize the Labor Commissioner to issue a citation if, upon inspection or investigation, it is determined a person has paid less than the minimum wage under applicable state or local law. Authorize the Labor Commissioner to issue a citation against an employer or person acting on behalf of an employer for violations of existing law related to reimbursements for expenses. Prohibit the Labor Commissioner from issuing a citation for the above offenses if the local entity with jurisdiction in the matter has cited or has initiated an investigation against the employer for the same violation. Related Legislation: AB 1723 (Nazarian, Chapter 886, Statutes of 2014) authorized the Labor Commissioner to include "waiting time" penalties in wage citations. AB 442 (Nazarian, Chapter 735, Statutes of 2013) authorized the Labor Commissioner to collect liquidated damages from an employer who pays an employee less than minimum wage. Staff Comments: As noted above, BOFE currently engages in field enforcement and has the authority to cite for violations of minimum wage, but this bill would apply a local wage calculation rather than the state minimum wage. This new authorization would potentially require more investigative and other workload within DIR, at an ongoing annual cost of $125,000. AB 970 (Nazarian) Page 3 of ? Any local government costs resulting from the mandate in this measure are not state-reimbursable because the mandate only involves the definition of a crime or the penalty for conviction of a crime. -- END --