Amended in Senate June 15, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 1506

Introduced by begin delete Committee on Labor and Employment (Assembly Members Roger Hernández (Chair), Chu, Low, McCarty, and Thurmond) end delete begin insert Assembly Member Roger  end insert begin insert Hernández end insert

March 4, 2015

An act to amend begin delete Section 203.1 end delete begin insert Sections 2699 and 2699.5 end insert of the Labor Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

AB 1506, as amended, begin delete Committee on Labor and Employment end delete   begin insert Roger  Hernández end insert . begin delete Wages: theatrical employees. end delete begin insert Labor Code Private Attorneys General Act of 2004. end insert

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The Labor Code Private Attorneys General Act of 2004 authorizes an aggrieved employee to bring a civil action to recover specified civil penalties, that would otherwise be assessed and collected by the Labor and Workforce Development Agency, on behalf of the employee and other current or former employees for the violation of certain provisions affecting employees. The act provides the employer with the right to cure certain violations before the employee may bring a civil action, as specified. For other violations, the act requires the employee to follow specified procedures before bringing an action.

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Existing law requires an employer to provide its employees with specified information regarding their wages, including, among others, the inclusive dates of the period for which the employee is paid and the name and address of the legal entity that is the employer, either semimonthly or at the time of each wage payment and provides that the employer does not have the right to cure a violation of that requirement before an employee may bring a civil action under the act.

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This bill would provide an employer with the right to cure a violation of that requirement that an employer provide its employees with the inclusive dates of the pay period and the name and address of the legal entity that is the employer before an employee may bring a civil action under the act. The bill would provide that a violation of that requirement shall only be considered cured upon a showing that the employer has provided a fully compliant, itemized wage statement to each aggrieved employee, as specified. The bill would also delete references to obsolete provisions of law.

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Existing law authorizes specified employees working in the entertainment industry and their employers to enter into a collective bargaining agreement to establish a time limit for payment of wages after an employee is discharged or laid off.

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Existing law imposes a civil penalty on an employer who pays an employee by a check, draft, or voucher that is refused payment because it is drawn on a nonexistent account or on an account that has insufficient funds, as specified.

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This bill would apply the civil penalty provision for payment of employee wages with insufficient funds to an employer who employs specified employees working in the entertainment industry.

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Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

end insert

begin insert Section 2699 of the end insert begin insert Labor Code end insert begin insert is amended to
read: end insert

2699.  

(a) Notwithstanding any other provision of law, any
provision of this code that provides for a civil penalty to be
assessed and collected by the Labor and Workforce Development
Agency or any of its departments, divisions, commissions, boards,
agencies, or employees, for a violation of this code, may, as an
alternative, be recovered through a civil action brought by an
aggrieved employee on behalf of himself or herself and other
current or former employees pursuant to the procedures specified
in Section 2699.3.

(b) For purposes of this part, “person” has the same meaning
as defined in Section 18.

(c) For purposes of this part, “aggrieved employee” means any
person who was employed by the alleged violator and against
whom one or more of the alleged violations was committed.

(d) For purposes of this part, “cure” means that the employer
abates each violation alleged by any aggrieved employee, the
employer is in compliance with the underlying statutes as specified
in the notice required by this part, and any aggrieved employee is
made whole. begin insert A violation of paragraph (6) or (8) of subdivision (a)
of Section 226 shall only be considered cured upon a showing that
the employer has provided a fully compliant, itemized wage
statement to each aggrieved employee for each pay period for the
three-year period prior to the date of the written notice sent
pursuant to paragraph (1) of subdivision (c) of Section 2699.3. end insert

(e) (1) For purposes of this part, whenever the Labor and
Workforce Development Agency, or any of its departments,
divisions, commissions, boards, agencies, or employees, has
discretion to assess a civil penalty, a court is authorized to exercise
the same discretion, subject to the same limitations and conditions,
to assess a civil penalty.

(2) In any action by an aggrieved employee seeking recovery
of a civil penalty available under subdivision (a) or (f), a court
may award a lesser amount than the maximum civil penalty amount
specified by this part if, based on the facts and circumstances of
the particular case, to do otherwise would result in an award that
is unjust, arbitrary and oppressive, or confiscatory.

(f) For all provisions of this code except those for which a civil
penalty is specifically provided, there is established a civil penalty
for a violation of these provisions, as follows:

(1) If, at the time of the alleged violation, the person does not
employ one or more employees, the civil penalty is five hundred
dollars ($500).

(2) If, at the time of the alleged violation, the person employs
one or more employees, the civil penalty is one hundred dollars
($100) for each aggrieved employee per pay period for the initial
violation and two hundred dollars ($200) for each aggrieved
employee per pay period for each subsequent violation.

(3) If the alleged violation is a failure to act by the Labor and
Workplace Development Agency, or any of its departments,
divisions, commissions, boards, agencies, or employees, there shall
be no civil penalty.

(g) (1) Except as provided in paragraph (2), an aggrieved
employee may recover the civil penalty described in subdivision
(f) in a civil action pursuant to the procedures specified in Section
2699.3 filed on behalf of himself or herself and other current or
former employees against whom one or more of the alleged
violations was committed. Any employee who prevails in any
action shall be entitled to an award of reasonable attorney’s fees
and costs. Nothing in this part shall operate to limit an employee’s
right to pursue or recover other remedies available under state or
federal law, either separately or concurrently with an action taken
under this part.

(2) No action shall be brought under this part for any violation
of a posting, notice, agency reporting, or filing requirement of this
code, except where the filing or reporting requirement involves
mandatory payroll or workplace injury reporting.

(h) No action may be brought under this section by an aggrieved
employee if the agency or any of its departments, divisions,
commissions, boards, agencies, or employees, on the same facts
and theories, cites a person within the timeframes set forth in
Section 2699.3 for a violation of the same section or sections of
the Labor Code under which the aggrieved employee is attempting
to recover a civil penalty on behalf of himself or herself or others
or initiates a proceeding pursuant to Section 98.3.

(i) Except as provided in subdivision (j), civil penalties
recovered by aggrieved employees shall be distributed as follows:
75 percent to the Labor and Workforce Development Agency for
enforcement of labor laws and education of employers and
employees about their rights and responsibilities under this code,
to be continuously appropriated to supplement and not supplant
the funding to the agency for those purposes; and 25 percent to
the aggrieved employees.

(j) Civil penalties recovered under paragraph (1) of subdivision
(f) shall be distributed to the Labor and Workforce Development
Agency for enforcement of labor laws and education of employers
and employees about their rights and responsibilities under this
code, to be continuously appropriated to supplement and not
supplant the funding to the agency for those purposes.

(k) Nothing contained in this part is intended to alter or
otherwise affect the exclusive remedy provided by the workers’
compensation provisions of this code for liability against an
employer for the compensation for any injury to or death of an
employee arising out of and in the course of employment.

(l) The superior court shall review and approve any penalties
sought as part of a proposed settlement agreement pursuant to this
part.

(m) This section shall not apply to the recovery of administrative
and civil penalties in connection with the workers’ compensation
law as contained in Division 1 (commencing with Section 50) and
Division 4 (commencing with Section 3200), including, but not
limited to, Sections 129.5 and 132a.

(n) The agency or any of its departments, divisions,
commissions, boards, or agencies may promulgate regulations to
implement the provisions of this part.

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begin insert SEC. 2. end insert   

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begin insert Section 2699.5 of the end insert begin insert Labor Code end insert begin insert is amended to read: end insert

2699.5.  

The provisions of subdivision (a) of Section 2699.3
apply to any alleged violation of the following provisions:
subdivision (k) of Section 96, Sections 98.6, 201, 201.3, 201.5,
201.7, 202, 203, 203.1, 203.5, 204, 204a, 204b, 204.1, 204.2, 205,
205.5, 206, 206.5, 208, 209, and 212, subdivision (d) of Section
213, Sections 221, 222, 222.5, 223, and 224, begin insert paragraphs (1) to
(5), inclusive, (7), and (9) of end insert subdivision (a) of Section 226,
Sections 226.7, 227, 227.3, 230, 230.1, 230.2, 230.3, 230.4, 230.7,
230.8, and 231, subdivision (c) of Section 232, subdivision (c) of
Section 232.5, Sections 233, 234, 351, 353, and 403, subdivision
(b) of Section 404, Sections 432.2, 432.5, 432.7, 435, 450, 510,
511, 512, 513, 551, 552, 601, 602, 603, 604, 750, 751.8, 800, 850,
851, 851.5, 852, 921, 922, 923, 970, 973, 976, 1021, 1021.5, 1025,
1026, 1101, 1102, 1102.5, and 1153, subdivisions (c) and (d) of
Section 1174, Sections 1194, 1197, 1197.1, 1197.5, and 1198,
subdivision (b) of Section 1198.3, Sections 1199, 1199.5, 1290,
1292, 1293, 1293.1, 1294, 1294.1, 1294.5, 1296, 1297, 1298, 1301,
1308, 1308.1, 1308.7, 1309, 1309.5, 1391, 1391.1, 1391.2, 1392,
1683, and 1695, subdivision (a) of Section 1695.5, Sections
1695.55, 1695.6, 1695.7, 1695.8, 1695.9, 1696, 1696.5, 1696.6,
1697.1, 1700.25, 1700.26, 1700.31, 1700.32, 1700.40, and 1700.47,
begin delete paragraphs (1), (2), and (3) of subdivision (a) of, and subdivision
(e) of, Section 1701.4, subdivision (a) of Section 1701.5, end delete Sections
begin delete 1701.8, 1701.10, 1701.12, end delete 1735, 1771, 1774, 1776, 1777.5, 1811,
1815, 2651, and 2673, subdivision (a) of Section 2673.1, Sections
2695.2, 2800, 2801, 2802, 2806, and 2810, subdivision (b) of
Section 2929, and Sections 3095, 6310, 6311, and 6399.7.

begin delete

SECTION 1.  

Section 203.1 of the Labor Code is amended to
read:

203.1.  

If an employer pays an employee in the regular course
of employment or in accordance with Section 201, 201.3, 201.5,
201.7, 201.9, or 202 any wages or fringe benefits, or both, by
check, draft or voucher, which check, draft or voucher is
subsequently refused payment because the employer or maker has
no account with the bank, institution, or person on which the
instrument is drawn, or has insufficient funds in the account upon
which the instrument is drawn at the time of its presentation, so
long as the same is presented within 30 days of receipt by the
employee of the check, draft or voucher, those wages or fringe
benefits, or both, shall continue as a penalty from the due date
thereof at the same rate until paid or until an action therefor is
commenced. However, those wages and fringe benefits shall not
continue for more than 30 days and this penalty shall not apply if
the employer can establish to the satisfaction of the Labor
Commissioner or an appropriate court of law that the violation of
this section was unintentional. This penalty also shall not apply in
any case in which an employee recovers the service charge
authorized by Section 1719 of the Civil Code in an action brought
by the employee thereunder.

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