Amended in Assembly March 31, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 2437

Introduced by Assembly Member Ting

February 19, 2016

An act to begin delete amend Section 6330 of end delete begin insert add Sections 7401.1 and 7401.2 to the Business and Professions Code, and to add Section 238.6 to, and to add Part 10.5 (commencing with Section 2268) to Division 2 of, end insert the Labor Code, relating to begin delete employment. end delete begin insert nail care establishments, and making an appropriation therefor. end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 2437, as amended, Ting. begin delete Division of Occupational Safety and Health: jurisdiction. end delete begin insert Nail care establishments: training: wage violations. end insert

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(1) The Barbering and Cosmetology Act provides for the licensure and regulation of barbers, cosmetologists, estheticians, manicurists, electrologists, and apprentices by the State Board of Barbering and Cosmetology. The act requires the licensure of any person, firm, or corporation operating an establishment engaged in a practice regulated by the board, as specified, and requires a licensed establishment to comply with various requirements. A violation of the Barbering and Cosmetology Act is generally a misdemeanor.

end insert begin insert

Existing law prohibits an employer from continuing to conduct business in this state, as specified, if a final judgment against that employer arising from the employer’s nonpayment of wages for work performed in this state remains unsatisfied after a specified period of time after the time to appeal has expired and no appeal is pending, except as specified.

end insert begin insert

This bill would require the State Board of Barbering and Cosmetology to deny the renewal of a license to an establishment that provides nail care services if that establishment is conducting business in violation of the above provision regarding final judgments arising from an employer’s nonpayment of wages for work performed in this state, and would require the board to verify with the Labor Commissioner that such an establishment is not conducting business in violation of those provisions. The bill would also require the Labor Commissioner to notify the board if such an establishment is conducting business in violation of those provisions. The bill would authorize such an establishment to provide evidence to the board that it is not conducting business in violation of those provisions.

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(2) Existing law creates the Division of Labor Standards Enforcement within the Department of Industrial Relations, and vests the division with the general duty of enforcing labor laws, including those relating to wage claims and employer retaliation.

end insert begin insert

This bill would require an establishment, which provides nail care services and is required to be licensed as an establishment under the Barbering and Cosmetology Act, to register with the division and receive specified training regarding workplace rights and wage and hour laws, including, but not limited to, overtime compensation, and would also require the establishment to arrange for the training to be provided to its employees. The bill would require the division to provide that training to such an establishment and its employees. The bill would authorize the division to contract with nonprofit vendors to perform that training and would require the division to consider certain factors when approving a nonprofit vendor, including that the vendor has familiarity with the labor laws to be discussed during the training. The bill would authorize the division to charge a fee to each nail care establishment, not to exceed the reasonable regulatory cost of providing the training, and would require that fee to be deposited into the Nail Care Establishment Training Fund, which would be created by this bill. The bill would continuously appropriate the money in that fund solely for the purposes of providing the required training. The bill would also define various terms for these purposes.

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Existing law permits the Occupational Safety and Health Standards Board within the Department of Industrial Relations to adopt occupational health and safety standards to protect the welfare of employees. The Division of Occupational Safety and Health (division) enforces occupational safety and health standards and orders. Certain violations of these standards and orders are crimes. Existing law also requires the division to report annually to the Legislature specified matters, including providing recommendations for legislation to improve the ability of the division to provide safety in employment.

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This bill would also require the division to include in its report to the Legislature, recommendations to improve the ability of the division to maximize health outcomes in places of employment.

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Vote: majority. Appropriation:  begin delete no end delete begin insert yes end insert . Fiscal committee: yes. State-mandated local program: no.

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

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 7401.1 is added to the end insert begin insert Business and
Professions Code end insert begin insert , to read: end insert

begin insert

begin insert 7401.1. end insert   

(a) The board shall not renew the license of an
establishment that provides nail care services if it is conducting
business in violation of Section 238 of the Labor Code.

(b) Before renewing the license of an establishment that provides
nail care services as defined in Section 7316, the board shall verify
with the Labor Commissioner whether that establishment is
conducting business in violation of Section 238 of the Labor Code.

(c) An establishment that provides nail care services may
demonstrate to the board that is not conducting business in
violation of Section 238 of the Labor Code by providing evidence
to the board.

end insert

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 7401.2 is added to the end insert begin insert Business and Professions
Code end insert begin insert , to read: end insert

begin insert

begin insert 7401.2. end insert   

The board shall not renew the establishment license
of an establishment that provides nail care services, as defined
under Section 7316, if the establishment and its employees have
not received the training required pursuant to Part 10.5
(commencing with Section 2268) of the Labor Code.

end insert

begin insert

begin insert SEC. 3. end insert   

end insert

begin insert Section 238.6 is added to the end insert begin insert Labor Code end insert begin insert , to read: end insert

begin insert

begin insert 238.6. end insert   

(a) If an employer is an establishment that offers nail
care services and is required to obtain a license from the State
Board of Barbering and Cosmetology pursuant to Chapter 10
(commencing with Section 7301) of Division 3 of the Business and
Professions Code is found to be conducting business in violation
of Section 238, the Labor Commissioner shall notify the State
Board of Barbering and Cosmetology that the establishment is
conducting business in violation of Section 238.

(b) For the purposes of this section, “nail care services” means
the practice of cutting, trimming, polishing, coloring, tinting,
cleansing, manicuring, or pedicuring the nails of a person or
massaging, cleansing, or beautifying from the elbow to the
fingertips or the knee to the toes of a person.

end insert

begin insert

begin insert SEC. 4. end insert   

end insert

begin insert Part 10.5 (commencing with Section 2268) is added
to Division 2 of the end insert begin insert Labor Code end insert begin insert , to read: end insert

begin insert

 

PART  begin insert 10.5. end insert   Nail Care Establishments

 

begin insert 2268. end insert   

For the purposes of this part, the following terms shall
have the following meanings:

(a) “Division” means the Division of Labor Standards
Enforcement.

(b) “Establishment” means an establishment licensed under
Chapter 10 (commencing with Section 7301) of Division 3 of the
Business and Professions Code that offers nail care services.

(c) “License” means a license issued to an establishment under
Chapter 10 (commencing with Section 7301) of Division 3 of the
Business and Professions Code.

(d) “Licensee” means an employee of an establishment who is
licensed under Chapter 10 (commencing with Section 7301) of
Division 3 of the Business and Professions Code to perform nail
care services.

(e) “Nail care” means the practice of cutting, trimming,
polishing, coloring, tinting, cleansing, manicuring, or pedicuring
the nails of a person or massaging, cleansing, or beautifying from
the elbow to the fingertips or the knee to the toes of a person.

begin insert 2268.1. end insert   

(a) An establishment shall register with the division
pursuant to this part and receive the training required by this part
once every license renewal period. An establishment shall also
arrange for licensees employed at that establishment to receive
the required training from either the division under subdivision
(b) or from a nonprofit vendor under subdivision (c).

(b) (1) By June 1, 2017, the division shall provide training to
an establishment and licensees employed at that establishment
regarding laws pertaining to workplace rights and wage and hour
laws.

(2) The training shall include, but not be limited to:

(A) Misclassification of an employee as a contractor.

(B) Wage and hour laws, such as minimum wage, overtime
compensation, meal periods, and rest breaks.

(C) Protection for retaliation.

(D) Business expense reimbursement.

(E) Tip or gratuity distribution.

(F) How to report violations of the law.

(3) To the extent possible, the training shall be provided
separately to an establishment and licensees.

(4) The training shall be provided in a culturally competent and
linguistically appropriate manner for the demographic groups
that work in the nail care industry.

(c) (1) In lieu of providing training under subdivision (b), the
division may contract with an approved nonprofit vendor to provide
the training required by this section.

(2) The division shall consider all of the following when
approving a nonprofit vendor to provide the training required by
this section:

(A) The linguistic capabilities of the nonprofit vendor. The
nonprofit vendor shall have language capacity to conduct the
training in the languages of the demographic groups that work in
the nail care industry, including, but not limited to, Vietnamese.

(B) The nonprofit vendor shall have a demonstrated history of
providing culturally competent services to the demographic groups
that work in the nail care industry, including, but not limited to,
the Vietnamese community.

(C) The nonprofit vendor shall have familiarity with the laws
to be discussed in the training. The vendor may obtain this legal
expertise through other service providers, such as a nonprofit legal
service agency.

(D) Any other criteria deemed appropriate by the division.

(3) The nonprofit vendor shall not charge a fee to the attendees
of the training.

begin insert 2268.2. end insert   

(a) The division shall charge a fee to an establishment,
not to exceed the reasonable regulatory cost, for providing the
training under this part or for contracting out with an approved
nonprofit vendor to provide the training required under this part.

(b) The fee shall be deposited into the Nail Care Establishment
Training Fund, which is hereby created. The fee shall only be used
for the purposes of providing the training required pursuant to
this part and, notwithstanding Section 13340 of the Government
Code, is continuously appropriated without regard to fiscal year
solely for these purposes.

end insert

begin delete

SECTION 1.  

Section 6330 of the Labor Code is amended to
read:

6330.  

The director shall prepare and submit to the Legislature,
not later than March 1, an annual report on the division activities.
The report shall include, but need not be limited to, the following
information for the previous calendar year:

(a) The amount of funds allocated and spent in enforcement,
education and research, and administration by the division.

(b) Total inspections made, and citations issued by the division.

(c) The number of civil penalties assessed, total amount of fines
collected and the number of appeals heard.

(d) The number of contractors referred to the Contractor’s State
License Board for hearing, pursuant to Section 7109.5 of the
Business and Professions Code, and the total number of these cases
resulting in suspension or revocation of a license.

(e) The report from the division prepared by the Bureau of
Investigations for submission to the director pursuant to Section
6315.3.

(f) Recommendations for legislation which improves the ability
of the division to provide safety and maximize health outcomes
in places of employment.

The report shall be made to the Speaker of the Assembly and
the Chairman of the Rules Committee of the Senate, for assignment
to the appropriate committee or committees for evaluation.

end delete