California Legislature—2015–16 Regular Session

Assembly Bill No. 2461

Introduced by Assembly Member Grove

February 19, 2016

An act to amend Sections 2699 and 2699.3 of, and to repeal Section 2699.5 of, the Labor Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

AB 2461, as introduced, Grove. Labor Code Private Attorneys General Act of 2004.

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 requires the employee to follow specified procedures before bringing an action.

This bill would limit the violations for which an aggrieved employee is authorized to bring a civil action under the act and would require the employee to follow specified procedures before bringing an action.

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

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

SECTION 1.  

Section 2699 of the Labor Code is amended to
read:

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 begin delete this code, end delete begin insert provisions
specified in subdivision (b) of Section 2699.3 end insert 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.

begin delete

(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. 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 delete begin delete

(e)

end delete

begin insert (d) end insert   begin delete (1) end delete  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.

begin delete

(2)

end delete

begin insert (e) end insert  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 begin delete all provisions of this code end delete begin insert provisions specified in
subdivision (b) of Section 2699.3 end insert 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)  begin delete (1) end delete begin delete   end delete begin delete Except as provided in paragraph (2), an end delete begin insert An end insert 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.

begin delete

(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.

end delete

(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.

SEC. 2.  

Section 2699.3 of the Labor Code is amended to read:

2699.3.  

(a) A civil action by an aggrieved employee pursuant
to subdivision (a) or (f) of Section 2699 alleging a violation of any
provision listed in begin delete Section 2699.5 end delete begin insert subdivision (b) end insert shall commence
only after the following requirements have been met:

(1) The aggrieved employee or representative shall give written
notice by certified mail to the Labor and Workforce Development
Agency and the employer of the specific provisions of this code
alleged to have been violated, including the facts and theories to
support the alleged violation.

(2) (A) The agency shall notify the employer and the aggrieved
employee or representative by certified mail that it does not intend
to investigate the alleged violation within 30 calendar days of the
postmark date of the notice received pursuant to paragraph (1).
Upon receipt of that notice or if no notice is provided within 33
calendar days of the postmark date of the notice given pursuant to
paragraph (1), the aggrieved employee may commence a civil
action pursuant to Section 2699.

(B) If the agency intends to investigate the alleged violation, it
shall notify the employer and the aggrieved employee or
representative by certified mail of its decision within 33 calendar
days of the postmark date of the notice received pursuant to
paragraph (1). Within 120 calendar days of that decision, the
agency may investigate the alleged violation and issue any
appropriate citation. If the agency determines that no citation will
be issued, it shall notify the employer and aggrieved employee of
that decision within five business days thereof by certified mail.
Upon receipt of that notice or if no citation is issued by the agency
within begin delete the end delete begin insert that end insert 158-day period prescribed by begin delete subparagraph (A)
and end delete this subparagraph or if the agency fails to provide timely or
any notification, the aggrieved employee may commence a civil
action pursuant to Section 2699.

(C) Notwithstanding any other provision of law, a plaintiff may
as a matter of right amend an existing complaint to add a cause of
action arising under this part at any time within 60 days of the time
periods specified in this part.

begin delete

(b) A civil action by an aggrieved employee pursuant to
subdivision (a) or (f) of Section 2699 alleging a violation of any
provision of Division 5 (commencing with Section 6300) other
than those listed in Section 2699.5 shall commence only after the
following requirements have been met:

(1) The aggrieved employee or representative shall give notice
by certified mail to the Division of Occupational Safety and Health
and the employer, with a copy to the Labor and Workforce
Development Agency, of the specific provisions of Division 5
(commencing with Section 6300) alleged to have been violated,
including the facts and theories to support the alleged violation.

(2) (A) The division shall inspect or investigate the alleged
violation pursuant to the procedures specified in Division 5
(commencing with Section 6300).

(i) If the division issues a citation, the employee may not
commence an action pursuant to Section 2699. The division shall
notify the aggrieved employee and employer in writing within 14
calendar days of certifying that the employer has corrected the
violation.

(ii) If by the end of the period for inspection or investigation
provided for in Section 6317, the division fails to issue a citation
and the aggrieved employee disputes that decision, the employee
may challenge that decision in the superior court. In such an action,
the superior court shall follow precedents of the Occupational
Safety and Health Appeals Board. If the court finds that the division
should have issued a citation and orders the division to issue a
citation, then the aggrieved employee may not commence a civil
action pursuant to Section 2699.

(iii) A complaint in superior court alleging a violation of
Division 5 (commencing with Section 6300) other than those listed
in Section 2699.5 shall include therewith a copy of the notice of
violation provided to the division and employer pursuant to
paragraph (1).

(iv) The superior court shall not dismiss the action for
nonmaterial differences in facts or theories between those contained
in the notice of violation provided to the division and employer
pursuant to paragraph (1) and the complaint filed with the court.

(B) If the division fails to inspect or investigate the alleged
violation as provided by Section 6309, the provisions of subdivision
(c) shall apply to the determination of the alleged violation.

(3) (A) Nothing in this subdivision shall be construed to alter
the authority of the division to permit long-term abatement periods
or to enter into memoranda of understanding or joint agreements
with employers in the case of long-term abatement issues.

(B) Nothing in this subdivision shall be construed to authorize
an employee to file a notice or to commence a civil action pursuant
to Section 2699 during the period that an employer has voluntarily
entered into consultation with the division to ameliorate a condition
in that particular worksite.

(C) An employer who has been provided notice pursuant to this
section may not then enter into consultation with the division in
order to avoid an action under this section.

(4) The superior court shall review and approve any proposed
settlement of alleged violations of the provisions of Division 5
(commencing with Section 6300) to ensure that the settlement
provisions are at least as effective as the protections or remedies
provided by state and federal law or regulation for the alleged
violation. The provisions of the settlement relating to health and
safety laws shall be submitted to the division at the same time that
they are submitted to the court. This requirement shall be construed
to authorize and permit the division to comment on those settlement
provisions, and the court shall grant the division’s commentary
the appropriate weight.

(c) A civil action by an aggrieved employee pursuant to
subdivision (a) or (f) of Section 2699 alleging a violation of any
provision other than those listed in Section 2699.5 or Division 5
(commencing with Section 6300) shall commence only after the
following requirements have been met:

(1) The aggrieved employee or representative shall give written
notice by certified mail to the Labor and Workforce Development
Agency and the employer of the specific provisions of this code
alleged to have been violated, including the facts and theories to
support the alleged violation.

(2) (A) The employer may cure the alleged violation within 33
calendar days of the postmark date of the notice. The employer
shall give written notice by certified mail within that period of
time to the aggrieved employee or representative and the agency
if the alleged violation is cured, including a description of actions
taken, and no civil action pursuant to Section 2699 may commence.
If the alleged violation is not cured within the 33-day period, the
employee may commence a civil action pursuant to Section 2699.

(B) (i) Subject to the limitation in clause (ii), no employer may
avail himself or herself of the notice and cure provisions of this
subdivision more than three times in a 12-month period for the
same violation or violations contained in the notice, regardless of
the location of the worksite.

(ii) No employer may avail himself or herself of the notice and
cure provisions of this subdivision with respect to alleged violations
of paragraph (6) or (8) of subdivision (a) of Section 226 more than
once in a 12-month period for the same violation or violations
contained in the notice, regardless of the location of the worksite.

(3) If the aggrieved employee disputes that the alleged violation
has been cured, the aggrieved employee or representative shall
provide written notice by certified mail, including specified
grounds to support that dispute, to the employer and the agency.
Within 17 calendar days of the postmark date of that notice, the
agency shall review the actions taken by the employer to cure the
alleged violation, and provide written notice of its decision by
certified mail to the aggrieved employee and the employer. The
agency may grant the employer three additional business days to
cure the alleged violation. If the agency determines that the alleged
violation has not been cured or if the agency fails to provide timely
or any notification, the employee may proceed with the civil action
pursuant to Section 2699. If the agency determines that the alleged
violation has been cured, but the employee still disagrees, the
employee may appeal that determination to the superior court.

end delete begin insert

(b) The provisions of subdivision (a) apply to any alleged
violation of the following provisions: Sections 226, 226.7, 510,
and 512.

end insert begin delete

(d)

end delete

begin insert (c) end insert  The periods specified in this section are not counted as part
of the time limited for the commencement of the civil action to
recover penalties under this part.

SEC. 3.  

Section 2699.5 of the Labor Code is repealed.

begin delete

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, paragraphs (1) to (5),
inclusive, (7), and (9) of 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,
Sections 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.

end delete