Amended in Assembly April 27, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 2461

Introduced by Assembly Member Grove

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(Coauthor: Senator Anderson)

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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 amended, 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 begin delete provision of end delete 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 provisions specified in
subdivision (b) of Section 2699.3 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, 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.

(e) 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 provisions specified in subdivision (b) of Section 2699.3
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) 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.

(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 subdivision (b) 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 that 158-day period prescribed by 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.

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

(c) 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.