BILL NUMBER: AB 2461 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 27, 2016
INTRODUCED BY Assembly Member Grove
( Coauthor: Senator Anderson
)
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 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 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.