BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2464


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          Date of Hearing:  May 4, 2016


                     ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT


                               Roger Hernández, Chair


          AB 2464  
          (Grove) - As Amended April 27, 2016


          SUBJECT:  Labor Code Private Attorneys General Act of 2004


          SUMMARY:  Authorizes a court to dismiss a civil action under the  
          Labor Code Private Attorneys General Act of 2004 (PAGA) if,  
          after notice and hearing, the court finds that the aggrieved  
          employee suffered no appreciable physical or economic harm. 


          FISCAL EFFECT:  Unknown


          COMMENTS:  


          Background on the Labor Code Private Attorneys General Act of  
          2004 (PAGA)


          The Labor Code Private Attorneys General Act (PAGA) was enacted  
          pursuant to SB 796 (Dunn), Chapter # 906, Statutes of 2003, and  
          went into effect on January 1, 2004.  


          The Legislative findings accompanying the enactment of SB 796  
          stated the following:








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               "Adequate financing of essential labor law enforcement  
               functions is necessary to achieve maximum compliance with  
               state labor laws in the underground economy and to ensure  
               an effective disincentive for employers to engage in  
               unlawful and anticompetitive business practices.


               Although innovative labor law education programs and  
               self-policing efforts by industry watchdog groups may have  
               some success in educating some employers about their  
               obligations under state labor laws, in other cases the only  
               meaningful deterrent to unlawful conduct is the vigorous  
               assessment and collection of civil penalties as provided in  
               the Labor Code.


               Staffing levels for state labor law enforcement agencies  
               have, in general, declined over the last decade and are  
               likely to fail to keep up with the growth of the labor  
               market in the future.


               It is therefore in the public interest to provide that  
               civil penalties for violations of the Labor Code may also  
               be assessed and collected by aggrieved employees acting as  
               private attorneys general, while also ensuring that state  
               labor law enforcement agencies' enforcement actions have  
               primacy over any private enforcement efforts undertaken  
               pursuant to this act."


          The co-sponsors of SB 796, the California Labor Federation,  
          AFL-CIO and the California Rural Legal Assistance Foundation,  
          argued that the bill would address inadequacies in labor law  
          enforcement in two major ways.  First, the bill assigned civil  
          fine amounts to the large number of Labor Code provisions, which  
          previously carried prohibitions or criminal fines, but not civil  








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          penalties.  Second, it authorized the filing of civil actions to  
          recover existing and new civil penalties by aggrieved workers  
          acting as private attorneys general.





          The PAGA was significantly amended by SB 1809 (Dunn), Chapter #  
          221, Statutes of 2004.


          SB 1809 significantly amended the provisions of the PAGA by  
          enacting specified procedural and administrative requirements  
          that must be met prior to bringing a private action to recover  
          civil penalties.  Moreover, SB 1809 provided that no action  
          shall be brought for a posting, notice, agency reporting, or  
          filing requirement, except as specified.


          The provisions of SB 1809 also expanded judicial review of PAGA  
          claims by requiring courts to review and approve any penalties  
          sought as part of a proposed settlement agreement, and those  
          portions of settlements concerning violations of health and  
          safety laws.  In addition, courts were authorized to award a  
          lesser amount if to do so otherwise would result in an award  
          that is unjust, arbitrary and oppressive, or confiscatory.


          Finally, SB 1809 appropriated $150,000 from the General Fund to  
          the LWDA for the purposes of implementing its provisions, and  
          changed the prior penalty formula to provide that 75 percent of  
          most civil penalties recovered pursuant to PAGA shall go to the  
          LWDA for labor law enforcement and education.


          Existing Procedural Requirements Under PAGA










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          As discussed above, SB 1809 significantly amended the provisions  
          of the PAGA by enacting specified procedural and administrative  
          requirements that must be met prior to bringing a private action  
          to recover civil penalties.  SB 1809 essentially enacted three  
          different procedural requirements depending on the type of  
          violation.


          "Serious" Labor Code Violations


          SB 1809 established a new procedure that an aggrieved employee  
          must follow prior to bringing a civil action to recover  
          penalties for enumerated, serious Labor Code violations  
          (including, but not limited to, violations of wage and hour,  
          overtime, child labor, agricultural, entertainment and garment  
          industry labor laws, and public works laws).

          First, the aggrieved employee must provide written notice of the  
          violation to the LWDA and to the employer.  The LWDA has 30 days  
          to decide if it will investigate the violation.  If the LWDA  
          decides to investigate the alleged violation, it must notify the  
          employer and the aggrieved employee within 33 days.  Within 120  
          days of that decision, the Labor Agency may investigate the  
          alleged violation and issue any appropriate citation.  If the  
          LWDA fails to act, the aggrieved employee may pursue a civil  
          action under PAGA.

          Notice and Cure Provisions for Other Labor Code Violations
          
          SB 1809 also established specified "notice and cure" provisions  
          for those Labor Code violations not enumerated as "serious"  
          above, nor subject to the Cal-OSHA provisions specified below.  

          For these violations, the following procedural requirements  
          apply:  

          First, the aggrieved employee must give written notice to the  
          LWDA and the employer of the alleged violation.  The employer  








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          may cure the alleged violation within 33 days and give written  
          notice to the employee and the LWDA if the alleged violation is  
          cured.

          If the alleged violation is cured, no civil action pursuant to  
          PAGA may commence.

          If the alleged violation is not cured within the 33-day period,  
          the aggrieved employee may commence a civil action pursuant to  
          PAGA.  For the aggrieved employee to dispute that the alleged  
          violation has been cured, the employee must provide written  
          notice to the employer and the LWDA.  Within 17 days the LWDA  
          must review the actions of the employer and provide written  
          notice of whether the alleged violation has been cured.

          If the LWDA determines that the alleged violation has not been  
          cured or if the agency fails to provide timely or any  
          notification, the aggrieved employee may proceed with a civil  
          action pursuant to PAGA.  If the agency has determined that the  
          alleged violation has been cured, but the employee still  
          disagrees, the employee may appeal that determination to the  
          superior court.

          No employer may avail himself or herself of the "notice and  
          cure" provisions 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.

          Cal-OSHA Violations

          SB 1809 also established a new procedure that an aggrieved  
          employee must follow prior to initiating a civil action to  
          recover penalties for violations of Labor Code provisions  
          pertaining to occupational safety and health (Cal-OSHA), as  
          follows:

                 The aggrieved employee must give written notice to the  
               Division of Occupational Safety and Health (DOSH) within  
               the Department of Industrial Relations (DIR) and the  








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               employer of the alleged violation.
                 DOSH must inspect or investigate the alleged violation  
               pursuant to existing provisions of law.
                 If DOSH issues a citation, no civil action pursuant to  
               PAGA may commence.
                 If, by the end of the period for inspection or  
               investigation, DOSH fails to issue a citation and the  
               employee disputes that decision, the employee may challenge  
               the decision in the superior court.  If the court finds  
               that DOSH should have issued a citation and orders DOSH to  
               issue a citation, then no civil action pursuant to PAGA may  
               commence.
                 If DOSH fails to inspect or investigate the alleged  
               violation within the period specified in existing law, the  
               notice and cure provisions outlined above apply to the  
               determination of the alleged violation.
                 The superior court shall review any proposed settlement  
               of alleged safety in employment violations to ensure that  
               they are at least as effective as the protections or  
               remedies provided in federal and state law.

          



          Governor's Proposed Budget Changes to PAGA

          The Governor's proposed budget released in January contains  
          additional budget resources for the handling of PAGA cases, and  
          also proposed a number of significant policy and procedural  
          changes to the PAGA statute itself.

          With respect to resources, the Governor's proposed budget change  
          proposal (BCP) states the following:

            "This proposal requests 1.0 position for the Labor and  
            Workforce Development Agency (LWDA), 9.0 positions for the  
            Department of Industrial Relations (DIR), and $1.6 million in  
            the Labor and Workforce Development Fund (LWDF) for the  








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            2016/17 fiscal year ($1.5 million ongoing) to stabilize and  
            improve the handling of Private Attorneys General Act cases,  
            largely to the benefit of workers, employers, and the state."

          Further explaining the rationale for increased resources, the  
          BCP states the following:

            "As indicated in the Resource History and Workload History  
            charts above, historically, the LWDA and DIR have not been  
            staffed to perform the review and oversight functions  
            contemplated by the Labor Code Sections 2698 - 2699.5 (PAGA).  
            This has contributed to a range of concerns about the PAGA  
            statute itself, Including that employers are being sued and  
            incurring substantial costs defending against technical or  
            frivolous claims, and that workers and the state often end up  
            being shortchanged when these cases are settled. Employers are  
            also concerned about potential exposure to large back pay and  
            penalty claims, often pursued through PAGA actions, when  
            courts make new precedential determinations in wage and hour  
            cases. This proposal would address these by concerns by  
            providing DIR with the staffing needed to effectively oversee  
            and, when appropriate, step in to handle PAGA cases."

          The BCP also proposes a number of significant policy and  
          procedural changes (through proposed budget trailer bill  
          language) to PAGA statute itself.  The BCP describes these  
          proposed statutory changes as follows:

            "This proposal will also make a number of modest revisions to  
            the PAGA statute to improve the state's oversight of PAGA  
            cases and better insure that they are pursued in the public's  
            interest and not just for private purposes. Proposed revisions  
            would provide for the following:
                    Require more detail in the PAGA claim notices filed  
                 with the LWDA and require that claims for ten or more  
                 employees be verified and accompanied by a copy of the  
                 proposed complaint.

                    Extend the LWDA's time to review PAGA notices from 30  








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                 to 60 days, and specify that employers may submit a  
                 request for the LWDA to Investigate a PAGA claim.

                    Require PAGA notices and employer responses to be  
                 submitted online and accompanied by a filing fee.

                    Extend the time for the LWDA to investigate an  
                 accepted claim from 120 to 180 days.

                    Require the Director of Industrial Relations to be  
                 served with a copy of the complaint when a PAGA case is  
                 filed.

                    Require court approval of all PAGA case settlements,  
                 and require that the Director of DIR be provided with  
                 notice and an opportunity to object before the court  
                 determines whether to approve a settlement.

                    Create a separate procedure through which interested  
                 parties may ask the Director of DIR to establish a  
                 temporary amnesty and safe harbor program to provide  
                 expedited back wage payments to employees and penalty  
                 relief to employers following the invalidation of a  
                 widespread industry practice (similar to Assembly Bill  
                 1513, Chapter 754, Statutes of 2015)."  

          Recent LAO Analysis of Governor's Budget Proposal

          On March 25, 2016, the LAO released an analysis of the PAGA  
          proposals contained in the Governor's proposed budget.  With  
          respect to proposals related to proving more information to the  
          LWDA, LAO stated:

            "We think the Governor's proposed amendments to PAGA requiring  
            more information be provided to LWDA-specifically, more detail  
            in the initial PAGA notice and that a copy of the PAGA  
            complaint and any settlement be provided to LWDA-are a  
            reasonable extension of LWDA's oversight of the PAGA process  
            that would make it possible to better assess the nature and  








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            extent of the undesirable outcomes highlighted in the  
            Governor's proposal. Information obtained about the  
            disposition of PAGA claims could play an important role in  
            future consideration of other potential proposals to modify  
            the PAGA process."

          However, with respect to some of the other proposals, LAO  
          expressed concern that they should be addressed through policy,  
          rather than the budget, process:

            "In our view, the remaining proposed amendments to the PAGA  
            process differ from those discussed immediately above in that  
            they raise more significant policy issues that are more  
            central to the Legislature's intent for PAGA. For example, the  
            remaining proposed changes touch on questions of employee  
            access to the PAGA process, how long employees should wait for  
            LWDA to conduct an investigation before the claim may proceed,  
            and whether LWDA should be able to influence the outcome of a  
            PAGA claim once it has decided not to investigate or issue a  
            citation. While the proposed changes may have merit, such  
            fundamental changes to PAGA, in our view, would be more  
            appropriately considered in the legislative policy process  
            rather than the state budget process. This policy deliberation  
            also may be more productive once LWDA has more complete  
            information about the outcomes of PAGA claims-as proposed by  
            the Governor." 
          
          Related Legislation

          AB 2898 (Labor Committee) makes changes to some of the  
          administrative timelines under PAGA.  AB 2898 is intended to  
          serve as a potential policy vehicle for potential policy changes  
          to PAGA as the year continues and depending on the outcome of  
          the budget discussions around PAGA mentioned above.

          AB 2461 (Grove) limits PAGA only to alleged violations of  
          specified provisions of law dealing with itemized wage  
          statements, meal and rest and recovery periods, and overtime  
          compensation.  AB 2461 is currently pending before this  








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          committee.

          AB 2462 (Grove) would provide an employer with the right to cure  
          any violation of the Labor Code before an aggrieved employee may  
          bring a civil action under PAGA.  AB 2462 is currently pending  
          before this committee.

          AB 2463 (Grove) would establish a cap on specified penalties  
          under PAGA of $1,000 for each aggrieved employee.  AB 2463 is  
          currently pending before this committee.

          AB 2465 (Grove) would provide that, upon receipt of a notice by  
          an aggrieved employee alleging specified violations of the Labor  
          Code pursuant to PAGA, the LWDA shall investigate the alleged  
          violation and determine if there is a "reasonable basis" for a  
          civil action within 120 calendar days.  AB 2465 failed passage  
          in this committee.

          Prior Related Legislation

          In response to concerns about PAGA claims being filed for  
          alleged technical violations of an employer's obligation to  
          provide accurate wage statements, AB 1506 (Roger Hernández) of  
          2015 was enacted to amend PAGA to provide an employer with the  
          right to cure a violation of failing to provide its employees  
          with a wage statement containing the inclusive dates of the pay  
          period and the name and address of the legal entity that is the  
          employer.  AB 1506 was enacted as an urgency statute and went  
          into effect on October 2, 2015.

          Arguments in Support
          
          According to the author:

            "The intent of PAGA was simple: give employees the ability to  
            enforce state labor laws if the state agency did not have the  
            time or ability to investigate violations because of a lack of  
            resources.









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            However, over the years PAGA has increasingly been abused. As  
            an unintended consequence, attorneys are using PAGA to file  
            multi-million dollar lawsuits against small business owners  
            over frivolous and non-harmful labor code violations.  
            Companies are then forced into settlement agreements with most  
            of the money going to pay attorney fees. It is a modern day  
            shakedown on California employers. Over 30,000 PAGA lawsuits  
            have been filed over the last five years.

            We should be enabling employers to thrive, not forcing them  
            out of business. PAGA does not require that an employee suffer  
            any actual harm prior to filing a lawsuit against their  
            employer.

            PAGA created a formula for awarding civil penalties. If an  
            employee or group of employees is successful in their suit,  
            they receive 25 percent of the total amount of PAGA penalties  
            paid by their employer, and the remaining 75% goes to the  
            LWDA. However, since companies often settle out of court,  
            attorneys bypass these statutory financial obligations by  
            reducing the PAGA penalties to a much lower amount. Then the  
            majority of the settlement goes to attorney fees?

            ?It is clear that PAGA reform is necessary. The Labor Code  
            plays a vital role in protecting California's workforce. The  
            intent of this PAGA reform is to prevent lawsuit abuse; if  
            this bill becomes law, employers will still be required to  
            follow the Labor Code."

          Therefore, the author argues that this bill would grant judicial  
          discretion in PAGA cases by explicitly giving a judge the  
          ability to dismiss a civil action against an employer if, after  
          hearing a PAGA case, it is clear that the employee suffered no  
          physical or economic harm.  Current law allows judges the  
          discretion to determine the associated penalties when PAGA cases  
          are presented, but not the explicit ability to dismiss a case.

          The Civil Justice Association of California (CJAC) supports this  
          bill, arguing that Labor Code Section 2699(e)(2) allows judges  








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          the discretion to determine the penalties in PAGA cases, but not  
          the explicit ability to dismiss a case.  This bill will allow  
          the court to dismiss a PAGA lawsuit if, after notice and  
          hearing, the court finds that an employee suffered no  
          appreciable physical or economic harm.





          CJAC goes on to state that the broad mandate of PAGA, along with  
          high statutory damages and the availability of attorneys' fees,  
          has led to numerous abusive lawsuits.  Plaintiffs in PAGA suits  
          have more leverage than plaintiffs in traditional lawsuits.  A  
          plaintiff may bring a PAGA claim as a representative of other  
          employees (thereby increasing plaintiff's bargaining power), but  
          the plaintiff doesn't have to meet the requirements of class  
          certification that a traditional class action plaintiff would.   
          With the threat that PAGA lawsuits pose, many businesses settle  
          the claims rather than defend themselves, even if the claims  
          have little or no merit.  Potential penalties can quickly add  
          up, even if violations alleged were minor or technical, and  
          employees suffered no actual harm.



          Arguments in Opposition
          


          Opponents state that PAGA is important to preserving workers'  
          rights for a number of reasons.  First, California has a  
          significant low-wage and immigrant workforce.  These workers are  
          incredibly susceptible to wage theft, unsafe working conditions  
          and other abuses and must have access to meaningful enforcement.  
           Second, the Labor Commissioner's office lacks the resources to  
          protect workers from workplace abuse.  Workers must have the  
          ability to privately enforce these rights or employers will have  
          no financial incentive to follow the law.  Third, nearly half of  








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          all private sector workers are forced to sign arbitration  
          agreements that waive their right to file a claim with the Labor  
          Commissioner and to participate in a class action.  That means  
          PAGA is often the only effective remedy available.





          Opponents also argue that this bill is unnecessary and  
          unwarranted, particularly in light of the on-going discussions  
          about the Administration's 2016/2017 PAGA BCP and trailer bill.  
          Their involvement in these discussions leads them to believe  
          that the Legislature is likely to shortly adopt amendments to  
                                                       PAGA that would give the agency additional resources and  
          authority to address some of the issues raised inferentially by  
          this bill, but without the adverse effects this bill would have  
          on legitimate PAGA actions brought on behalf of low-wage  
          workers.





          


          REGISTERED SUPPORT / OPPOSITION:




          Support


          Bakersfield Pipe & Supply


          Button Transportation, Inc.








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          California Apartment Association


          Civil Justice Association of California


          General Production Service, Inc.


          KS Industries, LP


          Rival Well Services


          Weststar


          Zim Industries, Inc.




          Opposition


          AFSCME, Local 685


          American Federation of State, County and Municipal Employees


          Association for Los Angeles Deputy Sheriffs


          Association of Deputy District Attorneys 









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          CA Conference Board of the Amalgamated Transit Union


          CA Conference of Machinists


          California Employment Lawyers Association


          California Labor Federation, AFL-CIO


          California Rural Legal Assistance Foundation


          California Teachers Association


          California Teamsters Public Affairs Council


          Consumer Attorneys of California


          Engineer & Scientists of CA, Local 20


          International Longshore and Warehouse Union


          Los Angeles County Professional Peace Officers Association


          Los Angeles Police Protective League


          Organization of SMUD Employees









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          Professional & Technical Engineers, Local 21


          Riverside Sheriffs' Association


          San Diego County Court Employees Association


          San Luis Obispo County Employees Association


          SEIU, Local 1000


          UNITE-HERE


          Utilities Workers Union of America, Local 132










          Analysis Prepared by:Ben Ebbink / L. & E. / (916) 319-2091
















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