BILL ANALYSIS Ó AB 2464 Page 1 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: AB 2464 Page 2 "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 AB 2464 Page 3 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 AB 2464 Page 4 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 AB 2464 Page 5 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 AB 2464 Page 6 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 AB 2464 Page 7 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 AB 2464 Page 8 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 AB 2464 Page 9 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 AB 2464 Page 10 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. AB 2464 Page 11 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 AB 2464 Page 12 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 AB 2464 Page 13 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. AB 2464 Page 14 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 AB 2464 Page 15 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 AB 2464 Page 16 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 AB 2464 Page 17