BILL NUMBER: AB 2465	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Grove

                        FEBRUARY 19, 2016

   An act to amend Section 2699.3 of the Labor Code, relating to
employment.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 2465, 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. Under the act, an employee is
authorized to bring an action for such an alleged violation only
after the agency notifies the employer and the aggrieved employee or
representative that it does not intend to investigate the alleged
violation, if the agency proceeds with an investigation and no
citation is issued, or the agency fails to provide notification as
prescribed.
   This bill would revise those procedural provisions to require the
agency, after receiving notification of an alleged violation, to
investigate the alleged violation and determine if there is a
reasonable basis for a civil action. The bill would authorize an
aggrieved employee to commence an action upon receipt of notice from
the agency that there is a reasonable basis for a civil action, or if
the agency fails to provide the prescribed notification.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  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 Section 2699.5 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 the
158-day period prescribed by subparagraph (A) and 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.  
   (2) (A) The agency shall investigate the alleged violation and
determine if there is a reasonable basis for a civil action within
120 calendar days of the postmark date of the notice received
pursuant to paragraph (1). Upon making its determination, the agency
shall immediately notify the employer and the aggrieved employee or
representative by certified mail of its determination.  
   (B) The aggrieved employee may commence a civil action pursuant to
Section 2699 upon receipt of notice from the agency that there is a
reasonable basis for a civil action pursuant to subparagraph (A), or
if the agency fails to provide timely or any notification pursuant to
subparagraph (A). 
   (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) 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
  shall  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   shall 
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   shall  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.
   (d) 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.