California Legislature—2015–16 Regular Session

Assembly Bill No. 2898

Introduced by Committee on Labor and Employment (Assembly Members Roger Hernández (Chair), Chu, Low, McCarty, and Thurmond)

March 1, 2016

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

LEGISLATIVE COUNSEL’S DIGEST

AB 2898, as introduced, Committee on Labor and Employment. 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 on behalf of the employee and other current or former employees for the violation of certain provisions affecting employees. The act provides the employer with the right to cure certain violations once in a 12-month period before the employee may bring a civil action, as specified. For other violations, the act requires the aggrieved employee to follow specified procedures before bringing an action.

Under the act, the procedures pertaining to specified violations include an aggrieved employee giving written notice to the Labor and Workforce Development Agency and the employer of the alleged violation and the facts and theories in support thereof, the agency notifying the employer and the aggrieved employee whether it does, or does not, intend to investigate an alleged violation, and, if it does intend to investigate, the agency providing other notices, all within specified time periods.

This bill would extend those time periods by requiring the agency, when it does not intend to investigate an alleged violation, to notify the employee and the employer within 45 days and by authorizing the aggrieved employee to commence a civil action 48 days after having sent notice of the alleged violation.

The bill would require the agency to send notification within 48 days if it intends to investigate an alleged violation. The bill would authorize an aggrieved employee to commence a civil action after 173 days, if after having received notice of the agency’s intent to investigate, no citation is issued or no further notification is received from the agency.

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 begin delete 30 end delete begin insert 45 end insert 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 begin delete 33 end delete
begin insert 48 end insert 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 begin delete 33 end delete begin insert 48 end insert 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 begin delete 158-day end delete begin insert 173-day end insert 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.

(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 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 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 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.