BILL ANALYSIS Ó
AB 2899
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Date of Hearing: April 20, 2016
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hernández, Chair
AB 2899
(Roger Hernández) - As Amended April 13, 2016
SUBJECT: Minimum wage violations: challenges
SUMMARY: Establishes a wage bond requirement, as specified, for
the filing of a writ of mandate with the superior court by an
employer challenging a citation and decision by the Labor
Commissioner (LC) finding a violation of the law. Specifically,
this bill:
1)Provides that, as a condition to filing a petition for a writ
of mandate, the employer seeking the writ shall first post a
bond with the LC equal to the total amount of any minimum
wages, liquidated damages, and overtime compensation that are
due and owing as specified in the citation being challenged.
The bond amount shall not include amounts for penalties.
2)Specifies that the bond shall be issued by a surety duly
authorized to do business in this state, shall be issued in
favor of unpaid employees, and shall ensure that the employer
makes payments as specified.
3)Contains other related and conforming changes.
AB 2899
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FISCAL EFFECT: Unknown
COMMENTS: This bill would establish an "appeal bond"
requirement for an employer who seeks a writ of mandate
challenging a decision of the LC following a citation by the
Bureau of Field Enforcement (BOFE). The bond established by
this bill would be similar to a bond required of employers who
appeal an adverse decision following an employee wage claim
filed with the LC.
Current Bond Requirements for Appeals of Employee Wage Claims
Existing law authorizes employees (in lieu of filing a civil
proceeding) to file an administrative claim for unpaid wages or
similar damages with the LC. This is an administrative
adjudicatory process often referred to as the "Berman hearing"
process.
Under current law, a losing party may appeal a LC decision to
the superior court. The appeal is heard by the superior court
on a "de novo" basis, meaning the appeal is heard "anew" as if
the original hearing had not taken place.
Prior to 2000, there were complaints by some worker advocates
that unscrupulous employers, particularly those in the
underground economy, were filing "frivolous" appeals of LC
decisions with the superior court in an effort to drag out
litigation and hide assets so that workers would not be able to
collect on judgments, even if ultimately successful on appeal.
In response, AB 2509 (Steinberg) of 2000 added language to Labor
Code section 98.2(b) that specified that "[w]henever an employer
files an appeal pursuant to this section, the employer shall
post an undertaking with the reviewing court in the amount of
the decision, order, or award."
AB 2899
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Despite the legislative history of AB 2509, in 2006 a California
appellate court determined that the requirement of Labor Code
section 98.2(b) was merely "directory" (and not "mandatory and
jurisdictional.") Progressive Concrete Inc., v. Parker, 136 Cal.
App. 4th 540, 548 (2006).
In response, the Legislature passed AB 2772 (Labor Committee) in
2010 to clarify that the bond must be filed as a condition to an
employer's filing of an appeal.
No Bond Requirement for "Appeals" of BOFE Citations
In addition to an employee filing a claim for wages through the
wage claim adjudication process, the LC (operating through BOFE)
may cite an employer for an alleged violation of the law. A
person challenging a citation may request an informal hearing,
at the conclusion of which the citation and any proposed
penalties may be affirmed, modified or dismissed. If an
employer wishes to challenge the decision of the LC, he or she
may file a writ of mandate with the appropriate superior court.
Unlike an appeal of an employee wage claim discussed above,
there is no requirement that an employer filing a writ of
mandate to overturn a LC citation must post a wage bond.
Therefore, this bill would impose a similar wage bond
requirement on the filing of such a writ of mandate.
REGISTERED SUPPORT / OPPOSITION:
Support
California Rural Legal Assistance Foundation
AB 2899
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Opposition
None on file.
Analysis Prepared by:Ben Ebbink / L. & E. / (916) 319-2091