BILL NUMBER: SB 588 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 20, 2015
INTRODUCED BY Senator De León
FEBRUARY 26, 2015
An act to amend Section 2810 of the Labor Code, relating
to employment. An act to add Chapter 10 (commencing
with Section 690.020) to Division 1 of Title 9 of Part 2 of the Code
of Civil Procedure, and to amend Section 98 of, and to add
Sections 96.8, 238, 238.1, 238.2, 238.3, 238.4, 238.5, and 558.1 to,
the Labor Code, relating to employment.
LEGISLATIVE COUNSEL'S DIGEST
SB 588, as amended, De León. Employment.
Employment: nonpayment of wages: Labor Commissioner: judgment
enforcement.
(1) The Enforcement of Judgments Law provides for the enforcement
of money judgments and other civil judgments. Under that law, a
judgment creditor may levy upon the property of a judgment debtor to
satisfy a judgment, and a levying officer holds the property until
the final determination of any exemptions claimed by the judgment
debtor.
This bill would enact special provisions for the enforcement of
judgments against an employer arising from the employer's nonpayment
of wages for work performed in this state. The bill would authorize
the Labor Commissioner to use any of the existing remedies available
to a judgment creditor and to act as a levying officer when enforcing
a judgment pursuant to a writ of execution, as provided.
The bill would also authorize the Labor Commissioner to issue a
notice of levy, as specified, if the levy is for a deposit, credits,
money, or property in the possession or under the control of a bank
or savings and loan association or for an account receivable or other
general intangible owed to the judgment debtor by an account debtor.
(2) Existing law authorizes the Labor Commissioner to investigate
employee complaints and to provide for a hearing in any action to
recover wages, penalties, and other demands for compensation.
Existing law requires the Labor Commissioner to determine all matters
arising under his or her jurisdiction. Existing law makes any
employer or other person acting on behalf of an employer who violates
or causes to be violated specified provisions regulating hours and
days of work in any order of the Industrial Welfare Commission to be
subject to a civil penalty, as specified.
This bill would authorize the Labor Commissioner to provide for a
hearing against any employer or other person acting on behalf of an
employer for a violation of those provisions regulating hours and
days of work in any order of the Industrial Welfare Commission. The
bill would also authorize any person liable for a violation of those
provisions to be held liable in various other actions relating to,
among other things, an employer's failure to pay wages.
Under existing law, within a specified period of time after
service of notice of an order, decision, or award, the parties are
authorized to seek review by filing an appeal to the superior court,
where the appeal is required to be heard de novo.
This bill, after a judgment is entered by a court of competent
jurisdiction in favor of the Labor Commissioner or in favor of any
employee pursuant to an appeal, would authorize the Labor
Commissioner to, with the consent of any employee in whose favor the
judgment is entered, collect any outstanding amount of the judgment
by mailing a notice of levy upon all persons having in their
possession, or who will have in their possession or under their
control, any credits, money, or property, belonging to the judgment
debtor, or who owe any debt to the judgment debtor at the time they
receive the notice of levy. The bill would also require the judgment
debtor to be served with a copy of the notice of levy. The bill would
require any person who surrenders to the commissioner any credits,
money, or property, or pays the debts owing the judgment debtor to be
discharged from any obligation or liability to the judgment debtor
to the extent of the amount paid to the commissioner as a result of
the levy. The bill would make any person noticed with a levy who
fails or refuses to surrender any credits, money, or property or pay
any debts owing to the judgment debtor liable in his or her own
person or estate to the commissioner in an amount equal to the value
of the credits, money, or property or in the amount of the levy, as
provided.
If a final judgment against an employer arising from the employer'
s nonpayment of wages for work performed in this state remains
unsatisfied after a specified period of time after the time to appeal
has expired and no appeal is pending, the bill would prohibit an
employer from continuing to conduct business in this state unless the
employer has obtained a bond from a surety company admitted and has
filed a copy of that bond with the Labor Commissioner, as provided.
As an alternative to the bond requirement, the bill would authorize
the employer to provide the Labor Commissioner with a notarized copy
of an accord reached with an individual holding an unsatisfied final
judgment. The bill would make any employer conducting business
without satisfying the bond requirement subject to a specified civil
fine. The bill, where an employer is conducting business in violation
of the bond requirement, would authorize the Labor Commissioner to
issue and serve on such employer a stop order prohibiting the use of
employee labor by the employer until the employer complies with the
bond requirement provided that the stop order would not compromise or
imperil public safety or the life, health, and care of vulnerable
individuals. The bill would make the failure of an employer, officer,
or anyone having direction, management, or control of any place of
employment or of employees to observe a stop order guilty of a
misdemeanor. By creating a new crime, the bill would impose a
state-mandated local program. Subject to required prior notice to the
employer, the bill would authorize the Labor Commissioner to create
a lien on any real or personal property in California of an employer
that is conducting business without satisfying the bond requirement
for the full amount of any wages, interest, penalties, and attorney's
fees claimed to be owed to an employee.
Existing law generally provides for the licensure and regulation
of various types of long-term care facilities by the State Department
of Public Health and the State Department of Social Services.
If a final judgment against an employer arising from the employer'
s nonpayment of wages remains unsatisfied after the time to appeal
has expired and there is no pending appeal, this bill would prohibit
an employer in the long-term care industry, as specified, from
obtaining a license or renewing that license if the employer is
conducting business without obtaining a bond or reaching an accord
with an individual holding an unsatisfied judgment, as described
above. The bill would make a specified entity that contracts with an
employer to perform services in the property services, as defined, or
long-term care industries jointly and severally liable where the
entity has been named as a defendant with the employer for any unpaid
wages and the employer was found liable for those unpaid wages
pursuant to a specified action, as provided.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Existing law prohibits a person or entity from entering into a
contract or agreement for labor or services with specified types of
contractors if the person or entity knows or should know that the
contract or agreement does not include funds sufficient to allow the
contractor to comply with all applicable local, state, and federal
laws or regulations governing the labor or services to be provided,
and provides there is a rebuttable presumption affecting the burden
of proof that there has been no violation of this provision if the
contract or agreement meets specified requirements.
This bill would make nonsubstantive changes to these provisions.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Chapter 10 (commencing with Section
690.020) is added to Division 1 of Title 9 of Part 2 of the
Code of Civil Procedure , to read:
CHAPTER 10. ENFORCEMENT OF JUDGMENTS BY LABOR COMMISSIONER
690.020. For the purpose of the remedies provided under this
chapter, jurisdiction is conferred upon the superior court.
690.030. (a) Except as otherwise provided by statute, whenever a
warrant or notice of levy may properly be issued by the Labor
Commissioner pursuant to Section 96.8 of the Labor Code, and the
warrant may be levied with the same effect as a levy pursuant to a
writ of execution, the commissioner may use any of the remedies
available to a judgment creditor, including, but not limited to,
those provided in Chapter 6 (commencing with Section 708.010) of
Division 2.
(b) The proper court for the enforcement of the remedies provided
under this chapter is the superior court of any of the following
counties:
(1) The county where the employee resides.
(2) The county where the judgment debtor resides.
(3) The county where the person against whom the levy or warrant
was issued resides.
690.040. (a) Whenever the Labor Commissioner, pursuant to Section
96.8 of the Labor Code, levies upon property pursuant to a warrant
or notice of levy for the collection of an unsatisfied judgment or
award:
(1) If the debtor is a natural person, the debtor is entitled to
the same exemptions to which a judgment debtor is entitled. Except as
provided in subdivisions (b) and (c), the claim of exemption shall
be made, heard, and determined as provided in Chapter 4 (commencing
with Section 703.010) of Division 2 in the same manner as if the
property were levied upon under a writ of execution.
(2) A third person may claim ownership or the right to possession
of the property or a security interest in or lien on the property.
Except as provided in subdivisions (b) and (c) or as otherwise
provided by statute, the third-party claim shall be made, heard, and
determined as provided in Division 4 (commencing with Section
720.010) in the same manner as if the property were levied upon under
a writ of execution.
(b) In the case of a warrant or notice of levy issued pursuant to
Section 96.8 of the Labor Code, the claim of exemption or the
third-party claim shall be filed with the Labor Commissioner.
(c) A claim of exemption or a third-party claim pursuant to this
section shall be heard and determined in a superior court specified
in subdivision (b) of Section 690.030.
690.050. (a) Notwithstanding any other law, in the case of a writ
of execution issued by a court of competent jurisdiction pursuant to
Chapter 3 (commencing with Section 699.010) and Chapter 5
(commencing with Section 706.010) of Division 2, the Labor
Commissioner, when collecting an unsatisfied judgment or award
pursuant to Section 96.8 of the Labor Code, may perform the duties of
the levying officer, except that the commissioner need not give
himself or herself the notices that the levying officer is required
to serve on a judgment creditor or the notices that a judgment
creditor is required to give to the levying officer.
(b) Notwithstanding subdivision (a) of Section 700.140 and Section
700.170, if the levy is for a deposit, credits, money, or property
in the possession or under the control of a bank or savings and loan
association or for an account receivable or other general intangible
owed to the judgment debtor by an account debtor, the commissioner
may deliver or mail a notice of levy to a centralized location
designated by the bank or savings and loan association or, in the
case of an account receivable or other general intangible, to the
agent for service of process of the account debtor. If the notice of
levy is received at the designated central location for the bank or
savings and loan association, it will apply to all deposits, credits,
money, and personal property held by the bank or savings and loan
association regardless of the location of that property. The notice
of levy may be issued directly by the commissioner, whether or not a
court has issued a writ of execution, and shall contain all of the
information required to be included in a writ of execution under
Section 699.520 and in a notice of levy under Section 699.540.
SEC. 2. Section 96.8 is added to the
Labor Code , to read:
96.8. (a) Notwithstanding any other law, after a judgment is
entered by a court of competent jurisdiction in favor of the Labor
Commissioner or in favor of any employee pursuant to Section 98.2,
the Labor Commissioner may, with the consent of any employee in whose
favor the judgment is entered, collect any outstanding amount of the
judgment by mailing a notice of levy upon all persons having in
their possession, or who will have in their possession or under their
control, any credits, money, or property belonging to the judgment
debtor, or who owe any debt to the judgment debtor at the time they
receive the notice of levy.
(b) Notwithstanding any other law, the Labor Commissioner may
execute a levy on any property that may be levied under Section
700.140 or 700.170 of the Code of Civil Procedure by mailing a notice
of levy to the person against whom the levy is directed and serving
a copy on the judgment debtor. The notice of levy shall contain all
of the information required to be included in a writ of execution
under Section 699.520 of the Code of Civil Procedure and in a notice
of levy under Section 699.540 of the Code of Civil Procedure.
(c) Any person, upon whom a levy has been noticed having in his or
her possession or under his or her control any credits, money, or
property belonging to the judgment or owing any debts to the judgment
debtor at the time of receipt of the levy or coming into his or her
possession or under his or her control within one year of receipt of
the notice of levy, shall surrender the credits, money, or property
to the commissioner or pay to the commissioner the amount of any debt
owing the judgment debtor within 10 days of service of the levy, and
shall surrender the credits or property, or the amount of any debt
owing to the judgment debtor coming into his or her own possession or
control within one year of receipt of the notice of levy within 10
days of the date of coming into possession or control of the credits
or property or the amount of any debt owing to the judgment debtor.
(d) Any person who surrenders to the commissioner pursuant to this
section any credits, money, or property, or pays the debts owing the
judgment debtor, shall be discharged from any obligation or
liability to the judgment debtor to the extent of the amount paid to
the commissioner as a result of the levy.
(e) If the levy is made on a deposit or credits, money, or
property in the possession or under the control of a bank, savings
and loan association, or other financial institution as defined by
Section 669a(d)(1) of Title 42 of the United States Code, the notice
of levy may be delivered or mailed to a centralized location
designated by the bank, savings and loan association, or other
financial institution pursuant to Section 690.050 of the Code of
Civil Procedure.
(f) Any person who is noticed with a levy pursuant to this section
and who fails or refuses to surrender any credits, money, or
property or pay any debts owing to the judgment debtor shall be
liable in his or her own person or estate to the commissioner in an
amount equal to the value of the credits, money, or other property or
in the amount of the levy, up to the amount specified in the levy.
(g) The fees, commissions, expenses, and the reasonable costs
associated with the sale of property levied upon by warrant or levy
pursuant to this section, including, but not limited to, appraisers'
fees, auctioneers' fees, and advertising fees are an obligation of
the judgment debtor and may be collected from the judgment debtor by
virtue of the warrant or levy or in any other manner as though these
items were part of the judgment or award outstanding.
(h) This section shall not apply to the judgment debtor's interest
in real property.
SEC. 3. Section 98 of the Labor Code
is amended to read:
98. (a) The Labor Commissioner is authorized to investigate
employee complaints. The Labor Commissioner may provide for a hearing
in any action to recover wages, penalties, and other demands for
compensation, including liquidated damages if the complaint alleges
payment of a wage less than the minimum wage fixed by an order of the
Industrial Welfare Commission or by statute, properly before the
division or the Labor Commissioner, including orders of the
Industrial Welfare Commission, and shall determine all matters
arising under his or her jurisdiction. The Labor Commissioner
may also provide for a hearing against any employer or other person
acting on behalf of an employer for a violation of Section 558.
It is within the jurisdiction of the Labor Commissioner to accept
and determine claims from holders of payroll checks or payroll drafts
returned unpaid because of insufficient funds, if, after a diligent
search, the holder is unable to return the dishonored check or draft
to the payee and recover the sums paid out. Within 30 days of the
filing of the complaint, the Labor Commissioner shall notify the
parties as to whether a hearing will be held, whether action will be
taken in accordance with Section 98.3, or whether no further action
will be taken on the complaint. If the determination is made by the
Labor Commissioner to hold a hearing, the hearing shall be held
within 90 days of the date of that determination. However, the Labor
Commissioner may postpone or grant additional time before setting a
hearing if the Labor Commissioner finds that it would lead to an
equitable and just resolution of the dispute. A party who has
received actual notice of a claim before the Labor Commissioner
shall, while the matter is before the Labor Commissioner, notify the
Labor Commissioner in writing of any change in that party's business
or personal address within 10 days after the change in address
occurs.
It is the intent of the Legislature that hearings held pursuant to
this section be conducted in an informal setting preserving the
rights of the parties.
(b) When a hearing is set, a copy of the complaint, which shall
include the amount of compensation requested, together with a notice
of time and place of the hearing, shall be served on all parties,
personally or by certified mail, or in the manner specified in
Section 415.20 of the Code of Civil Procedure.
(c) Within 10 days after service of the notice and the complaint,
a defendant may file an answer with the Labor Commissioner in any
form as the Labor Commissioner may prescribe, setting forth the
particulars in which the complaint is inaccurate or incomplete and
the facts upon which the defendant intends to rely.
(d) No pleading other than the complaint and answer of the
defendant or defendants shall be required. Both shall be in writing
and shall conform to the form and the rules of practice and procedure
adopted by the Labor Commissioner.
(e) Evidence on matters not pleaded in the answer shall be allowed
only on terms and conditions the Labor Commissioner shall impose. In
all these cases, the claimant shall be entitled to a continuance for
purposes of review of the new evidence.
(f) If the defendant fails to appear or answer within the time
allowed under this chapter, no default shall be taken against him or
her, but the Labor Commissioner shall hear the evidence offered and
shall issue an order, decision, or award in accordance with the
evidence. A defendant failing to appear or answer, or subsequently
contending to be aggrieved in any manner by want of notice of the
pendency of the proceedings, may apply to the Labor Commissioner for
relief in accordance with Section 473 of the Code of Civil Procedure.
The Labor Commissioner may afford this relief. No right to relief,
including the claim that the findings or award of the Labor
Commissioner or judgment entered thereon are void upon their face,
shall accrue to the defendant in any court unless prior application
is made to the Labor Commissioner in accordance with this chapter.
(g) All hearings conducted pursuant to this chapter are governed
by the division and by the rules of practice and procedure adopted by
the Labor Commissioner.
(h) (1) Whenever a claim is filed under this chapter against a
person operating or doing business under a fictitious business name,
as defined in Section 17900 of the Business and Professions Code,
which relates to the person's business, the division shall inquire at
the time of the hearing whether the name of the person is the legal
name under which the business or person has been licensed,
registered, incorporated, or otherwise authorized to do business.
(2) The division may amend an order, decision, or award to conform
to the legal name of the business or the person who is the defendant
to a wage claim, if it can be shown that proper service was made on
the defendant or his or her agent, unless a judgment had been entered
on the order, decision, or award pursuant to subdivision (d) of
Section 98.2. The Labor Commissioner may apply to the clerk of the
superior court to amend a judgment that has been issued pursuant to a
final order, decision, or award to conform to the legal name of the
defendant, if it can be shown that proper service was made on the
defendant or his or her agent.
SEC. 4. Section 238 is added to the
Labor Code , to read:
238. (a) If a final judgment against an employer arising from the
employer's nonpayment of wages for work performed in this state
remains unsatisfied after a period of 10 days after the time to
appeal therefrom has expired and no appeal therefrom is pending, the
employer shall not continue to conduct business in this state related
to that final judgment unless the employer has obtained a bond from
a surety company admitted to do business in this state and has filed
a copy of that bond with the Labor Commissioner. The principal sum of
the bond shall not be less than one hundred and fifty thousand
dollars ($150,000).
(b) In lieu of filing and maintaining the bond required by this
section, the employer may provide the Labor Commissioner with a
notarized copy of an accord reached with an individual holding an
unsatisfied final judgment.
(c) (1) The bond required by this section shall be in favor of,
and payable to, the people of the State of California, and shall be
for the benefit of any employee damaged by his or her employer's
failure to pay wages, including any interest, penalties, and attorney'
s fees.
(2) This section shall not require a bond in favor of employees
covered by a bona fide collective bargaining agreement, if the
agreement expressly provides for wages, hours of work, working
conditions, a process to resolve disputes concerning nonpayment of
wages, and a waiver of the bond required by this section.
(3) Thirty days prior to the cancellation or termination of any
bond required by this section, the surety shall send written notice
to both the employer and the Labor Commissioner, identifying the bond
and the date of the cancellation or termination. If the bond is
terminated or canceled, the employer shall obtain a new surety bond
and file a copy of that bond with the Labor Commissioner to remain in
compliance with this section.
(d) For purposes of this section, a judgment also includes any
final arbitration award where the time to file a petition for a trial
de novo or a petition to vacate or correct the arbitration award has
expired and no petition is pending.
(e) Subject to written notice to a subsequent employer about any
unsatisfied judgments against the employer for nonpayment of wages, a
subsequent employer similar in operation and ownership to an
employer with an unsatisfied final judgment for unpaid wages shall be
deemed the same employer for purposes of this section if (1) the
employees of the subsequent employer are engaged in substantially the
same work in substantially the same working conditions under
substantially the same supervisors or (2) if the new entity has
substantially the same production process or operations, produces
substantially the same products or offers substantially the same
services, and has substantially the same body of customers.
(f) Any employer, or other person acting on behalf of an employer,
that conducts business in violation of this section shall be subject
to a civil fine of two thousand five hundred dollars ($2,500). Any
employer that has previously paid a fine pursuant to this section
shall be subject to an additional fine of one hundred dollars ($100)
for each calendar day that the employer conducts business in
violation of this section; however, this additional amount shall not
exceed one hundred thousand dollars ($100,000).
SEC. 5. Section 238.1 is added to the
Labor Code , to read:
238.1. (a) Where an employer is conducting business in violation
of Section 238, the Labor Commissioner may issue and serve on that
employer a stop order prohibiting the use of employee labor by that
employer until the employer's compliance with Section 238, provided
that the stop order would not compromise or imperil public safety or
the life, health, and care of vulnerable individuals. The stop order
shall also prohibit the employer from continuing to provide services
by subcontracting for labor. The stop order shall become effective
immediately upon the service of the order. Any employee affected by
the work stoppage shall be paid by the employer for such time lost,
not exceeding 10 days, pending compliance by the employer. The
employer may protest the stop order by making and filing with the
Labor Commissioner a written request for a hearing within 20 days
after service of the stop order. The hearing shall be held within 5
days from the date of filing the request. The Labor Commissioner
shall notify the employer of the time and place of the hearing by
mail. At the conclusion of the hearing, the stop order shall be
immediately affirmed or dismissed, and within 24 hours thereafter,
the Labor Commissioner shall issue and serve on all parties to the
hearing by registered or certified mail a written notice of findings,
accompanied by written findings. A writ of mandate may be taken from
the findings to the appropriate superior court. The writ shall be
taken within 45 days after the mailing of the notice of findings and
findings.
(b) Failure of an employer, officer, or anyone having direction,
management, or control of any place of employment or of employees to
observe a stop order issued and served upon him or her pursuant to
this section is guilty of a misdemeanor punishable by imprisonment in
the county jail not exceeding 60 days or by a fine not exceeding ten
thousand dollars ($10,000), or both. The Labor Commissioner may also
obtain injunctive and other relief from the courts to carry out the
purposes of this section.
SEC. 6. Section 238.2 is added to the
Labor Code , to read:
238.2. (a) The Labor Commissioner may create a lien on any real
property in California of an employer that is conducting business in
violation of Section 238 for the full amount of any wages, interest,
penalties, and attorney's fees claimed to be owed to any employee.
(b) The Labor Commissioner may create the lien provided in this
section by recording a certificate of lien using the same procedure
applicable under subsection (g) of Section 98.2.
(c) The Labor Commissioner shall issue a certificate of release,
releasing the lien created under this section, upon final
satisfaction of any judgment entered in favor of the employee, upon
adjudication of the claim in favor of the employer, upon the filing
of a surety bond pursuant to Section 238. The certificate of release
may be recorded by the employer at the employer's expense.
(d) Unless the lien is satisfied or released, a lien under this
section shall continue until 10 years from the date of its creation.
(e) Prior to using this lien procedure in this section, the Labor
Commissioner shall provide at least 20 days' preliminary notice to
the employer. The preliminary notice shall advise the employer of the
nature and amount of the employee's claim and of the Labor
Commissioner's authority to create a lien on the employer's property
to secure payment of the claim.
(f) The Labor Commissioner shall serve the preliminary notice on
the employer by certified mail with return receipt requested,
evidenced by a certificate of mailing, postage prepaid, addressed to
the employer at the employer's residence or place of business. The
Labor Commissioner shall serve a copy of any notice of lien on the
employer in the same manner.
(g) Upon entry of a final order, decision, or award issued in an
appeal pursuant to Section 98.2 against the employer for unpaid
wages, or entry of a final judgment against the employer for unpaid
wages in an action filed in the superior court, the Labor
Commissioner may bring an action to foreclose on any lien created
pursuant to this section.
(h) A lien created pursuant to this section is in addition to any
other lien rights available to an employee or to the Labor
Commissioner and shall not be construed to limit those rights.
SEC. 7. Section 238.3 is added to the
Labor Code , to read:
238.3. (a) The Labor Commissioner may create a lien on any
personal property in California of an employer that conducts business
in violation of Section 238 for the full amount of any wages,
interest, penalties, and attorney's fees claimed to be owed to any
employee.
(b) The Labor Commissioner may create the lien provided in this
section by filing a notice of lien with the Secretary of State on the
standard form of initial financing statement pursuant to Section
9521 of the Commercial Code. The standard form shall be completed in
the following manner:
(1) The Labor Commissioner shall be identified as the secured
party.
(2) The employer shall be identified as the debtor.
(3) The description of the collateral shall include the following
statements:
(A) A statement of the Labor Commissioner's demand for payment of
the wages, penalties, interest, and attorney's fees. The statement
shall specify the amount owed to the employee, and if the amount is
estimated, shall provide an explanation for the basis of the
estimate.
(B) A general statement of the kind of work furnished by the
employee and the dates of employment.
(c) For the purpose of the Secretary of State's index pursuant to
Sections 9515, 9516, and 9522 of the Commercial Code and for the
purpose of the issuance of a certificate pursuant to Section 9519 or
9528 of the Commercial Code, the Secretary of State shall treat a
notice of lien pursuant to this section as a financing statement.
(d) The lien attaches to all personal property that is owned by
the employer at the time of the filing of the notice of lien, or that
is subsequently acquired by the employer, that can be made subject
to a security interest under the Commercial Code.
(e) The Labor Commissioner shall file a termination statement,
releasing the lien created under this section, upon final
satisfaction of any judgment entered in favor of the employee, upon
adjudication of the claim in favor of the employer, upon the filing
of a surety bond in a form acceptable to the Labor Commissioner
sufficient to secure the claim.
(f) The notice of claim of lien to which the termination statement
relates ceases to be effective upon the filing of a termination
statement with the
office of the Secretary of State. A termination statement for a
notice of lien may be filed in the same manner as a termination
statement for a financing statement filed pursuant to Section 9513 of
the Commercial Code.
(g) Unless the lien is satisfied or released, a lien under this
section shall continue until 10 years from the date of its creation.
(h) Prior to using this lien procedure in this section, the Labor
Commissioner shall provide at least 20 days' preliminary notice to
the employer. The preliminary notice shall advise the employer of the
nature and amount of the employee's claim and of the Labor
Commissioner's authority to create a lien on the employer's personal
property to secure payment of the claim.
(i) The Labor Commissioner shall serve the preliminary notice on
the employer by certified mail with return receipt requested,
evidenced by a certificate of mailing, postage prepaid, addressed to
the employer at the employer's residence or place of business. The
Labor Commissioner shall serve a copy of any notice of lien on the
employer in the same manner.
(j) Upon entry of a final order, decision, or award issued in an
appeal pursuant to Section 98.2 against the employer for unpaid
wages, or entry of a final judgment against the employer for unpaid
wages in an action filed in the superior court, the Labor
Commissioner may bring an action to foreclose on any lien created
pursuant to this section.
(k) A lien created pursuant to this section in addition to any
other lien rights available to an employee or to the Labor
Commissioner shall not be construed to limit those rights.
SEC. 8. Section 238.4 is added to the
Labor Code , to read:
238.4. (a) An employer in the long-term care industry that is
also required to obtain a license from the State Department of Public
Health or the State Department of Social Services pursuant to
Division 2 (commencing with Section 1200) of the Health and Safety
Code may not obtain a license or renew that license if the employer
is conducting business in violation of Section 238.
(b) For purposes of this section "long-term care" means the
operation of a skilled nursing facility, intermediate care facility,
congregate living facility, hospice facility, adult residential
facility, residential care facility for persons with chronic
life-threatening illness, residential care facility for the elderly,
continuing care retirement community, home health agency, or home
care organization, as those terms are used in Division 2 (commencing
with Section 1200) of the Health and Safety Code.
SEC. 9. Section 238.5 is added to the
Labor Code , to read:
238.5. (a) An individual, partnership, corporation, limited
liability company, joint venture, or association that, as part of its
business, contracts with an employer to perform services in the
property services or long-term care industries shall be jointly and
severally liable, where the individual, partnership, corporation,
limited liability company, joint venture, or association has been
named as a defendant and provided notice pursuant to subdivision (c),
with the employer for any unpaid wages, including interest, and the
employer was found liable for those unpaid wages by an order,
decision or award issued pursuant to Section 98.2, to the extent the
amounts are for services performed under that contract. The issue of
joint and several liability under this section may be determined by
the Labor Commissioner in a proceeding under Section 98.
(b) The joint and several liability provided by this section shall
not apply to unpaid wages owed to employees covered by a bona fide
collective bargaining agreement, if the agreement expressly provides
for wages, hours of work, working conditions, a process to resolve
disputes concerning nonpayment of wages, and a waiver of the joint
and several liability provided by this section.
(c) An employer that contracts to provide services in the property
services or long-term care industries shall, prior to entering into
such a contract, provide written notice to the other party to the
prospective contract of any unsatisfied final judgments against the
employer for nonpayment of wages. The notice shall also provide the
text of this section. The employer shall provide, within thirty (30)
days of the entry of the judgment, written notice of any unsatisfied
final judgments against the employer for nonpayment of wages to any
parties with which the employer is presently under contract to
provide services in the property services or long-term care
industries. The failure of the employer to provide such notices shall
not be a defense to the joint and several liability provided by this
section.
(d) For purposes of this section:
(1) "Property services" means janitorial, security guard, valet
parking, landscaping and gardening services.
(2) "Long-term care" has the same definition as in Section 238.4.
SEC. 10. Section 558.1 is added to the
Labor Code , to read:
558.1. Any person who would be liable for any violation under
Section 558 may also be held liable in an action pursuant to Section
98, 203, 226, 1193.6, 1194, or 2802.
SEC. 11. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution. All matter omitted in this version of
the bill appears in the bill as introduced in the Senate, February.
(JR11)