BILL ANALYSIS                                                                                                                                                                                                    Ó





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                            2015 - 2016  Regular  Session


          SB 588 (De León)
          Version: April 20, 2015
          Hearing Date:  April 28, 2015
          Fiscal: Yes
          Urgency: No
          TMW
                    

                                        SUBJECT
                                           
          Employment:  nonpayment of wages:  Labor Commissioner:  judgment  
                                     enforcement

                                      DESCRIPTION 

          This bill would establish procedures through which the Labor  
          Commissioner could enforce judgments against employers who fail  
          to satisfy a final judgment relating to the nonpayment of wages  
          to employees.  This bill would authorize the Labor Commissioner  
          to levy upon the employer's bank accounts, accounts receivable,  
          and real and personal property, as specified, provide for  
          third-party claims to the property, specify due process notice,  
          hearing, and appeals requirements, authorize a stop order to  
          issue against the employer, and prohibit the continuation of  
          business until the employer posts a bond, as specified.  

          This bill would also prohibit renewal of the license of a  
          long-term care facility that fails to satisfy the judgment after  
          the time to appeal has expired.  This bill would make entities  
          contracting with the employer for property services (janitorial,  
          security guard, valet parking, landscaping, and gardening) and  
          long-term care facility industries jointly and severally liable  
          for the unpaid judgment, as specified.

                                     BACKGROUND  

          Wage theft is a term used to describe labor law violations such  
          as not paying an employee minimum wages or overtime, not paying  
          for off-the-clock work, tip stealing, and not paying final  
          wages.  As the author of this bill reports, wage theft is on the  








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          rise and California workers are not being paid money earned.

          Several high profile wage theft cases have been reported in  
          recent years.  In February 2009, the Los Angeles City Attorney  
          filed criminal charges against two car wash owners for failing  
          to pay 250 workers the minimum wage and for denying them legally  
          required meal and rest breaks. The filing alleged that, in  
          violation of minimum wage laws, workers were paid a flat rate of  
          $35.00 to $40.00 a day for shifts of more than eight hours, that  
          their lunch breaks were as little as fifteen minutes a day, they  
          received no pay for overtime work, and no medical care was  
          provided for lacerations and acid burns caused by the machinery  
          and chemicals they used on the job.  The owners were charged  
          with failing to pay a total of $450,000 in back wages over five  
          years.  (Cathcart, Carwashes Accused of Labor Violations (Feb.  
          11, 2009) New York Times  
           [as of  
          Apr. 24, 2015].)

          A similar lawsuit against a builder employing residential  
          construction workers in California, Nevada, and Arizona alleged  
          that the company failed to pay employees for hours they worked,  
          did not pay legally required overtime or provide breaks, and  
          kept workers off the clock while they traveled between job sites  
          and awaited materials.  The suit was settled in October 2009,  
          providing over $242,000 in unpaid wages to 85 workers.   
          (McDonnell, Builder to Settle with 85 Workers in Overtime Case  
          (Oct. 13, 2009) Los Angeles Times  
           [as of Apr. 24, 2015].)

          The problem is not limited to small businesses like car washes  
          or garment subcontractors.  In 2008, Wal-Mart announced a  
          settlement of 63 cases in 42 states, which involved charges that  
          the company had forced employees to work off the clock without  
          pay after their official shifts ended. The settlement totaled  
          $352 million in unpaid wages and involved hundreds of thousands  
          of current and former Wal-Mart hourly employees across the  
          country. In California, a jury ordered Wal-Mart to pay $172  
          million for making employees miss meal breaks.  (Associated  
          Press, Wal-Mart Settles Workers' Suit for $54.25M (Dec. 9, 2008)  
          CBS News  [as of Apr.  
          24, 2015].)








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          A recent University of California Los Angeles (UCLA) study found  
          that an estimated 654,914 workers in L.A. County suffer at least  
          one pay-based violation every week. Front-line workers in  
          low-wage industries lose more than $26.2 million per week as a  
          result of employment and labor law violations.  The study noted  
          the societal ills of wage theft in that "[w]age theft not only  
          depresses the already meager earnings of low-wage workers, it  
          also adversely impacts their communities and the local economies  
          of which they are a part.  Low-income families spend the bulk of  
          their earnings on basic necessities like food, clothing, and  
          housing.  Their expenditures circulate through local economies,  
          supporting businesses and jobs.  Wage theft robs local  
          communities of this spending and ultimately limits economic  
          growth."  (Milkman, González, Narro, Wage Theft and Workplace  
          Violations in Los Angeles, The Failure of Employment and Labor  
          Law for Low-Wage Workers (2010) Institute for Research on Labor  
          and Employment, University of California, Los Angeles, p. 58.)   
          Further, only 17 percent of California workers who succeed in a  
          wage claim filed with the California Division of Labor Standards  
          Enforcement were able to recover any payment, leaving 83 percent  
          of wage claimants unpaid.  (National Employment Law Project and  
          UCLA Labor Center, Hollow Victories, the Crisis in Collecting  
          Unpaid Wages for California's Workers (June 27, 2013)  
           [as of  
          Apr. 24, 2015] p. 2.)
          In December 2014, the United States Department of Labor reported  
          that California had an estimated 372,000 minimum wage violations  
          each week, which were associated with $22.5 million in weekly  
          lost income or 49.3 percent of the earned income of the workers  
          experiencing the violations.  (U.S. Dept. of Labor, The Social  
          and Economic Effects of Wage Violations:  Estimates For  
          California and New York (Dec. 2014)  [as of Apr. 24, 2015] p. ES-2.)

          To address the significant wage theft issues in New York, that  
          state enacted, as of February 27, 2015, the Wage Theft  
          Prevention Act, which served as the model to this bill.  Recent  
          California legislation has attempted to address the wage theft  
          problem.  AB 2416 (Stone, 2014) would have enacted the  
          California Wage Theft Recovery Act to allow an employee to place  
          a lien on the employer's real and personal property at the time  
          of filing a complaint for wages and prior to judgment.  AB 2416  
          died on the Senate Floor Third Reading File.  AB 2416 was  
          substantially similar to AB 1164 (Lowenthal, 2013), which died  







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          on the Assembly Floor Inactive File.

          This bill seeks to address wage theft by authorizing the Labor  
          Commissioner to enforce judgments, as specified, against an  
          employer arising from the employer's nonpayment of wages for  
          work performed in this state.

          If this bill is approved by this Committee, it will be referred  
          to the Senate Committee on Labor and Industrial Relations.

                                CHANGES TO EXISTING LAW
           
           Existing law  requires the Labor Commissioner and his or her  
          deputies and representatives authorized by him or her in  
          writing, upon the filing of a claim by an employee, or an  
          employee representative authorized in writing by an employee,  
          with the Labor Commissioner, to take assignments of, among other  
          things, wage claims and incidental expense accounts and advances  
          and mechanics and other liens of employees.  (Lab. Code Sec.  
          96.)

           Existing law  authorizes the Labor Commissioner, after  
          investigation and upon determination that wages or monetary  
          benefits are due and unpaid to any worker in the State of  
          California, to collect such wages or benefits on behalf of the  
          worker without assignment of such wages or benefits to the Labor  
          Commissioner.  (Lab. Code Sec. 96.7.)

           Existing law  authorizes the Labor Commissioner to investigate  
          employee complaints and 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, and requires the  
          Labor Commissioner to determine all matters arising under his or  
          her jurisdiction.  (Lab. Code Sec. 98.)
           Existing law  authorizes the Labor Commissioner to prosecute all  
          actions for the collection of wages, penalties, and demands of  
          persons who are financially unable to hire counsel and the Labor  
          Commissioner believes have claims which are valid and  
          enforceable.  (Lab. Code Sec. 98.3.)

           Existing law  provides working hour regulations and protections  
          against the underpayment of wages, and prescribes civil  
          penalties against any employer or other person acting on behalf  







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          of an employer for working hour and underpayment violations.   
          (Lab. Code Sec. 500 et seq.)

           Existing law  provides that, within 10 days after service of  
          notice of an order, decision, or award, the parties to an action  
          to recover wages, penalties, and other demands for compensation  
          may seek review of the order, decision, or award by filing an  
          appeal to the superior court.  (Lab. Code Sec. 98.2(a).)  As a  
          condition to filing an appeal, existing law requires the  
          employer to first post an appeal bond or cash deposit with the  
          court in the amount of the order, decision, or award.  (Lab.  
          Code Sec. 98.2(b).)

           Existing law  provides that if an employer has been convicted of  
          a wage violation, or if any judgment against an employer for  
          nonpayment of wages remains unsatisfied for a period of 10 days  
          after the time to appeal therefrom has expired, and no appeal  
          therefrom is then pending, the Labor Commissioner may require  
          the employer to deposit a bond in such sum as the Labor  
          Commissioner may deem sufficient and adequate in the  
          circumstances, to be approved by the Labor Commissioner.   (Lab.  
          Code Sec. 240(a).)

           Existing law  requires the Labor Commissioner to make every  
          reasonable effort to ensure that judgments are satisfied,  
          including taking all appropriate legal action, and requiring the  
          employer to deposit a bond, as specified.  (Lab. Code Sec.  
          98.2(j).)

           Existing law , as an alternative to a judgment lien, authorizes  
          the Labor Commissioner to record a certificate of lien on the  
          employer's real property for amounts due to the employee under  
          the final order, which establishes a claim of an interest in the  
          property that continues for 10 years unless the lien is  
          satisfied or released.  (Lab. Code Sec. 98.2(g).)

           Existing law  provides that the judgment creditor, or the Labor  
          Commissioner as assignee of the judgment creditor, is entitled  
          to court costs and reasonable attorney's fees for enforcing the  
          judgment.  (Lab. Code Sec. 98.2(k).)

           Existing law  provides various creditor's remedies for the  
          enforcement of money judgments.  (Code Civ. Proc. Sec. 708.010  
          et seq.)








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           Existing law  provides that, except as otherwise provided by law,  
          all property of the judgment debtor is subject to enforcement of  
          a money judgment.  (Code Civ. Proc. Sec. 695.010(a).)

           Existing law  authorizes a judgment debtor to claim specified  
          property as exempt from enforcement of a money judgment.  (Code  
          Civ. Proc. Sec. 703.010 et seq.)

           Existing law  provides procedures for levy (seizure) of a  
          judgment debtor's property in order satisfy a judgment.  (Code  
          Civ. Proc. Sec. 699.010 et seq.)

           Existing law  authorizes a judgment creditor to garnish the  
          judgment debtor's wages (require the judgment debtor's employer  
          to hold back money from being paid to the debtor in order to  
          give that money to the judgment creditor).  (Code Civ. Proc.  
          Sec. 706.010 et seq.)

           Existing law  authorizes a judgment creditor to levy accounts  
          receivable and money from a judgment debtor's deposit accounts  
          to satisfy the judgment.  (Code Civ. Proc. Secs. 700.140,  
          700.170.)

           Existing law  authorizes a third person claiming ownership or the  
          right to possession of a judgment debtor's property to make a  
          third-party claim if the interest claimed is superior to the  
          judgment creditor's lien on the property.  (Code Civ. Proc. Sec.  
          720.010.)

           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 involving underpayment of wages. 

           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 as specified, 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, other than the  
          debtor's interest in real property, belonging to the judgment  
          debtor, or who owe any debt to the judgment debtor at the time  
          they receive the notice of levy.








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           This bill  would authorize the Labor Commissioner to execute a  
          levy on any bank account or account receivable, as specified, by  
          mailing a notice of levy to the person against whom the levy is  
          directed and serving a copy on the judgment debtor, and would  
          require the notice of levy to contain all of the information  
          required to be included in a writ of execution in a notice of  
          levy.

           This bill  would require 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 debtor 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, to surrender the credits, money, or property to  
          the Labor Commissioner or pay to the Labor Commissioner the  
          amount of any debt owing to the judgment debtor within 10 days  
          of service of the levy, and 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.

           This bill  would provide that any person who surrenders to the  
          Labor Commissioner any credits, money, or property, or pays the  
          debts owing to the judgment debtor, shall be discharged from any  
          obligation or liability to the judgment debtor to the extent of  
          the amount paid to the Labor Commissioner as a result of the  
          levy.

           This bill  would provide that 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, 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, as specified.

           This bill  would require any person who is noticed with a levy  
          and who fails or refuses to surrender any credits, money, or  
          property or pay any debts owing to the judgment debtor to be  
          liable in his or her own person or estate to the Labor  
          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  







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          amount specified in the levy.

           This bill  would provide that the fees, commissions, expenses,  
          and the reasonable costs associated with the sale of property  
          levied upon by warrant or levy, 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.

           This bill  would provide that whenever a warrant or notice of  
          levy may properly be issued by the Labor Commissioner, and the  
          warrant may be levied with the same effect as a levy pursuant to  
          a writ of execution, the Labor Commissioner may use any of the  
          remedies available to a judgment creditor.

           This bill  , with respect to the following provisions regarding  
          the employer's business, would assign jurisdiction over  
          enforcement of creditor remedies to the superior court in the  
          county where the employee resides, in the county where the  
          judgment debtor resides, or in the county where the person  
          against whom the levy or warrant was issued resides.
           This bill  , whenever the Labor Commissioner levies upon property  
          pursuant to a warrant or notice of levy for the collection of an  
          unsatisfied judgment or award, would authorize the debtor, who  
          is a natural person, to claim the same exemptions to which a  
          judgment debtor is entitled, and made, heard, and determined in  
          the same manner as if the property were levied upon under a writ  
          of execution, and made, heard, and determined in the same manner  
          as if the property were levied upon under a writ of execution.

           This bill  would require a judgment debtor's claim of exemption  
          or a third-party claim to be filed with the Labor Commissioner,  
          and be heard and determined in a superior court.

           This bill  , in the case of a writ of execution issued by a court  
          of competent jurisdiction, would authorize the Labor  
          Commissioner, when collecting an unsatisfied judgment or award,  
          to perform the duties of the levying officer, except that the  
          Labor 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.








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           This bill  , 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, would allow the Labor Commissioner to 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.

           This bill  , if the notice of levy is received at the designated  
          central location for the bank or savings and loan association,  
          would provide that the notice of levy would 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.

           This bill  would allow the Labor Commissioner to issue the notice  
          of levy, whether or not a court has issued a writ of execution,  
          and require the notice of levy to contain all of the information  
          required to be included in a writ of execution and in a notice  
          of levy.

           This bill  , if a final judgment or final arbitration award, as  
          specified, 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, would  
          prohibit the employer from continuing to conduct business in  
          this state related to that final judgment unless the employer  
          has obtained a bond, in the principal sum of not less than  
          $150,000, from a surety company admitted to do business in this  
          state and has filed a copy of that bond with the Labor  
          Commissioner.
           This bill  , in lieu of filing and maintaining the bond, would  
          allow the employer to provide the Labor Commissioner with a  
          notarized copy of an accord reached with an individual holding  
          an unsatisfied final judgment.

           This bill  would require the bond to be issued in favor of, and  
          payable to, the people of the State of California, and 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.








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           This bill  would 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.  This bill would also specify  
          cancellation or termination requirements for the bond.

           This bill  , subject to written notice to a subsequent employer  
          about any unsatisfied judgments against the employer for  
          nonpayment of wages, would deem a subsequent employer similar in  
          operation and ownership to an employer with an unsatisfied final  
          judgment for unpaid wages to be the same employer and subject to  
          bond requirements 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.

           This bill  would authorize civil fines against any employer, or  
          other person acting on behalf of an employer, that conducts  
          business in violation of this bill.

           This bill  would authorize the Labor Commissioner to issue and  
          serve a stop order on an employer in violation of the bond  
          requirements and prohibit the employer's use of labor until the  
          employer complies with the bond requirements, provided that the  
          stop order would not compromise or imperil public safety or the  
          life, health, and care of vulnerable individuals.  The stop  
          order would also prohibit the employer from continuing to  
          provide services by subcontracting for labor and would become  
                                                            effective immediately upon the service of the order.  The bill  
          would require the employer to pay any employee affected by the  
          work stoppage for such time lost, not exceeding 10 days, pending  
          compliance by the employer.  

           This bill  would authorize the employer to 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.  This bill would require the hearing to be held within 5  
          days from the date of filing the request, and require the Labor  
          Commissioner to notify the employer of the time and place of the  
          hearing by mail.  This bill would require the stop order to be  
          immediately affirmed or dismissed at the conclusion of the  







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          hearing, and within 24 hours thereafter, the Labor Commissioner  
          would be required to issue and serve on all parties to the  
          hearing by registered or certified mail a written notice of  
          findings, accompanied by written findings.  This bill would  
          authorize a writ of mandate to be taken from the findings to the  
          appropriate superior court, and require the writ to be taken  
          within 45 days after the mailing of the notice of findings.
           
          This bill  would provide criminal penalties for stop order  
          violations and authorize the Labor Commissioner to obtain  
          injunctive and other relief from the courts.

           This bill  would authorize the Labor Commissioner to create a  
          lien, as specified, on any real property in California of an  
          employer that is conducting business in violation of this bill's  
          bonding requirements for the full amount of any wages, interest,  
          penalties, and attorney's fees claimed to be owed to any  
          employee.

           This bill  would require the Labor Commissioner to issue a  
          certificate of release, releasing the lien, 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, and the certificate of release may  
          be recorded by the employer at the employer's expense.

           This bill  , unless the lien is satisfied or released, would  
          require the lien to continue until 10 years from the date of its  
          creation.

           This bill  , prior to using this lien procedure, would require the  
          Labor Commissioner to provide at least 20 days' preliminary  
          notice to the employer, and require the preliminary notice to  
          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.  This  
          bill would require the Labor Commissioner to 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, with a copy of any notice of  
          lien on the employer to be served in the same manner.

           This bill  , upon entry of a final order, decision, or award  
          issued in an appeal against the employer for unpaid wages, or  







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          entry of a final judgment against the employer for unpaid wages  
          in an action filed in the superior court, would authorize the  
          Labor Commissioner to bring an action to foreclose on any lien,  
          and this lien right would be in addition to any other lien  
          rights available to an employee or to the Labor Commissioner  
          without limiting those rights.

           This bill  would authorize the Labor Commissioner to create a  
          lien on any personal property in California of an employer that  
          conducts business in violation of this bill's bonding  
          requirements for the full amount of any wages, interest,  
          penalties, and attorney's fees claimed to be owed to any  
          employee.  This bill would authorize the Labor Commissioner to  
          create the lien by filing a notice of lien with the Secretary of  
          State on the standard form of initial financing statement, as  
          specified, and would require the standard form to 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; and (3) the description of the  
          collateral shall include the following statements:
           a statement of the Labor Commissioner's demand for payment of  
            the wages, penalties, interest, and attorney's fees,  
            specifying the amount owed to the employee, and if the amount  
            is estimated, providing an explanation for the basis of the  
            estimate; and 
           a general statement of the kind of work furnished by the  
            employee and the dates of employment.

           This bill  would provide that the 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.

           This bill  would require the Labor Commissioner to 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.  This bill would provide that the notice of claim of lien  
          would cease to be effective upon the filing of the termination  
          statement with the office of the Secretary of State, and would  
          allow a termination statement for a notice of lien to be filed  
          in the same manner as a termination statement for a financing  
          statement.







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           This bill  , unless the lien is satisfied or released, would  
          require the lien on personal property of the employer to  
          continue until 10 years from the date of its creation.

           This bill  , prior to using this lien procedure, would require the  
          Labor Commissioner to provide at least 20 days' preliminary  
          notice to the employer, and would require the preliminary notice  
          to 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.  This bill would require the Labor  
          Commissioner to 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, with  
          a copy of any notice of lien on the employer to be served in the  
          same manner.

           This bill  , upon entry of a final order, decision, or award  
          issued in an appeal 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, would allow the Labor  
          Commissioner to bring an action to foreclose on any lien created  
          on the employer's personal property, and this lien right would  
          be in addition to any other lien rights available to an employee  
          or to the Labor Commissioner.

           This bill  would prohibit 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, as specified, from obtaining a license or  
          renewal of that license if the employer is conducting business  
          in violation of this bill's bonding requirements.  This bill  
          would define "long-term care" to mean 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 specified.

           This bill  would make an individual, partnership, corporation,  
          limited liability company, joint venture, or association that,  
          as part of its business, contracts with an employer to perform  







          SB 588 (De León)
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          services in the property services or long-term care industries  
          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 of  
          the original hearing and complaint, 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, to the extent the amounts are for services performed  
          under that contract.  This bill would authorize the Labor  
          Commissioner to determine the issue of joint and several  
          liability.

           This bill  would not apply joint and several liability 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.

           This bill  would require an employer that contracts to provide  
          services in the property services or long-term care industries  
          shall, prior to entering into such a contract, to provide  
          written notice, as specified, to the other party to the  
          prospective contract of any unsatisfied final judgments against  
          the employer for nonpayment of wages.  This bill would require  
          the employer to 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,  
          and the failure of the employer to provide such notices shall  
          not be a defense to the joint and several liability.  This bill  
          would define "property services" to mean janitorial, security  
          guard, valet parking, landscaping and gardening services.

           This bill  would make any person liable for any working hour or  
          wage underpayment violations also liable for unpaid wages,  
          penalties, and other compensation, as specified.

                                        COMMENT
           
          1.  Stated need for the bill  
          
          The author writes:
          







          SB 588 (De León)
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            According to a 2013 study by the National Employment Law  
            Project and the UCLA Labor Center, it is difficult and rare  
            for workers in California to recover stolen wages.  Even if a  
            worker wins their case before the California Division of Labor  
            Standards Enforcement (DLSE) and received a judgment, only 17  
            [percent] were able to collect any payment.  

            This is possible, because many of the businesses that are the  
            worst violators of our labor laws simply roll up their  
            operations and close shop when workers try to hold them  
            accountable, thus avoiding any responsibility for their  
            exploitative employment practices.  In fact, in over 60  
            [percent] of the cases where DLSE found an employer owed  
            wages, the employer was listed as non-active, i.e., defunct.

            SB 588 gives the Labor Commissioner additional tools to  
            collect from employers who have exhausted all appeals for  
            their non-payment of wages and have final judgments owed. . .  
            .  SB 588 also gives the Labor Commissioner the authority to  
            hold individual business owners accountable for their debts to  
            workers.  By applying an existing enforcement law to wage  
            claims, responsible individuals can be issued citations  
            personally.  This will discourage business owners from rolling  
            up their operations and walking away from their debts to  
            workers and starting a new company.

            SB 588 updates and improves collection methods by giving the  
            Labor Commissioner greater flexibility in choosing how to  
            secure the assets needed to pay the wages a business owes.  In  
            addition SB 588 targets two high-risk sectors - property  
            services and long-term care - by establishing procedures to  
            ensure parties are held individually responsible to ensure  
            that employers can't evade the law through contracting and  
            subcontracting arrangements.

          2.  Expanding lien and levy authority of Labor Commissioner  

          Existing law authorizes the Labor Commissioner to investigate  
          wage complaints, prosecute those complaints, and enforce wage  
          judgments, which may include placing liens on an employer's  
          property.  (Lab. Code Secs. 98, 98.2, 98.3.)  This bill would  
          further authorize the Labor Commissioner to file liens on an  
          employer's real and personal property to secure an employee's  
          interest for amounts owed following final judgment.  This bill  
          would also authorize the Labor Commissioner to levy the  







          SB 588 (De León)
          Page 16 of ? 

          employer's bank accounts and accounts receivable to take  
          possession of deposits, credits, money, property, and money owed  
          to the employer in order to enforce an employee's wage judgment.

          According to a recent study based on a comprehensive review of  
          records released by the DLSE, "[n]on-payment or underpayment of  
          wages . . . remains rampant nationwide.  As a landmark survey of  
          low-wage workers found in 2008, 26 percent of low-wage workers  
          were paid less than the minimum wage in the prior week; 76  
          percent of those who worked more than 40 hours were not paid the  
          legally required overtime rate. . . . The inability of workers  
          and state authorities to enforce judgments and collect payment  
          from unscrupulous employers has widespread effects."  (National  
          Employment Law Project and UCLA Labor Center, Hollow Victories:   
          The Crisis in Collecting Unpaid Wages for California's Workers  
          (June 27, 2013)  [as of Apr. 24, 2015] p. 2.)  This study  
          recommended strengthening California's wage lien provisions,  
          noting that "California already allows workers to file a  
          post-judgment lien on employer property.  However, for many  
          workers, this is too late.  A temporary pre-judgment hold would  
          discourage unscrupulous employers from selling, hiding, or  
          disposing of property while a court evaluates the wage claim or  
          releases the lien.  An employer's business could continue to  
          operate while the validity of the lien is decided."  (Id. at p.  
          19.)  The study also notes that "[m]any states have wage lien  
          laws in some form, providing good experience and success with  
          this mechanism, including Georgia, Idaho, Maryland, New  
          Hampshire, Texas, and Wisconsin . . . where pre-judgment wage  
          liens are available to workers [and] 80 percent of workers are  
          able to recover at least some of their wages."  (Id.)

          The United States Department of Labor's December 2014 report  
          found that minimum wage violations against employees directly  
          impacts the poverty rate, the State's collection of payroll  
          taxes, and earned income tax credits.  (U.S. Dept. of Labor, The  
          Social and Economic Effects of Wage Violations:  Estimates For  
          California and New York (Dec. 2014)  
           [as of Apr. 24, 2015], p.  
          ES-4.)  According to the report, the direct impact of minimum  
          wage violations resulted in 41,000 California families living  
          below the poverty line, $14 million in lost payroll taxes to the  
          State, and $4.5 million lost by employees in earned income tax  
          credits.  (Id.)  







          SB 588 (De León)
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          In addition to those impacts, Human Impact Partners, in support,  
          points out that:

            Though people do not typically associate labor policies with  
            health, they actually impact health greatly.  Human Impact  
            Partners has conducted extensive research on wage theft  
            specifically, and our findings indicate that existing laws  
            fail to protect workers from wage theft, which leads to  
            multiple adverse health impacts.  

            As a result of wage theft, many adults find themselves having  
            to work multiple jobs or additional hours to make up for lost  
            wages.  Based on an analysis we conducted in Los Angeles, we  
            could expect the following impacts for the state should SB 588  
            pass and be properly implemented:
                 Income for those currently experiencing wage theft would  
               increase and this would result in a reduction in the  
               negative health impacts associated with poverty. 
                 Children of those currently experiencing wage theft  
               would have better living conditions, food security, and  
               parental involvement in their educational development. This  
               would result in better developmental and physical and  
               mental health outcomes for those children.
                 The additional work time required to make up for stolen  
               wages would be reduced and more time would be available for  
               self-care, leisure, and family. The alleviation of time  
               poverty would reduce levels of stress and resulting  
               insomnia, anxiety, depression, and other mental and  
               socio-emotional health problems. 
                 Low-wage workers who experience wage theft would  
               experience lower levels of stress as a result of not  
               feeling [threatened] or retaliated against for reporting  
               wage theft.  This will leave workers feeling less helpless  
               and improve mental health. 

            In summary, our research shows that SB 588 would improve the  
            health and wellbeing of workers, their families, and  
            communities.  By passing this policy out of committee, the  
            state has an opportunity to move towards mitigating many  
            health issues faced by low-wage workers who are the backbone  
            of our state's economy.  (Emphasis in original.)

          To address the inability of wage claimants to collect on  
          judgments and deter employers from withholding money earned by  







          SB 588 (De León)
          Page 18 of ? 

          their employees, this bill would authorize the Labor  
          Commissioner to utilize lien and levy procedures, based on  
          existing lien and levy statutes for judgment creditors in civil  
          actions, to enforce the employee's judgment against the  
          employer.  This bill would extend existing judgment debtor  
          exemptions that would allow the employer to exempt specified  
          property, including a homestead, from lien or levy.  This bill  
          would also extend the existing process for a third party, who  
          claims an interest in the judgment debtor's property, to  
          establish the third party's interest in the property.  It is  
          important to note that under existing law, an employee may  
          pursue a wage claim in civil court and enforce a judgment  
          through existing judgment creditor statutes.  However, the civil  
          process is cost-prohibitive for most employees, who, instead,  
          are able to rely on the Labor Commissioner's enforcement  
          capabilities provided under the Labor Code.  This bill would  
          supplement the Labor Commissioner's ability to assist these  
          employees.  By using existing judgment creditor remedies for the  
          enforcement of the employee's judgment, this bill would provide  
          robust protections for employees harmed by wage theft.

          3.  Due process protections  

          This bill would provide due process protections for judgment  
          debtors through notice, hearing, and bonding requirements.   
          Existing law provides that, within 15 days following a hearing  
          and the determination that an employer is liable for wages owed  
          to an employee, the Labor Commissioner is required to file the  
          order, decision, or award, and provide notice of the order by  
          personal, mail, or other services, as specified, to the  
          employer.  The employer (judgment debtor) has 10 days after  
          service of the order to file an appeal of the order.  Pending  
          the appeal, the employer is required to post a bond in the  
          amount of the award.  If the employer does not appeal the  
          decision, the order becomes final and the Labor Commissioner  
          files the final order with the superior court.  By this point,  
          the employer is aware of its legal responsibilities to the  
          employee, and the bill would require additional notices to be  
          sent to the employer if the Labor Commissioner proceeds to  
          collect on the judgment through the levy or lien processes  
          provided in the bill.  The author also notes that the levy  
          procedures provided in this bill are modeled on the levy  
          procedures provided with respect to collection by local child  
          support agencies of child support debt.








          SB 588 (De León)
          Page 19 of ? 

          If no appeal is filed by the employer challenging the wage award  
          to the employee, this bill would also provide that, when the  
          order is final and the judgment for nonpayment of wages remains  
          unsatisfied, 10 days after the time to appeal has expired, the  
          employer would be prohibited from conducting business in the  
          state unless the employer has obtained a bond in the amount of  
          $150,000 or reached an agreement regarding the unsatisfied  
          judgment with the employee.  The California Rural Legal  
          Assistance Foundation (CRLA), in support, notes the importance  
          of the bond requirements in this bill as a condition to  
          continuing to conduct business.  According to CRLA, current  
          surety bond amounts required of farm labor contractors "have not  
          been adjusted upward for more than a decade and are usually only  
          adequate in the smallest of wage claim cases, involving only  
          individual workers. . . .  [In] 15 pending cases involving  
          multiple workers' wage claim cases, the total amount of wages  
          due is between $5,490,000 and $6,120,000, while the maximum  
          total amount of all of the 15 [farm labor contractor]  
          defendants' individual surety bonds is $1,125,000.  For our farm  
          worker clients, the reality is that much of what is owed to them  
          will never be recoverable from the small bonds required by  
          California as a condition of doing business here.  For them, SB  
          588 will be a major step forward."  If the employer continues to  
          conduct business without satisfying the judgment or posting a  
          bond, the Labor Commissioner would be authorized to issue a stop  
          order, which would become effective immediately upon the service  
          of the order, provided that the stop order would not compromise  
          or imperil public safety or the life, health, and care of  
          vulnerable individuals.  

          It is important to note that the bill would also protect the  
          employees of the business required to cease operations pursuant  
          to the stop order because the bill would require that any  
          employee affected by the work stoppage to be paid by the  
          employer for such time lost, not exceeding 10 days, pending  
          compliance by the employer.  The bill also provides an appeal  
          process for the employer regarding the stop order.  Through  
          hearing, notice, and appeal provisions, this bill would provide  
                                                                                       due process protections to the employer throughout the judgment  
          debt enforcement process.

          4.  Joint and several liability for property services and  
            long-term care industries
           
          This bill would prohibit a long-term care industry employer from  







          SB 588 (De León)
          Page 20 of ? 

          obtaining or renewing a state license if the employer had not  
          satisfied a wage judgment and failed to post a bond.  This bill  
          would also make entities, who were named as defendants and  
          provided notice of the original hearing and complaint,  
          contracting for property services or long-term care services  
          with a judgment creditor who owes unpaid wages jointly and  
          severally liable for the payment of the judgment.  This bill  
          would also make any person liable for any working hour or wage  
          underpayment violations also liable for unpaid wages, penalties,  
          and other compensation, as specified.

          The author notes that the recent report from the United States  
          Department of Labor contained "industry specific statistics on  
          the prevalence of wage theft.  This data showed that over 95  
          percent of home health care workers and 80 percent of property  
          services workers suffered an overtime violation in the previous  
          week.  The report also showed that over 97 percent of home  
          health care workers and over 77 percent of property service  
          workers were forced to work off-the-clock in the previous week.   
          The prevalence of wage theft in these industries warrants  
          enhanced safeguards in these industries."  (See also National  
          Employment Law Project and UCLA Labor Center, Hollow Victories,  
          the Crisis in Collecting Unpaid Wages for California's Workers  
          (June 27, 2013)  
           [as of  
          Apr. 24, 2015] p. 2.).)  

          A review by the Department of Labor Standards Enforcement (DLSE)  
          of 1,433 unpaid wage cases revealed that, in 60 percent of those  
          cases, by the time judgment was entered against the employer,  
          the employer was found to be a non-active business entity, and,  
          on average, employers who ceased operations did so within 7.7  
          months of a wage claim being filed.  (National Employment Law  
          Project and UCLA Labor Center, Hollow Victories, the Crisis in  
          Collecting Unpaid Wages for California's Workers (June 27, 2013)  
           [as of  
          Apr. 24, 2015] p. 11.)  When the employer closes its doors, the  
          employee may be unable to locate the employer, which prevents  
          wage judgment collection.  According to a recent news article,  
          "[s]ome businesses ignore the penalties and the judgments, shut  
          their doors and reopen under a different name or file for  
          bankruptcy, leaving the workers high and dry."  (S. Stock, J.  
          Putnam, F. Escamilla, California's wage theft problem, NBC Bay  
          Area (Feb. 13, 2015)  







          SB 588 (De León)
          Page 21 of ? 

           [as of Apr. 25, 2015].)

          According to the author, enforcement of existing wage laws "is  
          made more difficult because so much of the low-wage sector is  
          now structured using layers of contractors and subcontractors,  
          allowing the actual employers of record and beneficiaries of the  
          work provided [] to avoid legal responsibility.  These employers  
          who cheat their workers out of their hard-earned wages are  
          essentially thieves.  But due to systematic schemes designed to  
          skirt existing laws, these 'bad actor' employers are allowed to  
          get away with it."

          To better protect low-wage workers, this bill would target two  
          high-risk sectors to ensure those parties do not evade payment  
          of wage judgments through contracting and subcontracting  
          arrangements.

          5.  Attorneys' fees  

          Existing law provides that the judgment creditor, or the Labor  
          Commissioner as assignee of the judgment creditor, is entitled  
          to court costs and reasonable attorney's fees for enforcing the  
          judgment.  (Lab. Code Sec. 98.2(k).)  This bill would continue  
          the existing ability of the judgment creditor, or the Labor  
          Commissioner as assignee, to receive attorney's fees and costs  
          for collection of the judgment through the real or personal  
          property lien process.

          This bill would also provide for collection from the judgment  
          debtor for fees, commissions, expenses, and reasonable costs  
          associated with the sale of property levied by the Labor  
          Commissioner, including appraiser's fees, auctioneer's fees, and  
          advertising fees.  This provision builds on the existing ability  
          of a judgment creditor to levy personal property and receive  
          attorney's fees and costs associated with additional attempts to  
          collect the property.  (See Code Civ. Proc. Sec. 699.030.)

          6.  Author's amendments  

          The author offers the following technical and clarifying  
            amendments:

             Author's amendments  :

             1.   Strike and replace nine references to "commissioner"  







          SB 588 (De León)
          Page 22 of ? 

               with "Labor Commissioner"
             2.   On page 6, in lines 16, remove "it" and insert "the  
               notice of levy"
             3.   On page 7, in line 6, after "judgment" insert "debtor"
             4.   On page 7, in line 11, strike "owing" and insert "owed  
               to"
             5.   On page 7, in line 17, strike "owing" and insert "owed"
             6.   On page 7, in line 20, strike "owing" and insert "owed  
               to"
             7.   On page 7, in line 33, strike "owing" and insert "owed"
             8.   On page 10, in line 23, strike "related to that final  
               judgment"
             9.   On page 11, in lines 14 through 16, delete "Subject to  
               written notice to a subsequent employer about any  
               unsatisfied judgments against the employer for nonpayment  
               of wages, a subsequent" and insert "An"
             10.  On page 11, in line 18, after "shall" insert ", upon  
               receiving written notice of the unsatisfied judgment,"
             11.  On page 11, in line 28, strike "fine" and insert  
               "penalty"
             12.  On page 11, in line 30, strike "fine" and insert  
               "penalty"
             13.  On page 12, in line 19, strike "and findings" and insert  
               ", accompanied by written findings"
             14.  On page 15, in line 39, strike "(c)" and insert "(b) of  
               Section 98."

          Should this bill pass out of Committee, these amendments would  
          be taken in the Senate Labor and Industrial Relations Committee.

          7.  Concerns raised  

          The Chamber of Commerce, California Justice Association of  
          California, and California Land Title Association (coalition)  
          have raised several concerns with the bill.  First, they are  
          concerned that a small business may not be able to raise funds  
          within the 10-day time frame required to establish a $150,000  
          bond following the filing of the final judgment.  The coalition  
          requests that the bill be amended to authorize the Labor  
          Commissioner to determine the amount of the surety bond, up to a  
          maximum of $150,000, and extend the 10-day time frame to 25  
          days.  Second, the coalition states that attorney's fees are not  
          available in Labor Commissioner actions and request that the  
          provisions for attorney's fees be struck from the bill.








          SB 588 (De León)
          Page 23 of ? 

          Third, the coalition raises concern with the joint and several  
          liability provisions of the bill.  The coalition requests that  
          the bill be amended to take into consideration and reconcile the  
          bill with the joint and several liability imposed under Labor  
          Code Section 2810.3, which requires a client employer, as  
          specified, to be civilly liable for a labor contractor's failure  
          to pay wages to or secure worker's compensation insurance for  
          workers supplied by the labor contractor.


           Support  :  9to5, National Association of Working Women; Alliance  
          of Californians for Community Empowerment Action; Alliance San  
          Diego; Asian Americans Advancing Justice- Los Angeles;  
          California Employment Lawyers Association; California Immigrant  
          Policy Center; California Labor Federation, AFL-CIO; California  
          Professional Firefighters; California Rural Legal Assistance  
          Foundation, Inc.; Center on Policy Initiatives; Central American  
          Resource Center - Los Angeles; Centro Legal de la Raza; Chinese  
          Progressive Association; CHIRLA-Coalition for Humane Immigrant  
          Rights of Los Angeles; CLEAN Car Wash Campaign; Clergy and Laity  
          United for Economic Justice; Coalition For A Safe Environment;  
          Coalition to Abolish Slavery & Trafficking; Community Action  
          Board of Santa Cruz County Inc.; Day Labor Center Hayward/  
          Oakland; Day Worker Center of Mountain View; Dignity Campaign;  
          Dolores Street Community Services; Employment Rights Center;  
          Equal Rights Advocates; Filipino Advocates for Justice; Filipino  
          Migrant Center; Fresno County Democrats; Garment Worker Center;  
          Gender Justice LA; Graton Day Labor Center; Holman United  
          Methodist Church; Housing Long Beach; Human Impact Partners;  
          InnerCity Struggle; Instituto de Educacion Popular del Sur de  
          California; Katharine & George Alexander Community Law Center;  
          Khmer Girls in Action; La Colectiva De Mujeres; Liberty Hill  
          Foundation; Los Angeles Alliance for a New Economy; LA Black  
          Worker Center;  Los Angeles Fight for $15 Organizing Committee;  
          Maintenance Cooperation Trust Fund; Making Change at Walmart; Mi  
          Familia Vota; National Day Laborer Organizing Network; National  
          Employment Law Project; One LA-IAF; Pacoima Beautiful; Pilgrim  
          United Church of Christ; Pilipino Association of Workers and  
          Immigrants - Silicon Valley; Restaurant Opportunities Center of  
          Los Angeles; Sacramento Area Congregations Together; San Diego  
          and Imperial Counties Labor Council, AFL-CIO; San Francisco Day  
          Labor Program & Women's Collective, a program of Dolores Street;  
          Community Services; San Francisco Progressive Workers Alliance;  
          SoCalCosh, Southern California Coalition for Occupational Safety  
          and Health; Social Justice Learning Institute; Street Level  







          SB 588 (De León)
          Page 24 of ? 

          Health Project; T.R.U.S.T. South LA; The Institute of Popular  
          Education of Southern California; The Wage Justice Center, UCLA  
          Labor Center; Union de Vecinos; Workplace Justice Initiative;  
          Worksafe, Inc.


           Opposition  :  None Known

                                        HISTORY
           
           Source  :  Koreatown Immigrant Workers Alliance; Service Employees  
          International Union California; Wage Justice Center

           Related Pending Legislation  :  None Known

           Prior Legislation  :  

          AB 2416 (Stone, 2014) See Background.

          AB 1164 (Lowenthal, 2013) See Background.

                                   **************