BILL ANALYSIS                                                                                                                                                                                                    Ó





          SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS
                             Senator Tony Mendoza, Chair
                                2015 - 2016  Regular 

          Bill No:               SB 588       Hearing Date:    April 29,  
          2015
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          |Author:    |De León                                              |
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          |Version:   |April 20, 2015                                       |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|Gideon Baum                                          |
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          Subject:  Employment:  nonpayment of wages:  Labor Commissioner:  
                                 judgment enforcement


          KEY ISSUE
          
          Should the Legislature allow the Labor Commissioner to file a  
          lien or levy on an employer's property in order to assist the  
          employee in collecting unpaid wages when there is a judgment  
          against the employer?

          ANALYSIS
          
           Existing law  provides mechanics, persons furnishing materials,  
          artisans, and laborers of every class the right to file a lien  
          upon the property upon which they have bestowed labor or  
          furnished material for the value of such labor and material.   
          Existing law also requires the Legislature to provide, by law,  
          for the speedy and efficient enforcement of such liens.  
          (California Constitution Article XIV, Section 3)

           Existing law  provides for mechanics liens relating to services  
          and supplies authorized and provided on a work of improvement.   
          Existing law also regulates the conditions under which a  
          mechanics lien may be enforced.  (Civil Code §§ 8400-8494)









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           Existing law  recognizes prejudgment wage liens against property  
          as a remedy in certain industries, including mining (Civil Code  
          § 3060), agriculture (Civil Code §§ 3061.5-3061.6), and logging  
          (Civil Code § 3065).

           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 therefor 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.  (Labor Code § 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  
          Commissioner.  (Labor Code § 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, properly before the  
          division or the Labor Commissioner, including orders of the  
          Industrial Welfare Commission, and is required to determine all  
          matters arising under his or her jurisdiction.  (Labor Code §  
          98)

           Existing law  authorizes the Labor Commissioner, at the  
          Commissioner's discretion and upon a final order, to place a  
          lien on real property for amounts due under the final order and  
          in favor of the employee or employees named in the order, with  
          the county recorder of any county in which the employer's real  
          property may be located.  (Labor Code § 98.2(g))

           Existing law  provides that, if any employer or other person  
          acting on behalf of an employer who violates, or causes to be  
          violated, any provision regulating hours and days of work in  
          either statute or regulation shall be subject to a civil  
          penalty. (Labor Code § 558)
           
          This bill  would authorize the Labor Commissioner to file a lien  







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          on all property of the employer in California for the full  
          amount of any wages and other compensation, penalties, and  
          interest owed to the employee.

          Specifically, this bill would:

             1)   Allow the Labor Commissioner, after a judgment is  
               entered by a court of competent jurisdiction in favor of  
               the Labor Commissioner or in favor of any employee, to  
               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. This can only  
               be done with the consent of the aggrieved worker.
          
             2)   Provide that, any person, upon whom a levy has been  
               noticed for either possessing or owing credits, money, or  
               property belonging to the judgment 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.  This  
               includes property, money or credits coming into the  
               person's possession within one year of receipt of the  
               notice of levy.

             3)   Provide that any person who complies with the notice of  
               Levy from the Labor Commissioner shall be discharged from  
               any obligation or liability to the judgment debtor to the  
               extent of the amount paid to the commissioner.

             4)   Provide that any person 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 levy.

             5)   Provides a process for filing a levy with a bank or  
               other financial institution, as defined under federal law.

             6)   Limits the above-discussed provisions to property that  
               IS NOT real property.

          







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          Surety Bond Requirements:

          This bill would also:

             1)   Require that, 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,  
               the employer must cease business operations unless the  
               employer has obtained a surety bond of $150,000. The bond  
               must be filed with the Labor Commissioner and be payable to  
               the people of the State of California 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)   Allow the employer to provide the Labor Commissioner  
               with a notarized copy of an accord reached with an  
               individual holding an unsatisfied final judgment instead of  
               filing a surety bond described above.

             3)   Provides that 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: 
                  a)        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 
                  b)        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.

             1)   Requires that 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 $2,500 and  
               that 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,  
               capped at $100,000.








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             2)   Exempts employers from the requirements of the bond if  
               they employ workers who are covered by a bona fide  
               collective bargaining agreement that expressly provides for  
               wages, hours of work, working conditions, includes a  
               process to resolve disputes concerning nonpayment of wages,  
               and contains a waiver of the bond.

             3)   Provides notice requirements to the Labor Commissioner  
               in the event of the surety bond being cancelled or  
               terminated.

          This bill provides the following in the event of an employer  
          failing to comply with the bond provisions listed above:

             I.   A stop order prohibiting the use of employee labor by  
               that employer or use of subcontracted labor until the  
               employer complies with bonding requirements. The stop order  
               must become effective immediately, and the employer must  
               pay any worker for their lost time due to the stop order,  
               not exceeding 10 days.

             II.  A lien on the real property and personal property of an  
               employer that for the full amount of any wages, interest,  
               penalties, and attorney's fees claimed to be owed to any  
               employee. This lien would be filed by the Labor  
               Commissioner. Unless the lien is satisfied or released, the  
               lien must continue until 10 years from the date of its  
               creation.

          This bill would create notice and filing requirements for the  
          lien provisions discussed above, as well as give the Labor  
          Commissioner the ability to foreclose on the property.
          
          Licensure:

          This bill would also prohibit the State Department of Public  
          Health or the State Department of Social Services from allowing  
          a long-term care industry from obtaining or renewing a license  
          if the employer is conducting business of the surety bond  
          requirement. This bill defines a long-term care industry as 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  







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          agency, or home care organization.
          
          Joint and Several Liability:

          This bill would hold individual, partnership, corporation,  
          limited liability company, joint venture, or association jointly  
          and severally liable for liens against real property if the  
          entity provides janitorial, security guard, valet parking,  
          landscaping, gardening services, and long-term care and has been  
          named a defendant and to the extent that the amounts are for  
          services performed under that contract.

          This bill creates a notice requirement for contractors of  
          janitorial, security guard, valet parking, landscaping,  
          gardening services, and long-term care if there are outstanding  
          wage violations for prospective contracts, but also states that  
          the employer to provide such notices shall not be a defense to  
          the joint and several liability as described above.

          Liability for Acting on Behalf of the Employer:
          
          This bill would allow provide for the Labor Commissioner to hear  
          complaints against a person acting on behalf of an employer who  
          violates, or causes to be violated, any provision regulating  
          hours and days of work in either statute or regulation, and  
          would also make a person acting on behalf of an employer liable  
          for willfully failing to pay wages, provide a paystub, unpaid  
          minimum wages or overtime, and failing to indemnifying an  
          employee.

          Enforcement Provisions:

          This bill would also create enforcement provisions for liens and  
          levies discussed above within the Code of Civil Procedure.   
          These provisions would bestow jurisdiction on the superior court  
          and detail the service and hearing requirements for levies and  
          liens filed by the Labor Commissioner.





          COMMENTS
          
          1.  Wage Theft: A Brief Background







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             In 2008, the Ford Foundation sponsored a survey of 4,387  
            workers in low-wage industries in the three largest U.S.  
            cities: Chicago, Los Angeles and New York City.  The report of  
            that survey, titled Broken Laws, Unprotected Workers:  
            Violations of Employment and Labor Laws in America's Cities,  
            revealed that 26 percent of workers in the sample were paid  
            less than the legally required minimum wage the prior work  
            week, and 60 percent of these workers were underpaid by more  
            than $1 per hour.  In addition, 76 percent of the respondents  
            who worked overtime in the previous week were not paid the  
            legally required overtime rate by their employers.

            The study also notes that minimum wage violation rates vary  
            significantly by industry, and occupation.  For example, some  
            industries, such as apparel and textile manufacturing and  
            personal and repair services have minimum wage violation rates  
            that exceed 40 percent, while others, including restaurants,  
            and retail and grocery stores, have rates of 20 to 25 percent.  
             However, the study found that undocumented immigrant women  
            were at the greatest risk of minimum wage violations.  The  
            study estimated that the workers in low-wage industries  
            Chicago, Los Angeles, and New York City lose more than $56.4  
            million per week due to labor law violations.

            A follow-up study by the UCLA Institute for Research and Labor  
            and Employment was published earlier this year, and that study  
            utilized the data from the 2008 survey, but focused  
            specifically on Los Angeles County.  This study, titled Wage  
            Theft and Workplace Violations in Los Angeles: The Failure of  
            Employment and Labor Law for Low-Wage Workers focused on a  
            survey results of 1,815 workers in Los Angeles County.  

            This study found similar results to the national survey:  
            almost 30 percent of the workers sampled were paid less than  
            the minimum wage in the prior work week, and 63.3 percent of  
            these workers were underpaid by more than $1 per hour.   
            Assuming a full-year work schedule, Los Angeles County survey  
            respondents lost an average of $2,070.00 annually out of total  
            earnings of $16,536.00.  The study estimated that  workers in  
            low-wage industries in   Los Angeles County lose more than $26.2  
            million per week  as a result of employment and labor law  
            violations.

            Both of the studies make the same public policy  







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            recommendations to address these issues, which included  
            strengthening government enforcement of existing employment  
            and labor laws and stiffening the penalties.

          3.  Wage Theft in California: Collecting Unpaid Wages  

            Equally troubling, if not more troubling, than the high rate  
            of wage theft in California is the low rate of collections.   
            According to a 2013 report published by the National  
            Employment Law Project (NELP) and the UCLA Labor Center,  only  
            17% of workers who PREVAILED  in their wage claims before the  
            DLSE and won a judgment  were able to receive any payment  
            between 2008 and 2011.   Of those who did receive payment  
            between 2008 and 2011, workers  were able to collect 15% of  
            what was OWED  .  In short, the vast majority of wage theft  
            victims received nothing, and those that received anything  
            received little of what they were legally due.

          4.  Proponent Arguments  :
            
            Proponents, noting the 2010 wage theft study discussed  
            earlier, argue that wage theft is a significant problem in  
            California, with LA County's wage theft resulting in over $1  
            billion unlawfully failing to reach the workers who  
            desperately need it.  Proponents also note that current wage  
            theft collection rates are less than 20%, meaning the vast  
            majority of scofflaw employers are successful in robbing their  
            workers of their lawful wages.  Proponents believe that SB 588  
            will help combat the high rate of wage theft in California by  
            creating a simple lien process for the Labor Commissioner to  
            use against employers who rob workers of their wages.   
            Proponents, noting Wisconsin's success, argue that wage liens  
            are simple, effective, and a time tested approach to halting  
            wage theft.

          5.  Concerns  :
            
             This bill is currently unopposed. However, a coalition of  
            employers raises several concerns with SB 588. First, they  
            would like to see the surety bond capped at $150,000, with the  
            Labor Commissioner able to ask for a lower bond. They would  
            also like employers to have 25 days, rather than 10 days, to  
            file a surety bond after a final order. Second, the employer  
            coalition would like to remove the ability of the Labor  
            Commissioner to retrieve attorney's fees through the lien  







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            process. Finally, the employer coalition would like to see the  
            joint and several liability provisions mirror existing law.

          6.  Prior Legislation  :

            AB 2416 (Stone) allowed an employee request that the Labor  
            Commissioner files a pre-judgment lien on an employer's real,  
            personal property, or on the real property where a contracted  
            employee conducted work, in order to assist the employee in  
            collecting unpaid wages. AB 2416 failed passage on the Senate  
            Floor.


          SUPPORT
          
          Alliance of Californians for Community Empowerment
          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
          Center on Policy Initiatives
          Central American Resource Center (CARECEN -- 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 (CLUE)
          Coalition For A Safe Environment
          Coalition to Abolish Slavery & Trafficking (CAST)
          Community Action Board of Santa Cruz County Inc.
          Community Services
          Day Labor Center Hayward/ Oakland
          Day Worker Center of Mountain View (DWCMV)
          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







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          Graton Day Labor Center
          Holman United Methodist Church
          Housing Long Beach
          Human Impact Partners
          InnerCity Struggle
          Instituto de Educacion Popular del Sur de California (IDEPSCA)
          Katharine & George Alexander Community Law Center
          Khmer Girls in Action
          Koreatown Immigrant Workers Alliance (KIWA)
          LA Black Worker Center
          La Colectiva De Mujeres
          Liberty Hill Foundation
          Los Angeles Alliance for a New Economy (LAANE)
          Los Angeles Fight for $15 Organizing Committee
          Maintenance Cooperation Trust Fund
          Making Change at Walmart
          Mi Familia Vota
          National Association of Working Women
          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
          San Francisco Progressive Workers Alliance
          Santa Clara University
          SoCalCosh, Southern California Coalition for Occupational Safety  
          and Health
          Social Justice Learning Institute
          Street Level 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.
          9to5
          
          OPPOSITION







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          None on file. 

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