BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                        SB 588|
          |Office of Senate Floor Analyses   |                              |
          |(916) 651-1520    Fax: (916)      |                              |
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                                    THIRD READING


          Bill No:  SB 588
          Author:   De León (D)
          Amended:  4/30/15  
          Vote:     21  

           SENATE JUDICIARY COMMITTEE:  4-1, 4/28/15
           AYES:  Jackson, Leno, Monning, Wieckowski
           NOES:  Anderson
           NO VOTE RECORDED:  Moorlach, Hertzberg

           SENATE LABOR & IND. REL. COMMITTEE:  4-1, 4/29/15
           AYES:  Mendoza, Jackson, Leno, Mitchell
           NOES:  Stone

           SENATE APPROPRIATIONS COMMITTEE:  5-2, 5/28/15
           AYES: Lara, Beall, Hill, Leyva, Mendoza
           NOES: Bates, Nielson

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


          SOURCE:    Author


          DIGEST:  This bill allows the Labor Commissioner to file a lien  
          or levy on an employers property in order to assist the employee  
          in collecting unpaid wages when there is a judgment against the  
          employer.


          ANALYSIS:   









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          Existing law:


          1)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)

          2)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)

          3)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).

          4)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)

          5)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)

          6)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  







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            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)

          7)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))

          8)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 authorizes the Labor Commissioner to file a lien 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:

            1)  Allows 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)  Provides 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.







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            3)  Provides 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)  Provides 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.
           
           Surety Bond Requirements:
           
            7)  Requires 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.

            8)  Allows 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.

            9)  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  







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                 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.

            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.

            4)  Provides the following in the event of an employer failing  
              to comply with the bond provisions listed above:

               a)     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.

               b)     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  







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                 date of its creation.

            5)  Creates 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:
           
            15) Prohibits 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 agency, or home care organization.
           
           Joint and Several Liability:
           
            16) Holds 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.

            17) 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:
           
            18) Allows 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  







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              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:

            19) Creates 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  

             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  







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

          2)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.

          3)Stakeholder 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  







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            Commissioner to retrieve attorney's fees through the lien  
            process. Finally, the employer coalition would like to see the  
            joint and several liability provisions mirror existing law.

          Prior Legislation
          
            AB 2416 (Stone, 2014) would have 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.
          
          FISCAL EFFECT:   Appropriation:    No          Fiscal Com.:  
          YesLocal:        Yes           

          According to the Senate Appropriations Committee, The Department  
          of Industrial Relations (DIR) indicates that SB 588 would incur  
          first year costs of $2.6 million (special fund) to implement the  
          provisions of the bill, with ongoing costs totaling $2.2  
          million. DIR also notes unknown, potentially significant court  
          costs associated with additional proceedings regarding wage  
          claims.


          SUPPORT:   (Verified4/20/15)


          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
          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







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          Coalition to Abolish Slavery & Trafficking
          Community Action Board of Santa Cruz County Inc.
          Community Services
          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
          Koreatown Immigrant Workers Alliance
          LA Black Worker Center
          La Colectiva De Mujeres
          Liberty Hill Foundation
          Los Angeles Alliance for a New Economy
          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







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          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:   (Verified4/20/15)


          None received


          ARGUMENTS IN SUPPORT:     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.


          Prepared by:Gideon  Baum / LIR / (916) 651-1556
          5/31/15 13:04:46


                                   ****  END  ****


          







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