BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 588


                                                                    Page  1





          Date of Hearing:   July 8, 2015


                     ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT


                               Roger Hernández, Chair


          SB  
          588 (De León) - As Amended July 1, 2015


          SENATE VOTE:  26-13


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


          SUMMARY:  Authorizes the Labor Commissioner to file a lien or  
          levy on an employer's property in order to assist an employee in  
          collecting unpaid wages where there is a judgment against the  
          employer, and contains related provisions.  Specifically, this  
          bill:  


            1)  Allows the Labor Commissioner, beginning 20 days 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  








                                                                     SB 588


                                                                    Page  2





              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 ten 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)  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.

            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 20 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  








                                                                     SB 588


                                                                    Page  3





              holding an unsatisfied final judgment instead of filing a  
              surety bond described above.  However, if the accord  
              provides for the judgment to be paid in installments, and an  
              installment payment is not made, the employer is no longer  
              excused from satisfying the bond requirements.

            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  
                 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 penalty of  
              $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  








                                                                     SB 588


                                                                    Page  4





              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 ten 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 (to the extent  
                 specifically allowed to be recovered under existing law)  
                 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 ten  
                 years from the 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.

            15) Prohibits the State Department of Public Health or the  
              State Department of Social Services from allowing a  
              long-term care industry employer from obtaining or renewing  
              a license if the employer is conducting business in  
              violation 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.








                                                                     SB 588


                                                                    Page  5






            16) Holds an individual, partnership, corporation, limited  
              liability company, joint venture, or association jointly and  
              severally liable for liens for unpaid wages 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 failure by employer to provide such  
              notices shall not be a defense to the joint and several  
              liability as described above.

            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  
              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.

            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.

          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  








                                                                     SB 588


                                                                    Page  6





            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  
            the division or the Labor Commissioner, including orders of  
            the Industrial Welfare Commission, and is required to  








                                                                     SB 588


                                                                    Page  7





            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)
          
          FISCAL EFFECT:  According to the Senate Appropriations  
          Committee, the Department of Industrial Relations (DIR)  
          indicates that it 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.


          COMMENTS: 


          The Problem of "Wage Theft"


          Various recent studies have highlighted concerns about alleged  
          widespread "theft of wages" in the United States and in  
          California, particularly in the underground economy.  For  
          example, in 2009 the Ford Foundation sponsored a study that  
          surveyed 4,387 workers in low-wage industries in the three  
          largest U.S. cities - Chicago, Los Angeles and New York City.   
          The study revealed that 26 percent of workers in the sample were  
          paid less than the legally required minimum wage, and 60 percent  








                                                                     SB 588


                                                                    Page  8





          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.  (Broken Laws, Unprotected Workers:  
          Violations of Employment and Labor Laws in America's Cities,  
          Center for Urban Economic Development, National Employment Law  
          Project, UCLA Institute for Research on Labor and Employment  
          (2009).)


          Another study focused on a survey of 1,815 workers in Los  
          Angeles County.  The survey found that low-wage workers in Los  
          Angeles regularly experience violations of basic laws that  
          mandate a minimum wage and overtime pay and are frequently  
          forced to work off the clock or during their breaks.  Other  
          violations documented in the survey include lack of required  
          payroll documentation, late payments, stealing tips, and  
          employer retaliation.  (Milkman, Gonzalez and Narro, Wage Theft  
          and Workplace Violation in Los Angeles: The Failure of  
          Employment and Labor Law for Low-Wage Workers, UCLA Institute  
          for Research on Labor and Employment (2010).)  The survey also  
          revealed that the various forms of nonpayment and underpayment  
          of wages take a heavy monetary toll on workers and their  
          families.  Respondents who experienced a pay-based violation in  
          the previous work week lost an average of $39.81 out of average  
          weekly earnings of $318.00 (or 12.5 percent).  Assuming a  
          full-year work schedule, these workers lost an average of  
          $2,070.00 annually out of total earnings of $16,536.00.  The  
          survey estimated that, in a given week, 654,914 workers in Los  
          Angeles County suffer at least one pay-based violation.   
          Extrapolating from this figure, front-line workers in low-wage  
          industries lose more than $26.2 million per week as a result of  
          employment and labor law violations.


          Effectiveness of Existing Methods of Recovering Unpaid Wages


          Under existing law, when an employer fails to pay wages due, the  








                                                                     SB 588


                                                                    Page  9





          employee has the right to file a claim against his or her  
          employer (or former employer) with the Department of Labor  
          Standards Enforcement (DLSE), which is directed by the State  
          Labor Commissioner.  The Labor Commissioner has jurisdiction  
          over most private sector employees, except those that are bona  
          fide independent contractors.  In some cases, according to case  
          law, the Commissioner does not have jurisdiction over those  
          working under collective bargaining agreements.  Existing law  
          requires an employee who feels that his or her wages have been  
          wrongly withheld must go through DLSE and according to  
          statutorily prescribed procedures.  (Labor Code Section 98 et  
          seq.)  After conducting an investigation, the Labor Commissioner  
          may hold an administrative conference or hearing, or both.  If a  
          party is unhappy with the Commissioner's decision, it can appeal  
          to the appropriate civil court.  (Labor Code Section 98.2.)   
          However, even where a worker wins a favorable decision, the  
          process of collecting the award is often difficult and  
          ineffective.  Irresponsible employers may have already hidden  
          their cash assets, declared bankruptcy, or otherwise become  
          judgment-proof.  


          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 claim 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.


          ARGUMENTS IN SUPPORT











                                                                     SB 588


                                                                    Page  10






          Supporters, 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.  
           Supporters 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.  Supporters believe that this bill 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.  Supporters, noting  
          Wisconsin's success, argue that wage liens are simple,  
          effective, and a time tested approach to halting wage theft.


          This bill is co-sponsored by the Service Employees International  
          Union, the Koreatown Immigrant Workers Alliance, and the Wage  
          Justice Center.  They write:



            "[This bill] 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. It  
            requires a business that has an outstanding unpaid judgment  
            against them to purchase a wage bond of $150,000. If it fails  
            to do that, the employer can be subject to a stop work order  
            and a lien at the Labor Commissioner's discretion. 





            This bill also gives the Labor Commissioner the authority to  
            hold individual business owners accountable for their debts to  
            workers. 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


                                                                    Page  11










            In addition, [this bill] 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."




          "CONCERNS"


          A number of groups, including the California Chamber of  
          Commerce, express "concerns" that certain provisions of this  
          bill will negatively impact employers who do not operate in the  
          underground economy.  First, they express concern that this bill  
          imposes joint and several liability on employers for "property  
          services" contracts and state that an employer should not be  
          forced to cover the liabilities of another company that the  
          employer had no reasonable opportunity or ability to prevent.   
          Second, they argue that this bill improperly imposes personal  
          liability on lower-level supervisors and managers of a company  
          for wage and hour violations the employer could not prevent.   
          Finally, they argue that the amount of the proposed bond needs  
          to be adjusted to encourage payment of the underlying judgment.   
          They suggest the amount of the bond should be left to the  
          discretion of the Labor Commissioner to take into account the  
          totality of circumstances in order to achieve the necessary  
          balance.


          PRIOR RELATED LEGISLATION:










                                                                     SB 588


                                                                    Page  12





          AB 2416 (Stone) of  2014 would have allowed an employee request  
          that the Labor Commissioner file 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.


          AB 2416 was similar, but not identical to, AB 1164 (Lowenthal)  
          from 2013.  AB 1164 was moved to the inactive file on the  
          Assembly floor and was not taken up for a vote.


          AB 2416 was also similar, but not identical to, the introduced  
          version of AB 2517 (Eng) from 2012.  AB 2517 was subsequently  
          amended to provide for wage liens only in the car wash and  
          polishing industry.  AB 2517 failed passage on the Assembly  
          floor.
          





          REGISTERED SUPPORT / OPPOSITION:




          Support


          9to5


          Alliance of Californians for Community Empowerment


          Alliance San Diego








                                                                     SB 588


                                                                    Page  13







          Asian Americans Advancing Justice- Los Angeles


          Bet Tzedek Legal Services


          California Employment Lawyers Association


          California Immigrant Policy Center


          California Labor Federation, AFL-CIO


          California Professional Firefighters


          California Rural Legal Assistance


          California School Employees Association


          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








                                                                     SB 588


                                                                    Page  14







          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.


          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








                                                                     SB 588


                                                                    Page  15







          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 (co-sponsor)








                                                                     SB 588


                                                                    Page  16







          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








                                                                     SB 588


                                                                    Page  17







          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


          SEIU- CA (co-sponsor)


          SoCalCosh, Southern California Coalition for Occupational Safety  
          and Health


          Social Justice Learning Institute


          Street Level Health Project









                                                                     SB 588


                                                                    Page  18






          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


          Wage Justice Center (co-sponsor)


          Workplace Justice Initiative


          Worksafe, Inc.




          Opposition


          None on file.




          Analysis Prepared by:Ben Ebbink / L. & E. / (916)  
          319-2091










                                                                     SB 588


                                                                    Page  19