BILL ANALYSIS Ó SB 588 Page 1 Date of Hearing: July 14, 2015 ASSEMBLY COMMITTEE ON JUDICIARY Mark Stone, Chair SB 588 (De León) - As Amended July 1, 2015 SENATE VOTE: 26-13 SUBJECT: nonpayment of wages: Labor Commissioner and judgment enforcement KEY ISSUES: 1)should the labor commissioner, on behalf of an aggrieved employee, be authorized to file a levy against any credits, MONEY, or other property of an employer in order to collect a judgment for unpaid wages? 2)If an employer fails to satisfy a judgment within 20 days of receiving a notice of levy, should that employer be required to cease business operations or obtain a surety bond of $150,000? 3)Should a business that contracts for certain "Property services" be jointly and severally liable for the wage violations of the service contractor, so long as the business was named and noticed in the underlying compLaint? SB 588 Page 2 SYNOPSIS According to a 2010 study conducted jointly by the UCLA Labor Center and the National Employment Law Project, only 17% of workers who successfully filed a wage claim with the California Division of Labor Standards recovered any payment. SB 588 is one of several recent bills that have sought to deal with the problem of collecting unpaid wages, even where a court has found a violation and the employee has won a judgment against an employer. Most recently AB 1164 (Lowenthal, 2013) and AB 2416 (Stone, 2014) attempted to grapple with this problem by allowing an employee to file a "pre-judgment" lien against the real and personal property of an offending employer. Neither bill made it to the Governor's desk. The bill under review differs from those bills in two significant ways. First, this bill authorizes not a lien against real property, but a levy against the employer's credit, money, or related property (other than real property). A lien is authorized only where the employer fails to satisfy a judgment after notice of judgment and continues to operate without complying with a specified bond requirement. Second, and perhaps most significantly, this bill does not authorize a pre-judgment lien; rather, it authorizes the levy or lien to be filed only where a judgment has already been rendered against the employer. Although a coalition of business and employer groups, led by the Chamber of Commerce, opposed the prior bills, the same coalition has submitted only a letter of "concern" regarding this bill. When the bill recently passed out the Assembly Labor & Employment Committee, the author and the Chamber of Commerce indicated a willingness to work on the remaining issues. However, no agreement had been reached at the time of the writing of this analysis. The analysis discusses the three issues on which the coalition and author still disagree; however, amendments, if any, would occur in the Appropriations Committee, or on the Floor, if the bill passes out of this Committee. SB 588 Page 3 SUMMARY: Authorizes the California Labor Commissioner (Commissioner) to file a levy, and in some cases, a lien on an employer's property in order to assist an employee in enforcing a judgment for unpaid wages. Specifically, this bill: 1)Allows the Commissioner, after a judgment for unpaid wages is entered by a court in favor of the Commissioner or employee, to mail a notice of levy to all persons who possess or control any credits, money, or property belonging to the employer. Requires any person upon whom a levy has been noticed to surrender the credits, money, or property to the Commissioner, or pay to the Commissioner the amount owed, within ten days of service. 2)Provides that a person who complies with the notice of levy shall be discharged from any obligation or liability to the employer. Any person who fails or refuses to surrender any credits, money, or property, or pay any debts owed, shall be liable to the Commissioner in an amount equal to the levy. 3)Exempts real property from the provisions above. 4)Provides, subject to exceptions, that if a final judgment against an employer for unpaid wages remains unsatisfied for 20 days after the time to appeal the judgment has expired and no appeal is pending, then the employer must cease business operations unless the employer has obtained a surety bond of $150,000. The bond must be filed with the Commissioner and paid to the people of the State of California for the benefit of the aggrieved employee. 5)Subjects any employer, or person acting on behalf of an employer, that violates the bond requirement to a civil penalty, as specified, and a "stop order" prohibiting the conduct of business until the employer complies with the bond requirements. SB 588 Page 4 6)Authorizes the Commissioner, in the event that the employer fails to comply with the bond provision, to impose a lien on the employer's real and personal property for the full amount of wages, interest, penalties, and attorney's fees, to the extent allowed under law. Unless it is satisfied or released, the lien remains in place for ten years from the date of its creation. 7)Prohibits the State Department of Public Health or the State Department of Social Services from renewing the license of an employer in the long-term care industry, as defined, if the employer is conducting business in violation of the surety bond requirement. 8)Provides that an individual or business that contracts with an employer to perform property services or long-term care services shall be jointly and severally liable with the employer for unpaid wages if the business was named as a defendant in, and received notice of, the underlying complaint. 9)Requires property services and long-term care contractors to provide notice to the other party to the contract as to any outstanding wage violations or unsatisfied judgments, but also states that the failure by the employer to provide such notices shall not be a defense to the joint and several liability. 10)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)Gives mechanics, persons furnishing materials, artisans, and laborers of every class the right to file a lien against the SB 588 Page 5 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 labor, services, and supplies provided to a work of improvement and regulates the conditions under which a mechanics lien may be enforced. (Civil Code Sections 8400-8494.) 3)Recognizes prejudgment wage liens against property as a remedy in certain industries, including mining (Civil Code Section 3060), agriculture (Civil Code Sections 3061.5-3061.6), and logging (Civil Code Section 3065). 4)Authorizes the 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 Section 96.7.) 5)Authorizes the Commissioner to investigate employee complaints and provide for a hearing in any action to recover wages, penalties, and other demands for compensation, and requires the Commission to determine all matters arising under his or her jurisdiction. (Labor Code Section 98.) 6)Authorizes the Commissioner, at its 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 Section 98.2(g).) 7)Provides that, if any employer or other person acting on behalf of an employer violates, or causes to be violated, any provision regulating hours and days of work in either statute SB 588 Page 6 or regulation shall be subject to a civil penalty. (Labor Code Section 558.) FISCAL EFFECT: As currently in print this bill is keyed fiscal. COMMENTS: Recent studies have highlighted the problem of unpaid wages in California and elsewhere. For example, a 2009 Ford Foundation study on workers in low-wage industries in Chicago, Los Angeles and New York City found that 26 percent of workers in the sample were paid less than the legally required minimum wage, 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. Another survey of 1,815 workers in Los Angeles County found that low-wage workers regularly experience violations of minimum wage and overtime pay requirements. (Center for Urban Economic Development, National Employment Law Project, UCLA Institute for Research on Labor and Employment Broken Laws, Unprotected Workers: Violations of Employment and Labor Laws in America's Cities (2009); 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 Problem of Collecting Unpaid Wages. While the number of violations is bad enough, the statistics on the inability of workers to recover wages - even when a court or the Labor Commission issues a judgment in their favor - are staggering. Under existing law, when an employer fails to pay wages that are due, the employee has the right to file a claim against the employer with the Department of Labor Standards Enforcement (DLSE), which is directed by the State Labor Commissioner (Commissioner). After conducting an investigation, the Commissioner typically holds an administrative hearing and renders a decision. If either party is unhappy with the Commissioner's decision, it can bring an appeal in civil court. SB 588 Page 7 However, even where a worker wins a favorable decision, the process of collecting the award is often difficult and ineffective. Irresponsible employers may have hidden their cash assets, declared bankruptcy, or otherwise become judgment-proof. 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. Comparison with Prior Bills. SB 588 seeks to address the problem of unpaid wages by giving the Commissioner expanded power to file a levy or lien against the property of an employer. It is the latest in a series of recent bills that have sought to deal with the problem of collecting unpaid wages from employers after a court has found a violation and the employee has won a judgment against the employer. Most recently AB 1164 (Lowenthal, 2013) and AB 2416 (Stone, 2014) attempted to grapple with this problem by allowing an employee to file a "pre-judgment" lien against the real and personal property of the offending employer. Both of these bills faced considerable opposition from business and employer groups. AB 1164 died on the Assembly Floor; AB 2416 passed out of the Assembly only to die on the Senate Floor. The bill under review differs in three important ways from those prior bills. First, this bill authorizes not a lien against real property, but a levy against the employer's credit, money, or related property that is not real property. Under this bill, a lien against real property is authorized only where the employer fails to satisfy a judgment after notice of judgment and continues to operate without complying with the bond requirement, as described below. Second, this bill authorizes the Commissioner to file a levy or lien on the employee's behalf; unlike the earlier bills, this bill does not allow an employee to directly file a lien against an employer's property. Third, and perhaps most significantly, this bill does not authorize a pre-judgment lien; rather, it authorized the levy or lien to be filed only where a judgment has already been rendered against the employer. SB 588 Page 8 Changes to Existing Law. California's "mechanic's lien" law - as required by the California Constitution - gives mechanics, artisans, suppliers, and "laborers of every class" a lien against any property "upon which they bestowed labor or furnished material for the value of such labor done and material furnished." (California Constitution Article XIV, Section; enacted and enforced by Civil Code Sections 8400-8494.) Because the labor or materials of a worker are bestowed upon a "property," this provision has generally been construed to apply to works of improvement. For example, a worker who installs windows on a new building has a lien for the value of his or her labor against the building property. If that worker is not paid for her labor, she can try to collect by recording a lien against the property. However, an employee who merely works in an office, factory, or department store has no ability to file such a lien against the employer's property if the employer fails to pay proper wages. That worker would most likely file a claim for unpaid wages with the Commissioner and hope to win a judgment against the employer. Upon receiving a claim from an employee, the Commissioner has the authority to investigate the claim, conduct a hearing, and, if it determines that wages or other monetary benefits are due, collect wages or benefits on behalf of the worker. Finally, under existing law, the Commissioner may, upon issuing a final order, place a lien on the employer's real property for the amount of unpaid wages that are due. Bill Expands Labor Commission's Existing Authority. This bill would expand the Commissioner's existing authority to collect unpaid wages in two important ways: First, while the Commissioner could still record a lien against the real property of an employer who did not satisfy a final order, this bill would give the Commissioner the additional authority to collect a court judgment in favor of the SB 588 Page 9 Commissioner or any employee by mailing a "notice of levy" to all persons in possession of credits, money, or other property (other than real property) belonging to the employer. A levy is similar to, but not the same as, a lien. A lien is a recorded interest or encumbrance on real property, which can be collected upon sale of the property. A levy, on the other hand, is simply a legal means to seize the money or assets of a judgment debtor. It can be directed, for example, to a bank or other party in possession of the debtor's money or assets. Under this bill, if a person in possession of the debtor's money fails to surrender the money, that person is liable to the Commissioner for the amount of the levy. If the person in possession surrenders the money, that person is discharged from any obligation or liability to the employer. Second, where a final judgment against an employer remains unsatisfied for 20 days after the time for an appeal has expired (and no appeal is pending), this bill would prohibit the employer from conducting business in this state unless the employer obtains a surety bond in the amount of $150,000. The bond must be filed with the Commissioner and paid to the state for the benefit of the employee who is denied his or her just wages. If the employer fails to comply with the bond requirement, this bill would give the Commissioner the authority to serve upon that employer a "stop order," prohibiting the employer from using any employee labor or continuing to operate by subcontracting for labor. (In theory, the employer could continue to operate the business if he did the work himself, but as a practical matter the stop order is an order to cease operations until judgments are paid or appropriate bonds acquired.) An employer, or any officer or manager of the employer having effective control of the operation, who continues to operate the business in the face of the stop order, commits a misdemeanor punishable by imprisonment in county jail for not more than 60 days or by fine not exceeding $10,000, or both. The Commissioner may also record a lien against the real property of any employer who violates the bond requirement. SB 588 Page 10 Potential Liability of Supervisors and Managers. In addition to expanding the authority of the Commissioner to file levies and enforce the new bond requirement, this bill also expands existing law in other ways. Under existing law, the Commissioner may issue citations and impose fines for violating wage laws against the employer or any "other person acting on behalf of an employer who violates or causes to be violated" the wage law provisions. This bill, however, appears to use more expansive language by allowing the Commissioner to conduct hearings concerning wage violations against any employer "or other person acting on the employer's behalf." One of the concerns expressed by the Chamber of Commerce is that this new language omits the critical words "who violates or causes to be violated." In other words, the Chamber contends, this new language could subject a manager, or even a relatively low-level employee, to penalties whether or not the manager or employee had sufficient control to commit or prevent a violation. (The Chamber's proposed resolution to this issue is discussed below.) Joint and Several Liability of Contracting Parties. This bill also appears to expand existing law by imposing joint and several liability for wage violations on any business that contracts with an offending employer to perform "property services" or "long-term care services," but only where the business was named as a defendant and received notice pursuant to a complaint filed with the Commissioner. ("Property services" is defined to mean janitorial, security guard, valet parking, landscaping and gardening services; "long-term care services" is defined to mean a skilled nursing facility, adult residential facility, and residential care facility for the elderly and related facilities.) The bill requires an employer who contracts to provide those services to inform the other party to the contract of any pending claims or unsatisfied judgments for non-payment of wages. However, the bill also adds that an employer's failure to provide that information to the other party will not be a defense to the joint and several liability created by this bill. The Chamber of Commerce and its SB 588 Page 11 coalition express serious concerns about this provision, contending that it unfairly makes a business liable for violations committed by other employers over whom they may have little or no control. However, the rationale for this provision, according to the author, is that a business that uses such services has some obligation to take reasonable steps to ensure that the company with which it contracts does not exploit or cheat its workers. As noted below, this provision continues to be a considerable source of disagreement between the author and the concerned business coalition. Remaining Concerns among Business Groups. A coalition of business and employer associations, led by the California Chamber of Commerce, expresses "concerns" that certain provisions of this bill will negatively impact employers. First, the coalition argues that the joint and several liability provisions are unfair because a business should not be penalized for the actions of a company with which it happened to contract but, through no fault or control or the contracting party, failed to pay the wages owed to its workers. Second, the coalition argues that this bill could improperly impose personal liability on lower-level supervisors and managers for wage and hour violations they did not commit and could not have prevented. Finally, the coalition argues that the amount of the proposed bond needs to be adjusted to encourage payment of the underlying judgment. The coalition suggests that the amount of the bond should be left to the discretion of the Commissioner, allowing the Commissioner to take into account the "totality of circumstances" in setting a proper and reasonable bond amount. To address these issues, the concerned business and employer coalition has proposed, conceptually at least, three possible amendments that might address their concerns: In place of the fixed bond amount of $150,000, the Chamber of Commerce proposes either (1) a tiered bond amount based on the SB 588 Page 12 "totality of circumstances" or (2) giving the Labor Commissioner the discretion to determine an appropriate bond amount, up to $150,000. In order to ensure that the bill does not improperly impose liability on managers or employees because of the employers' violation, the Chamber of Commerce proposes adding language that tracks the general rule of existing case law that a manager or other employee may only be liable for a violation if the manager or employee had sufficient control to cause the violation. Therefore, the Chamber of Commerce proposes adding the following qualifying language (or something like it): Liability under this section shall not apply if the person was acting solely within the scope of their agency with the employer and lacked any personal or direct control over the working conditions or payment of wages to the employee. Modify the joint and several liability provisions so that a business that contracts with an employer who violates wage laws has an "opportunity to cure" the violation. Under this bill, a business would only be jointly and severally liable for the employer's violations if the business were named as a defendant and given notice at the time that a complaint was filed with the Labor Commission. It is not entirely clear to the Committee what the "opportunity to cure" would consist of, given that the business would only receive notice after the complaint had been filed and thus a violation has already committed. The businesses ability to cure would seem to be limited to its ability to force the employer with whom it contracts to satisfy the unpaid wages or face termination of the contract. This may be an issue that the author and opponents are unlikely to resolve. The Committee may wish to explore with the author his willingness to address all or some of these concerns should the bill pass out of this Committee today. SB 588 Page 13 ARGUMENTS IN SUPPORT: Supporters, noting the various wage theft studies, argue that wage theft is a significant problem in California, with LA County's wage theft resulting in over $1 billion failing to reach the workers who desperately need and are lawfully entitled to those wages. 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 argue that SB 558 "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." Finally supporters contend that this bill will target "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." SB 588 Page 14 REGISTERED SUPPORT / OPPOSITION: Support Koreatown Immigrant Workers Alliance (co-sponsor) SEIU- CA (co-sponsor) Wage Justice Center (co-sponsor) 9to5 Alliance of Californians for Community Empowerment Alliance San Diego Asian Americans Advancing Justice- Los Angeles Bet Tzedek Legal Services California Employment Lawyers Association California Immigrant Policy Center California Labor Federation, AFL-CIO SB 588 Page 15 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 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. SB 588 Page 16 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 SB 588 Page 17 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 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 SB 588 Page 18 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 SB 588 Page 19 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. SB 588 Page 20 Opposition None on file Analysis Prepared by:Thomas Clark / JUD. / (916) 319-2334