BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
SB 1342 (Mendoza)
Version: April 12, 2016
Hearing Date: April 26, 2016
Fiscal: No
Urgency: No
NR
SUBJECT
Wages: investigations: subpoenas
DESCRIPTION
This bill would specify that a legislative body of a city or
county is authorized to delegate that body's authority to issue
subpoenas to a county or city official or department head and
may report noncompliance thereof to the judge of the superior
court of the county in order to enforce local wage laws. This
bill would also make related legislative findings.
BACKGROUND
Across the country, with California leading the way, cities and
counties are passing their own minimum wage laws, often with
significantly higher wages than currently exist at the state and
federal level. In 2014, San Francisco voters overwhelmingly
approved a ballot measure to gradually raise the city's minimum
wage to $15 an hour by 2018. Last year the Los Angeles City
Council voted to establish a city minimum wage that will reach
$15 an hour by 2021, followed soon thereafter by a measure by
Los Angeles County. San Jose adopted a city minimum wage in 2012
and smaller cities have recently done the same, including
Oakland, Berkeley, Richmond, Sunnyvale, Emeryville, Mountain
View, Santa Clara, and San Diego. Last month the Legislature,
ensuring that California maintains the highest minimum wage in
the country, approved a plan to raise the minimum wage of the
entire state to $15 per hour over the next six years.
However, delivering on the promise of higher wages rests largely
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on the ability of cities, counties, and the state to put
enforcement systems in place and fight the wage theft that
low-wage workers often experience. Wage theft, generally, is
when workers are not paid the wages to which they are legally
entitled. This can occur when workers receive payment at a rate
below the legal hourly minimum, when employees are not paid for
off-the-clock work, are not properly paid overtime, or fail to
get required rest and meal breaks, among other violations.
Significant and extensive minimum wage violations have been
documented around the country and in cities throughout
California, as described by a recent report:
Significant and extensive minimum wage violations have been
documented around the country and in cities throughout
California. An analysis of worker surveys conducted by the
Census and Bureau of Labor Statistics estimates that in
California, minimum wage violations occur in any given week in
11 to 12 percent of all the low-wage jobs in the state
(Eastern Research Group 2014). While this estimate already
represents a significant amount of wage theft, experience
suggests that official government surveys undercount workers
who are especially vulnerable to wage theft, such as those
working off the books or who are undocumented.
Other estimates come from surveys that use alternative
sampling strategies much more likely to capture the full range
of workers in the low-wage labor market. The best such study
to date is a large representative survey of low-wage workers
in Los Angeles in 2008, which found that 30 percent had been
paid below the minimum wage during the previous week and 88
percent had at least one pay-related violation in the previous
week. The amount of underpayment due to minimum wage
violations assuming a full-year work schedule averaged $1,135
a year per worker, or 6.9 percent of earnings. Counting all
pay-based violations, such as unpaid overtime and
off-the-clock work, workers lost $2,070 per year, or 12.5
percent of earnings. Violations occurred across industries and
occupations, with above-average rates of minimum wage
violations in garment manufacturing, domestic service,
building services, and department stores. (Bernhardt, Dietz,
and Koonse, Enforcing City Minimum Wage Laws in California:
Best Practices and City-State Partnerships, UCLA Center for
Labor Research and Education and UC Berkeley Center for Labor
Research and Education, Oct. 2015.)
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Recovery of stolen wages requires that the employee either find
a private lawyer to sue the employer, or more commonly, file a
complaint with a government agency charged with enforcement of
labor violations. However, because low-wage workers have limited
access to private attorneys, private actions have failed to
address wage theft on a large scale. This is largely because the
relatively low value of the average complaint dramatically
reduces profit for private attorneys, even when taking 40
percent of the recovery. In addition, the difficulty private
attorneys face when collecting from employers jeopardizes their
ability to recover their attorneys' fees and earn anything for
their effort. Thus, public enforcement plays a central role in
ensuring that workers receive the wages they are owed. This
bill, sponsored by the Los Angeles County Board of Supervisors,
seeks to ensure that cities and counties have the tools
necessary to enforce wage laws by clarifying that cities and
counties have the ability to delegate the authority to issue
subpoenas to a county or city official or department head.
CHANGES TO EXISTING LAW
Existing law , the California Constitution, divides the state
into cities and counties, and requires that the Legislature
provide for the powers of cities and counties. (Cal. Const.,
art. XI, Secs. 1 and 2.)
Existing law , the California Constitution, allows counties and
cities to adopt a charter for their own governance, independent
of the Legislative scheme. (Cal. Const., art. XI, Secs. 3-6.)
Existing law provides for the general powers of counties and
specifies that a board of supervisors may do and perform all
other acts and things required by law, or which are necessary to
the full discharge of the duties of the legislative authority of
the county government. (Gov. Code Sec. 25200 et seq. and Gov.
Code Sec. 25207.)
Existing law authorizes the board of supervisors of any county
to establish the office of the county hearing officer, and
provides that the duties of the office are to conduct hearings
for the county or any board, agency, commission, or committee of
the county. (Gov. Code Sec. 27720.)
Existing law provides that when a law or ordinance requires that
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a hearing be held or that findings of fact or conclusions of law
be made by any county board, agency, commission, or committee,
the county hearing officer may be authorized, by ordinance or
resolution, to: 1) conduct the hearing; 2) to issue subpoenas;
3) to receive evidence; 4) to administer oaths; 5) to rule on
questions of law and the admissibility of evidence; and 6) to
prepare a record of the proceedings. (Gov. Code Sec. 27721.)
Existing law provides for the general powers of cities including
the ability to pass ordinances not in conflict with the
Constitution or laws of the state, and specifies that the
legislative body may issue subpoenas requiring attendance of
witnesses or production of books or other documents for evidence
or testimony in any action or proceeding pending before it.
(Gov. Code Secs. 37100 et seq., 37104.)
Existing law provides that, in addition to other powers, a city
may perform all acts necessary or proper to carry out its
powers. (Gov. Code Sec. 37112.)
This bill would specify that, in order to enforce local wage
laws, a legislative body of a city or county may delegate to a
county or city official or department head its authority to
issue subpoenas and to report noncompliance thereof to the judge
of the superior court of the county.
This bill would provide that the Legislature finds and declares
that the provision above, does not constitute a change in, but
is declaratory of, existing law.
This bill would make various Legislative findings and
declarations including:
statistics related to wage theft;
clarifying that the authority to delegate to local officials
the ability to issue subpoenas exists under current law; and
encouraging cities and counties to develop and enact specific
measures to target and remedy wage theft.
COMMENT
1.Stated need for the bill
According to the author:
Currently, well over a dozen cities and counties have passed
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minimum wage ordinances going beyond the State-mandated $10 an
hour. In many cases however, employers do not obey these laws.
In Los Angeles County alone, workers are denied over $26
million a week in earned wages and have no local enforcement
mechanism to assist them. No coherent multilevel approach
exists that brings the state, counties, and cities together to
work in concert to protect workers from these predatory
practices.
This bill would amend the code to specify that the board of
supervisors of a county, or the legislative body of a city,
may delegate its administrative subpoena authority to a county
or city official or department head to investigate allegations
of wage theft.
2.Ability of cities and counties to delegate the authority to
issue subpoenas
The California Constitution establishes that cities are
instruments of local government, and counties are subdivisions
of the state. (Cal. Const., art. XI, Secs. 1 and 2.) The
Government Code then fleshes out their respective powers and
responsibilities. Specifically, the Code provides for the
general powers of counties and specifies that a board of
supervisors may perform all other acts "which are necessary to
the full discharge of the duties of the legislative authority of
the county government." (Gov. Code Sec. 25207.)
With regard to counties, the Code expressly allows counties to
establish the office of a county hearing officer to conduct
hearings for the county or any board, agency, commission, or
committee of the county, and allows the hearing officer to issue
subpoenas. (Gov. Code Secs. 27720 and 27721.) The general
powers of cities are broader than those of counties, and include
the ability to pass any "ordinances not in conflict with the
Constitution or laws of the state," and the ability to "perform
all acts necessary or proper to carry out its powers." (Gov.
Code Secs. 37100 and 37112.) Related to this bill, under
existing law, cities are specifically given the authority to
"issue subpoenas requiring attendance of witnesses or production
of books or other documents for evidence or testimony in any
action or proceeding pending before it." (Gov. Code Sec.
37104.)
In addition to the general powers of cities and counties
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provided in the Government Code, the California Constitution
allows for cities and counties to elect an alternative
government structure by adopting a charter for their own
governance. (Cal. Const., art. XI, Secs. 3-6.) Currently, 14 out
of 58 California counties, and 121 out of 482 cities have
adopted a charter. Charter cities and counties have the ability
to amend their charters to expressly address the delegating of
the subpoena power for the enforcement of wage theft. San
Francisco, for example, amended its charter to create the Office
of Labor Standards Enforcement and specifically granted the
Labor Standards Enforcement Officer the authority to subpoena
the production of books, papers, records or other items relevant
to investigations under the Office's jurisdiction. (See San
Francisco Charter Sec. 2A.23.)
The courts have routinely upheld the authority of cities and
counties to delegate some of their authority to a board, office,
or commission in furtherance of carrying out the duties of the
legislative body. In Dibb v. County of San Diego (1994) 8 Cal.
4th 1200, the California Supreme Court held that "the purpose
of allowing counties to adopt charters was to ensure 'home rule'
or 'the right of the people of a charter county to create their
own local government and define its powers within the limits set
out by the Constitution. Construing the constitutional
provisions in light of that purpose, we conclude the charter
county of San Diego has constitutional authority [ ? ] to confer
the power to issue subpoenas on [a citizen review board]."
Accordingly, this bill is arguably not necessary to give the
sponsor, Los Angeles County the ability to delegate the
authority to issue subpoenas to an official or department head.
However, given California's recent approval of a state-wide $15
minimum wage, it is important that all cities and counties
understand their ability to create boards, commissions, and
offices with true wage enforcement authority. By specifically
including in the Government Code the ability of counties and
cities to delegate their authority to issue subpoenas, this bill
will arguably help ensure that Californians are paid the wages
they have earned.
3.Compelling compliance with subpoenas
This bill would authorize a city or county official, or
department head, who had issued a subpoena seeking to enforce
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local wage laws, to report noncompliance with that subpoena to
the superior court.
In most other circumstances where individuals, agencies, or
departments are expressly authorized to report noncompliance to
the superior court, the Code outlines the next steps for
enforcement. For example, when a person does not comply with a
subpoena issued by the legislative body of a city, the mayor is
required to report the noncompliance to the superior court, and
the superior court is required to "issue an attachment directed
to the sheriff of the county where the witness was required to
appear, commanding him to attach the person, and forthwith bring
him before the judge." (See Gov. Code Secs. 37104-37109.) Or,
when a person refuses to comply with a subpoena issued in
relation to an investigation by the Commission on Judicial
Performance, the Commission may petition the court for an order
compelling the person to produce the writings or things required
by the subpoena. (See Gov. Code Sec. 68572). Similar processes,
whereby agencies, departments and offices enforce compliance
with subpoenas by petitioning the court for an order to compel.
(See e.g., Gov. Code Sec. 11187, authorizing state departments
to petition the court for an order to compel; Gov. Code Sec.
12930, authorizing the Department of Fair Employment and Housing
to petition the superior court to compel the appearance and
testimony of witnesses.)
Staff notes that the authority under this bill to report
noncompliance to the superior court does not, on its own: 1)
ensure that the non-compliance is reported; or 2) ensure that
the court take any action if the non-compliance is, in fact,
reported. While the ability to petition the court for an order
to compel is generally available, if the intent of the bill is
to create strong wage theft enforcement mechanisms, the author
should consider amending the bill to mandate subsequent action
on the part of the city, county, or court in the event that a
subpoena is not complied with.
Support : None Known
Opposition : None Known
HISTORY
Source : Los Angeles County Board of Supervisors
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Related Pending Legislation : None Known
Prior Legislation : None Known
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