BILL NUMBER: SB 989 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 23, 2010
INTRODUCED BY Senator Hollingsworth
FEBRUARY 8, 2010
An act to amend Section 4660 of the Labor Code, relating
to workers' compensation. An act to amend Section 2699
of the Labor Code, relating to employment, and declaring the urgency
thereof, to t ake effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
SB 989, as amended, Hollingsworth. Workers' compensation:
permanent disability rating schedule. Labor Code
Private Attorneys General Act of 2004.
Existing law, the Labor Code Private Attorneys General Act of
2004, allows aggrieved employees to bring civil actions to recover
penalties for violations of the Labor Code if the Labor and Workforce
Development Agency or its departments, divisions, commissions,
boards, agencies, or employees do not do so. The penalties collected
in these actions are distributed 75% to the agency to be continuously
appropriated for purposes of enforcement and education and 25% to
the aggrieved employee, except that if the person does not employ one
or more persons, 100% of the penalties are distributed to the agency
by continuous appropriation.
This bill would require that an employee requesting court approval
of the settlement of a civil action brought under the act first
serve notice of the request to the agency. This bill would further
require that a court award reasonable attorney's fees and costs to
the agency in any proceeding brought by the agency to recover its
statutory share of the civil penalties awarded to the employee.
This bill would declare that it is to take effect immediately as
an urgency statute.
Existing law establishes a workers' compensation system,
administered by the Administrative Director of the Division of
Workers' Compensation, to compensate an employee for injuries
sustained in the course of his or her employment.
Existing law requires the administrative director to formulate a
rating schedule for determining the percentage of an injured employee'
s permanent disability in accordance with certain criteria.
This bill would make a technical, nonsubstantive change to the
above-described provisions.
Vote: majority 2/3 . Appropriation:
no. Fiscal committee: no yes .
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 2699 of the Labor
Code is amended to read:
2699. (a) Notwithstanding any other provision of law, any
provision of this code that provides for a civil penalty to be
assessed and collected by the Labor and Workforce Development Agency
or any of its departments, divisions, commissions, boards, agencies,
or employees, for a violation of this code, may, as an alternative,
be recovered through a civil action brought by an aggrieved employee
on behalf of himself or herself and other current or former employees
pursuant to the procedures specified in Section 2699.3.
(b) For purposes of this part, "person" has the same meaning as
defined in Section 18.
(c) For purposes of this part, "aggrieved employee" means any
person who was employed by the alleged violator and against whom one
or more of the alleged violations was committed.
(d) For purposes of this part, "cure" means that the employer
abates each violation alleged by any aggrieved employee, the employer
is in compliance with the underlying statutes as specified in the
notice required by this part, and any aggrieved employee is made
whole.
(e) (1) For purposes of this part, whenever the Labor and
Workforce Development Agency, or any of its departments, divisions,
commissions, boards, agencies, or employees, has discretion to assess
a civil penalty, a court is authorized to exercise the same
discretion, subject to the same limitations and conditions, to assess
a civil penalty.
(2) In any action by an aggrieved employee seeking recovery of a
civil penalty available under subdivision (a) or (f), a court may
award a lesser amount than the maximum civil penalty amount specified
by this part if, based on the facts and circumstances of the
particular case, to do otherwise would result in an award that is
unjust, arbitrary and oppressive, or confiscatory.
(f) For all provisions of this code except those for which a civil
penalty is specifically provided, there is established a civil
penalty for a violation of these provisions, as follows:
(1) If, at the time of the alleged violation, the person does not
employ one or more employees, the civil penalty is five hundred
dollars ($500).
(2) If, at the time of the alleged violation, the person employs
one or more employees, the civil penalty is one hundred dollars
($100) for each aggrieved employee per pay period for the initial
violation and two hundred dollars ($200) for each aggrieved employee
per pay period for each subsequent violation.
(3) If the alleged violation is a failure to act by the Labor and
Workplace Development Agency, or any of its departments, divisions,
commissions, boards, agencies, or employees, there shall be no civil
penalty.
(g) (1) Except as provided in paragraph (2), an aggrieved employee
may recover the civil penalty described in subdivision (f) in a
civil action pursuant to the procedures specified in Section 2699.3
filed on behalf of himself or herself and other current or former
employees against whom one or more of the alleged violations was
committed. Any employee who prevails in any action shall be entitled
to an award of reasonable attorney's fees and costs. Nothing in this
part shall operate to limit an employee's right to pursue or recover
other remedies available under state or federal law, either
separately or concurrently with an action taken under this part.
(2) No action shall be brought under this part for any violation
of a posting, notice, agency reporting, or filing requirement of this
code, except where the filing or reporting requirement involves
mandatory payroll or workplace injury reporting.
(h) No action may be brought under this section by an aggrieved
employee if the agency or any of its departments, divisions,
commissions, boards, agencies, or employees, on the same facts and
theories, cites a person within the timeframes set forth in Section
2699.3 for a violation of the same section or sections of the Labor
Code under which the aggrieved employee is attempting to recover a
civil penalty on behalf of himself or herself or others or initiates
a proceeding pursuant to Section 98.3.
(i) Except as provided in subdivision (j), civil penalties
recovered by aggrieved employees shall be distributed as follows: 75
percent to the Labor and Workforce Development Agency for enforcement
of labor laws and education of employers and employees about their
rights and responsibilities under this code, to be continuously
appropriated to supplement and not supplant the funding to the agency
for those purposes; and 25 percent to the aggrieved employees.
The court shall award reasonable attorney's fees and costs to the
Labor and Workforce Development Agency in any proceeding successfully
brought by the agency to recover its share of civil penalties under
this act. No attorney's fees or costs shall be awarded against the
agency when it is not a prevailing party.
(j) Civil penalties recovered under paragraph (1) of subdivision
(f) shall be distributed to the Labor and Workforce Development
Agency for enforcement of labor laws and education of employers and
employees about their rights and responsibilities under this code, to
be continuously appropriated to supplement and not supplant the
funding to the agency for those purposes.
(k) Nothing contained in this part is intended to alter or
otherwise affect the exclusive remedy provided by the workers'
compensation provisions of this code for liability against an
employer for the compensation for any injury to or death of an
employee arising out of and in the course of employment.
( l ) The superior court shall review and approve any
penalties sought as part of a proposed settlement agreement pursuant
to this part. Parties seeking court approval of a settlement
pursuant to this subdivision shall serve notice of the request for
court approval upon the Labor and Workforce Development Agency not
fewer than 20 calendar days prior to filing the request for approval
in the superior court.
(m) This section shall not apply to the recovery of administrative
and civil penalties in connection with the workers' compensation law
as contained in Division 1 (commencing with Section 50) and Division
4 (commencing with Section 3200), including, but not limited to,
Sections 129.5 and 132a.
(n) The agency or any of its departments, divisions, commissions,
boards, or agencies may promulgate regulations to implement the
provisions of this part.
SEC. 2. This act is an urgency statute necessary
for the immediate preservation of the public peace, health, or safety
within the meaning of Article IV of the Constitution and shall go
into immediate effect. The facts constituting the necessity are:
In order to address the existing economic conditions in California
by spurring new job creation, it is necessary for this act to take
effect immediately.
SECTION 1. Section 4660 of the Labor Code is
amended to read:
4660. (a) In determining the percentages of permanent disability,
account shall be taken of the nature of the physical injury or
disfigurement, the occupation of the injured employee, and his or her
age at the time of the injury, consideration being given to an
employee's diminished future earning capacity.
(b) (1) For purposes of this section, the "nature of the physical
injury or disfigurement" shall incorporate the descriptions and
measurements of physical impairments and the corresponding
percentages of impairments published in the American Medical
Association (AMA) Guides to the Evaluation of Permanent Impairment
(5th Edition).
(2) For purposes of this section, an employee's diminished future
earning capacity shall be a numeric formula based on empirical data
and findings that aggregate the average percentage of long-term loss
of income resulting from each type of injury for similarly situated
employees. The administrative director shall formulate the adjusted
rating schedule based on empirical data and findings from the
Evaluation of California's Permanent Disability Rating Schedule,
Interim Report (December 2003), prepared by the RAND Institute for
Civil Justice, and upon data from additional empirical studies.
(c) The administrative director shall amend the schedule for the
determination of the percentage of permanent disability in accordance
with this section at least once every five years. This schedule
shall be available for public inspection and, without formal
introduction in evidence, shall be prima facie evidence of the
percentage of permanent disability to be attributed to each injury
covered by the schedule.
(d) The schedule shall promote consistency, uniformity, and
objectivity. The schedule and any amendment thereto or revision
thereof shall apply prospectively and shall apply to and govern only
those permanent disabilities that result from compensable injuries
received or occurring on and after the effective date of the adoption
of the schedule, amendment or revision, as the fact may be. For
compensable claims arising before January 1, 2005, the schedule as
revised pursuant to changes made in legislation enacted during the
2003-04 Regular and Extraordinary Sessions shall apply to the
determination of permanent disabilities when there has been either no
comprehensive medical-legal report or no report by a treating
physician indicating the existence of permanent disability, or when
the employer is not required to provide the notice required by
Section 4061 to the injured worker.
(e) On or before January 1, 2005, the administrative director
shall adopt regulations to implement the changes made to this section
by Chapter 34 of the Statutes of 2004.