BILL NUMBER: SB 989	AMENDED
	BILL TEXT

	AMENDED IN SENATE  MAY 11, 2010
	AMENDED IN SENATE  APRIL 15, 2010
	AMENDED IN SENATE  MARCH 23, 2010

INTRODUCED BY   Senator Hollingsworth

                        FEBRUARY 8, 2010

   An act to amend  Sections 2699 and 2699.3  
Section 2699  of the Labor Code, relating to employment, and
declaring the urgency thereof, to take effect immediately.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 989, as amended, Hollingsworth. 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   to  serve 
notice of the request   a copy of the court's final
approval order and settlement agreement  to the agency 
within 20 days after the order is made and the settlement is final
 .
   This bill would declare that it is to take effect immediately as
an urgency statute.
   Vote: 2/3. Appropriation: no. Fiscal committee: no. 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.
   (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.   Within 20 days after the court
has granted final approval of a settlement and the settlement has
become final, the parties shall serve a copy of the court's final
order and settlement agreement upon the Labor and Workforce
Development Agency. 
   (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.  Section 2699.3 of the Labor Code is amended to read:
   2699.3.  (a) A civil action by an aggrieved employee pursuant to
subdivision (a) or (f) of Section 2699 alleging a violation of any
provision listed in Section 2699.5 shall commence only after the
following requirements have been met:
   (1) The aggrieved employee or representative shall give written
notice by certified mail to the Labor and Workforce Development
Agency and the employer of the specific provisions of this code
alleged to have been violated, including the facts and theories to
support the alleged violation.
   (2) (A) The agency shall notify the employer and the aggrieved
employee or representative by certified mail that it does not intend
to investigate the alleged violation within 30 calendar days of the
postmark date of the notice received pursuant to paragraph (1). Upon
receipt of that notice or if no notice is provided within 33 calendar
days of the postmark date of the notice given pursuant to paragraph
(1), the aggrieved employee may commence a civil action pursuant to
Section 2699.
   (B) If the agency intends to investigate the alleged violation, it
shall notify the employer and the aggrieved employee or
representative by certified mail of its decision within 33 calendar
days of the postmark date of the notice received pursuant to
paragraph (1). Within 120 calendar days of that decision, the agency
may investigate the alleged violation and issue any appropriate
citation. If the agency determines that no citation will be issued,
it shall notify the employer and aggrieved employee of that decision
within five business days thereof by certified mail. Upon receipt of
that notice or if no citation is issued by the agency within the
158-day period prescribed by subparagraph (A) and this subparagraph
or if the agency fails to provide timely or any notification, the
aggrieved employee may commence a civil action pursuant to Section
2699.
   (C) Notwithstanding any other provision of law, a plaintiff may as
a matter of right amend an existing complaint to add a cause of
action arising under this part at any time within 60 days of the time
periods specified in this part.
   (b) A civil action by an aggrieved employee pursuant to
subdivision (a) or (f) of Section 2699 alleging a violation of any
provision of Division 5 (commencing with Section 6300) other than
those listed in Section 2699.5 shall commence only after the
following requirements have been met:
   (1) The aggrieved employee or representative shall give notice by
certified mail to the Division of Occupational Safety and Health and
the employer, with a copy to the Labor and Workforce Development
Agency, of the specific provisions of Division 5 (commencing with
Section 6300) alleged to have been violated, including the facts and
theories to support the alleged violation.
   (2) (A) The division shall inspect or investigate the alleged
violation pursuant to the procedures specified in Division 5
(commencing with Section 6300).
   (i) If the division issues a citation, the employee may not
commence an action pursuant to Section 2699. The division shall
notify the aggrieved employee and employer in writing within 14
calendar days of certifying that the employer has corrected the
violation.
   (ii) If by the end of the period for inspection or investigation
provided for in Section 6317, the division fails to issue a citation
and the aggrieved employee disputes that decision, the employee may
challenge that decision in the superior court. In such an action, the
superior court shall follow precedents of the Occupational Safety
and Health Appeals Board. If the court finds that the division should
have issued a citation and orders the division to issue a citation,
then the aggrieved employee may not commence a civil action pursuant
to Section 2699.
   (iii) A complaint in superior court alleging a violation of
Division 5 (commencing with Section 6300) other than those listed in
Section 2699.5 shall include therewith a copy of the notice of
violation provided to the division and employer pursuant to paragraph
(1).
   (iv) The superior court shall not dismiss the action for
nonmaterial differences in facts or theories between those contained
in the notice of violation provided to the division and employer
pursuant to paragraph (1) and the complaint filed with the court.
   (B) If the division fails to inspect or investigate the alleged
violation as provided by Section 6309, the provisions of subdivision
(c) shall apply to the determination of the alleged violation.
   (3) (A) Nothing in this subdivision shall be construed to alter
the authority of the division to permit long-term abatement periods
or to enter into memoranda of understanding or joint agreements with
employers in the case of long-term abatement issues.
   (B) Nothing in this subdivision shall be construed to authorize an
employee to file a notice or to commence a civil action pursuant to
Section 2699 during the period that an employer has voluntarily
entered into consultation with the division to ameliorate a condition
in that particular worksite.
   (C) An employer who has been provided notice pursuant to this
section may not then enter into consultation with the division in
order to avoid an action under this section.
   (4) The superior court shall review and approve any proposed
settlement of alleged violations of the provisions of Division 5
(commencing with Section 6300) to ensure that the settlement
provisions are at least as effective as the protections or remedies
provided by state and federal law or regulation for the alleged
violation. The provisions of the settlement relating to health and
safety laws shall be submitted to the division  not fewer
than 20 calendar days prior to being   at the same time
that they are  submitted to the court. This requirement shall be
construed to authorize and permit the division to comment on those
settlement provisions, and the court shall grant the division's
commentary the appropriate weight.
   (c) A civil action by an aggrieved employee pursuant to
subdivision (a) or (f) of Section 2699 alleging a violation of any
provision other than those listed in Section 2699.5 or Division 5
(commencing with Section 6300) shall commence only after the
following requirements have been met:
   (1) The aggrieved employee or representative shall give written
notice by certified mail to the Labor and Workforce Development
Agency and the employer of the specific provisions of this code
alleged to have been violated, including the facts and theories to
support the alleged violation.
   (2) (A) The employer may cure the alleged violation within 33
calendar days of the postmark date of the notice. The employer shall
give written notice by certified mail within that period of time to
the aggrieved employee or representative and the agency if the
alleged violation is cured, including a description of actions taken,
and no civil action pursuant to Section 2699 may commence. If the
alleged violation is not cured within the 33-day period, the employee
may commence a civil action pursuant to Section 2699.
   (B) No employer may avail himself or herself of the notice and
cure provisions of this subdivision more than three times in a
12-month period for the same violation or violations contained in the
notice, regardless of the location of the worksite.
   (3) If the aggrieved employee disputes that the alleged violation
has been cured, the aggrieved employee or representative shall
provide written notice by certified mail, including specified grounds
to support that dispute, to the employer and the agency. Within 17
calendar days of the postmark date of that notice, the agency shall
review the actions taken by the employer to cure the alleged
violation, and provide written notice of its decision by certified
mail to the aggrieved employee and the employer. The agency may grant
the employer three additional business days to cure the alleged
violation. If the agency determines that the alleged violation has
not been cured or if the agency fails to provide timely or any
notification, the employee may proceed with the civil action pursuant
to Section 2699. If the agency determines that the alleged violation
has been cured, but the employee still disagrees, the employee may
appeal that determination to the superior court.
   (d) The periods specified in this section are not counted as part
of the time limited for the commencement of the civil action to
recover penalties under this part.
  SEC. 3.  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.