BILL ANALYSIS �
Senate Committee on Labor and Industrial Relations
Ted W. Lieu, Chair
Date of Hearing: April 25, 2012 20011-2012 Regular
Session
Consultant: Alma Perez Fiscal:Yes
Urgency: No
Bill No: SB 1333
Author: Blakeslee
As Introduced/Amended: February 24, 2012
SUBJECT
Employment: labor standards: consultation unit
KEY ISSUE
Should the Legislature require the agency overseeing labor law
enforcement in the state to provide one-on-one consultation
services to employers or employees who wish to verify their
compliance with labor law requirements?
PURPOSE
To create a unit within the Division of Labor Standards
Enforcement to offer consultation services to employers and
employees on wage and hour laws.
ANALYSIS
Existing law establishes the Division of Labor Standards
Enforcement (DLSE), within the Department of Industrial
Relations (DIR), for the enforcement of labor laws. The Labor
Commissioner is appointed by the Governor to serve as Chief of
DLSE.
Under existing law , the mission of the DLSE is to vigorously
enforce minimum labor standards in order to ensure employees are
not required or permitted to work under substandard unlawful
conditions, and to protect employers who comply with the law
from those who attempt to gain competitive advantage at the
expense of their workers by failing to comply with minimum labor
standards. (Labor Code �90.5) In order to ensure that minimum
labor standards are adequately enforced, the Labor Commissioner
establishes and maintains, among others, units on field
enforcement, wage claim adjudication, retaliation and public
works.
This Bill would establish the Labor Standards Consultation Unit,
within the DLSE, to provide consultation services to an employer
or employee regarding compliance with wage and hour laws under
the jurisdiction of the division.
Specifically, the bill would:
� Require the Labor Standards Consultation Unit to provide
information, advice or recommendations on complying with
wage and hour laws to employers with 100 or fewer
employees;
� Prohibit the division from citing an employer for a
violation of any standard, order, or regulation discovered
as a result of an employer requesting or accepting services
from the consultation unit if, 1) the employer takes
corrective action and remedies the violation within an
unspecified number of days, and 2) the employer is not the
subject of an ongoing investigation by the division for a
wage and hour violation.
� For the purpose of funding the services, authorize the
consultation unit to:
o Charge the requester a fee for consulting
services provided, not to exceed the actual cost to
the unit.
o Fund its operation through grants obtained
from for-profit or not-for-profit nongovernmental and
governmental entities.
� State the Legislative intent that the consultation unit
ultimately be self-supporting through grants, donations and
Hearing Date: April 25, 2012 SB 1333
Consultant: Alma Perez Page 2
Senate Committee on Labor and Industrial Relations
fees.
COMMENTS
1. Background on the Division of Labor Standards Enforcement:
The Division of Labor Standards Enforcement is charged with
the responsibility of enforcing minimum labor standards in
order to protect employees from working under substandard
unlawful conditions, and to protect employers who comply with
the law from those who don't. Through its website, telephone
assistance -- including a minimum wage hotline, and its 21
district offices, the DLSE has attempted to provide the public
with quick and easy access to information on California labor
law.
To ensure compliance with labor law requirements, the DLSE has
also established the following units:
Wage Claim Adjudication Unit
This unit adjudicates wage claims on behalf of workers who
file claims for nonpayment of wages, overtime, or vacation pay
pursuant to Labor Code. Deputies hold informal conferences
between employers and employees to resolve wage disputes.
Retaliation Unit
This unit investigates complaints alleging discriminatory
retaliation in the workplace.
Bureau of Field Enforcement (BOFE)
This unit is responsible for the investigation and enforcement
of statutes covering workers' compensation insurance coverage,
child labor, cash pay, unlicensed contractors, Industrial
Welfare Commission orders, as well as group claims involving
minimum wage and overtime claims.
Public Works Unit
The Compliance Monitoring Unit investigates and enforces
application of appropriate prevailing wage rates for public
works construction projects.
Hearing Date: April 25, 2012 SB 1333
Consultant: Alma Perez Page 3
Senate Committee on Labor and Industrial Relations
Licensing and Registration
This unit issues licenses to farm labor contractors, talent
agents, and employers, among others, and registers garment
manufacturers, certifies studio teachers, and approves
specified permits.
Legal
DLSE's attorneys present civil cases at both the trial and
appellate level. The majority of cases involve issues of
unpaid wages that have arisen as a result of an appeal taken
from an order, decision, or award of the Labor Commissioner.
DLSE attorneys also pursue cases involving violations of the
prevailing wage provisions of the public works laws.
2. Cal/OSHA's Consultation Services
Also within the Department of Industrial Relations, the
Division of Occupational Safety and Health (better known as
Cal/OSHA) is charged with the responsibility of enforcing the
occupational safety and health laws and regulations of the
state. Among the components of the Cal/OSHA program are
enforcement, standards board, appeals board, legal and
consultation services.
Under current law, the consultation services are required to
include, among other things, a program for providing employers
or employees with information, advice and recommendations on
maintaining safe places of employment and on applicable
occupational safety and health standards, techniques, devices,
methods, practices or programs.
The Cal/OSHA Consultation program offers a variety of services
that includes:
� Onsite Visits
� Offsite Consultation
� High Hazard Employer Program
� Providing Educational Materials and Research
� Partnership Programs
� Outreach Assistance
Through the program, an employer is able to have a division
Hearing Date: April 25, 2012 SB 1333
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Senate Committee on Labor and Industrial Relations
consultant review the employment site and help identify and
analyze hazards, recommend best practice solutions, help with
the employers' safety program, and provide training
assistance. Consultation services are provided on a voluntary
basis and are free of charge. On-site consultation visits do
not result in citations or penalties, however, in return for
receiving the free onsite assistance, the employer must agree
to timely correction of hazards identified that could lead to
injuries or death of an employee. All communication between
the employer and the Consultation Service are held in
confidence and not shared with Cal/OSHA enforcement staff.
3. Need for this bill?
According to the DIR, providing effective education and
training is one of the most important aspects of creating a
safe and healthful work environment. For this purpose, the
DIR provides various resources and avenues to obtain
information on labor law requirements in the state. In
addition to providing resources online, the DLSE also offers
telephone assistance in the form of both pre-recorded messages
and live help through its 21 district offices.
Although DIR provides these sources of information, some
stakeholders believe that there continues to be confusion on
the various requirements in law. In recognizing the
importance of education and training, and in an effort to
assist employers better understand occupational safety and
health laws, the DIR established the Cal/OSHA Consultation
Service program to provide direct consulting services to the
employer designed to help reduce and eliminate workplace
injuries. In a comparable effort, this bill would provide
employers and employees with another avenue of information to
help them better understand wage and hour laws. Like the
Cal/OSHA Consultation Services, an employer who voluntarily
requests review through the Labor Standards Consultation Unit
would be given an opportunity to correct the violation without
a citation.
4. Staff Comments and Suggested Amendments
The Cal/OSHA Consultation Services are offered free of charge
Hearing Date: April 25, 2012 SB 1333
Consultant: Alma Perez Page 5
Senate Committee on Labor and Industrial Relations
to employers and their employees to help comply with the
workplace safety and health laws of the state. This bill would
allow the Labor Standards Consultation Unit to provide these
consultation services to both employers and employees for a
fee - not to exceed the actual cost to the unit. Committee
staff is concerned about the cost limitations that an
individual employee seeking consult may encounter and
therefore proposes the amendments below to specify that the
fee apply to an employee group seeking consult rather than an
individual employee. Furthermore, the bill would state the
legislative intent that the unit ultimately be self-supporting
through grants (from for-profit and not-for-profit
nongovernmental and governmental entities), donations and
fees. Staff would like to note concern with this type of
funding mechanism for a state agency program. Additionally,
staff recommends that the author specify the number of days
within which an employer would have to take corrective action
to remedy violations found during the consultation.
Staff recommends the author consider the following amendments
to address these concerns:
108. (a) There is established in the Division of Labor
Standards Enforcement, the Labor Standards Consultation
Unit to provide, upon request, a full range of consulting
services to an employer or employee group. Those consulting
services shall include providing information, advice, or
recommendations on complying with wage and hour laws under
the jurisdiction of the division. The division shall
develop procedures for offering the consultation services
to employers and employee groups that include training
efforts, educational materials and online resources.
(b) (1) The unit may charge the requester requesting
employer or employee group a fee for consulting services
provided pursuant to this section, not to exceed the actual
cost to the unit.
(2) The unit may fund its operation through grants obtained
from for-profit or not-for-profit nongovernmental entities
and governmental entities and from fees charged for
consulting services, with the intent that this unit
ultimately be self-supporting through grants, donations,
Hearing Date: April 25, 2012 SB 1333
Consultant: Alma Perez Page 6
Senate Committee on Labor and Industrial Relations
and fees.
(c) (1) The division shall not cite an employer for a
violation of any standard, order, or regulation adopted
pursuant to this code if the violation is discovered as a
result of an employer requesting or accepting consulting
services offered pursuant to this section
and, within __30__ days of that discovery, the employer
takes corrective action that remedies the violation. The
corrective action must make whole the employee or employees
affected by the violation, if required under other
provisions of this code. The employer shall submit
documentation to the unit verifying compliance with any
discovered violation.
5. Proponent Arguments :
According to the author, small businesses are the economic
engine driving the California economy. Unfortunately, the
author argues, many of these employers have found themselves
struggling to comply with the high volume and complex nature
of complicated compliance standards. These small businesses do
not have the same resources at their disposal as many large
corporations and may be out of compliance with certain
regulations unconsciously, putting them in jeopardy of lawsuit
and labor code violation fines.
Proponents believe that this bill would provide employers with
a cost effective way to obtain expert answers to their
questions on how best to comply with California's employment
requirements. This bill would establish a fee-for service
consultation unit where employers could seek review in order
to be certain that their workplace is in compliance with state
labor laws, rules and regulations. According to proponents,
this bill would also, similar to the process used by the
Cal/OSHA consultation unit, prohibit the citation of employers
for violations during the consultation.
According to proponents, the bill would not cost money for the
taxpayers, as user fees and grants from outside organizations
would support it. Furthermore, proponents argue that the
program should actually save money for taxpayers by resolving
confusing or ambiguous situations in labor law. According to
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Senate Committee on Labor and Industrial Relations
the author, this bill provides a practical tool for businesses
seeking compliance with the law.
6. Opponent Arguments :
None received.
7. Prior Legislation :
AB 311 (Cook) of 2011: Never heard in policy committee
AB 311 is almost identical to the provisions proposed in this
bill. Last year, the bill proposed that the consultation
services be open to any employer or employee and not
specifically targeting small employers like this bill does by
defining an employer as one with 100 or fewer employees.
SUPPORT
Associated Builders and Contractors of California - Sponsor
California Association for Health Services at Home
National Federation of Independent Business
OPPOSITION
None received
Hearing Date: April 25, 2012 SB 1333
Consultant: Alma Perez Page 8
Senate Committee on Labor and Industrial Relations