Amended in Assembly January 6, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 693

Introduced by Assembly Member Roger Hernández

February 21, 2013

begin delete An act to amend Section 2810 of the Labor Code, relating to employment. end delete begin insert An act to amend Section 51.9 of the Civil Code, relating to employment. end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 693, as amended, Roger Hernández. begin delete Employment. end delete begin insert Sexual harassment: interns. end insert

begin insert

Existing law provides that a person can be liable for sexual harassment in specified business, service, or professional relationships between a plaintiff and a defendant.

end insert begin insert

This bill would provide that a person acting in a supervisory capacity relative to an intern, as defined, can be liable for sexual harassment of an intern.

end insert begin delete

Existing law prohibits a person or entity from entering into a contract or agreement for labor or services with specified types of contractors, including warehouse contractors, if the person or entity knows or should know that the contract or agreement does not include funds sufficient to allow the contractor to comply with all applicable local, state, and federal laws or regulations governing the labor or services to be provided.

end delete begin delete

This bill would make nonsubstantive changes to these provisions.

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Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

end insert

begin insert Section 51.9 of the end insert begin insert Civil Code end insert begin insert is amended to read: end insert

51.9.  

(a) A person is liable in a cause of action for sexual
harassment under this section when the plaintiff proves all of the
following elements:

(1) There is a business, service, or professional relationship
between the plaintiff and defendant. Such a relationship may exist
between a plaintiff and a person, including, but not limited to, any
of the following persons:

(A) Physician, psychotherapist, or dentist. For purposes of this
section, “psychotherapist” has the same meaning as set forth in
paragraph (1) of subdivision (c) of Section 728 of the Business
and Professions Code.

(B) Attorney, holder of a master’s degree in social work, real
estate agent, real estate appraiser, accountant, banker, trust officer,
financial planner loan officer, collection service, building
contractor, or escrow loan officer.

(C) Executor, trustee, or administrator.

(D) Landlord or property manager.

(E) Teacher.

begin insert

(F) A person acting in a supervisory capacity relative to an
intern.

end insert begin delete

(F)

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begin insert (G) end insert  A relationship that is substantially similar to any of the
above.

(2) The defendant has made sexual advances, solicitations,
sexual requests, demands for sexual compliance by the plaintiff,
or engaged in other verbal, visual, or physical conduct of a sexual
nature or of a hostile nature based on gender, that were unwelcome
and pervasive or severe.

(3) There is an inability by the plaintiff to easily terminate the
relationship.

(4) The plaintiff has suffered or will suffer economic loss or
disadvantage or personal injury, including, but not limited to,
emotional distress or the violation of a statutory or constitutional
right, as a result of the conduct described in paragraph (2).

(b) In an action pursuant to this section, damages shall be
awarded as provided by subdivision (b) of Section 52.

(c) Nothing in this section shall be construed to limit application
of any other remedies or rights provided under the law.

(d) The definition of sexual harassment and the standards for
determining liability set forth in this section shall be limited to
determining liability only with regard to a cause of action brought
under this section.

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(e) For the purpose of this section, “intern” means a person
who performs work for an employer that, even though it includes
actual operation of the facilities of the employer, is similar to
training that would be given in an educational environment, is for
the benefit of the intern, and does not displace regular employees
and who is not necessarily entitled to a job at the conclusion of
the internship. “Intern” may include, but is not limited to, a paid
intern, unpaid intern, or extern.

end insert

begin delete

SECTION 1.  

Section 2810 of the Labor Code is amended to
read:

2810.  

(a) A person or entity shall not enter into a contract or
agreement for labor or services with a construction, farm labor,
garment, janitorial, security guard, or warehouse contractor, if the
person or entity knows or should know that the contract or
agreement does not include funds sufficient to allow the contractor
to comply with all applicable local, state, and federal laws or
regulations governing the labor or services to be provided.

(b) There is a rebuttable presumption affecting the burden of
proof that there has been no violation of subdivision (a) if the
contract or agreement with a construction, farm labor, garment,
janitorial, security guard, or warehouse contractor meets all of the
requirements in subdivision (d).

(c) Subdivision (a) does not apply to a person or entity who
executes a collective bargaining agreement covering the workers
employed under the contract or agreement, or to a person who
enters into a contract or agreement for labor or services to be
performed on his or her home residences, provided that a family
member resides in the residence or residences for which the labor
or services are to be performed for at least a part of the year.

(d) To meet the requirements of subdivision (b), a contract or
agreement with a construction, farm labor, garment, janitorial,
security guard, or warehouse contractor for labor or services shall
be in writing, in a single document, and contain all of the following
provisions, in addition to any other provisions that may be required
by regulations adopted by the Labor Commissioner from time to
time:

(1) The name, address, and telephone number of the person or
entity and the construction, farm labor, garment, janitorial, security
guard, or warehouse contractor through whom the labor or services
are to be provided.

(2) A description of the labor or services to be provided and a
statement of when those services are to be commenced and
completed.

(3) The employer identification number for state tax purposes
of the construction, farm labor, garment, janitorial, security guard,
or warehouse contractor.

(4) The workers’ compensation insurance policy number and
the name, address, and telephone number of the insurance carrier
of the construction, farm labor, garment, janitorial, security guard,
or warehouse contractor.

(5) The vehicle identification number of any vehicle that is
owned by the construction, farm labor, garment, janitorial, security
guard, or warehouse contractor and used for transportation in
connection with any service provided pursuant to the contract or
agreement, the number of the vehicle liability insurance policy
that covers the vehicle, and the name, address, and telephone
number of the insurance carrier.

(6) The address of any real property to be used to house workers
in connection with the contract or agreement.

(7) The total number of workers to be employed under the
contract or agreement, the total amount of all wages to be paid,
and the date or dates when those wages are to be paid.

(8) The amount of the commission or other payment made to
the construction, farm labor, garment, janitorial, security guard,
or warehouse contractor for services under the contract or
agreement.

(9) The total number of persons who will be utilized under the
contract or agreement as independent contractors, along with a list
of the current local, state, and federal contractor license
identification numbers that the independent contractors are required
to have under local, state, or federal laws or regulations.

(10) The signatures of all parties, and the date the contract or
agreement was signed.

(e) (1) To qualify for the rebuttable presumption set forth in
subdivision (b), a material change to the terms and conditions of
a contract or agreement between a person or entity and a
construction, farm labor, garment, janitorial, security guard, or
warehouse contractor must be in writing, in a single document,
and contain all of the provisions listed in subdivision (d) that are
affected by the change.

(2) If a provision required to be contained in a contract or
agreement pursuant to paragraph (7) or (9) of subdivision (d) is
unknown at the time the contract or agreement is executed, the
best estimate available at that time is sufficient to satisfy the
requirements of subdivision (d). If an estimate is used in place of
actual figures in accordance with this paragraph, the parties to the
contract or agreement have a continuing duty to ascertain the
information required pursuant to paragraph (7) or (9) of subdivision
(d) and to reduce that information to writing in accordance with
the requirements of paragraph (1) once that information becomes
known.

(f) A person or entity who enters into a contract or agreement
referred to in subdivisions (d) or (e) shall keep a copy of the written
contract or agreement for a period of not less than four years
following the termination of the contract or agreement. Upon the
request of the Labor Commissioner, any person or entity who
enters into the contract or agreement shall provide to the Labor
Commissioner a copy of the provisions of the contract or
agreement, and any other documentation, related to paragraphs
(1) to (10), inclusive, of subdivision (d). Documents obtained
pursuant to this section are exempt from disclosure under the
California Public Records Act (Chapter 3.5 (commencing with
Section 6250) of Division 7 of Title 1 of the Government Code).

(g) (1) An employee aggrieved by a violation of subdivision
(a) may file an action for damages to recover the greater of all of
his or her actual damages or two hundred fifty dollars ($250) per
employee per violation for an initial violation and one thousand
dollars ($1,000) per employee for each subsequent violation, and,
upon prevailing in an action brought pursuant to this section, may
recover costs and reasonable attorney’s fees. An action under this
section shall not be maintained unless it is pleaded and proved that
an employee was injured as a result of a violation of a labor law
or regulation in connection with the performance of the contract
or agreement.

(2) An employee aggrieved by a violation of subdivision (a)
may also bring an action for injunctive relief and, upon prevailing,
may recover costs and reasonable attorney’s fees.

(h) The phrase “construction, farm labor, garment, janitorial,
security guard, or warehouse contractor” includes any person, as
defined in this code, whether or not licensed, who is acting in the
capacity of a construction, farm labor, garment, janitorial, security
guard, or warehouse contractor.

(i) (1) The term “knows” includes the knowledge, arising from
familiarity with the normal facts and circumstances of the business
activity engaged in, that the contract or agreement does not include
funds sufficient to allow the contractor to comply with applicable
laws.

(2) The phrase “should know” includes the knowledge of any
additional facts or information that would make a reasonably
prudent person undertake to inquire whether, taken together, the
contract or agreement contains sufficient funds to allow the
contractor to comply with applicable laws.

(3) A failure by a person or entity to request or obtain any
information from the contractor that is required by an applicable
statute or by the contract or agreement between them, constitutes
knowledge of that information for purposes of this section.

(j) For the purposes of this section, “warehouse” means a facility
the primary operation of which is the storage or distribution of
general merchandise, refrigerated goods, or other products.

end delete