BILL NUMBER: AB 2437 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 31, 2016
INTRODUCED BY Assembly Member Ting
FEBRUARY 19, 2016
An act to amend Section 6330 of add
Sections 7401.1 and 7401.2 to the Business and Professions Code, and
to add Section 238.6 to, and to add Part 10.5 (commencing with
Section 2268) to Division 2 of, the Labor Code, relating to
employment. nail care establishments, and
making an appropriation therefor.
LEGISLATIVE COUNSEL'S DIGEST
AB 2437, as amended, Ting. Division of Occupational
Safety and Health: jurisdiction. Nail care
establishments: training: wage violations.
(1) The Barbering and Cosmetology Act provides for the licensure
and regulation of barbers, cosmetologists, estheticians, manicurists,
electrologists, and apprentices by the State Board of Barbering and
Cosmetology. The act requires the licensure of any person, firm, or
corporation operating an establishment engaged in a practice
regulated by the board, as specified, and requires a licensed
establishment to comply with various requirements. A violation of the
Barbering and Cosmetology Act is generally a misdemeanor.
Existing law prohibits an employer from continuing to conduct
business in this state, as specified, if a final judgment against
that employer arising from the employer's nonpayment of wages for
work performed in this state remains unsatisfied after a specified
period of time after the time to appeal has expired and no appeal is
pending, except as specified.
This bill would require the State Board of Barbering and
Cosmetology to deny the renewal of a license to an establishment that
provides nail care services if that establishment is conducting
business in violation of the above provision regarding final
judgments arising from an employer's nonpayment of wages for work
performed in this state, and would require the board to verify with
the Labor Commissioner that such an establishment is not conducting
business in violation of those provisions. The bill would also
require the Labor Commissioner to notify the board if such an
establishment is conducting business in violation of those
provisions. The bill would authorize such an establishment to provide
evidence to the board that it is not conducting business in
violation of those provisions.
(2) Existing law creates the Division of Labor Standards
Enforcement within the Department of Industrial Relations, and vests
the division with the general duty of enforcing labor laws, including
those relating to wage claims and employer retaliation.
This bill would require an establishment, which provides nail care
services and is required to be licensed as an establishment under
the Barbering and Cosmetology Act, to register with the division and
receive specified training regarding workplace rights and wage and
hour laws, including, but not limited to, overtime compensation, and
would also require the establishment to arrange for the training to
be provided to its employees. The bill would require the division to
provide that training to such an establishment and its employees. The
bill would authorize the division to contract with nonprofit vendors
to perform that training and would require the division to consider
certain factors when approving a nonprofit vendor, including that the
vendor has familiarity with the labor laws to be discussed during
the training. The bill would authorize the division to charge a fee
to each nail care establishment, not to exceed the reasonable
regulatory cost of providing the training, and would require that fee
to be deposited into the Nail Care Establishment Training Fund,
which would be created by this bill. The bill would continuously
appropriate the money in that fund solely for the purposes of
providing the required training. The bill would also define various
terms for these purposes.
Existing law permits the Occupational Safety and Health Standards
Board within the Department of Industrial Relations to adopt
occupational health and safety standards to protect the welfare of
employees. The Division of Occupational Safety and Health (division)
enforces occupational safety and health standards and orders. Certain
violations of these standards and orders are crimes. Existing law
also requires the division to report annually to the Legislature
specified matters, including providing recommendations for
legislation to improve the ability of the division to provide safety
in employment.
This bill would also require the division to include in its report
to the Legislature, recommendations to improve the ability of the
division to maximize health outcomes in places of employment.
Vote: majority. Appropriation: no yes
. Fiscal committee: yes. State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 7401.1 is added to the
Business and Professions Code , to read:
7401.1. (a) The board shall not renew the license of an
establishment that provides nail care services if it is conducting
business in violation of Section 238 of the Labor Code.
(b) Before renewing the license of an establishment that provides
nail care services as defined in Section 7316, the board shall verify
with the Labor Commissioner whether that establishment is conducting
business in violation of Section 238 of the Labor Code.
(c) An establishment that provides nail care services may
demonstrate to the board that is not conducting business in violation
of Section 238 of the Labor Code by providing evidence to the board.
SEC. 2. Section 7401.2 is added to the
Business and Professions Code , to read:
7401.2. The board shall not renew the establishment license of an
establishment that provides nail care services, as defined under
Section 7316, if the establishment and its employees have not
received the training required pursuant to Part 10.5 (commencing with
Section 2268) of the Labor Code.
SEC. 3. Section 238.6 is added to the
Labor Code , to read:
238.6. (a) If an employer is an establishment that offers nail
care services and is required to obtain a license from the State
Board of Barbering and Cosmetology pursuant to Chapter 10 (commencing
with Section 7301) of Division 3 of the Business and Professions
Code is found to be conducting business in violation of Section 238,
the Labor Commissioner shall notify the State Board of Barbering and
Cosmetology that the establishment is conducting business in
violation of Section 238.
(b) For the purposes of this section, "nail care services" means
the practice of cutting, trimming, polishing, coloring, tinting,
cleansing, manicuring, or pedicuring the nails of a person or
massaging, cleansing, or beautifying from the elbow to the fingertips
or the knee to the toes of a person.
SEC. 4. Part 10.5 (commencing with Section 2268)
is added to Division 2 of the Labor Code , to
read:
PART 10.5. Nail Care Establishments
2268. For the purposes of this part, the following terms shall
have the following meanings:
(a) "Division" means the Division of Labor Standards Enforcement.
(b) "Establishment" means an establishment licensed under Chapter
10 (commencing with Section 7301) of Division 3 of the Business and
Professions Code that offers nail care services.
(c) "License" means a license issued to an establishment under
Chapter 10 (commencing with Section 7301) of Division 3 of the
Business and Professions Code.
(d) "Licensee" means an employee of an establishment who is
licensed under Chapter 10 (commencing with Section 7301) of Division
3 of the Business and Professions Code to perform nail care services.
(e) "Nail care" means the practice of cutting, trimming,
polishing, coloring, tinting, cleansing, manicuring, or pedicuring
the nails of a person or massaging, cleansing, or beautifying from
the elbow to the fingertips or the knee to the toes of a person.
2268.1. (a) An establishment shall register with the division
pursuant to this part and receive the training required by this part
once every license renewal period. An establishment shall also
arrange for licensees employed at that establishment to receive the
required training from either the division under subdivision (b) or
from a nonprofit vendor under subdivision (c).
(b) (1) By June 1, 2017, the division shall provide training to an
establishment and licensees employed at that establishment regarding
laws pertaining to workplace rights and wage and hour laws.
(2) The training shall include, but not be limited to:
(A) Misclassification of an employee as a contractor.
(B) Wage and hour laws, such as minimum wage, overtime
compensation, meal periods, and rest breaks.
(C) Protection for retaliation.
(D) Business expense reimbursement.
(E) Tip or gratuity distribution.
(F) How to report violations of the law.
(3) To the extent possible, the training shall be provided
separately to an establishment and licensees.
(4) The training shall be provided in a culturally competent and
linguistically appropriate manner for the demographic groups that
work in the nail care industry.
(c) (1) In lieu of providing training under subdivision (b), the
division may contract with an approved nonprofit vendor to provide
the training required by this section.
(2) The division shall consider all of the following when
approving a nonprofit vendor to provide the training required by this
section:
(A) The linguistic capabilities of the nonprofit vendor. The
nonprofit vendor shall have language capacity to conduct the training
in the languages of the demographic groups that work in the nail
care industry, including, but not limited to, Vietnamese.
(B) The nonprofit vendor shall have a demonstrated history of
providing culturally competent services to the demographic groups
that work in the nail care industry, including, but not limited to,
the Vietnamese community.
(C) The nonprofit vendor shall have familiarity with the laws to
be discussed in the training. The vendor may obtain this legal
expertise through other service providers, such as a nonprofit legal
service agency.
(D) Any other criteria deemed appropriate by the division.
(3) The nonprofit vendor shall not charge a fee to the attendees
of the training.
2268.2. (a) The division shall charge a fee to an establishment,
not to exceed the reasonable regulatory cost, for providing the
training under this part or for contracting out with an approved
nonprofit vendor to provide the training required under this part.
(b) The fee shall be deposited into the Nail Care Establishment
Training Fund, which is hereby created. The fee shall only be used
for the purposes of providing the training required pursuant to this
part and, notwithstanding Section 13340 of the Government Code, is
continuously appropriated without regard to fiscal year solely for
these purposes.
SECTION 1. Section 6330 of the Labor Code is
amended to read:
6330. The director shall prepare and submit to the Legislature,
not later than March 1, an annual report on the division activities.
The report shall include, but need not be limited to, the following
information for the previous calendar year:
(a) The amount of funds allocated and spent in enforcement,
education and research, and administration by the division.
(b) Total inspections made, and citations issued by the division.
(c) The number of civil penalties assessed, total amount of fines
collected and the number of appeals heard.
(d) The number of contractors referred to the Contractor's State
License Board for hearing, pursuant to Section 7109.5 of the Business
and Professions Code, and the total number of these cases resulting
in suspension or revocation of a license.
(e) The report from the division prepared by the Bureau of
Investigations for submission to the director pursuant to Section
6315.3.
(f) Recommendations for legislation which improves the ability of
the division to provide safety and maximize health outcomes in places
of employment.
The report shall be made to the Speaker of the Assembly and the
Chairman of the Rules Committee of the Senate, for assignment to the
appropriate committee or committees for evaluation.