Bill Text: CA AB240 | 2011-2012 | Regular Session | Chaptered
Bill Title: Compensation recovery actions: liquidated damages.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2011-09-07 - Chaptered by Secretary of State - Chapter 272, Statutes of 2011. [AB240 Detail]
Download: California-2011-AB240-Chaptered.html
BILL NUMBER: AB 240 CHAPTERED
BILL TEXT
CHAPTER 272
FILED WITH SECRETARY OF STATE SEPTEMBER 7, 2011
APPROVED BY GOVERNOR SEPTEMBER 7, 2011
PASSED THE SENATE AUGUST 18, 2011
PASSED THE ASSEMBLY AUGUST 22, 2011
AMENDED IN SENATE JULY 11, 2011
AMENDED IN SENATE JUNE 2, 2011
AMENDED IN ASSEMBLY MARCH 8, 2011
INTRODUCED BY Assembly Member Bonilla
FEBRUARY 3, 2011
An act to amend Sections 98 and 1194.2 of the Labor Code, relating
to employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 240, Bonilla. Compensation recovery actions: liquidated
damages.
Existing law authorizes the Labor Commissioner, who is the Chief
of the Division of Labor Standards Enforcement, to investigate
employee complaints and to provide for a hearing in any action to
recover wages, penalties, and other demands for compensation properly
before the commissioner or the division and to determine all matters
arising under his or her jurisdiction.
Existing law permits an employee to recover liquidated damages in
a court action alleging payment of less than the state minimum wage.
This bill would permit an employee to recover liquidated damages
pursuant to a complaint brought before the Labor Commissioner
alleging payment of less than the minimum wage fixed by an order of
the Industrial Welfare Commission or by statute.
This bill would incorporate additional changes in Section 98 of
the Labor Code proposed by AB 469, to be operative only if AB 469 and
this bill are both enacted and become effective on or before January
1, 2012, both bills amend Section 98, and this bill is enacted after
AB 469. The bill would also incorporate additional changes in
Section 1194.2 of the Labor Code proposed by AB 197, to be operative
only if AB 197 and this bill are both enacted and become effective on
or before January 1, 2012, both bills amend Section 1194.2, and this
bill is enacted after AB 197.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 98 of the Labor Code is amended to read:
98. (a) The Labor Commissioner is authorized to investigate
employee complaints. The Labor Commissioner may provide for a hearing
in any action to recover wages, penalties, and other demands for
compensation, including liquidated damages if the complaint alleges
payment of a wage less than the minimum wage fixed by an order of the
Industrial Welfare Commission or by statute, properly before the
division or the Labor Commissioner, including orders of the
Industrial Welfare Commission, and shall determine all matters
arising under his or her jurisdiction. It is within the jurisdiction
of the Labor Commissioner to accept and determine claims from holders
of payroll checks or payroll drafts returned unpaid because of
insufficient funds, if, after a diligent search, the holder is unable
to return the dishonored check or draft to the payee and recover the
sums paid out. Within 30 days of the filing of the complaint, the
Labor Commissioner shall notify the parties as to whether a hearing
will be held, whether action will be taken in accordance with Section
98.3, or whether no further action will be taken on the complaint.
If the determination is made by the Labor Commissioner to hold a
hearing, the hearing shall be held within 90 days of the date of that
determination. However, the Labor Commissioner may postpone or grant
additional time before setting a hearing if the Labor Commissioner
finds that it would lead to an equitable and just resolution of the
dispute.
It is the intent of the Legislature that hearings held pursuant to
this section be conducted in an informal setting preserving the
rights of the parties.
(b) When a hearing is set, a copy of the complaint, which shall
include the amount of compensation requested, together with a notice
of time and place of the hearing, shall be served on all parties,
personally or by certified mail, or in the manner specified in
Section 415.20 of the Code of Civil Procedure.
(c) Within 10 days after service of the notice and the complaint,
a defendant may file an answer with the Labor Commissioner in any
form as the Labor Commissioner may prescribe, setting forth the
particulars in which the complaint is inaccurate or incomplete and
the facts upon which the defendant intends to rely.
(d) No pleading other than the complaint and answer of the
defendant or defendants shall be required. Both shall be in writing
and shall conform to the form and the rules of practice and procedure
adopted by the Labor Commissioner.
(e) Evidence on matters not pleaded in the answer shall be allowed
only on terms and conditions the Labor Commissioner shall impose. In
all these cases, the claimant shall be entitled to a continuance for
purposes of review of the new evidence.
(f) If the defendant fails to appear or answer within the time
allowed under this chapter, no default shall be taken against him or
her, but the Labor Commissioner shall hear the evidence offered and
shall issue an order, decision, or award in accordance with the
evidence. A defendant failing to appear or answer, or subsequently
contending to be aggrieved in any manner by want of notice of the
pendency of the proceedings, may apply to the Labor Commissioner for
relief in accordance with Section 473 of the Code of Civil Procedure.
The Labor Commissioner may afford this relief. No right to relief,
including the claim that the findings or award of the Labor
Commissioner or judgment entered thereon are void upon their face,
shall accrue to the defendant in any court unless prior application
is made to the Labor Commissioner in accordance with this chapter.
(g) All hearings conducted pursuant to this chapter are governed
by the division and by the rules of practice and procedure adopted by
the Labor Commissioner.
(h) (1) Whenever a claim is filed under this chapter against a
person operating or doing business under a fictitious business name,
as defined in Section 17900 of the Business and Professions Code,
which relates to the person's business, the division shall inquire at
the time of the hearing whether the name of the person is the legal
name under which the business or person has been licensed,
registered, incorporated, or otherwise authorized to do business.
(2) The division may amend an order, decision, or award to conform
to the legal name of the business or the person who is the defendant
to a wage claim, if it can be shown that proper service was made on
the defendant or his or her agent, unless a judgment had been entered
on the order, decision, or award pursuant to subdivision (d) of
Section 98.2. The Labor Commissioner may apply to the clerk of the
superior court to amend a judgment that has been issued pursuant to a
final order, decision, or award to conform to the legal name of the
defendant, if it can be shown that proper service was made on the
defendant or his or her agent.
SEC. 1.5. Section 98 of the Labor Code is amended to read:
98. (a) The Labor Commissioner is authorized to investigate
employee complaints. The Labor Commissioner may provide for a hearing
in any action to recover wages, penalties, and other demands for
compensation, including liquidated damages if the complaint alleges
payment of a wage less than the minimum wage fixed by an order of the
Industrial Welfare Commission or by statute, properly before the
division or the Labor Commissioner, including orders of the
Industrial Welfare Commission, and shall determine all matters
arising under his or her jurisdiction. It is within the jurisdiction
of the Labor Commissioner to accept and determine claims from holders
of payroll checks or payroll drafts returned unpaid because of
insufficient funds, if, after a diligent search, the holder is unable
to return the dishonored check or draft to the payee and recover the
sums paid out. Within 30 days of the filing of the complaint, the
Labor Commissioner shall notify the parties as to whether a hearing
will be held, whether action will be taken in accordance with Section
98.3, or whether no further action will be taken on the complaint.
If the determination is made by the Labor Commissioner to hold a
hearing, the hearing shall be held within 90 days of the date of that
determination. However, the Labor Commissioner may postpone or grant
additional time before setting a hearing if the Labor Commissioner
finds that it would lead to an equitable and just resolution of the
dispute. A party who has received actual notice of a claim before the
Labor Commissioner shall, while the matter is before the Labor
Commissioner, notify the Labor Commissioner in writing of any change
in that party's business or personal address within 10 days after the
change in address occurs.
It is the intent of the Legislature that hearings held pursuant to
this section be conducted in an informal setting preserving the
rights of the parties.
(b) When a hearing is set, a copy of the complaint, which shall
include the amount of compensation requested, together with a notice
of time and place of the hearing, shall be served on all parties,
personally or by certified mail, or in the manner specified in
Section 415.20 of the Code of Civil Procedure.
(c) Within 10 days after service of the notice and the complaint,
a defendant may file an answer with the Labor Commissioner in any
form as the Labor Commissioner may prescribe, setting forth the
particulars in which the complaint is inaccurate or incomplete and
the facts upon which the defendant intends to rely.
(d) No pleading other than the complaint and answer of the
defendant or defendants shall be required. Both shall be in writing
and shall conform to the form and the rules of practice and procedure
adopted by the Labor Commissioner.
(e) Evidence on matters not pleaded in the answer shall be allowed
only on terms and conditions the Labor Commissioner shall impose. In
all these cases, the claimant shall be entitled to a continuance for
purposes of review of the new evidence.
(f) If the defendant fails to appear or answer within the time
allowed under this chapter, no default shall be taken against him or
her, but the Labor Commissioner shall hear the evidence offered and
shall issue an order, decision, or award in accordance with the
evidence. A defendant failing to appear or answer, or subsequently
contending to be aggrieved in any manner by want of notice of the
pendency of the proceedings, may apply to the Labor Commissioner for
relief in accordance with Section 473 of the Code of Civil Procedure.
The Labor Commissioner may afford this relief. No right to relief,
including the claim that the findings or award of the Labor
Commissioner or judgment entered thereon are void upon their face,
shall accrue to the defendant in any court unless prior application
is made to the Labor Commissioner in accordance with this chapter.
(g) All hearings conducted pursuant to this chapter are governed
by the division and by the rules of practice and procedure adopted by
the Labor Commissioner.
(h) (1) Whenever a claim is filed under this chapter against a
person operating or doing business under a fictitious business name,
as defined in Section 17900 of the Business and Professions Code,
which relates to the person's business, the division shall inquire at
the time of the hearing whether the name of the person is the legal
name under which the business or person has been licensed,
registered, incorporated, or otherwise authorized to do business.
(2) The division may amend an order, decision, or award to conform
to the legal name of the business or the person who is the defendant
to a wage claim, if it can be shown that proper service was made on
the defendant or his or her agent, unless a judgment had been entered
on the order, decision, or award pursuant to subdivision (d) of
Section 98.2. The Labor Commissioner may apply to the clerk of the
superior court to amend a judgment that has been issued pursuant to a
final order, decision, or award to conform to the legal name of the
defendant, if it can be shown that proper service was made on the
defendant or his or her agent.
SEC. 2. Section 1194.2 of the Labor Code is amended to read:
1194.2. (a) In any action under Section 98, 1193.6, or 1194 to
recover wages because of the payment of a wage less than the minimum
wage fixed by an order of the commission or by statute, an employee
shall be entitled to recover liquidated damages in an amount equal to
the wages unlawfully unpaid and interest thereon. Nothing in this
subdivision shall be construed to authorize the recovery of
liquidated damages for failure to pay overtime compensation.
(b) Notwithstanding subdivision (a), if the employer demonstrates
to the satisfaction of the court or the Labor Commissioner that the
act or omission giving rise to the action was in good faith and that
the employer had reasonable grounds for believing that the act or
omission was not a violation of any provision of the Labor Code
relating to minimum wage, or an order of the commission, the court or
the Labor Commissioner may, as a matter of discretion, refuse to
award liquidated damages or award any amount of liquidated damages
not exceeding the amount specified in subdivision (a).
(c) This section applies only to civil actions commenced on or
after January 1, 1992.
SEC. 2.5. Section 1194.2 of the Labor Code is amended to read:
1194.2. (a) In any action under Section 98, 1193.6, or 1194 to
recover wages because of the payment of a wage less than the minimum
wage fixed by an order of the commission or by statute, an employee
shall be entitled to recover liquidated damages in an amount equal to
twice the wages unlawfully unpaid and interest thereon. Nothing in
this subdivision shall be construed to authorize the recovery of
liquidated damages for failure to pay overtime compensation.
(b) Notwithstanding subdivision (a), if the employer demonstrates
to the satisfaction of the court or the Labor Commissioner that the
act or omission giving rise to the action was in good faith and that
the employer had reasonable grounds for believing that the act or
omission was not a violation of any provision of the Labor Code
relating to minimum wage, or an order of the commission, the court or
the Labor Commissioner may, as a matter of discretion, refuse to
award liquidated damages or award any amount of liquidated damages
not exceeding the amount specified in subdivision (a).
(c) This section applies only to civil actions commenced on or
after January 1, 1992.
SEC. 3. (a) Section 1.5 of this bill incorporates amendments to
Section 98 of the Labor Code proposed by both this bill and AB 469.
It shall only become operative if (1) both bills are enacted and
become effective on or before January 1, 2012, (2) each bill amends
Section 98 of the Labor Code, and (3) this bill is enacted after AB
469, in which case Section 1 of this bill shall not become operative.
(b) Section 2.5 of this bill incorporates amendments to Section
1194.2 of the Labor Code proposed by both this bill and AB 197. It
shall only become operative if (1) both bills are enacted and become
effective on or before January 1, 2012, (2) each bill amends Section
1194.2 of the Labor Code, and (3) this bill is enacted after AB 197,
in which case Section 2 of this bill shall not become operative.
