BILL NUMBER: AB 2535 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 15, 2016
INTRODUCED BY Assembly Member Ridley-Thomas
FEBRUARY 19, 2016
An act to amend Section 226 of the Labor Code, relating to wages.
LEGISLATIVE COUNSEL'S DIGEST
AB 2535, as amended, Ridley-Thomas. Employment: wages: itemized
statements.
Existing law requires an employer to provide his or her employee
an accurate itemized statement in writing
containing specified information, either semimonthly or at the time
the employer pays the employee his or her wages. That specified
information includes showing total hours worked by the employee,
unless the employee's compensation is solely based on a salary and
the employee is exempt from payment of overtime under a specified
statute or any applicable order of the Industrial Welfare Commission.
This bill would make nonsubstantive changes to that
requirement. additionally exempt from that requirement
for information on total work hours an employee exempt from payment
of minimum wage and overtime whose compensation is not based in whole
or in part on hours worked.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 226 of the Labor Code is amended to read:
226. (a) An employer, semimonthly or at the time of each payment
of wages, shall furnish to his or her employee, either as a
detachable part of the check, draft, or voucher paying the employee's
wages, or separately if wages are paid by personal check or cash, an
accurate itemized statement in writing showing (1) gross wages
earned, (2) total hours worked by the employee, unless the
employee is exempt from payment of minimum wage and overtime and the
employee's compensation is not based in whole or in part on hours
worked or the employee's compensation is solely based on a
salary and the employee is exempt from payment of overtime under
subdivision (a) of Section 515 or any applicable order of the
Industrial Welfare Commission, (3) the number of piece-rate units
earned and any applicable piece rate if the employee is paid on a
piece-rate basis, (4) all deductions, provided that all deductions
made on written orders of the employee may be aggregated and shown as
one item, (5) net wages earned, (6) the inclusive dates of the
period for which the employee is paid, (7) the name of the employee
and only the last four digits of his or her social security number or
an employee identification number other than a social security
number, (8) the name and address of the legal entity that is the
employer and, if the employer is a farm labor contractor, as defined
in subdivision (b) of Section 1682, the name and address of the legal
entity that secured the services of the employer, and (9) all
applicable hourly rates in effect during the pay period and the
corresponding number of hours worked at each hourly rate by the
employee and, beginning July 1, 2013, if the employer is a temporary
services employer as defined in Section 201.3, the rate of pay and
the total hours worked for each temporary services assignment. The
deductions made from payment of wages shall be recorded in ink or
other indelible form, properly dated, showing the month, day, and
year, and a copy of the statement and the record of the deductions
shall be kept on file by the employer for at least three years at the
place of employment or at a central location within the State of
California. For purposes of this subdivision, "copy" includes a
duplicate of the itemized statement provided to an employee or a
computer-generated record that accurately shows all of the
information required by this subdivision.
(b) An employer that is required by this code or any regulation
adopted pursuant to this code to keep the information required by
subdivision (a) shall afford current and former employees the right
to inspect or copy records pertaining to their employment, upon
reasonable request to the employer. The employer may take reasonable
steps to ensure the identity of a current or former employee. If the
employer provides copies of the records, the actual cost of
reproduction may be charged to the current or former employee.
(c) An employer who receives a written or oral request to inspect
or copy records pursuant to subdivision (b) pertaining to a current
or former employee shall comply with the request as soon as
practicable, but no later than 21 calendar days from the date of the
request. A violation of this subdivision is an infraction.
Impossibility of performance, not caused by or a result of a
violation of law, shall be an affirmative defense for an employer in
any action alleging a violation of this subdivision. An employer may
designate the person to whom a request under this subdivision will be
made.
(d) This section does not apply to any employer of any person
employed by the owner or occupant of a residential dwelling whose
duties are incidental to the ownership, maintenance, or use of the
dwelling, including the care and supervision of children, or whose
duties are personal and not in the course of the trade, business,
profession, or occupation of the owner or occupant.
(e) (1) An employee suffering injury as a result of a knowing and
intentional failure by an employer to comply with subdivision (a) is
entitled to recover the greater of all actual damages or fifty
dollars ($50) for the initial pay period in which a violation occurs
and one hundred dollars ($100) per employee for each violation in a
subsequent pay period, not to exceed an aggregate penalty of four
thousand dollars ($4,000), and is entitled to an award of costs and
reasonable attorney's fees.
(2) (A) An employee is deemed to suffer injury for purposes of
this subdivision if the employer fails to provide a wage statement.
(B) An employee is deemed to suffer injury for purposes of this
subdivision if the employer fails to provide accurate and complete
information as required by any one or more of items (1) to (9),
inclusive, of subdivision (a) and the employee cannot promptly and
easily determine from the wage statement alone one or more of the
following:
(i) The amount of the gross wages or net wages paid to the
employee during the pay period or any of the other information
required to be provided on the itemized wage statement pursuant to
items (2) to (4), inclusive, (6), and (9) of subdivision (a).
(ii) Which deductions the employer made from gross wages to
determine the net wages paid to the employee during the pay period.
Nothing in this subdivision alters the ability of the employer to
aggregate deductions consistent with the requirements of item (4) of
subdivision (a).
(iii) The name and address of the employer and, if the employer is
a farm labor contractor, as defined in subdivision (b) of Section
1682, the name and address of the legal entity that secured the
services of the employer during the pay period.
(iv) The name of the employee and only the last four digits of his
or her social security number or an employee identification number
other than a social security number.
(C) For purposes of this paragraph, "promptly and easily determine"
means a reasonable person would be able to readily ascertain the
information without reference to other documents or information.
(3) For purposes of this subdivision, a "knowing and intentional
failure" does not include an isolated and unintentional payroll error
due to a clerical or inadvertent mistake. In reviewing for
compliance with this section, the factfinder may consider as a
relevant factor whether the employer, prior to an alleged violation,
has adopted and is in compliance with a set of policies, procedures,
and practices that fully comply with this section.
(f) A failure by an employer to permit a current or former
employee to inspect or copy records within the time set forth in
subdivision (c) entitles the current or former employee or the Labor
Commissioner to recover a seven-hundred-fifty-dollar ($750) penalty
from the employer.
(g) The listing by an employer of the name and address of the
legal entity that secured the services of the employer in the
itemized statement required by subdivision (a) shall not create any
liability on the part of that legal entity.
(h) An employee may also bring an action for injunctive relief to
ensure compliance with this section, and is entitled to an award of
costs and reasonable attorney's fees.
(i) This section does not apply to the state, to any city, county,
city and county, district, or to any other governmental entity,
except that if the state or a city, county, city and county,
district, or other governmental entity furnishes its employees with a
check, draft, or voucher paying the employee's wages, the state or a
city, county, city and county, district, or other governmental
entity shall use no more than the last four digits of the employee's
social security number or shall use an employee identification number
other than the social security number on the itemized statement
provided with the check, draft, or voucher.