BILL NUMBER: AB 2535 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 25, 2016
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 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. under specified
statutes or any applicable order of the Industrial Welfare
Commission.
Vote: majority. Appropriation: no. Fiscal committee: 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, except as provided in subdivision (j),
(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.
(j) An itemized wage statement furnished by an employer pursuant
to subdivision (a) shall not be required to show total hours worked
by the employee if any of the following apply:
(1) The employee's compensation is solely based on 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.
(2) The employee is exempt from the payment of minimum wage and
overtime under any of the following:
(A) The exemption for persons employed in an executive,
administrative, or professional capacity provided in any applicable
order of the Industrial Welfare Commission.
(B) The exemption for outside salespersons provided in any
applicable order of the Industrial Welfare Commission.
(C) The overtime exemption for computer software professionals
paid on a salaried basis provided in Section 515.5.
(D) The exemption for individuals who are the parent, spouse,
child, or legally adopted child of the employer provided in any
applicable order of the Industrial Welfare Commission.
(E) The exemption for participants, director, and staff of a
live-in alternative to incarceration rehabilitation program with
special focus on substance abusers provided in Section 8002 of the
Penal Code.
(F) The exemption for any crew member employed on a commercial
passenger fishing boat licensed pursuant to Article 5 (commencing
with Section 7920) of Chapter 1 of Part 3 of Division 6 of the Fish
and Game Code provided in any applicable order of the Industrial
Welfare Commission.
(G) The exemption for any individual participating in a national
service program provided in any applicable order of the Industrial
Welfare Commission.