Bill Text: CA AB2899 | 2015-2016 | Regular Session | Chaptered

California Assembly Bill 2899 (Prior Session Legislation)

Bill Title: Minimum wage violations: challenges.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2016-09-25 - Chaptered by Secretary of State - Chapter 622, Statutes of 2016. [AB2899 Detail]

Download: California-2015-AB2899-Chaptered.html

BILL NUMBER: AB 2899	CHAPTERED
	BILL TEXT

	CHAPTER  622
	FILED WITH SECRETARY OF STATE  SEPTEMBER 25, 2016
	APPROVED BY GOVERNOR  SEPTEMBER 25, 2016
	PASSED THE SENATE  AUGUST 24, 2016
	PASSED THE ASSEMBLY  MAY 23, 2016
	AMENDED IN ASSEMBLY  MAY 4, 2016
	AMENDED IN ASSEMBLY  APRIL 13, 2016
	AMENDED IN ASSEMBLY  MARCH 29, 2016

INTRODUCED BY   Assembly Member Roger Hern�ndez

                        MARCH 1, 2016

   An act to amend Section 1197.1 of the Labor Code, relating to
employment.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 2899, Roger Hern�ndez. Minimum wage violations: challenges.
    Under existing law, any employer or other person acting either
individually or as an officer, agent, or employee of another person,
who pays or causes to be paid to any employee a wage less than the
minimum fixed by applicable state or local law or an order of the
Industrial Welfare Commission, is subject to a civil penalty,
restitution of wages, liquidated damages payable to the employee, and
any applicable specified penalties, as provided. Existing law
provides notice and hearing requirements under which a person against
whom a citation has been issued can request a hearing to contest
proposed assessment of a civil penalty, wages, liquidated damages,
and any applicable penalties. Existing law further provides that
after a hearing with the Labor Commissioner, a person contesting a
citation may file a writ of mandate, within 45 days, with the
appropriate superior court.
   This bill would require a person seeking a writ of mandate
contesting the Labor Commissioner's ruling to post a bond with the
Labor Commissioner, as specified, in an amount equal to the unpaid
wages assessed under the citation, excluding penalties. The bill
would require that the bond be issued in favor of the unpaid
employees and ensure that the person seeking the writ makes
prescribed payments pursuant to the proceedings. The bill would
provide that the proceeds of the bond, sufficient to cover the amount
owed, would be forfeited to the employee if the employer fails to
pay the amounts owed within 10 days from the conclusion of the
proceedings, as specified.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 1197.1 of the Labor Code is amended to read:
   1197.1.  (a) Any employer or other person acting either
individually or as an officer, agent, or employee of another person,
who pays or causes to be paid to any employee a wage less than the
minimum fixed by an applicable state or local law, or by an order of
the commission shall be subject to a civil penalty, restitution of
wages, liquidated damages payable to the employee, and any applicable
penalties imposed pursuant to Section 203 as follows:
   (1) For any initial violation that is intentionally committed, one
hundred dollars ($100) for each underpaid employee for each pay
period for which the employee is underpaid. This amount shall be in
addition to an amount sufficient to recover underpaid wages,
liquidated damages pursuant to Section 1194.2, and any applicable
penalties imposed pursuant to Section 203.
   (2) For each subsequent violation for the same specific offense,
two hundred fifty dollars ($250) for each underpaid employee for each
pay period for which the employee is underpaid regardless of whether
the initial violation is intentionally committed. This amount shall
be in addition to an amount sufficient to recover underpaid wages,
liquidated damages pursuant to Section 1194.2, and any applicable
penalties imposed pursuant to Section 203.
   (3) Wages, liquidated damages, and any applicable penalties
imposed pursuant to Section 203, recovered pursuant to this section
shall be paid to the affected employee.
   (b) If, upon inspection or investigation, the Labor Commissioner
determines that a person has paid or caused to be paid a wage less
than the minimum under applicable law, the Labor Commissioner may
issue a citation to the person in violation. The citation may be
served personally or by registered mail in accordance with
subdivision (c) of Section 11505 of the Government Code. Each
citation shall be in writing and shall describe the nature of the
violation, including reference to the statutory provision alleged to
have been violated. The Labor Commissioner shall promptly take all
appropriate action, in accordance with this section, to enforce the
citation and to recover the civil penalty assessed, wages, liquidated
damages, and any applicable penalties imposed pursuant to Section
203 in connection with the citation.
   (c) (1) If a person desires to contest a citation or the proposed
assessment of a civil penalty, wages, liquidated damages, and any
applicable penalties imposed pursuant to Section 203 therefor, the
person shall, within 15 business days after service of the citation,
notify the office of the Labor Commissioner that appears on the
citation of his or her appeal by a request for an informal hearing.
The Labor Commissioner or his or her deputy or agent shall, within 30
days, hold a hearing at the conclusion of which the citation or
proposed assessment of a civil penalty, wages, liquidated damages,
and any applicable penalties imposed pursuant to Section 203 shall be
affirmed, modified, or dismissed.
   (2) The decision of the Labor Commissioner shall consist of a
notice of findings, findings, and an order, all of which shall be
served on all parties to the hearing within 15 days after the hearing
by regular first-class mail at the last known address of the party
on file with the Labor Commissioner. Service shall be completed
pursuant to Section 1013 of the Code of Civil Procedure. Any amount
found due by the Labor Commissioner as a result of a hearing shall
become due and payable 45 days after notice of the findings and
written findings and order have been mailed to the party assessed. A
writ of mandate may be taken from this finding to the appropriate
superior court. The party shall pay any judgment and costs ultimately
rendered by the court against the party for the assessment. The writ
shall be taken within 45 days of service of the notice of findings,
findings, and order thereon.
   (3) As a condition to filing a petition for a writ of mandate, the
petitioner seeking the writ shall first post a bond with the Labor
Commissioner equal to the total amount of any minimum wages,
liquidated damages, and overtime compensation that are due and owing
as determined pursuant to subdivision (b) of Section 558, as
specified in the citation being challenged. The bond amount shall not
include amounts for penalties. The bond shall be issued by a surety
duly authorized to do business in this state, shall be issued in
favor of unpaid employees, and shall ensure that the petitioner makes
payments as set forth in this paragraph. If a decision is entered
which affirms or modifies the amounts for minimum wages, liquidated
damages, or overtime compensation, the petitioner shall pay the
amounts owed for the specified items included in a clerk's judgment
entered under subdivision (f) based on the decision, or pursuant to a
court judgment in a writ of mandate proceeding under paragraph (2).
If the request for a writ is withdrawn or dismissed without entry of
judgment, the petitioner shall pay the amounts owed for the specified
items pursuant to the citation, or the administrative decision if a
pending writ of mandate is dismissed prior to a court decision,
unless the parties have executed a settlement agreement for payment
of some other amount. In the case of a settlement agreement, the
petitioner shall pay the amount he or she is obligated to pay under
the terms of the settlement.
   (4) If the employer fails to pay the amount of minimum wages,
liquidated damages, or overtime compensation owed within 10 days of
the entry of judgment, dismissal or withdrawal of writ, or the
execution of a settlement agreement, a portion of the undertaking,
described in paragraph (3), equal to the amount owed, or the entire
undertaking if the amount owed exceeds the undertaking, shall be
forfeited to the employee.
   (d) A person to whom a citation has been issued shall, in lieu of
contesting a citation pursuant to this section, transmit to the
office of the Labor Commissioner designated on the citation the
amount specified for the violation within 15 business days after
issuance of the citation.
   (e) When no petition objecting to a citation or the proposed
assessment of a civil penalty, wages, liquidated damages, and any
applicable penalties imposed pursuant to Section 203 is filed, a
certified copy of the citation or proposed civil penalty, wages,
liquidated damages, and any applicable penalties imposed pursuant to
Section 203 may be filed by the Labor Commissioner in the office of
the clerk of the superior court in any county in which the person
assessed has or had a place of business. The clerk, immediately upon
the filing, shall enter judgment for the state against the person
assessed in the amount shown on the citation or proposed assessment
of a civil penalty, wages, liquidated damages, and any applicable
penalties imposed pursuant to Section 203.
   (f) When findings and the order thereon are made affirming or
modifying a citation or proposed assessment of a civil penalty,
wages, liquidated damages, and any applicable penalties imposed
pursuant to Section 203 after hearing, a certified copy of these
findings and the order entered thereon may be entered by the Labor
Commissioner in the office of the clerk of the superior court in any
county in which the person assessed has property or in which the
person assessed has or had a place of business. The clerk,
immediately upon the filing, shall enter judgment for the state
against the person assessed in the amount shown on the certified
order.
   (g) A judgment entered pursuant to this section shall bear the
same rate of interest and shall have the same effect as other
judgments and be given the same preference allowed by the law on
other judgments rendered for claims for taxes. The clerk shall make
no charge for the service provided by this section to be performed by
him or her.
   (h) In a jurisdiction where a local entity has the legal authority
to issue a citation against an employer for a violation of any
applicable local minimum wage law, the Labor Commissioner, pursuant
to a request from the local entity, may issue a citation against an
employer for a violation of any applicable local minimum wage law if
the local entity has not cited the employer for the same violation.
If the Labor Commissioner issues a citation, the local entity shall
not cite the employer for the same violation.
   (i) The civil penalties provided for in this section are in
addition to any other penalty provided by law.
   (j) This section shall not apply to any order of the commission
relating to household occupations.
   (k) This section does not change the applicability of local
minimum wage laws to any entity.