Today's Law As Amended

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SB-229 Discrimination: complaints: administrative review. (2019-2020)



SECTION 1.

 Section 98.74 of the Labor Code is amended to read:

98.74.
 (a) If the Labor Commissioner determines, after an investigation of a retaliation or discrimination complaint filed in accordance with Section 98.7, that a violation has occurred and the Labor Commissioner proceeds with a citation, the Labor Commissioner shall issue, with reasonable promptness, a citation to the person who has been determined to be responsible for the violation. The citation shall be in writing, shall describe the nature of the violation and the amount of wages and penalties due, and shall include any and all appropriate relief. Appropriate relief includes directing the person cited to cease and desist from the violation and take any action necessary to remedy the violation, including, where appropriate, rehiring or reinstatement, reimbursement of lost wages and interest thereon, and posting notices to employees. Service of the citation shall be completed pursuant to Section 1013 of the Code of Civil Procedure by first-class and certified mail to the person cited. The citation shall advise the person cited of the procedure for obtaining review of the citation.
(b) (1)  A person issued a citation pursuant to this section may obtain review of the citation by transmitting a written request for an informal hearing  to the office of the Labor Commissioner at the address that appears on the citation within 30 days after service of the citation. If no hearing is requested within 30 days after service of the citation, the citation shall become final.
(2) The Labor Commissioner shall file, within 10 days of the citation becoming final pursuant to this section, a certified copy of the final citation with the clerk of the superior court in the county in which the person assessed has or had a place of business, accompanied by a declaration that all prerequisites for issuing a judgment have been met. Judgment in favor of the state and against the person being assessed shall be entered immediately by the court clerk in conformity therewith for the total monetary amount shown on the citation. The Labor Commissioner may also file a petition in superior court seeking an order to show cause why any injunctive and other nonmonetary relief determined by the Labor Commissioner or their designee in a citation that has become final should not be ordered. After filing the petition, the Labor Commissioner may file an application for an order to show cause and serve it upon the respondent. Promptly after the Labor Commissioner files the application for an order to show cause, the court shall issue an order to show cause why any injunctive and other nonmonetary relief should not be ordered and schedule a hearing. Absent a showing of an abuse of discretion, the court shall enter judgment for the state against the respondent for the injunctive and other nonmonetary relief.
(3) A person to whom a citation has been issued shall, in lieu of contesting a citation pursuant to this section, transmit, within 30 days after service of the citation, to the office of the Labor Commissioner designated on the citation, both the amount specified for the violation and a certification of compliance with any other remedies ordered.
(c) Upon receipt of a timely request, a  an informal  hearing shall be commenced within 90 days before a hearing officer for the Labor Commissioner. Within 90 days of the conclusion of the hearing, the hearing officer shall issue a written decision. The decision shall consist of a statement of findings, conclusions of law, and an order. This decision shall be served on all parties pursuant to Section 1013 of the Code of Civil Procedure by first-class mail at the last known address of the party on file with the Labor Commissioner. Any amount found due by the Labor Commissioner as a result of a hearing shall become due and payable 45 days after the written decision and order have been mailed to the person who requested the hearing.  The Labor Commissioner shall adopt regulations setting forth procedures for hearings under this subdivision.
(d) (1) A person issued a citation pursuant to this section may obtain review of the written  decision and order  of the Labor Commissioner by filing a petition for a writ of mandate to the appropriate superior court pursuant to Section 1094.5 of the Code of Civil Procedure within 45 days after service of the Labor Commissioner’s decision.
(2) 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,  penalties, lost wages and interest thereon,  liquidated damages, and overtime compensation  any other monetary relief  that are due and owing as determined pursuant to subdivision (a). (c).  The bond amount shall not include amounts for penalties. The bond shall  shall  be issued by a surety duly authorized to do business in this state and shall be issued in favor of the employee or employees who suffered the violation or violations.
(3) If no petition for writ of mandate is filed within 45 days after service of the decision, the order shall become final. If it is claimed in a petition for writ of mandate that the findings are not supported by the evidence, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.
(4) If the bond is not filed pursuant to paragraph (2), or if no petition for writ of mandate is filed pursuant to paragraph (1), or if the petition is dismissed or withdrawn without entry of judgment, a certified copy of the written decision and order 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 total monetary amount shown on the certified order. The Labor Commissioner may also file a petition in superior court for judicial enforcement of any injunctive and other nonmonetary relief determined by the Labor Commissioner or their designee. After filing the petition, the Labor Commissioner may file an application for an order to show cause and serve it upon the respondent. Within 60 days of the date the Labor Commissioner filed the order to show cause, the court shall hold a hearing and, absent a showing of an abuse of discretion, shall issue an order for the injunctive and other nonmonetary relief.
(5) If the employer fails to pay the amount of penalties, lost wages and interest thereon, and liquidated damages 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 (2), equal to the amount owed, or the entire undertaking if the amount owed exceeds the undertaking, shall be forfeited to the Labor Commissioner for appropriate distribution.
(e) An  In addition to any other appropriate relief, an  employer who willfully refuses to comply with a final order pursuant to this section to hire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for relief, or who refuses to comply with an order to post a notice to employees or otherwise cease and desist from the violation, in addition to any other penalties available, shall be subject to a penalty of one hundred dollars ($100) per day for each day the employer continues to be in noncompliance with the order, up to a maximum of twenty thousand dollars ($20,000). Any penalty pursuant to this section subdivision  shall be paid to the affected employee.
(f) The procedure for assessing, contesting, and enforcing the penalties pursuant to subdivision (e) shall be the same procedures set forth in subdivisions (a) to (d), inclusive.
(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 them.
(h) The provisions contained in subdivisions (b), (c), (d), (e), and (g) that pertain to enforcement of the citation, enforcement of the written decision and order, interest accrual, and to the bond posting, shall apply to all existing citations issued pursuant to subdivisions (a) and (e) at the time of enactment.
SEC. 2.
 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.