Code Section Group

Labor Code - LAB

DIVISION 1. DEPARTMENT OF INDUSTRIAL RELATIONS [50 - 176]

  ( Division 1 enacted by Stats. 1937, Ch. 90. )

CHAPTER 4. Division of Labor Standards Enforcement [79 - 107]
  ( Heading of Chapter 4 amended by Stats. 1976, Ch. 746. )

79.
  

There is in the Department of Industrial Relations the Division of Labor Standards Enforcement. The Division of Labor Standards Enforcement shall be under the direction of an executive officer known as the Chief, Division of Labor Standards Enforcement, who shall be appointed by the Governor, subject to confirmation of the Senate, and shall hold office at the pleasure of the Director of Industrial Relations. The annual salary of the chief shall be determined by the Department of Finance.

(Repealed and added by Stats. 1976, Ch. 746.)

80.
  

The headquarters of the Division of Labor Standards Enforcement, hereafter in this chapter referred to as the division, shall be located in San Francisco.

(Added by Stats. 1976, Ch. 746.)

81.
  

The employees of the division shall devote their full time to the work of the division and shall receive their actual necessary traveling expenses. The division shall maintain offices in San Francisco, Los Angeles, Sacramento, San Diego, Oakland, Fresno, San Jose, and in such other places as the Labor Commissioner may deem necessary.

(Added by Stats. 1976, Ch. 746.)

82.
  

(a) The Division of Labor Standards Enforcement succeeds to, and is vested with, all of the powers, duties, purposes, responsibilities, and jurisdiction of the Division of Labor Law Enforcement, which is hereby abolished.

(b) All powers, duties, purposes, and responsibilities of the Labor Commissioner, who is Chief of the Division of Labor Law Enforcement, are hereby transferred to the Labor Commissioner who is the Chief of the Division of Labor Standards Enforcement.

(c) Any regulation or other action made, prescribed, issued, granted, or performed by the abolished Division of Labor Law Enforcement in the administration, performance, or implementation of a function transferred pursuant to subdivision (a) of this section shall remain in effect and shall be deemed to be a regulation or action of the Division of Labor Standards Enforcement unless and until repealed, modified, or rescinded by such division.

(d) Whenever any reference is made in any law to the abolished Division of Labor Law Enforcement, it shall be deemed to be a reference to, and to mean, the Division of Labor Standards Enforcement.

(Added by Stats. 1976, Ch. 746.)

83.
  

(a) The Division of Labor Standards Enforcement succeeds to, and is vested with, all of the powers, duties, purposes, responsibilities, and jurisdiction of the Division of Industrial Welfare, which is hereby abolished.

(b) All powers, duties, purposes, and responsibilities of the Chief, Division of Industrial Welfare are hereby transferred to the Chief of the Division of Labor Standards Enforcement.

(c) Any regulation or other action made, prescribed, issued, granted, or performed by the abolished Division of Industrial Welfare in the administration, performance, or implementation of a function transferred pursuant to subdivision (a) of this section shall remain in effect and shall be deemed to be a regulation or action of the Division of Labor Standards Enforcement unless and until repealed, modified, or rescinded by such division.

(d) Whenever any reference is made in any law to the abolished Division of Industrial Welfare it shall be deemed to be a reference to, and to mean, the Division of Labor Standards Enforcement.

(Added by Stats. 1976, Ch. 746.)

87.
  

All persons, other than temporary employees, serving in the state civil service and engaged in the performance of a function transferred pursuant to this chapter, or engaged in the administration of a law, the administration of which is transferred pursuant to this chapter, shall, in accordance with Section 19050.9 of the Government Code, remain in the state civil service and are hereby transferred to the Division of Labor Standards Enforcement. The status, positions, and rights of those persons shall not be affected by their transfer and shall continue to be retained by them pursuant to the State Civil Service Act (Part 2 (commencing with Section 18500) of Division 5 of Title 5 of the Government Code), except as to positions the duties of which are vested in a position that is exempt from civil service.

(Amended by Stats. 2009, Ch. 140, Sec. 135. (AB 1164) Effective January 1, 2010.)

88.
  

The personnel records of all employees transferred pursuant to Section 87 shall remain in the Department of Industrial Relations.

(Added by Stats. 1976, Ch. 746.)

89.
  

The Division of Labor Standards Enforcement shall have possession and control of all records, books, papers, offices, equipment, supplies, moneys, funds, appropriations, land, and other property, real or personal, held for the benefit or use of the Division of Labor Law Enforcement and the Division of Industrial Welfare with respect to the functions transferred pursuant to this chapter.

(Repealed and added by Stats. 1976, Ch. 746.)

89.5.
  

The Division of Labor Standards Enforcement may expend the money in any appropriation or in any special fund in the State Treasury made available by law for the administration of the statutes the administration of which is committed to it pursuant to this chapter, or for the use, support, or maintenance of any board, bureau, commission, department, office, or officer whose duties, powers, and functions have been transferred to, and conferred upon, the Division of Labor Standards Enforcement pursuant to this chapter. Such expenditures by the Division of Labor Standards Enforcement shall be made in accordance with law in carrying out the purposes for which the appropriations were made or the special funds created.

(Added by Stats. 1976, Ch. 746.)

90.
  

The Labor Commissioner, his deputies and agents, shall have free access to all places of labor. Any person, or agent or officer thereof, who refuses admission to the Labor Commissioner or his deputy or agent or who, upon request, willfully neglects or refuses to furnish them any statistics or information, pertaining to their lawful duties, which are in his possession or under his control, is guilty of a misdemeanor, punishable by a fine of not more than one thousand dollars ($1,000).

(Amended by Stats. 1983, Ch. 1092, Sec. 188. Effective September 27, 1983. Operative January 1, 1984, by Sec. 427 of Ch. 1092.)

90.2.
  

(a) (1) Except as otherwise required by federal law, an employer shall provide a notice to each current employee, by posting in the language the employer normally uses to communicate employment-related information to the employee, of any inspections of I-9 Employment Eligibility Verification forms or other employment records conducted by an immigration agency within 72 hours of receiving notice of the inspection. Written notice shall also be given within 72 hours to the employee’s authorized representative, if any. The posted notice shall contain the following information:

(A) The name of the immigration agency conducting the inspections of I-9 Employment Eligibility Verification forms or other employment records.

(B) The date that the employer received notice of the inspection.

(C) The nature of the inspection to the extent known.

(D) A copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms for the inspection to be conducted.

(2) On or before July 1, 2018, the Labor Commissioner shall develop a template posting that employers may use to comply with the requirements of subdivision (a) to inform employees of a notice of inspection to be conducted of I-9 Employment Eligibility Verification forms or other employment records conducted by an immigration agency. The posting shall be available on the Labor Commissioner’s Internet Web site so that it is accessible to any employer.

(3) An employer, upon reasonable request, shall provide an affected employee a copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms.

(b) (1) Except as otherwise required by federal law, an employer shall provide to each current affected employee, and to the employee’s authorized representative, if any, a copy of the written immigration agency notice that provides the results of the inspection of I-9 Employment Eligibility Verification forms or other employment records within 72 hours of its receipt of the notice. Within 72 hours of its receipt of this notice, the employer shall also provide to each affected employee, and to the affected employee’s authorized representative, if any, written notice of the obligations of the employer and the affected employee arising from the results of the inspection of I-9 Employment Eligibility Verification forms or other employment records. The notice shall relate to the affected employee only and shall be delivered by hand at the workplace if possible and, if hand delivery is not possible, by mail and email, if the email address of the employee is known, and to the employee’s authorized representative. The notice shall contain the following information:

(A) A description of any and all deficiencies or other items identified in the written immigration inspection results notice related to the affected employee.

(B) The time period for correcting any potential deficiencies identified by the immigration agency.

(C) The time and date of any meeting with the employer to correct any identified deficiencies.

(D) Notice that the employee has the right to representation during any meeting scheduled with the employer.

(2) For purposes of this subdivision, an “affected employee” is an employee identified by the immigration agency inspection results to be an employee who may lack work authorization, or an employee whose work authorization documents have been identified by the immigration agency inspection to have deficiencies.

(c) An employer who fails to provide the notices required by this section shall be subject to a civil penalty of two thousand dollars ($2,000) up to five thousand dollars ($5,000) for a first violation and five thousand dollars ($5,000) up to ten thousand dollars ($10,000) for each subsequent violation. This section does not require a penalty to be imposed upon an employer or person who fails to provide notice to an employee at the express and specific direction or request of the federal government. The penalty shall be recoverable by the Labor Commissioner.

(d) For purposes of this section, an “employee’s authorized representative” means an exclusive collective bargaining representative.

(e) This section applies to public and private employers.

(f) In accordance with state and federal law, nothing in this chapter shall be interpreted, construed, or applied to restrict or limit an employer’s compliance with a memorandum of understanding governing the use of the federal E-Verify system.

(Added by Stats. 2017, Ch. 492, Sec. 4. (AB 450) Effective January 1, 2018.)

90.3.
  

(a) It is the policy of this state to vigorously enforce the laws requiring employers to secure the payment of compensation as required by Section 3700 and to protect employers who comply with the law from those who attempt to gain a competitive advantage at the expense of their workers by failing to secure the payment of compensation.

(b) In order to ensure that the laws requiring employers to secure the payment of compensation are adequately enforced, the Labor Commissioner shall establish and maintain a program that systematically identifies unlawfully uninsured employers. The Labor Commissioner, in consultation with the Administrative Director of the Division of Workers’ Compensation and the director, may prioritize targets for the program in consideration of available resources. The employers shall be identified from data from the Uninsured Employers’ Fund, the Employment Development Department, the rating organizations licensed by the Insurance Commissioner pursuant to Article 3 (commencing with Section 11750) of Chapter 3 of Part 3 of Division 2 of the Insurance Code, and any other sources deemed likely to lead to the identification of unlawfully uninsured employers. All state departments and agencies and any rating organization licensed by the Insurance Commissioner pursuant to Article 3 (commencing with Section 11750) of Chapter 3 of Part 3 of Division 2 of the Insurance Code shall cooperate with the Labor Commissioner and on reasonable request provide information and data in their possession reasonably necessary to carry out the program.

(c) As part of the program, the Labor Commissioner shall establish procedures for ensuring that employers with payroll but with no record of workers’ compensation coverage are contacted and, if no valid reason for the lack of record of coverage is shown, inspected on a priority basis.

(d) The Labor Commissioner shall annually, not later than March 1, prepare a report concerning the effectiveness of the program, publish it on the Labor Commissioner’s Web site, as well as notify the Legislature, the Governor, the Insurance Commissioner, and the Administrative Director of the Division of Workers’ Compensation of the report’s availability. The report shall include, but not be limited to, all of the following:

(1) The number of employers identified from records of the Employment Development Department who were screened for matching records of insurance coverage or self-insurance.

(2) The number of employers identified from records of the Employment Development Department that were matched to records of insurance coverage or self-insurance.

(3) The number of employers identified from records of the Employment Development Department that were notified that there was no record of their insurance coverage.

(4) The number of employers responding to the notices, and the nature of the responses, including the number of employers who failed to provide satisfactory proof of workers’ compensation coverage and including information about the reasons that employers who provided satisfactory proof of coverage were not appropriately recognized in the comparison performed under subdivision (b). The report may include recommendations to improve the accuracy and efficiency of the program in screening for unlawfully uninsured employers.

(5) The number of employers identified as unlawfully uninsured from records of the Uninsured Employers’ Benefits Trust Fund or from records of the Division of Workers’ Compensation, and the number of those employers that are also identifiable from the records of the Employment Development Department. These statistics shall be reported in a manner to permit analysis and estimation of the percentage of unlawfully uninsured employers that do not report wages to the Employment Development Department.

(6) The number of employers inspected.

(7) The number and amount of penalties assessed pursuant to Section 3722 as a result of the program.

(8) The number and amount of penalties collected pursuant to Section 3722 as a result of the program.

(e) The allocation of funds from the Workers’ Compensation Administration Revolving Fund pursuant to subdivision (a) of Section 62.5 shall not increase the total amount of surcharges pursuant to subdivision (e) of Section 62.5. Startup costs for this program shall be allocated from the fiscal year 2007–08 surcharges collected. The total amount allocated for this program under subdivision (a) of Section 62.5 in subsequent years shall not exceed the amount of penalties collected pursuant to Section 3722 as a result of the program.

(Amended by Stats. 2007, Ch. 662, Sec. 2. Effective January 1, 2008.)

90.5.
  

(a) It is the policy of this state to vigorously enforce minimum labor standards in order to ensure employees are not required or permitted to work under substandard unlawful conditions or for employers that have not secured the payment of compensation, and to protect employers who comply with the law from those who attempt to gain a competitive advantage at the expense of their workers by failing to comply with minimum labor standards.

(b) In order to ensure that minimum labor standards are adequately enforced, the Labor Commissioner shall establish and maintain a field enforcement unit, which shall be administratively and physically separate from offices of the division that accept and determine individual employee complaints. The unit shall have offices in Los Angeles, San Francisco, San Jose, San Diego, Sacramento, and any other locations that the Labor Commissioner deems appropriate. The unit shall have primary responsibility for administering and enforcing those statutes and regulations most effectively enforced through field investigations, including Sections 226, 1021, 1021.5, 1193.5, 1193.6, 1194.5, 1197, 1198, 1771, 1776, 1777.5, 2651, 2673, 2675, and 3700, in accordance with the plan adopted by the Labor Commissioner pursuant to subdivision (c). Nothing in this section shall be construed to limit the authority of this unit in enforcing any statute or regulation in the course of its investigations.

(c) The Labor Commissioner shall adopt an enforcement plan for the field enforcement unit. The plan shall identify priorities for investigations to be undertaken by the unit that ensure the available resources will be concentrated in industries, occupations, and areas in which employees are relatively low paid and unskilled, and those in which there has been a history of violations of the statutes cited in subdivision (b), and those with high rates of noncompliance with Section 3700.

(d) The Labor Commissioner shall annually report to the Legislature, not later than March 1, concerning the effectiveness of the field enforcement unit. The report shall include, but not be limited to, all of the following:

(1) The enforcement plan adopted by the Labor Commissioner pursuant to subdivision (c), and the rationale for the priorities identified in the plan.

(2) The number of establishments investigated by the unit, and the number of types of violations found.

(3) The amount of wages found to be unlawfully withheld from workers, and the amount of unpaid wages recovered for workers.

(4) The amount of penalties and unpaid wages transferred to the General Fund as a result of the efforts of the unit.

(Amended by Stats. 2002, Ch. 6, Sec. 23. Effective January 1, 2003.)

90.6.
  

(a) In the case of an investigation by the field enforcement unit, the date of a written notice by the Labor Commissioner to an employer, or other person or entity that may be liable under a provision of this code, that an investigation has commenced shall be deemed the date an action has commenced for purposes of any statute of limitations applicable to determining the period of time for which wages, penalties, damages, or other amounts may be assessed by the Labor Commissioner, which will then be tolled for a period of 12 months. After expiration of the 12-month period, the time under the applicable statute of limitations will resume running. The notice provided by the Labor Commissioner pursuant to this section shall identify the employer or other person or entity subject to investigation, the time period covered by the investigation, and a reference to this section that shall constitute notice of the potential claims under the identified investigation.

(b) Subdivision (a) shall apply to the following:

(1) Sections 558 and 1197.1.

(2) Unpaid minimum and overtime wages under Sections 510, 1194, and 1197.

(3) Any applicable wage order of the Industrial Welfare Commission.

(4) Any applicable local minimum wage or overtime law.

(5) Wages exceeding minimum wages subject to determination under Section 1195.5.

(6) Penalty wages for late payment under Section 203.

(7) Liquidated damages under Section 1194.2.

(8) Itemized wage statements under Section 226.

(9) Compensation for rest and recovery periods and nonproductive time for piece rate employees under Section 226.2.

(10) Meal, rest, and recovery periods under Section 226.7.

(11) Claims under Section 2810.3.

(12) Expense reimbursements under Section 2802.

(Added by Stats. 2017, Ch. 28, Sec. 8. (SB 96) Effective June 27, 2017.)

90.7.
  

When the division determines that an employer has violated Section 226.2, 1021, 1021.5, 1197, or 1771, or otherwise determines that an employer may have failed to report all the payroll of the employer’s employees as required by law, the division shall advise the Insurance Commissioner and request that an audit be ordered pursuant to Section 11736.5 of the Insurance Code.

(Added by Stats. 1987, Ch. 1386, Sec. 2.)

91.
  

Any person who willfully impedes or prevents the Labor Commissioner or his deputies or agents in the performance of duty, is guilty of a misdemeanor, punishable by a fine of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000), or imprisonment for not less than seven nor more than 30 days in the county jail, or both.

(Amended by Stats. 1983, Ch. 1092, Sec. 189. Effective September 27, 1983. Operative January 1, 1984, by Sec. 427 of Ch. 1092.)

92.
  

The Labor Commissioner, his deputies and agents, may issue subpenas to compel the attendance of witnesses and parties and the production of books, papers and records; administer oaths; examine witnesses under oath; take the verification, acknowledgment, or proof of written instruments; and take depositions and affidavits for the purpose of carrying out the provisions of this code and all laws which the division is to enforce.

(Amended by Stats. 1951, Ch. 960.)

93.
  

Obedience to subpoenas issued by the Labor Commissioner, or his deputies or agents shall be enforced by the courts. It is a misdemeanor to ignore willfully such a subpoena if it calls for an appearance at a distance from the place of service of 100 miles, or less.

(Amended by Stats. 1976, Ch. 1190.)

94.
  

The office of the division shall be open for business from 9 o'clock a.m. until 5 o'clock p.m. every day except nonjudicial days, and the officers thereof shall give to all persons requesting it all needed information which they may possess.

(Enacted by Stats. 1937, Ch. 90.)

95.
  

(a) The division may enforce the provisions of this code and all labor laws of the state the enforcement of which is not specifically vested in any other officer, board or commission. Except as provided in subdivision (d), in the enforcement of such provisions and laws, the director, deputy director, and such officers and employees as the director may designate, shall only have the authority, as public officers, to arrest without a warrant, any person who, in his presence, has violated or as to whom there is probable cause to believe has violated any of such provisions and laws.

In any case in which an arrest authorized by this subdivision is made for an offense declared to be a misdemeanor, and the person arrested does not demand to be taken before a magistrate, the arresting officer may, instead of taking such person before a magistrate, follow the procedure prescribed by Chapter 5C (commencing with Section 853.6) of Title 3 of Part 2 of the Penal Code. The provisions of such chapter shall thereafter apply with reference to any proceeding based upon the issuance of a citation pursuant to this authority.

(b) There shall be no civil liability on the part of and no cause of action shall arise against any person, acting pursuant to this section and within the scope of his authority, for false arrest or false imprisonment arising out of any arrest which is lawful or which the arresting officer, at the time of such arrest, had reasonable cause to believe was lawful. No such officer shall be deemed an aggressor or lose his right to self-defense by the use of reasonable force to effect the arrest or to prevent escape or to overcome resistance.

(c) The director, deputy director, and such officers and employees as the director may designate, may serve all processes and notices throughout the state.

(d) With respect to the enforcement of the provisions of this code and other labor laws as provided in subdivision (a), all officers and employees designated by the Labor Commissioner as investigators, shall have the authority of peace officers to make arrests, and may serve processes and notices as provided in subdivision (c).

(Amended by Stats. 1971, Ch. 701.)

96.
  

The Labor Commissioner and his or her deputies and representatives authorized by him or her in writing shall, upon the filing of a claim therefor by an employee, or an employee representative authorized in writing by an employee, with the Labor Commissioner, take assignments of:

(a) Wage claims and incidental expense accounts and advances.

(b) Mechanics’ and other liens of employees.

(c) Claims based on “stop orders” for wages and on bonds for labor.

(d) Claims for damages for misrepresentations of conditions of employment.

(e) Claims for unreturned bond money of employees.

(f) Claims for penalties for nonpayment of wages.

(g) Claims for the return of workers’ tools in the illegal possession of another person.

(h) Claims for vacation pay, severance pay, or other compensation supplemental to a wage agreement.

(i) Awards for workers’ compensation benefits in which the Workers’ Compensation Appeals Board has found that the employer has failed to secure payment of compensation and where the award remains unpaid more than 10 days after having become final.

(j) Claims for loss of wages as the result of discharge from employment for the garnishment of wages.

(k) Claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises.

(Amended by Stats. 1999, Ch. 692, Sec. 2. Effective January 1, 2000.)

96.3.
  

In cases where employees are covered by a collective bargaining agreement, the collective bargaining representative by virtue of such agreement may be the assignee of all such covered employees for purposes of filing claims for wages with the Labor Commissioner, subject to the option of the employee to reject such representation and to represent himself or herself.

(Added by Stats. 1976, Ch. 1029.)

96.5.
  

The Labor Commissioner shall conduct such hearings as may be necessary for the purpose of Section 7071.11 of the Business and Professions Code. In any action to recover upon a cash deposit after a determination made under Section 7071.11, the Labor Commissioner shall certify in writing to the appropriate court that he has heard and determined the validity of claims and demands and that the sum specified therein is the amount found due and payable. The certificate of the commissioner shall be considered by the court but shall not, by itself, be sufficient evidence to support a judgment.

(Added by Stats. 1974, Ch. 201.)

96.6.
  

The Industrial Relations Unpaid Wage Fund is hereby created as a special fund in the State Treasury, which is continuously appropriated for the purposes of subdivision (c) of Section 96.7.

(Added by Stats. 1975, Ch. 714.)

96.7.
  

The Labor Commissioner, after investigation and upon determination that wages or monetary benefits are due and unpaid to any worker in the State of California, may collect such wages or benefits on behalf of the worker without assignment of such wages or benefits to the commissioner.

(a) The Labor Commissioner shall act as trustee of all such collected unpaid wages or benefits, and shall deposit such collected moneys in the Industrial Relations Unpaid Wage Fund.

(b) The Labor Commissioner shall make a diligent search to locate any worker for whom the Labor Commissioner has collected unpaid wages or benefits.

(c) All wages or benefits collected under this section shall be remitted to the worker, his lawful representative, or to any trust or custodial fund established under a plan to provide health and welfare, pension, vacation, retirement, or similar benefits from the Industrial Relations Unpaid Wage Fund.

(d) Any unpaid wages or benefits collected by the Labor Commissioner pursuant to this section shall be retained in the Industrial Relations Unpaid Wage Fund until remitted pursuant to subdivision (c), or until deposited in the General Fund.

(e) The Controller shall, at the end of each fiscal year, transfer to the General Fund the unencumbered balance, less six months of expenditures as determined by the Director of Finance, in the Industrial Relations Unpaid Wage Fund.

(f) All wages or benefits collected under this section which cannot be remitted from the Industrial Relations Unpaid Wage Fund pursuant to subdivision (c) because money has been transmitted to the General Fund shall be paid out of the General Fund from funds appropriated for that purpose.

(Amended by Stats. 2005, Ch. 74, Sec. 54. Effective July 19, 2005.)

96.8.
  

(a) Notwithstanding any other law, beginning 20 days after a judgment is entered by a court of competent jurisdiction in favor of the Labor Commissioner, or in favor of any employee pursuant to subdivision (e) of Section 98.2, the Labor Commissioner may, with the consent of any employee in whose favor the judgment is entered, collect any outstanding amount of the judgment by mailing a notice of levy upon all persons having in their possession, or who will have in their possession or under their control, any credits, money, or property belonging to the judgment debtor, or who owe any debt to the judgment debtor at the time they receive the notice of levy.

(b) Notwithstanding any other law, the Labor Commissioner may execute a levy on any property that may be levied under Section 700.140, 700.150, 700.160, or 700.170 of the Code of Civil Procedure by mailing a notice of levy to the person against whom the levy is directed and serving a copy on the judgment debtor. The notice of levy shall contain all of the information required to be included in a writ of execution under Section 699.520 of the Code of Civil Procedure and in a notice of levy under Section 699.540 of the Code of Civil Procedure.

(c) Any person, upon whom a levy has been noticed having in his or her possession or under his or her control any credits, money, or property belonging to the judgment debtor or owing any debts to the judgment debtor at the time of receipt of the levy or coming into his or her possession or under his or her control within one year of receipt of the notice of levy, shall surrender the credits, money, or property to the Labor Commissioner or pay to the Labor Commissioner the amount of any debt owed to the judgment debtor within 10 days of service of the levy, and shall surrender the credits or property, or the amount of any debt owing to the judgment debtor coming into his or her own possession or control within one year of receipt of the notice of levy within 10 days of the date of coming into possession or control of the credits or property or the amount of any debt owed to the judgment debtor.

(d) Any person who surrenders to the Labor Commissioner pursuant to this section any credits, money, or property, or pays the debts owed to the judgment debtor, shall be discharged from any obligation or liability to the judgment debtor to the extent of the amount paid to the Labor Commissioner as a result of the levy.

(e) If the levy is made on a deposit or credits, money, or property in the possession or under the control of a bank, savings and loan association, or other financial institution as defined by Section 669a(d)(1) of Title 42 of the United States Code, the notice of levy may be delivered or mailed to a centralized location designated by the bank, savings and loan association, or other financial institution pursuant to Section 690.050 of the Code of Civil Procedure.

(f) Any person who is noticed with a levy pursuant to this section and who fails or refuses to surrender any credits, money, or property or pay any debts owed to the judgment debtor shall be liable in his or her own person or estate to the Labor Commissioner in an amount equal to the value of the credits, money, or other property or in the amount of the levy, up to the amount specified in the levy.

(g) The fees, commissions, expenses, and the reasonable costs associated with the sale of property levied upon by warrant or levy pursuant to this section, including, but not limited to, appraisers’ fees, auctioneers’ fees, and advertising fees are an obligation of the judgment debtor and may be collected from the judgment debtor by virtue of the warrant or levy or in any other manner as though these items were part of the judgment or award outstanding.

(h) This section shall not apply to the judgment debtor’s interest in real property.

(i) This section shall not apply if enforcement of the judgment has been stayed on appeal pursuant to Chapter 2 (commencing with Section 916) of Title 13 of Part 2 of the Code of Civil Procedure.

(Added by Stats. 2015, Ch. 803, Sec. 2. (SB 588) Effective January 1, 2016.)

97.
  

The Labor Commissioner, his deputies and representatives shall not be bound by any rule requiring the consent of the spouse of a married claimant, the filing of a lien for record before it is assigned, or prohibiting the assignment of a claim for penalty before the claim has been incurred or any other technical rule with reference to the validity of assignments.

(Amended by Stats. 1939, Ch. 1114.)

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. The Labor Commissioner may also provide for a hearing to recover civil penalties due pursuant to Section 558 against any employer or other person acting on behalf of an employer, including, but not limited to, an individual liable pursuant to Section 558.1. 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.

(Amended by Stats. 2015, Ch. 803, Sec. 3. (SB 588) Effective January 1, 2016.)

98.1.
  

(a) Within 15 days after the hearing is concluded, the Labor Commissioner shall file in the office of the division a copy of the order, decision, or award. The order, decision, or award shall include a summary of the hearing and the reasons for the decision. Upon filing of the order, decision, or award, the Labor Commissioner shall serve a copy of the decision personally, by first-class mail, or in the manner specified in Section 415.20 of the Code of Civil Procedure on the parties. The notice shall also advise the parties of their right to appeal the decision or award and further advise the parties that failure to do so within the period prescribed by this chapter shall result in the decision or award becoming final and enforceable as a judgment by the superior court.

(b) For the purpose of this section, an award shall include any sums found owing, damages proved, and any penalties awarded pursuant to this code.

(c) All awards granted pursuant to a hearing under this chapter shall accrue interest on all due and unpaid wages at the same rate as prescribed by subdivision (b) of Section 3289 of the Civil Code. The interest shall accrue until the wages are paid from the date that the wages were due and payable as provided in Part 1 (commencing with Section 200) of Division 2.

(Amended by Stats. 2005, Ch. 405, Sec. 2. Effective January 1, 2006.)

98.2.
  

(a) Within 10 days after service of notice of an order, decision, or award the parties may seek review by filing an appeal to the superior court, where the appeal shall be heard de novo. The court shall charge the first paper filing fee under Section 70611 of the Government Code to the party seeking review. The fee shall be distributed as provided in Section 68085.3 of the Government Code. A copy of the appeal request shall be served upon the Labor Commissioner by the appellant. For purposes of computing the 10-day period after service, Section 1013 of the Code of Civil Procedure is applicable.

(b) As a condition to filing an appeal pursuant to this section, an employer shall first post an undertaking with the reviewing court in the amount of the order, decision, or award. The undertaking shall consist of an appeal bond issued by a licensed surety or a cash deposit with the court in the amount of the order, decision, or award. The employer shall provide written notification to the other parties and the Labor Commissioner of the posting of the undertaking. The undertaking shall be on the condition that, if any judgment is entered in favor of the employee, the employer shall pay the amount owed pursuant to the judgment, and if the appeal is withdrawn or dismissed without entry of judgment, the employer shall pay the amount owed pursuant to the order, decision, or award of the Labor Commissioner unless the parties have executed a settlement agreement for payment of some other amount, in which case the employer shall pay the amount that the employer is obligated to pay under the terms of the settlement agreement. If the employer fails to pay the amount owed within 10 days of entry of the judgment, dismissal, or withdrawal of the appeal, or the execution of a settlement agreement, a portion of the undertaking equal to the amount owed, or the entire undertaking if the amount owed exceeds the undertaking, is forfeited to the employee.

(c) If the party seeking review by filing an appeal to the superior court is unsuccessful in the appeal, the court shall determine the costs and reasonable attorney’s fees incurred by the other parties to the appeal, and assess that amount as a cost upon the party filing the appeal. An employee is successful if the court awards an amount greater than zero.

(d) If no notice of appeal of the order, decision, or award is filed within the period set forth in subdivision (a), the order, decision, or award shall, in the absence of fraud, be deemed the final order.

(e) The Labor Commissioner shall file, within 10 days of the order becoming final pursuant to subdivision (d), a certified copy of the final order with the clerk of the superior court of the appropriate county unless a settlement has been reached by the parties and approved by the Labor Commissioner. Judgment shall be entered immediately by the court clerk in conformity therewith. The judgment so entered has the same force and effect as, and is subject to all of the provisions of law relating to, a judgment in a civil action, and may be enforced in the same manner as any other judgment of the court in which it is entered. Enforcement of the judgment shall receive court priority.

(f) (1) In order to ensure that judgments are satisfied, the Labor Commissioner may serve upon the judgment debtor, personally or by first-class mail at the last known address of the judgment debtor listed with the division, a form similar to, and requiring the reporting of the same information as, the form approved or adopted by the Judicial Council for purposes of subdivision (a) of Section 116.830 of the Code of Civil Procedure to assist in identifying the nature and location of any assets of the judgment debtor.

(2) The judgment debtor shall complete the form and cause it to be delivered to the division at the address listed on the form within 35 days after the form has been served on the judgment debtor, unless the judgment has been satisfied. In case of willful failure by the judgment debtor to comply with this subdivision, the division or the judgment creditor may request the court to apply the sanctions provided in Section 708.170 of the Code of Civil Procedure.

(g) (1) As an alternative to a judgment lien, upon the order becoming final pursuant to subdivision (d), a lien on real property may be created by the Labor Commissioner recording a certificate of lien, for amounts due under the final order and in favor of the employee or employees named in the order, with the county recorder of any county in which the employer’s real property may be located, at the Labor Commissioner’s discretion and depending upon information the Labor Commissioner obtains concerning the employer’s assets. The lien attaches to all interests in real property of the employer located in the county where the lien is created to which a judgment lien may attach pursuant to Section 697.340 of the Code of Civil Procedure.

(2) The certificate of lien shall include information as prescribed by Section 27288.1 of the Government Code.

(3) The recorder shall accept and record the certificate of lien and shall index it as prescribed by law.

(4) Upon payment of the amount due under the final order, the Labor Commissioner shall issue a certificate of release, releasing the lien created under paragraph (1). The certificate of release may be recorded by the employer at the employer’s expense.

(5) Unless the lien is satisfied or released, a lien under this section shall continue until 10 years from the date of its creation.

(h) Notwithstanding subdivision (e), the Labor Commissioner may stay execution of any judgment entered upon an order, decision, or award that has become final upon good cause appearing therefor and may impose the terms and conditions of the stay of execution. A certified copy of the stay of execution shall be filed with the clerk entering the judgment.

(i) When a judgment is satisfied in fact, other than by execution, the Labor Commissioner may, upon the motion of either party or on its own motion, order entry of satisfaction of judgment. The clerk of the court shall enter a satisfaction of judgment upon the filing of a certified copy of the order.

(j) The Labor Commissioner shall make every reasonable effort to ensure that judgments are satisfied, including taking all appropriate legal action and requiring the employer to deposit a bond as provided in Section 240.

(k) The judgment creditor, or the Labor Commissioner as assignee of the judgment creditor, is entitled to court costs and reasonable attorney’s fees for enforcing the judgment that is rendered pursuant to this section.

(Amended by Stats. 2013, Ch. 750, Sec. 1. (AB 1386) Effective January 1, 2014.)

98.3.
  

(a) The Labor Commissioner may prosecute all actions for the collection of wages, penalties, and demands of persons who in the judgment of the Labor Commissioner are financially unable to employ counsel and the Labor Commissioner believes have claims which are valid and enforceable.

The Labor Commissioner may also prosecute actions for the return of worker’s tools which are in the illegal possession of another person.

(b) The Labor Commissioner may prosecute action for the collection of wages and other moneys payable to employees or to the state arising out of an employment relationship or order of the Industrial Welfare Commission.

(c) The Labor Commissioner may also prosecute actions for wages or other monetary benefits that are due the Industrial Relations Unpaid Wage Fund.

(Added by Stats. 1976, Ch. 1190.)

98.4.
  

The Labor Commissioner may, upon the request of a claimant financially unable to afford counsel, represent such claimant in the de novo proceedings provided for in Section 98.2. In the event that such claimant is attempting to uphold the amount awarded by the Labor Commissioner and is not objecting to any part of the Labor Commissioner’s final order, the Labor Commissioner shall represent the claimant.

(Added by Stats. 1976, Ch. 1190.)

98.5.
  

The Labor Commissioner shall have the right to intervene in any court proceedings conducted pursuant to Section 98.2 where questions of the interpretation of statutes or administrative regulations are present.

(Repealed and added by Stats. 1976, Ch. 1190.)

98.6.
  

(a) A person shall not discharge an employee or in any manner discriminate, retaliate, or take any adverse action against any employee or applicant for employment because the employee or applicant engaged in any conduct delineated in this chapter, including the conduct described in subdivision (k) of Section 96, and Chapter 5 (commencing with Section 1101) of Part 3 of Division 2, or because the employee or applicant for employment has filed a bona fide complaint or claim or instituted or caused to be instituted any proceeding under or relating to his or her rights that are under the jurisdiction of the Labor Commissioner, made a written or oral complaint that he or she is owed unpaid wages, or because the employee has initiated any action or notice pursuant to Section 2699, or has testified or is about to testify in a proceeding pursuant to that section, or because of the exercise by the employee or applicant for employment on behalf of himself, herself, or others of any rights afforded him or her.

(b) (1) Any employee who is discharged, threatened with discharge, demoted, suspended, retaliated against, subjected to an adverse action, or in any other manner discriminated against in the terms and conditions of his or her employment because the employee engaged in any conduct delineated in this chapter, including the conduct described in subdivision (k) of Section 96, and Chapter 5 (commencing with Section 1101) of Part 3 of Division 2, or because the employee has made a bona fide complaint or claim to the division pursuant to this part, or because the employee has initiated any action or notice pursuant to Section 2699 shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by those acts of the employer.

(2) An employer who willfully refuses to hire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for rehiring or promotion by a grievance procedure, arbitration, or hearing authorized by law, is guilty of a misdemeanor.

(3) In addition to other remedies available, an employer who violates this section is liable for a civil penalty not exceeding ten thousand dollars ($10,000) per employee for each violation of this section, to be awarded to the employee or employees who suffered the violation.

(c) (1) Any applicant for employment who is refused employment, who is not selected for a training program leading to employment, or who in any other manner is discriminated against in the terms and conditions of any offer of employment because the applicant engaged in any conduct delineated in this chapter, including the conduct described in subdivision (k) of Section 96, and Chapter 5 (commencing with Section 1101) of Part 3 of Division 2, or because the applicant has made a bona fide complaint or claim to the division pursuant to this part, or because the employee has initiated any action or notice pursuant to Section 2699 shall be entitled to employment and reimbursement for lost wages and work benefits caused by the acts of the prospective employer.

(2) This subdivision shall not be construed to invalidate any collective bargaining agreement that requires an applicant for a position that is subject to the collective bargaining agreement to sign a contract that protects either or both of the following as specified in subparagraphs (A) and (B), nor shall this subdivision be construed to invalidate any employer requirement of an applicant for a position that is not subject to a collective bargaining agreement to sign an employment contract that protects either or both of the following:

(A) An employer against any conduct that is actually in direct conflict with the essential enterprise-related interests of the employer and where breach of that contract would actually constitute a material and substantial disruption of the employer’s operation.

(B) A firefighter against any disease that is presumed to arise in the course and scope of employment, by limiting his or her consumption of tobacco products on and off the job.

(d) The provisions of this section creating new actions or remedies that are effective on January 1, 2002, to employees or applicants for employment do not apply to any state or local law enforcement agency, any religious association or corporation specified in subdivision (d) of Section 12926 of the Government Code, except as provided in Section 12926.2 of the Government Code, or any person described in Section 1070 of the Evidence Code.

(e) An employer, or a person acting on behalf of the employer, shall not retaliate against an employee because the employee is a family member of a person who has, or is perceived to have, engaged in any conduct delineated in this chapter.

(f) For purposes of this section, “employer” or “a person acting on behalf of the employer” includes, but is not limited to, a client employer as defined in paragraph (1) of subdivision (a) of Section 2810.3 and an employer listed in subdivision (b) of Section 6400.

(g) Subdivisions (e) and (f) shall not apply to claims arising under subdivision (k) of Section 96 unless the lawful conduct occurring during nonwork hours away from the employer’s premises involves the exercise of employee rights otherwise covered under subdivision (a).

(Amended by Stats. 2015, Ch. 792, Sec. 1. (AB 1509) Effective January 1, 2016.)

98.7.
  

(a) (1) Any person who believes that he or she has been discharged or otherwise discriminated against in violation of any law under the jurisdiction of the Labor Commissioner may file a complaint with the division within six months after the occurrence of the violation. The six-month period may be extended for good cause. The complaint shall be investigated by a discrimination complaint investigator in accordance with this section. The Labor Commissioner shall establish procedures for the investigation of discrimination complaints, including, but not limited to, relief pursuant to paragraph (2) of subdivision (b). A summary of the procedures shall be provided to each complainant and respondent at the time of initial contact. The Labor Commissioner shall inform complainants charging a violation of Section 6310 or 6311, at the time of initial contact, of his or her right to file a separate, concurrent complaint with the United States Department of Labor within 30 days after the occurrence of the violation.

(2) The division may, with or without receiving a complaint, commence investigating an employer, in accordance with this section, that it suspects to have discharged or otherwise discriminated against an individual in violation of any law under the jurisdiction of the Labor Commissioner. The division may proceed without a complaint in those instances where suspected retaliation has occurred during the course of adjudicating a wage claim pursuant to Section 98, or during a field inspection pursuant to Section 90.5, in accordance with this section, or in instances of suspected immigration-related threats in violation of Section 244, 1019, or 1019.1.

(b) (1) Each complaint of unlawful discharge or discrimination shall be assigned to a discrimination complaint investigator who shall prepare and submit a report to the Labor Commissioner based on an investigation of the complaint. The Labor Commissioner or his or her designee shall receive and review the reports. The investigation shall include, where appropriate, interviews with the complainant, respondent, and any witnesses who may have information concerning the alleged violation, and a review of any documents that may be relevant to the disposition of the complaint. The identity of a witness shall remain confidential unless the identification of the witness becomes necessary to proceed with the investigation or to prosecute an action to enforce a determination. The investigation report submitted to the Labor Commissioner or designee shall include the statements and documents obtained in the investigation, and the findings of the investigator concerning whether a violation occurred. The Labor Commissioner may hold an investigative hearing whenever the Labor Commissioner determines that a hearing is necessary to fully establish the facts. In the hearing the complainant and respondent shall have the opportunity to present evidence. The Labor Commissioner shall issue, serve, and enforce any necessary subpoenas. If a complainant files an action in court against an employer based on the same or similar facts as a complaint made under this section, the Labor Commissioner may, at his or her discretion, close the investigation. If a complainant has already challenged his or her discipline or discharge through the State Personnel Board, or other internal governmental procedure, or through a collective bargaining agreement grievance procedure that incorporates antiretaliation provisions under this code, the Labor Commissioner may reject the complaint.

(2) (A) The Labor Commissioner, during the course of an investigation pursuant to this section, upon finding reasonable cause to believe that any person has engaged in or is engaging in a violation, may petition the superior court in any county in which the violation in question is alleged to have occurred or in which the person resides or transacts business, for appropriate temporary or preliminary injunctive relief, or both temporary and preliminary injunctive relief.

(B) Upon filing of a petition pursuant to this paragraph, the Labor Commissioner shall cause notice of the petition to be served on the person, and the court shall have jurisdiction to grant temporary injunctive relief as the court determines to be just and proper.

(C) In addition to any harm resulting directly to an individual from a violation of any law under the jurisdiction of the Labor Commissioner, the court shall consider the chilling effect on other employees asserting their rights under those laws in determining if temporary injunctive relief is just and proper.

(D) If an employee has been discharged or faced adverse action for raising a claim of retaliation for asserting rights under any law under the jurisdiction of the Labor Commissioner, a court shall order appropriate injunctive relief on a showing that reasonable cause exists to believe that an employee has been discharged or subjected to adverse action for raising a claim of retaliation or asserting rights under any law under the jurisdiction of the Labor Commissioner.

(E) The temporary injunctive relief shall remain in effect until the Labor Commissioner issues a determination or citations, or until the completion of review pursuant to subdivision (b) of Section 98.74, whichever period is longer, or at a time certain set by the court. Afterwards, the court may issue a preliminary or permanent injunction if it is shown to be just and proper. Any temporary injunctive relief shall not prohibit an employer from disciplining or terminating an employee for conduct that is unrelated to the claim of the retaliation.

(F) Notwithstanding Section 916 of the Code of Civil Procedure, injunctive relief granted pursuant to this section shall not be stayed pending appeal.

(c) (1) If the Labor Commissioner determines a violation has occurred, the Labor Commissioner may issue a determination in accordance with this section or issue a citation in accordance with Section 98.74. If the Labor Commissioner issues a determination, he or she shall notify the complainant and respondent and direct the respondent to cease and desist from any violation and take any action deemed necessary to remedy the violation, including, where appropriate, rehiring or reinstatement, reimbursement of lost wages and interest thereon, payment of penalties, payment of reasonable attorney’s fees associated with any hearing held by the Labor Commissioner in investigating the complaint, and the posting of notices to employees. If the respondent does not comply with the order within 30 days following notification of the Labor Commissioner’s determination, the Labor Commissioner shall bring an action promptly in an appropriate court against the respondent. An action by the Labor Commissioner seeking injunctive relief, reimbursement of lost wages and interest thereon, payment of penalties, and any other appropriate relief, shall not accrue until a respondent fails to comply with the order for more than 30 days following notification of the commissioner’s determination. The Labor Commissioner shall commence an action within three years of its accrual, regardless of whether the commissioner seeks penalties in the action. If the Labor Commissioner fails to bring an action in court promptly, the complainant may bring an action against the Labor Commissioner in any appropriate court for a writ of mandate to compel the Labor Commissioner to bring an action in court against the respondent. If the complainant prevails in his or her action for a writ, the court shall award the complainant court costs and reasonable attorney’s fees, notwithstanding any other law. Regardless of any delay in bringing an action in court, the Labor Commissioner shall not be divested of jurisdiction. In any action, the court may permit the claimant to intervene as a party plaintiff to the action and shall have jurisdiction, for cause shown, to restrain the violation and to order all appropriate relief. Appropriate relief includes, but is not limited to, rehiring or reinstatement of the complainant, reimbursement of lost wages and interest thereon, and any other compensation or equitable relief as is appropriate under the circumstances of the case. The Labor Commissioner shall petition the court for appropriate temporary relief or restraining order unless he or she determines good cause exists for not doing so.

(2) If the Labor Commissioner is a prevailing party in an enforcement action pursuant to this section, the court shall determine the reasonable attorney’s fees incurred by the Labor Commissioner in prosecuting the enforcement action and assess that amount as a cost upon the employer.

(3) An employer who willfully refuses to comply with an order of a court pursuant to this section to hire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for such relief, or who refuses to comply with an order to post a notice to employees or otherwise cease and desist from the violation shall, in addition to any other penalties available, be subject to a penalty of one hundred dollars ($100) per day for each day the employer continues to be in noncompliance with the court order, up to a maximum of twenty thousand dollars ($20,000). Any penalty pursuant to this section shall be paid to the affected employee.

(d) (1) If the Labor Commissioner determines no violation has occurred, he or she shall notify the complainant and respondent and shall dismiss the complaint. The Labor Commissioner may direct the complainant to pay reasonable attorney’s fees associated with any hearing held by the Labor Commissioner if the Labor Commissioner finds the complaint was frivolous, unreasonable, groundless, and was brought in bad faith. The complainant may, after notification of the Labor Commissioner’s determination to dismiss a complaint, bring an action in an appropriate court, which shall have jurisdiction to determine whether a violation occurred, and if so, to restrain the violation and order all appropriate relief to remedy the violation. Appropriate relief includes, but is not limited to, rehiring or reinstatement of the complainant, reimbursement of lost wages and interest thereon, and other compensation or equitable relief as is appropriate under the circumstances of the case. When dismissing a complaint, the Labor Commissioner shall advise the complainant of his or her right to bring an action in an appropriate court if he or she disagrees with the determination of the Labor Commissioner, and in the case of an alleged violation of Section 6310 or 6311, to file a complaint against the state program with the United States Department of Labor. Any time limitation for a complainant to bring an action in court shall be tolled from the time of filing the complaint with the division until the issuance of the Labor Commissioner’s determination.

(2) The filing of a timely complaint against the state program with the United States Department of Labor shall stay the Labor Commissioner’s dismissal of the division complaint until the United States Secretary of Labor makes a determination regarding the alleged violation. Within 15 days of receipt of that determination, the Labor Commissioner shall notify the parties whether he or she will reopen the complaint filed with the division or whether he or she will reaffirm the dismissal.

(e) The Labor Commissioner shall notify the complainant and respondent of his or her determination under subdivision (c) or paragraph (1) of subdivision (d), not later than one year after the filing of the complaint. Determinations by the Labor Commissioner under subdivision (c) or (d) shall be final and not subject to administrative appeal except for cases arising under Sections 6310 and 6311, which may be appealed by the complainant to the Director of Industrial Relations pursuant to an appeal process, including time limitations, that is consistent with the mandates of the United States Department of Labor. The appeal from a determination for cases arising under Sections 6310 and 6311 shall set forth specifically and in full detail the grounds upon which the complainant considers the Labor Commissioner’s determination to be unjust or unlawful, and every issue to be considered by the director. The director may consider any issue relating to the initial determination and may modify, affirm, or reverse the Labor Commissioner’s determination. The director’s determination shall be the determination of the Labor Commissioner for cases arising under Sections 6310 and 6311 that are appealed to the director. The director shall notify the complainant and respondent of his or her determination within 10 days of receipt of the appeal.

(f) The rights and remedies provided by this section do not preclude an employee from pursuing any other rights and remedies under any other law.

(g) In the enforcement of this section, there is no requirement that an individual exhaust administrative remedies or procedures.

(Amended by Stats. 2017, Ch. 460, Sec. 1. (SB 306) Effective January 1, 2018.)

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) A person issued a citation pursuant to this section may obtain review of the citation by transmitting a written request 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.

(c) Upon receipt of a timely request, a 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. 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 decision 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, liquidated damages, and overtime compensation that are due and owing as determined pursuant to subdivision (a). 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 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.

(e) 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 shall be paid to the affected employee.

(Added by Stats. 2017, Ch. 460, Sec. 2. (SB 306) Effective January 1, 2018.)

98.75.
  

The Labor Commissioner shall submit a report to the Legislature by February 15, 1987, and annually thereafter by February 15, providing the following information with respect to discrimination complaints for the previous calendar year:

(a) The number of complaints filed pursuant to Section 98.7 or 1197.5, grouped according to the section of the Labor Code allegedly violated.

(b) The number of determinations issued, the number of investigative hearings held, the number of complaints dismissed, and the number of complaints found to be valid, grouped by the year in which the complaints were filed.

(c) The number of cases in which the respondent complied with the Labor Commissioner’s order to remedy unlawful discrimination, the number of these orders with which respondents failed to comply, the number of court actions brought by the Labor Commissioner to remedy unlawful discrimination, and the results of those court actions. If the Labor Commissioner did not bring an action in court within 10 days against a respondent who failed to comply with his or her order, the report shall specify the reasons for not bringing action in court.

(Added by Stats. 1985, Ch. 1479, Sec. 3.)

98.8.
  

The Labor Commissioner shall promulgate all regulations and rules of practice and procedure necessary to carry out the provisions of this chapter.

(Added by Stats. 1976, Ch. 1190.)

98.9.
  

Upon a finding by the Labor Commissioner that a willful or deliberate violation of any of the provisions of the Labor Code, within the jurisdiction of the Labor Commissioner, has been committed by a person licensed as a contractor pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code, in the course of such licensed activity, the Labor Commissioner shall immediately, upon expiration of the period for review specified in Section 98.2, or other applicable section, deliver a certified copy of the finding of the violation to the registrar of the Contractors’ State License Board.

(Added by Stats. 1978, Ch. 1247.)

98.10.
  

(a) On or before June 1, 2017, the Labor Commissioner shall develop a model notice pertaining to workplace rights and wage and hour laws for employees of establishments licensed under Chapter 10 (commencing with Section 7301) of Division 3 of the Business and Professions Code. The model posting notice shall be developed using plain language, and in all languages listed in subdivision (c), and be accessible on the Labor Commissioner’s Internet Web site so that it is reasonably accessible to an establishment that must comply with Section 7353.4 of the Business and Professions Code.

(b) The model notice shall include information, including, but not limited to, all of the following:

(1) Misclassification of an employee as an independent contractor.

(2) Wage and hour laws, including, but not limited to, minimum wage, overtime compensation, meal periods, and rest periods.

(3) Tip or gratuity distribution.

(4) How to report violations of the law.

(5) Business expense reimbursement.

(6) Protection from retaliation.

(c) The model notice shall include full text translations in Spanish, Vietnamese, and Korean.

(Added by Stats. 2016, Ch. 357, Sec. 2. (AB 2437) Effective January 1, 2017.)

99.
  

The division may file preferred claims, mechanics’ liens, and other liens of employees in the name of the Labor Commissioner, his deputy or representative or in the names of the employees, whenever the facts have been investigated and found to support the claims. A statement that such facts have been found shall be alleged in the preferred claim or lien if it is filed in the name of the Labor Commissioner, his deputy or representative.

(Enacted by Stats. 1937, Ch. 90.)

100.
  

The division may join various claimants in one preferred claim or lien as well as list them with the data regarding their claims in an exhibit and join them, in case of suit, in one cause of action in cases where no valid reason exists for making separate causes of action for each individual employee.

(Enacted by Stats. 1937, Ch. 90.)

100.5.
  

Preferred claims for work performed or personal services rendered are provided for in Sections 1204, 1205, 1206, 1207, and 1208 of the Code of Civil Procedure, and Part 9 (commencing with Section 11400) of Division 7 of the Probate Code.

(Amended by Stats. 1988, Ch. 1199, Sec. 22.5. Operative July 1, 1989, by Sec. 119 of Ch. 1199.)

101.
  

No court costs of any nature shall be payable by the division, in any civil action to which the division is a party. Any sheriff or marshal requested by the Labor Commissioner or a deputy or representative of the Labor Commissioner shall serve the summons in the action upon any person within the jurisdiction of the sheriff or marshal or levy under a writ of attachment or execution in the action upon the property of any defendant without cost to the division except for keeper’s fees, service fees, and storage charges.

(Amended by Stats. 1996, Ch. 872, Sec. 103. Effective January 1, 1997.)

101.5.
  

No fees shall be payable for the filing or recording of any document or paper in the performance of any official service by the Labor Commissioner. The amount ordinarily charged for such filing or recording shall be made a part of any judgment recovered by the Labor Commissioner and shall be paid by the Labor Commissioner if sufficient money is collected over and above the wages, penalties, or demands actually due the claimants.

(Amended by Stats. 1976, Ch. 1190.)

102.
  

The sheriff or marshal shall specify when the summons or process is returned, what costs he or she would ordinarily have been entitled to for such service, and those costs and the other regular court costs that would have accrued if the action was not by the Labor Commissioner shall be made a part of any judgment recovered by the Labor Commissioner and shall be paid by the Labor Commissioner if sufficient money is collected over and above the wages, penalties, or demands actually due the claimants.

(Amended by Stats. 1996, Ch. 872, Sec. 104. Effective January 1, 1997.)

103.
  

The Labor Commissioner shall, to the extent provided for by any reciprocal agreement entered into pursuant to Section 64, or by the laws of any other state, maintain actions in the courts of the other state for the collection of the claims for wages, judgments, and other demands and may assign the claims, judgments, and demands to the labor department or agency of the other state for collection to the extent that they may be permitted or provided for by the laws of that state or by reciprocal agreement.

(Amended by Stats. 1983, Ch. 142, Sec. 98.)

104.
  

The Labor Commissioner shall, upon the written request of the labor department or other corresponding agency of any other state or of any person, board, officer or commission of such state authorized to act for and on behalf of such labor department or corresponding agency, maintain actions in the courts of this state upon assigned claims for wages, judgments and demands arising in such other state in the same manner and to the same extent that such actions by the Labor Commissioner are authorized when arising in this state; provided, however, that such actions may be commenced and maintained only in those cases where such other state by appropriate legislation or by reciprocal agreement extends a like comity to cases arising in this state.

(Amended by Stats. 1976, Ch. 1190.)

105.
  

(a) The Labor Commissioner shall provide qualified bilingual persons in public contact positions or as interpreters to assist those in such positions to provide information and services in the language of a limited- or non-English-speaking person, with the primary effort being exerted towards the largest segments of the non-English-speaking persons in this state.

(b) The Labor Commissioner shall provide that an interpreter be present at all hearings and interviews where appropriate.

(c) The Labor Commissioner shall prepare and distribute to the public, through its local offices, materials explaining services available in non-English languages, as well as in English. In addition, the commissioner shall prepare and use written materials in non-English languages as well as in English for use by local offices if the local office serves a substantial number of non-English-speaking people, as defined in Section 7296.2 of the Government Code. The commissioner shall prepare and use such complaint processing forms and form letters in the language of non-English speaking people as the commissioner deems necessary and appropriate for the filing, investigation, and resolution of wage claims, giving due consideration to the rights and obligations of all parties. The commissioner may, from time to time, at his or her discretion, eliminate, modify, amend, or add to the complaint processing forms and form letters which are the subject of bilingual or multilingual treatment or application.

(Amended by Stats. 1984, Ch. 1089, Sec. 2.)

106.
  

(a) The Labor Commissioner may authorize an employee of any of the agencies that participate in the Joint Enforcement Strike Force on the Underground Economy, as defined in Section 329 of the Unemployment Insurance Code, to issue citations pursuant to Sections 226.4 and 1022 and issue and serve a penalty assessment order pursuant to subdivision (a) of Section 3722.

(b) No employees shall issue citations or penalty assessment orders pursuant to this section unless they have been specifically designated, authorized, and trained by the Labor Commissioner for this purpose. Appeals of all citations or penalty assessment orders shall follow the procedures prescribed in Section 226.5, 1023, or 3725, whichever is applicable.

(Amended by Stats. 2004, Ch. 685, Sec. 1. Effective January 1, 2005.)

107.
  

(a) The enforcement of Section 14110.65 of the Welfare and Institutions Code is vested with the State Department of Health Services.

(b) Any claim made under Section 14110.65 of the Welfare and Institutions Code shall not constitute a wage claim as provided in subdivision (a) of Section 96, and shall not be subject to this chapter.

(Added by Stats. 2002, Ch. 898, Sec. 18. Effective January 1, 2003.)

LABLabor Code - LAB