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AB-1301 Labor Code: protections, obligations, and prohibitions: Legislature.(2021-2022)

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Date Published: 02/20/2021 04:00 AM
AB1301:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 1301


Introduced by Assembly Member Gray

February 19, 2021


An act to amend Sections 200, 350, 400, 430, 500, 1106, 1171, 1722, 2699, and 6304 of, and to add Sections 453, 920.5, 978, 1029, 2800.4, 2920.5 to, the Labor Code, and making an appropriation therefor, relating to employment.


LEGISLATIVE COUNSEL'S DIGEST


AB 1301, as introduced, Gray. Labor Code: protections, obligations, and prohibitions: Legislature.
Existing law provides specified protections for employees and specified obligations and prohibitions for employers in regard to payment of wages, gratuities, working conditions, bonds and photographs required by employers, contracts and applications for employment, purchases by employees, employee working hours, agreements regarding joining or becoming a member of a labor organization or employer organization, solicitation of employees by misrepresentation, enrollment in drug and alcohol rehabilitation programs, employee political affiliations, public works, employee indemnification and contributory negligence, provision of health benefits, termination, and occupational safety and health. A violation of several of these provisions by an employer or an agent, manager, superintendent, or officer of an employer is a misdemeanor or infraction, as specified.
This bill would expressly provide that these provisions apply to the Legislature and legislative employees, as specified. By expanding the scope of existing crimes, the bill would impose a state-mandated local program. The bill would declare the intent of the Legislature that these changes operate retroactively, except to the extent that retroactive operation would impose criminal liability for violations of law occurring before January 1, 2022.
Existing law authorizes the commissioner to collect unpaid wages and monetary benefits due to an employee. Existing law requires the commissioner to make a diligent search to locate any worker for whom the commissioner has collected unpaid wages or benefits. Existing law requires the commissioner to remit those wages or benefits to the unpaid worker or the worker’s representative, or to a trust or custodial fund established under a plan to provide prescribed benefits. Under existing law, the commissioner acts as trustee and deposits the collected wages and benefits into the Industrial Relations Unpaid Wage Fund, which is continuously appropriated for the purpose of remitting the collected wages or benefits.
By expanding the scope of provisions of the Labor Code to apply to the Legislature, the bill would increase the amount of collected wages and benefits deposited into the Industrial Relations Unpaid Wage Fund, thereby making an appropriation.
The Labor Code Private Attorneys General Act of 2004 authorizes an aggrieved employee on behalf of themselves and other current or former employees to bring a civil action to recover specified civil penalties, that would otherwise be assessed and collected by the Labor and Workforce Development Agency, for the violation of certain provisions affecting employees. The act provides that a specified percentage of civil penalties recovered by aggrieved employees are distributed to the Labor and Workforce Development Agency, to be continuously appropriated to supplement specified agency functions.
This bill would authorize an employee of the Legislature to bring an action described above. The bill would provide that the portion of a civil penalty not distributed to an aggrieved employee under the act shall be subject to appropriation by the Legislature. The bill would make these provisions retroactive.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: YES   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 200 of the Labor Code is amended to read:

200.
 As used in this article: (a) “Wages”
(a) “Employer” includes the Legislature.
(b) “Wages” includes all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation.

(b)

(c) “Labor” includes labor, work, or service whether rendered or performed under contract, subcontract, partnership, station plan, or other agreement if the labor to be paid for is performed personally by the person demanding payment.

SEC. 2.

 Section 350 of the Labor Code is amended to read:

350.
 As used in this article, unless the context indicates otherwise:
(a) “Employer” means every person engaged in any business or enterprise in this state that has one or more persons in service under any appointment, contract of hire, or apprenticeship, express or implied, oral or written, irrespective of whether the person is the owner of the business or is operating on a concessionaire or other basis. “Employer” includes the Legislature.
(b) “Employee” means every person, including aliens and minors, rendering actual service in any business for an employer, whether gratuitously or for wages or pay, whether the wages or pay are measured by the standard of time, piece, task, commission, or other method of calculation, and whether the service is rendered on a commission, concessionaire, or other basis.
(c) “Employing” includes hiring, or in any way contracting for, the services of an employee.
(d) “Agent” means every person other than the employer having the authority to hire or discharge any employee or supervise, direct, or control the acts of employees.
(e) “Gratuity” includes any tip, gratuity, money, or part thereof that has been paid or given to or left for an employee by a patron of a business over and above the actual amount due the business for services rendered or for goods, food, drink, or articles sold or served to the patron. Any amounts paid directly by a patron to a dancer employed by an employer subject to Industrial Welfare Commission Order No. 5 or 10 shall be deemed a gratuity.
(f) “Business” means any business establishment or enterprise, regardless of where conducted.

SEC. 3.

 Section 400 of the Labor Code is amended to read:

400.
 As used in this article, “applicant” article:
(a) “Applicantmeans an applicant for employment.
(b) “Employer” includes the Legislature.

SEC. 4.

 Section 430 of the Labor Code is amended to read:

430.
 As used in this article “applicant” article:
(a) “Applicant” means an applicant for employment.
(b) “Employer” includes the Legislature.

SEC. 5.

 Section 453 is added to the Labor Code, to read:

453.
 As used in this article, “employer” includes the Legislature.

SEC. 6.

 Section 500 of the Labor Code is amended to read:

500.
 For purposes of this chapter, the following terms shall have the following meanings:
(a) “Employer” includes the Legislature.

(a)

(b) “Workday” and “day” mean any consecutive 24-hour period commencing at the same time each calendar day.

(b)

(c) “Workweek” and “week” mean any seven consecutive days, starting with the same calendar day each week. “Workweek” is a fixed and regularly recurring period of 168 hours, seven consecutive 24-hour periods.

(c)

(d) “Alternative workweek schedule” means any regularly scheduled workweek requiring an employee to work more than eight hours in a 24-hour period.

SEC. 7.

 Section 920.5 is added to the Labor Code, to read:

920.5.
 As used in this chapter, “employer” includes the Legislature.

SEC. 8.

 Section 978 is added to the Labor Code, to read:

978.
 As used in this chapter, “person” includes the Legislature.

SEC. 9.

 Section 1029 is added to the Labor Code, to read:

1029.
 As used in this chapter, “employer” includes the Legislature.

SEC. 10.

 Section 1106 of the Labor Code is amended to read:

1106.
 For purposes of Sections 1102.5, 1102.6, 1102.7, 1102.8, 1104, and 1105, “employee” includes, but is not limited to, any individual employed by the state or any subdivision thereof, any county, city, city and county, including any charter city or county, and any school district, community college district, municipal or public corporation, political subdivision, or the University of California. California, or the Legislature.

SEC. 11.

 Section 1171 of the Labor Code is amended to read:

1171.
 (a) The provisions of this chapter shall apply to and include men, women and minors employed in any occupation, trade, or industry, whether compensation is measured by time, piece, or otherwise, but shall not include any individual employed as an outside salesman or any individual participating in a national service program carried out using assistance provided under Section 12571 of Title 42 of the United States Code.

Any

(b) Any individual participating in a national service program pursuant to Section 12571 of Title 42 of the United States Code shall be informed by the nonprofit, educational institution or other entity using his or her the individual’s service, prior to the commencement of service of the requirement, if any, to work hours in excess of eight hours per day, or 40 hours per week, or both, and shall have the opportunity to opt out of that national service program at that time. Individuals participating in a national service program pursuant to Section 12571 of Title 42 of the United States Code shall not be discriminated against or be denied continued participation in the program for refusing to work overtime for a legitimate reason.
(c) The provisions of this chapter shall apply to employees of the Legislature.

SEC. 12.

 Section 1722 of the Labor Code is amended to read:

1722.
 “Awarding body” or “body awarding the contract” means department, board, authority, officer or agent awarding a contract for public work. work, and includes the Legislature.

SEC. 13.

 Section 2699 of the Labor Code is amended to read:

2699.
 (a) (1) Notwithstanding any other provision of law, any provision of this code that provides for a civil penalty to be assessed and collected by the Labor and Workforce Development Agency or any of its departments, divisions, commissions, boards, agencies, or employees, for a violation of this code, may, as an alternative, be recovered through a civil action brought by an aggrieved employee on the employee’s own behalf of himself or herself and and on behalf of other current or former employees pursuant to the procedures specified in Section 2699.3.
(2) Notwithstanding any other law, this section authorizes an aggrieved employee of the Legislature to bring a civil action on the employee’s own behalf and on behalf of other current or former employees pursuant to the procedures specified in Section 2699.3. This paragraph applies retroactively. Notwithstanding subdivisions (i) and (j), the portion of a civil penalty recovered by an aggrieved employee of the Legislature that is not distributed to the employee under those subdivisions shall be subject to appropriation by the Legislature.
(b) For purposes of this part, “person” has the same meaning as defined in Section 18.
(c) For purposes of this part, “aggrieved employee” means any person who was employed by the alleged violator and against whom one or more of the alleged violations was committed.
(d) For purposes of this part, “cure” means that the employer abates each violation alleged by any aggrieved employee, the employer is in compliance with the underlying statutes as specified in the notice required by this part, and any aggrieved employee is made whole. A violation of paragraph (6) or (8) of subdivision (a) of Section 226 shall only be considered cured upon a showing that the employer has provided a fully compliant, itemized wage statement to each aggrieved employee for each pay period for the three-year period prior to the date of the written notice sent pursuant to paragraph (1) of subdivision (c) of Section 2699.3.
(e) (1) For purposes of this part, whenever the Labor and Workforce Development Agency, or any of its departments, divisions, commissions, boards, agencies, or employees, has discretion to assess a civil penalty, a court is authorized to exercise the same discretion, subject to the same limitations and conditions, to assess a civil penalty.
(2) In any action by an aggrieved employee seeking recovery of a civil penalty available under subdivision (a) or (f), a court may award a lesser amount than the maximum civil penalty amount specified by this part if, based on the facts and circumstances of the particular case, to do otherwise would result in an award that is unjust, arbitrary and oppressive, or confiscatory.
(f) For all provisions of this code except those for which a civil penalty is specifically provided, there is established a civil penalty for a violation of these provisions, as follows:
(1) If, at the time of the alleged violation, the person does not employ one or more employees, the civil penalty is five hundred dollars ($500).
(2) If, at the time of the alleged violation, the person employs one or more employees, the civil penalty is one hundred dollars ($100) for each aggrieved employee per pay period for the initial violation and two hundred dollars ($200) for each aggrieved employee per pay period for each subsequent violation.
(3) If the alleged violation is a failure to act by the Labor and Workplace Development Agency, or any of its departments, divisions, commissions, boards, agencies, or employees, there shall be no civil penalty.
(g) (1) Except as provided in paragraph (2), an aggrieved employee may recover the civil penalty described in subdivision (f) in a civil action pursuant to the procedures specified in Section 2699.3 filed on the employee’s own behalf of himself or herself and and on behalf of other current or former employees against whom one or more of the alleged violations was committed. Any employee who prevails in any action shall be entitled to an award of reasonable attorney’s fees and costs, including any filing fee paid pursuant to subparagraph (B) of paragraph (1) of subdivision (a) or subparagraph (B) of paragraph (1) of subdivision (c) of Section 2699.3. Nothing in this part shall operate to limit an employee’s right to pursue or recover other remedies available under state or federal law, either separately or concurrently with an action taken under this part.
(2) No action shall be brought under this part for any violation of a posting, notice, agency reporting, or filing requirement of this code, except where the filing or reporting requirement involves mandatory payroll or workplace injury reporting.
(h) No action may be brought under this section by an aggrieved employee if the agency or any of its departments, divisions, commissions, boards, agencies, or employees, on the same facts and theories, cites a person within the timeframes set forth in Section 2699.3 for a violation of the same section or sections of the Labor Code under which the aggrieved employee is attempting to recover a civil penalty on the employees’s own behalf of himself or herself or on behalf of others or initiates a proceeding pursuant to Section 98.3.
(i) Except as provided in subdivision (j), civil penalties recovered by aggrieved employees shall be distributed as follows: 75 percent to the Labor and Workforce Development Agency for enforcement of labor laws, including the administration of this part, and for education of employers and employees about their rights and responsibilities under this code, to be continuously appropriated to supplement and not supplant the funding to the agency for those purposes; and 25 percent to the aggrieved employees.
(j) Civil penalties recovered under paragraph (1) of subdivision (f) shall be distributed to the Labor and Workforce Development Agency for enforcement of labor laws, including the administration of this part, and for education of employers and employees about their rights and responsibilities under this code, to be continuously appropriated to supplement and not supplant the funding to the agency for those purposes.
(k) Nothing contained in this part is intended to alter or otherwise affect the exclusive remedy provided by the workers’ compensation provisions of this code for liability against an employer for the compensation for any injury to or death of an employee arising out of and in the course of employment.
(l) (1) For cases filed on or after July 1, 2016, the aggrieved employee or representative shall, within 10 days following commencement of a civil action pursuant to this part, provide the Labor and Workforce Development Agency with a file-stamped copy of the complaint that includes the case number assigned by the court.
(2) The superior court shall review and approve any settlement of any civil action filed pursuant to this part. The proposed settlement shall be submitted to the agency at the same time that it is submitted to the court.
(3) A copy of the superior court’s judgment in any civil action filed pursuant to this part and any other order in that action that either provides for or denies an award of civil penalties under this code shall be submitted to the agency within 10 days after entry of the judgment or order.
(4) Items required to be submitted to the Labor and Workforce Development Agency under this subdivision or to the Division of Occupational Safety and Health pursuant to paragraph (4) of subdivision (b) of Section 2699.3, shall be transmitted online through the same system established for the filing of notices and requests under subdivisions (a) and (c) of Section 2699.3.
(m) This section shall not apply to the recovery of administrative and civil penalties in connection with the workers’ compensation law as contained in Division 1 (commencing with Section 50) and Division 4 (commencing with Section 3200), including, but not limited to, Sections 129.5 and 132a.
(n) The agency or any of its departments, divisions, commissions, boards, or agencies may promulgate regulations to implement the provisions of this part.

SEC. 14.

 Section 2800.4 is added to the Labor Code, to read:

2800.4.
 For purposes of this article, “employer” includes the Legislature.

SEC. 15.

 Section 2920.5 is added to the Labor Code, to read:

2920.5.
 For purposes of this article, “employer” includes the Legislature.

SEC. 16.

 Section 6304 of the Labor Code is amended to read:

6304.
 “Employer” shall have the same meaning as in Section 3300. 3300, and includes the Legislature.

SEC. 17.

 It is the intent of the Legislature that the amendments made by this act shall operate retroactively, except to the extent that retroactive operation would impose criminal liability for violations of law occurring before January 1, 2022.

SEC. 18.

 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.