AB 2898: Private Attorneys General Act of 2004.
- Session Year: 2015-2016
- House: Assembly
- Latest Version Date: 2016-08-02
The Labor Code Private Attorneys General Act of 2004 authorizes an aggrieved employee to bring a civil action to recover specified civil penalties on behalf of the employee and other current or former employees for the violation of certain provisions affecting employees. The act provides procedures pertaining to specified violations that include an aggrieved employee giving written notice by online filing with the Labor and Workforce Development Agency and by certified mail to the employer of the alleged violation and the facts and theories in support thereof, the agency notifying the employer and the aggrieved employee whether it does, or does not, intend to investigate an alleged violation, and, if it does intend to investigate, the agency providing other notices, all within specified time periods. Existing law authorizes a plaintiff as a matter of right to amend an existing complaint to add a cause of action arising under the act at any time within 60 days of the specified time periods.
This bill would extend the time to add a cause of action to any time within 90 days of the specified time periods.
The Labor Code Private Attorneys General Act of 2004 authorizes an aggrieved employee to bring a civil action to recover specified civil penalties on behalf of the employee and other current or former employees for the violation of certain provisions affecting employees. The act provides the employer with the right to cure certain violations once in a 12-month period before the employee may bring a civil action, as specified. For other violations, the act requires the aggrieved employee to follow specified procedures before bringing an action.
Under the act, the procedures pertaining to specified violations include an aggrieved employee giving written notice to the Labor and Workforce Development Agency and the employer of the alleged violation and the facts and theories in support thereof, the agency notifying the employer and the aggrieved employee whether it does, or does not, intend to investigate an alleged violation, and, if it does intend to investigate, the agency providing other notices, all within specified time periods.
This bill would extend those time periods by requiring the agency, when it does not intend to investigate an alleged violation, to notify the employee and the employer within 45 days and by authorizing the aggrieved employee to commence a civil action 48 days after having sent notice of the alleged violation.
The bill would require the agency to send notification within 48 days if it intends to investigate an alleged violation. The bill would authorize an aggrieved employee to commence a civil action after 173 days, if after having received notice of the agencys intent to investigate, no citation is issued or no further notification is received from the agency.
The Labor Code Private Attorneys General Act of 2004 authorizes an aggrieved employee to bring a civil action to recover specified civil penalties on behalf of the employee and other current or former employees for the violation of certain provisions affecting employees. The act provides the employer with the right to cure certain violations once in a 12-month period before the employee may bring a civil action, as specified. For other violations, the act requires the aggrieved employee to follow specified procedures before bringing an action.
Under the act, the procedures pertaining to specified violations include an aggrieved employee giving written notice to the Labor and Workforce Development Agency and the employer of the alleged violation and the facts and theories in support thereof, the agency notifying the employer and the aggrieved employee whether it does, or does not, intend to investigate an alleged violation, and, if it does intend to investigate, the agency providing other notices, all within specified time periods.
This bill would extend those time periods by requiring the agency, when it does not intend to investigate an alleged violation, to notify the employee and the employer within 45 days and by authorizing the aggrieved employee to commence a civil action 48 days after having sent notice of the alleged violation.
The bill would require the agency to send notification within 48 days if it intends to investigate an alleged violation. The bill would authorize an aggrieved employee to commence a civil action after 173 days, if after having received notice of the agencys intent to investigate, no citation is issued or no further notification is received from the agency.
(a)A civil action by an aggrieved employee pursuant to subdivision (a) or (f) of Section 2699 alleging a violation of any provision listed in Section 2699.5 shall commence only after the following requirements have been met:
(1)(A)The aggrieved employee or representative shall give written notice by online filing with the Labor and Workforce Development Agency and by certified mail to the employer of the specific provisions of this code alleged to have been violated, including the facts and theories to support the alleged violation.
(B)A notice filed with the Labor and Workforce Development Agency pursuant to subparagraph (A) and any employer response to that notice shall be accompanied by a filing fee of seventy-five dollars ($75). The fees required by this subparagraph are subject to waiver in accordance with the requirements of Sections 68632 and 68633 of the Government Code.
(C)The fees paid pursuant to subparagraph (B) shall be paid into the Labor and Workforce Development Fund and used for the purposes specified in subdivision (j) of Section 2699.
(2)(A)The agency shall notify the employer and the aggrieved employee or representative by certified mail that it does not intend to investigate the alleged violation within 60 calendar days of the postmark date of the notice received pursuant to paragraph (1). Upon receipt of that notice or if no notice is provided within 65 calendar days of the postmark date of the notice given pursuant to paragraph (1), the aggrieved employee may commence a civil action pursuant to Section 2699.
(B)If the agency intends to investigate the alleged violation, it shall notify the employer and the aggrieved employee or representative by certified mail of its decision within 65 calendar days of the postmark date of the notice received pursuant to paragraph (1). Within 120 calendar days of that decision, the agency may investigate the alleged violation and issue any appropriate citation. If the agency, during the course of its investigation, determines that additional time is necessary to complete the investigation, it may extend the time by not more than 60 additional calendar days and shall issue a notice of the extension. If the agency determines that no citation will be issued, it shall notify the employer and aggrieved employee of that decision within five business days thereof by certified mail. Upon receipt of that notice or if no citation is issued by the agency within the time limits prescribed by subparagraph (A) and this subparagraph or if the agency fails to provide timely or any notification, the aggrieved employee may commence a civil action pursuant to Section 2699.
(C)Notwithstanding any other provision of law, a plaintiff may as a matter of right amend an existing complaint to add a cause of action arising under this part at any time within 60 90 days of the time periods specified in this part.
(D)The time limits prescribed by this paragraph shall only apply if the notice required by paragraph (1) is filed with the agency on or after July 1, 2016. For notices submitted prior to July 1, 2016, the time limits in effect on the postmark date of the notice shall apply.
(b)A civil action by an aggrieved employee pursuant to subdivision (a) or (f) of Section 2699 alleging a violation of any provision of Division 5 (commencing with Section 6300) other than those listed in Section 2699.5 shall commence only after the following requirements have been met:
(1)The aggrieved employee or representative shall give notice by online filing with the Division of Occupational Safety and Health and by certified mail to the employer, with a copy to the Labor and Workforce Development Agency, of the specific provisions of Division 5 (commencing with Section 6300) alleged to have been violated, including the facts and theories to support the alleged violation.
(2)(A)The division shall inspect or investigate the alleged violation pursuant to the procedures specified in Division 5 (commencing with Section 6300).
(i)If the division issues a citation, the employee may not commence an action pursuant to Section 2699. The division shall notify the aggrieved employee and employer in writing within 14 calendar days of certifying that the employer has corrected the violation.
(ii)If by the end of the period for inspection or investigation provided for in Section 6317, the division fails to issue a citation and the aggrieved employee disputes that decision, the employee may challenge that decision in the superior court. In such an action, the superior court shall follow precedents of the Occupational Safety and Health Appeals Board. If the court finds that the division should have issued a citation and orders the division to issue a citation, then the aggrieved employee may not commence a civil action pursuant to Section 2699.
(iii)A complaint in superior court alleging a violation of Division 5 (commencing with Section 6300) other than those listed in Section 2699.5 shall include therewith a copy of the notice of violation provided to the division and employer pursuant to paragraph (1).
(iv)The superior court shall not dismiss the action for nonmaterial differences in facts or theories between those contained in the notice of violation provided to the division and employer pursuant to paragraph (1) and the complaint filed with the court.
(B)If the division fails to inspect or investigate the alleged violation as provided by Section 6309, the provisions of subdivision (c) shall apply to the determination of the alleged violation.
(3)(A)Nothing in this subdivision shall be construed to alter the authority of the division to permit long-term abatement periods or to enter into memoranda of understanding or joint agreements with employers in the case of long-term abatement issues.
(B)Nothing in this subdivision shall be construed to authorize an employee to file a notice or to commence a civil action pursuant to Section 2699 during the period that an employer has voluntarily entered into consultation with the division to ameliorate a condition in that particular worksite.
(C)An employer who has been provided notice pursuant to this section may not then enter into consultation with the division in order to avoid an action under this section.
(4)The superior court shall review and approve any proposed settlement of alleged violations of the provisions of Division 5 (commencing with Section 6300) to ensure that the settlement provisions are at least as effective as the protections or remedies provided by state and federal law or regulation for the alleged violation. The provisions of the settlement relating to health and safety laws shall be submitted to the division at the same time that they are submitted to the court. This requirement shall be construed to authorize and permit the division to comment on those settlement provisions, and the court shall grant the divisions commentary the appropriate weight.
(c)A civil action by an aggrieved employee pursuant to subdivision (a) or (f) of Section 2699 alleging a violation of any provision other than those listed in Section 2699.5 or Division 5 (commencing with Section 6300) shall commence only after the following requirements have been met:
(1)(A)The aggrieved employee or representative shall give written notice by online filing with the Labor and Workforce Development Agency and by certified mail to the employer of the specific provisions of this code alleged to have been violated, including the facts and theories to support the alleged violation.
(B)A notice filed with the Labor and Workforce Development Agency pursuant to subparagraph (A) and any employer response to that notice shall be accompanied by a filing fee of seventy-five dollars ($75). The fees required by this subparagraph are subject to waiver in accordance with the requirements of Sections 68632 and 68633 of the Government Code.
(C)The fees paid pursuant to subparagraph (B) shall be paid into the Labor and Workforce Development Fund and used for the purposes specified in subdivision (j) of Section 2699.
(2)(A)The employer may cure the alleged violation within 33 calendar days of the postmark date of the notice sent by the aggrieved employee or representative. The employer shall give written notice within that period of time by certified mail to the aggrieved employee or representative and by online filing with the agency if the alleged violation is cured, including a description of actions taken, and no civil action pursuant to Section 2699 may commence. If the alleged violation is not cured within the 33-day period, the employee may commence a civil action pursuant to Section 2699.
(B)(i)Subject to the limitation in clause (ii), no employer may avail himself or herself of the notice and cure provisions of this subdivision more than three times in a 12-month period for the same violation or violations contained in the notice, regardless of the location of the worksite.
(ii)No employer may avail himself or herself of the notice and cure provisions of this subdivision with respect to alleged violations of paragraph (6) or (8) of subdivision (a) of Section 226 more than once in a 12-month period for the same violation or violations contained in the notice, regardless of the location of the worksite.
(3)If the aggrieved employee disputes that the alleged violation has been cured, the aggrieved employee or representative shall provide written notice by online filing with the agency and by certified mail to the employer, including specified grounds to support that dispute, to the employer and the agency. Within 17 calendar days of the receipt of that notice, the agency shall review the actions taken by the employer to cure the alleged violation, and provide written notice of its decision by certified mail to the aggrieved employee and the employer. The agency may grant the employer three additional business days to cure the alleged violation. If the agency determines that the alleged violation has not been cured or if the agency fails to provide timely or any notification, the employee may proceed with the civil action pursuant to Section 2699. If the agency determines that the alleged violation has been cured, but the employee still disagrees, the employee may appeal that determination to the superior court.
(d)The periods specified in this section are not counted as part of the time limited for the commencement of the civil action to recover penalties under this part.
(e)This section shall remain in effect only until July 1, 2021, and as of that date is repealed, unless a later enacted statute, that is enacted before July 1, 2021, deletes or extends that date.
SEC. 2.Section 2699.3 of the Labor Code, as added by Section 191 of Chapter 31 of the Statutes of 2016, is amended to read:2699.3.(a)A civil action by an aggrieved employee pursuant to subdivision (a) or (f) of Section 2699 alleging a violation of any provision listed in Section 2699.5 shall commence only after the following requirements have been met:
(1)(A)The aggrieved employee or representative shall give written notice by online filing with the Labor and Workforce Development Agency and by certified mail to the employer of the specific provisions of this code alleged to have been violated, including the facts and theories to support the alleged violation.
(B)A notice filed with the Labor and Workforce Development Agency pursuant to subparagraph (A) and any employer response to that notice shall be accompanied by a filing fee of seventy-five dollars ($75). The fees required by this subparagraph are subject to waiver in accordance with the requirements of Sections 68632 and 68633 of the Government Code.
(C)The fees paid pursuant to subparagraph (B) shall be paid into the Labor and Workforce Development Fund and used for the purposes specified in subdivision (j) of Section 2699.
(2)(A)The agency shall notify the employer and the aggrieved employee or representative by certified mail that it does not intend to investigate the alleged violation within 60 calendar days of the postmark date of the notice received pursuant to paragraph (1). Upon receipt of that notice or if no notice is provided within 65 calendar days of the postmark date of the notice given pursuant to paragraph (1), the aggrieved employee may commence a civil action pursuant to Section 2699.
(B)If the agency intends to investigate the alleged violation, it shall notify the employer and the aggrieved employee or representative by certified mail of its decision within 65 calendar days of the postmark date of the notice received pursuant to paragraph (1). Within 120 calendar days of that decision, the agency may investigate the alleged violation and issue any appropriate citation. If the agency determines that no citation will be issued, it shall notify the employer and aggrieved employee of that decision within five business days thereof by certified mail. Upon receipt of that notice or if no citation is issued by the agency within the time limits prescribed by subparagraph (A) and this subparagraph or if the agency fails to provide timely or any notification, the aggrieved employee may commence a civil action pursuant to Section 2699.
(C)Notwithstanding any other provision of law, a plaintiff may as a matter of right amend an existing complaint to add a cause of action arising under this part at any time within 60 90 days of the time periods specified in this part.
(b)A civil action by an aggrieved employee pursuant to subdivision (a) or (f) of Section 2699 alleging a violation of any provision of Division 5 (commencing with Section 6300) other than those listed in Section 2699.5 shall commence only after the following requirements have been met:
(1)The aggrieved employee or representative shall give notice by online filing with the Division of Occupational Safety and Health and by certified mail to the employer, with a copy to the Labor and Workforce Development Agency, of the specific provisions of Division 5 (commencing with Section 6300) alleged to have been violated, including the facts and theories to support the alleged violation.
(2)(A)The division shall inspect or investigate the alleged violation pursuant to the procedures specified in Division 5 (commencing with Section 6300).
(i)If the division issues a citation, the employee may not commence an action pursuant to Section 2699. The division shall notify the aggrieved employee and employer in writing within 14 calendar days of certifying that the employer has corrected the violation.
(ii)If by the end of the period for inspection or investigation provided for in Section 6317, the division fails to issue a citation and the aggrieved employee disputes that decision, the employee may challenge that decision in the superior court. In such an action, the superior court shall follow precedents of the Occupational Safety and Health Appeals Board. If the court finds that the division should have issued a citation and orders the division to issue a citation, then the aggrieved employee may not commence a civil action pursuant to Section 2699.
(iii)A complaint in superior court alleging a violation of Division 5 (commencing with Section 6300) other than those listed in Section 2699.5 shall include therewith a copy of the notice of violation provided to the division and employer pursuant to paragraph (1).
(iv)The superior court shall not dismiss the action for nonmaterial differences in facts or theories between those contained in the notice of violation provided to the division and employer pursuant to paragraph (1) and the complaint filed with the court.
(B)If the division fails to inspect or investigate the alleged violation as provided by Section 6309, the provisions of subdivision (c) shall apply to the determination of the alleged violation.
(3)(A)Nothing in this subdivision shall be construed to alter the authority of the division to permit long-term abatement periods or to enter into memoranda of understanding or joint agreements with employers in the case of long-term abatement issues.
(B)Nothing in this subdivision shall be construed to authorize an employee to file a notice or to commence a civil action pursuant to Section 2699 during the period that an employer has voluntarily entered into consultation with the division to ameliorate a condition in that particular worksite.
(C)An employer who has been provided notice pursuant to this section may not then enter into consultation with the division in order to avoid an action under this section.
(4)The superior court shall review and approve any proposed settlement of alleged violations of the provisions of Division 5 (commencing with Section 6300) to ensure that the settlement provisions are at least as effective as the protections or remedies provided by state and federal law or regulation for the alleged violation. The provisions of the settlement relating to health and safety laws shall be submitted to the division at the same time that they are submitted to the court. This requirement shall be construed to authorize and permit the division to comment on those settlement provisions, and the court shall grant the divisions commentary the appropriate weight.
(c)A civil action by an aggrieved employee pursuant to subdivision (a) or (f) of Section 2699 alleging a violation of any provision other than those listed in Section 2699.5 or Division 5 (commencing with Section 6300) shall commence only after the following requirements have been met:
(1)(A)The aggrieved employee or representative shall give written notice by online filing with the Labor and Workforce Development Agency and by certified mail to the employer of the specific provisions of this code alleged to have been violated, including the facts and theories to support the alleged violation.
(B)A notice filed with the Labor and Workforce Development Agency pursuant to subparagraph (A) and any employer response to that notice shall be accompanied by a filing fee of seventy-five dollars ($75). The fees required by this subparagraph are subject to waiver in accordance with the requirements of Sections 68632 and 68633 of the Government Code.
(C)The fees paid pursuant to subparagraph (B) shall be paid into the Labor and Workforce Development Fund and used for the purposes specified in subdivision (j) of Section 2699.
(2)(A)The employer may cure the alleged violation within 33 calendar days of the postmark date of the notice sent by the aggrieved employee or representative. The employer shall give written notice within that period of time by certified mail to the aggrieved employee or representative and by online filing with the agency if the alleged violation is cured, including a description of actions taken, and no civil action pursuant to Section 2699 may commence. If the alleged violation is not cured within the 33-day period, the employee may commence a civil action pursuant to Section 2699.
(B)(i)Subject to the limitation in clause (ii), no employer may avail himself or herself of the notice and cure provisions of this subdivision more than three times in a 12-month period for the same violation or violations contained in the notice, regardless of the location of the worksite.
(ii)No employer may avail himself or herself of the notice and cure provisions of this subdivision with respect to alleged violations of paragraph (6) or (8) of subdivision (a) of Section 226 more than once in a 12-month period for the same violation or violations contained in the notice, regardless of the location of the worksite.
(3)If the aggrieved employee disputes that the alleged violation has been cured, the aggrieved employee or representative shall provide written notice by online filing with the agency and by certified mail to the employer, including specified grounds to support that dispute, to the employer and the agency. Within 17 calendar days of the receipt of that notice, the agency shall review the actions taken by the employer to cure the alleged violation, and provide written notice of its decision by certified mail to the aggrieved employee and the employer. The agency may grant the employer three additional business days to cure the alleged violation. If the agency determines that the alleged violation has not been cured or if the agency fails to provide timely or any notification, the employee may proceed with the civil action pursuant to Section 2699. If the agency determines that the alleged violation has been cured, but the employee still disagrees, the employee may appeal that determination to the superior court.
(d)The periods specified in this section are not counted as part of the time limited for the commencement of the civil action to recover penalties under this part.
(e)This section shall become operative on July 1, 2021.
SECTION 1.Section 2699.3 of the Labor Code is amended to read:2699.3.(a)A civil action by an aggrieved employee pursuant to subdivision (a) or (f) of Section 2699 alleging a violation of any provision listed in Section 2699.5 shall commence only after the following requirements have been met:
(1)The aggrieved employee or representative shall give written notice by certified mail to the Labor and Workforce Development Agency and the employer of the specific provisions of this code alleged to have been violated, including the facts and theories to support the alleged violation.
(2)(A)The agency shall notify the employer and the aggrieved employee or representative by certified mail that it does not intend to investigate the alleged violation within 45 calendar days of the postmark date of the notice received pursuant to paragraph (1). Upon receipt of that notice or if no notice is provided within 48 calendar days of the postmark date of the notice given pursuant to paragraph (1), the aggrieved employee may commence a civil action pursuant to Section 2699.
(B)If the agency intends to investigate the alleged violation, it shall notify the employer and the aggrieved employee or representative by certified mail of its decision within 48 calendar days of the postmark date of the notice received pursuant to paragraph (1). Within 120 calendar days of that decision, the agency may investigate the alleged violation and issue any appropriate citation. If the agency determines that no citation will be issued, it shall notify the employer and aggrieved employee of that decision within five business days thereof by certified mail. Upon receipt of that notice or if no citation is issued by the agency within the 173-day period prescribed by subparagraph (A) and this subparagraph or if the agency fails to provide timely or any notification, the aggrieved employee may commence a civil action pursuant to Section 2699.
(C)Notwithstanding any other provision of law, a plaintiff may as a matter of right amend an existing complaint to add a cause of action arising under this part at any time within 60 days of the time periods specified in this part.
(b)A civil action by an aggrieved employee pursuant to subdivision (a) or (f) of Section 2699 alleging a violation of any provision of Division 5 (commencing with Section 6300) other than those listed in Section 2699.5 shall commence only after the following requirements have been met:
(1)The aggrieved employee or representative shall give notice by certified mail to the Division of Occupational Safety and Health and the employer, with a copy to the Labor and Workforce Development Agency, of the specific provisions of Division 5 (commencing with Section 6300) alleged to have been violated, including the facts and theories to support the alleged violation.
(2)(A)The division shall inspect or investigate the alleged violation pursuant to the procedures specified in Division 5 (commencing with Section 6300).
(i)If the division issues a citation, the employee may not commence an action pursuant to Section 2699. The division shall notify the aggrieved employee and employer in writing within 14 calendar days of certifying that the employer has corrected the violation.
(ii)If by the end of the period for inspection or investigation provided for in Section 6317, the division fails to issue a citation and the aggrieved employee disputes that decision, the employee may challenge that decision in the superior court. In such an action, the superior court shall follow precedents of the Occupational Safety and Health Appeals Board. If the court finds that the division should have issued a citation and orders the division to issue a citation, then the aggrieved employee may not commence a civil action pursuant to Section 2699.
(iii)A complaint in superior court alleging a violation of Division 5 (commencing with Section 6300) other than those listed in Section 2699.5 shall include therewith a copy of the notice of violation provided to the division and employer pursuant to paragraph (1).
(iv)The superior court shall not dismiss the action for nonmaterial differences in facts or theories between those contained in the notice of violation provided to the division and employer pursuant to paragraph (1) and the complaint filed with the court.
(B)If the division fails to inspect or investigate the alleged violation as provided by Section 6309, the provisions of subdivision (c) shall apply to the determination of the alleged violation.
(3)(A)Nothing in this subdivision shall be construed to alter the authority of the division to permit long-term abatement periods or to enter into memoranda of understanding or joint agreements with employers in the case of long-term abatement issues.
(B)Nothing in this subdivision shall be construed to authorize an employee to file a notice or to commence a civil action pursuant to Section 2699 during the period that an employer has voluntarily entered into consultation with the division to ameliorate a condition in that particular worksite.
(C)An employer who has been provided notice pursuant to this section may not then enter into consultation with the division in order to avoid an action under this section.
(4)The superior court shall review and approve any proposed settlement of alleged violations of the provisions of Division 5 (commencing with Section 6300) to ensure that the settlement provisions are at least as effective as the protections or remedies provided by state and federal law or regulation for the alleged violation. The provisions of the settlement relating to health and safety laws shall be submitted to the division at the same time that they are submitted to the court. This requirement shall be construed to authorize and permit the division to comment on those settlement provisions, and the court shall grant the divisions commentary the appropriate weight.
(c)A civil action by an aggrieved employee pursuant to subdivision (a) or (f) of Section 2699 alleging a violation of any provision other than those listed in Section 2699.5 or Division 5 (commencing with Section 6300) shall commence only after the following requirements have been met:
(1)The aggrieved employee or representative shall give written notice by certified mail to the Labor and Workforce Development Agency and the employer of the specific provisions of this code alleged to have been violated, including the facts and theories to support the alleged violation.
(2)(A)The employer may cure the alleged violation within 33 calendar days of the postmark date of the notice. The employer shall give written notice by certified mail within that period of time to the aggrieved employee or representative and the agency if the alleged violation is cured, including a description of actions taken, and no civil action pursuant to Section 2699 may commence. If the alleged violation is not cured within the 33-day period, the employee may commence a civil action pursuant to Section 2699.
(B)(i)Subject to the limitation in clause (ii), no employer may avail himself or herself of the notice and cure provisions of this subdivision more than three times in a 12-month period for the same violation or violations contained in the notice, regardless of the location of the worksite.
(ii)No employer may avail himself or herself of the notice and cure provisions of this subdivision with respect to alleged violations of paragraph (6) or (8) of subdivision (a) of Section 226 more than once in a 12-month period for the same violation or violations contained in the notice, regardless of the location of the worksite.
(3)If the aggrieved employee disputes that the alleged violation has been cured, the aggrieved employee or representative shall provide written notice by certified mail, including specified grounds to support that dispute, to the employer and the agency. Within 17 calendar days of the postmark date of that notice, the agency shall review the actions taken by the employer to cure the alleged violation, and provide written notice of its decision by certified mail to the aggrieved employee and the employer. The agency may grant the employer three additional business days to cure the alleged violation. If the agency determines that the alleged violation has not been cured or if the agency fails to provide timely or any notification, the employee may proceed with the civil action pursuant to Section 2699. If the agency determines that the alleged violation has been cured, but the employee still disagrees, the employee may appeal that determination to the superior court.
(d)The periods specified in this section are not counted as part of the time limited for the commencement of the civil action to recover penalties under this part.
(a)A civil action by an aggrieved employee pursuant to subdivision (a) or (f) of Section 2699 alleging a violation of any provision listed in Section 2699.5 shall commence only after the following requirements have been met:
(1)The aggrieved employee or representative shall give written notice by certified mail to the Labor and Workforce Development Agency and the employer of the specific provisions of this code alleged to have been violated, including the facts and theories to support the alleged violation.
(2)(A)The agency shall notify the employer and the aggrieved employee or representative by certified mail that it does not intend to investigate the alleged violation within 30 45 calendar days of the postmark date of the notice received pursuant to paragraph (1). Upon receipt of that notice or if no notice is provided within 33 48 calendar days of the postmark date of the notice given pursuant to paragraph (1), the aggrieved employee may commence a civil action pursuant to Section 2699.
(B)If the agency intends to investigate the alleged violation, it shall notify the employer and the aggrieved employee or representative by certified mail of its decision within 33 48 calendar days of the postmark date of the notice received pursuant to paragraph (1). Within 120 calendar days of that decision, the agency may investigate the alleged violation and issue any appropriate citation. If the agency determines that no citation will be issued, it shall notify the employer and aggrieved employee of that decision within five business days thereof by certified mail. Upon receipt of that notice or if no citation is issued by the agency within the 158-day 173-day period prescribed by subparagraph (A) and this subparagraph or if the agency fails to provide timely or any notification, the aggrieved employee may commence a civil action pursuant to Section 2699.
(C)Notwithstanding any other provision of law, a plaintiff may as a matter of right amend an existing complaint to add a cause of action arising under this part at any time within 60 days of the time periods specified in this part.
(b)A civil action by an aggrieved employee pursuant to subdivision (a) or (f) of Section 2699 alleging a violation of any provision of Division 5 (commencing with Section 6300) other than those listed in Section 2699.5 shall commence only after the following requirements have been met:
(1)The aggrieved employee or representative shall give notice by certified mail to the Division of Occupational Safety and Health and the employer, with a copy to the Labor and Workforce Development Agency, of the specific provisions of Division 5 (commencing with Section 6300) alleged to have been violated, including the facts and theories to support the alleged violation.
(2)(A)The division shall inspect or investigate the alleged violation pursuant to the procedures specified in Division 5 (commencing with Section 6300).
(i)If the division issues a citation, the employee may not commence an action pursuant to Section 2699. The division shall notify the aggrieved employee and employer in writing within 14 calendar days of certifying that the employer has corrected the violation.
(ii)If by the end of the period for inspection or investigation provided for in Section 6317, the division fails to issue a citation and the aggrieved employee disputes that decision, the employee may challenge that decision in the superior court. In such an action, the superior court shall follow precedents of the Occupational Safety and Health Appeals Board. If the court finds that the division should have issued a citation and orders the division to issue a citation, then the aggrieved employee may not commence a civil action pursuant to Section 2699.
(iii)A complaint in superior court alleging a violation of Division 5 (commencing with Section 6300) other than those listed in Section 2699.5 shall include therewith a copy of the notice of violation provided to the division and employer pursuant to paragraph (1).
(iv)The superior court shall not dismiss the action for nonmaterial differences in facts or theories between those contained in the notice of violation provided to the division and employer pursuant to paragraph (1) and the complaint filed with the court.
(B)If the division fails to inspect or investigate the alleged violation as provided by Section 6309, the provisions of subdivision (c) shall apply to the determination of the alleged violation.
(3)(A)Nothing in this subdivision shall be construed to alter the authority of the division to permit long-term abatement periods or to enter into memoranda of understanding or joint agreements with employers in the case of long-term abatement issues.
(B)Nothing in this subdivision shall be construed to authorize an employee to file a notice or to commence a civil action pursuant to Section 2699 during the period that an employer has voluntarily entered into consultation with the division to ameliorate a condition in that particular worksite.
(C)An employer who has been provided notice pursuant to this section may not then enter into consultation with the division in order to avoid an action under this section.
(4)The superior court shall review and approve any proposed settlement of alleged violations of the provisions of Division 5 (commencing with Section 6300) to ensure that the settlement provisions are at least as effective as the protections or remedies provided by state and federal law or regulation for the alleged violation. The provisions of the settlement relating to health and safety laws shall be submitted to the division at the same time that they are submitted to the court. This requirement shall be construed to authorize and permit the division to comment on those settlement provisions, and the court shall grant the divisions commentary the appropriate weight.
(c)A civil action by an aggrieved employee pursuant to subdivision (a) or (f) of Section 2699 alleging a violation of any provision other than those listed in Section 2699.5 or Division 5 (commencing with Section 6300) shall commence only after the following requirements have been met:
(1)The aggrieved employee or representative shall give written notice by certified mail to the Labor and Workforce Development Agency and the employer of the specific provisions of this code alleged to have been violated, including the facts and theories to support the alleged violation.
(2)(A)The employer may cure the alleged violation within 33 calendar days of the postmark date of the notice. The employer shall give written notice by certified mail within that period of time to the aggrieved employee or representative and the agency if the alleged violation is cured, including a description of actions taken, and no civil action pursuant to Section 2699 may commence. If the alleged violation is not cured within the 33-day period, the employee may commence a civil action pursuant to Section 2699.
(B)(i)Subject to the limitation in clause (ii), no employer may avail himself or herself of the notice and cure provisions of this subdivision more than three times in a 12-month period for the same violation or violations contained in the notice, regardless of the location of the worksite.
(ii)No employer may avail himself or herself of the notice and cure provisions of this subdivision with respect to alleged violations of paragraph (6) or (8) of subdivision (a) of Section 226 more than once in a 12-month period for the same violation or violations contained in the notice, regardless of the location of the worksite.
(3)If the aggrieved employee disputes that the alleged violation has been cured, the aggrieved employee or representative shall provide written notice by certified mail, including specified grounds to support that dispute, to the employer and the agency. Within 17 calendar days of the postmark date of that notice, the agency shall review the actions taken by the employer to cure the alleged violation, and provide written notice of its decision by certified mail to the aggrieved employee and the employer. The agency may grant the employer three additional business days to cure the alleged violation. If the agency determines that the alleged violation has not been cured or if the agency fails to provide timely or any notification, the employee may proceed with the civil action pursuant to Section 2699. If the agency determines that the alleged violation has been cured, but the employee still disagrees, the employee may appeal that determination to the superior court.
(d)The periods specified in this section are not counted as part of the time limited for the commencement of the civil action to recover penalties under this part.
|
Date
|
Status
|
|---|---|
| Mar 1, 2016 | Read first time. To print. |
| Mar 2, 2016 | From printer. May be heard in committee April 1. |
| Mar 28, 2016 | Referred to Com. on L. & E. |
| Apr 7, 2016 | From committee: Do pass and re-refer to Com. on APPR. (Ayes 7. Noes 0.) (April 6). Re-referred to Com. on APPR. |
| May 18, 2016 | From committee: Do pass. To Consent Calendar. (Ayes 20. Noes 0.) (May 18). |
| May 19, 2016 | Read second time. Ordered to Consent Calendar. |
| May 27, 2016 | In Senate. Read first time. To Com. on RLS. for assignment. |
| May 27, 2016 | Read third time. Passed. Ordered to the Senate. |
| May 27, 2016 | Read third time. Passed. Ordered to the Senate. (Ayes 67. Noes 0. Page 4961.) |
| Jun 9, 2016 | Referred to Com. on L. & I.R. |
| Jun 29, 2016 | From committee: Do pass and re-refer to Com. on APPR. (Ayes 5. Noes 0.) (June 29). Re-referred to Com. on APPR. |
| Aug 1, 2016 | From committee: Be placed on second reading file pursuant to Senate Rule 28.8 and be amended. |
| Aug 2, 2016 | Read second time and amended. Ordered to third reading. |
| Aug 4, 2016 | Ordered to inactive file at the request of Senator Hueso. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Jun 29, 2016 | Do pass, but first be re-referred to the Committee on [Appropriations] | Senate Standing Committee on Labor and Industrial Relations |
Passed |
|
| May 27, 2016 | AB 2898 L. & E. Consent Calendar Second Day Regular Session | Assembly Floor |
Passed |
|
| May 18, 2016 | Do pass. To Consent Calendar. | Assembly Standing Committee on Appropriations |
Passed |
|
| Apr 6, 2016 | Do pass and be re-referred to the Committee on [Appropriations] | Assembly Standing Committee on Labor and Employment |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | AB 2898 |
THIRD READING
Bill No: AB 2898
Amended: 8/2/16 in Senate
SENATE LABOR & IND. REL. COMMITTEE: 5-0, 6/29/16
AYES: Mendoza, Stone, Jackson, Leno, Mitchell
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
ASSEMBLY FLOOR: 67-0, 5/27/16 (Consent) - See last page for vote
SUBJECT: Private Attorneys General Act of 2004
DIGEST: This bill amends the Private Attorneys General Act (PAGA) by lengthening the window during which a plaintiff may add a cause of legal action to an existing complaint against an employer from within 60 to 90 days of the time periods specified under the Act.
Existing law:
- Allows, under PAGA, for a private citizen to pursue civil penalties on behalf of the Labor and Workforce Development Agency (LWDA) provided that they inform the LWDA of the alleged violations of the Labor Code and that the LWDA does not pursue the allegations or does not issue a citation within certain time periods (Labor Code §2698-2699.5).
- Allows aggrieved employees to seek civil penalties for violations that they personally suffered and/or for violations suffered by other current or former employees (Labor Code §2699).
- Allows plaintiffs who are bringing legal action against employers under PAGA to amend their complaints with additional causes of action at any time within 60 days of the time periods specified under the Act (Labor Code §2699.3).
This bill allows plaintiffs who are bringing legal action against employers under PAGA to amend their complaints with additional causes of action at any time within 90 days of the time periods specified under the Act.
The previous version of this bill served as a vehicle for ongoing negotiations regarding reforms to PAGA. However, with the recent passage of the 2016-2017 Budget Trailer Bill, SB 836 (Budget and Fiscal Review, Chapter 31, Statutes of 2016), the code section that this bill previously amended was changed. As a result, this bill was amended to make another technical change to PAGA in order for it to continue as a vehicle.
FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No
None received
None received
ASSEMBLY FLOOR: 67-0, 5/27/16
AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker, Bigelow, Bonilla, Bonta, Burke, Calderon, Campos, Chang, Chau, Chávez, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Harper, Roger Hernández, Holden, Irwin, Jones, Kim, Lackey, Levine, Linder, Lopez, Maienschein, Mathis, Mayes, McCarty, Medina, Mullin, Nazarian, Obernolte, Olsen, Patterson, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Wagner, Waldron, Weber, Wilk, Williams, Wood, Rendon
NO VOTE RECORDED: Bloom, Brough, Brown, Chiu, Dodd, Eduardo Garcia, Grove, Hadley, Jones-Sawyer, Low, Melendez, O'Donnell, Ting
Prepared by: Brandon Seto / L. & I.R. / (916) 651-1556
8/3/16 19:11:11
**** END ****
SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS
Senator Tony Mendoza, Chair
2015 - 2016 Regular
Bill No: AB 2898 Hearing Date: June 29, 2016
Author: | Committee on Labor and Employment | ||
Version: | March 1, 2016 | ||
Urgency: | No | Fiscal: | Yes |
Consultant: | Brandon Seto | ||
Subject: Private Attorneys General Act of 2004
KEY ISSUE
Should the Legislature extend the window for the Labor and Workforce Development Agency (LWDA) to review and investigate Private Attorneys General Act (PAGA) claims before a civil action may be filed?
ANALYSIS
Existing law
- Allows, under PAGA, for a private citizen to pursue civil penalties on behalf of the LWDA provided that they inform the LWDA of the alleged violations of the Labor Code and that the LWDA does not pursue the allegations or does not issue a citation within certain time periods (Labor Code §2698-2699.5).
- Allows aggrieved employees to seek civil penalties for violations that they personally suffered and/or for violations suffered by other current or former employees (Labor Code §2699).
- Requires that the LWDA notify an aggrieved employee and his/her employer if it intends to investigate an alleged violation within 30 days of an employee providing written notice of an alleged violation (Labor Code §2699.3).
- Requires that, upon receipt of notice that LWDA will not issue a citation, or if no citation is issued by LWDA within 158 days, the aggrieved employee may commence a civil action under PAGA (Labor Code §2699.3).
This Bill
- Extends the period of time from 30 days to 45 days allowed for the LWDA to notify an aggrieved employee and his/her employer if it intends to investigate an alleged violation.
- Extends the period of time from 158 days to 173 days upon which, if the LWDA does not issue a citation, the aggrieved employee may commence a civil action under PAGA.
COMMENTS
1. Need for this bill?
According to the author, the Governor states that due to lack of resources, less than one percent of all PAGA cases are reviewed or investigated. The volume of PAGA cases is as high as 635 notices per month. In addition to statutory changes, the Governor's budget proposes 10 additional positions within the LWDA and the Department of Industrial Relations (DIR) to "stabilize and improve the handling" of PAGA cases. To complement these efforts, this bill would extend the timelines for the LWDA to review alleged PAGA claims. For example, the LWDA would have 45 days to decide whether to investigate a case. Related timeframes for the investigation of PAGA claims would be similarly increased.
2. Proponent Arguments:
None received.
3. Opponent Arguments:
None received.
4. Prior Legislation:
AB 1506 (Hernández) Chapter 455, Statutes of 2015 - amended PAGA to provide an employer with the right to cure a violation of failing to provide its employees with a wage statement containing the inclusive dates of the pay period and the name and address of the employer. This bill was enacted as a response to concerns about PAGA claims being filed for alleged technical violations of an employer's obligation to provide accurate wage statements.
SUPPORT
None on file
OPPOSITION
None on file
-- END --
Date of Hearing: May 18, 2016
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Lorena Gonzalez, Chair
ABPCA Bill Id:AB 2898
Author:(Committee on Labor and Employment) – As Introduced Ver:March 1, 2016
Policy Committee: | Labor and Employment | Vote: | 7 - 0 |
Urgency: No State Mandated Local Program: No Reimbursable: No
SUMMARY:
This bill extends timelines for Labor and Workforce Development Agency (LWDA) to investigate a violation, and for an aggravated employee to file civil action, pursuant to the Private Attorneys General Act of 2004 (PAGA). Specifically, this bill:
- Extends from 30 days to 45 days, the period of time for LWDA to notify an aggrieved employee and the employer, if it intends to investigate, an alleged violation.
- Extends from 158 days to 173 days, the time period for an aggravated employee to commence a civil action under PAGA, if the LWDA does not issue a citation.
FISCAL EFFECT:
Minor/absorbable costs to the Department of Industrial Relations (DIR).
COMMENTS:
- Purpose. This bill proposes minor changes to allow the LWDA more time to investigate and consider claims before a PAGA lawsuit may be filed. According to the author, this bill may serve as a potential policy vehicle for further discussions as the year progresses, depending on the outcome of budget negotiations.
- Background. When an employer does not pay wages as required by law, the Labor Code allows employees to recover these wages, either through an administrative proceeding with the LWDA or through private legal action against the employer. SB 796 (Dunn), Chapter 906, Statues of 2003, established this private right to action, also known as PAGA and SB 1809 (Dunn), Chapter 221, Statutes of 2004, expanded the law to allow employees the right to seek civil penalties from employers. Prior to PAGA these claims could only be pursued by LWDA and related state agencies.
The general intent of PAGA is to allow employees to pursue civil penalties through the legal system when LWDA and related state agencies do not have the resources to do so, with a goal of increasing the deterrent effect of the civil penalties and compliance with labor law. The LWDA receives notice of an employee's intent to pursue civil penalties under PAGA. This allows LWDA to investigate claims that might be better handled administratively rather than through the PAGA process, such as when the claim overlaps with other matters already under investigation by LWDA.
- Governor's January Budget proposal. Since the implementation of PAGA, resources for LWDA have not kept pace with workload. In 2014, less than half of PAGA notices were reviewed, and LWDA estimates that less than 1 percent of PAGA notices have been reviewed or investigated since PAGA was implemented. When a PAGA notice is investigated, LWDA reports that it has difficulty completing the investigation within the timeframes outlined in PAGA. When an investigation is not completed, or not completed on time, the PAGA claim is automatically authorized to proceed.
Acknowledging the additional support necessary to implement PAGA, the Governor's January budget proposes $1.6 million in 2016-17, and $1.5 million ongoing, from the Labor and Workforce Development Fund (LWDF) to support ten new positions - one at LWDA and nine at the DIR. These resources would allow for greater oversight of the PAGA process. The Assembly budget subcommittee approved this funding and associated positions.
The Governor's January proposal also included several policy changes. The Assembly budget subcommittee rejected the following pieces of the Administration's proposed trailer bill: (1) clarify that employers may request an investigation following the receipt of a PAGA claim; (2) require verification of PAGA notices involving more than ten employees; and (3) grant authority to DIR to create ad hoc employer amnesty programs under specified conditions.
The balance of the administration's proposal was held open to allow for continued dialogue between stakeholders and the administration. The Subcommittee plans to revisit the issue when the May Revision is considered.
This bill was introduced to serve as a potential policy vehicle if the Legislature determines a policy bill is necessary in lieu of a budget trailer bill.
Analysis Prepared by: Misty Feusahrens / APPR. / (916) 319-2081
Date of Hearing: April 6, 2016
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hernández, Chair
ABPCA Bill Id:AB 2898 (
Author:Committee on Labor and Employment) – As Introduced Ver:March 1, 2016
SUBJECT: Private Attorneys General Act of 2004
SUMMARY: Enacts procedural changes to the Labor Code Private Attorneys General Act of 2004 (PAGA). Specifically, this bill:
- Extends the period of time for the Labor and Workforce Development Agency (LWDA) to notify an aggrieved employee and the employer if it intends to investigate an alleged violation from 30 to 45 days.
- Extends the time period from 158 days to 173 days upon which, if the LWDA does not issue a citation, the aggrieved employee may commence a civil action under PAGA.
- Makes related conforming changes.
EXISTING LAW:
- Provides that the LWDA shall notify an aggrieved employee and the employer if it intends to investigate an alleged violation within 30 days of an employee providing written notice required under existing law.
- Provides that, upon receipt of notice that LWDA will not issue a citation, or if no citation is issued by LWDA within 158 days, the aggrieved employee may commence a civil action under PAGA.
FISCAL EFFECT: Unknown
COMMENTS: This bill proposes to make a number of procedural changes to certain time frames for action by the LWDA under PAGA.
Background on the Labor Code Private Attorneys General Act of 2004 (PAGA)
The Labor Code Private Attorneys General Act (PAGA) was enacted pursuant to SB 796 (Dunn), Chapter # 906, Statutes of 2003, and went into effect on January 1, 2004.
The Legislative findings accompanying the enactment of SB 796 stated the following:
"Adequate financing of essential labor law enforcement functions is necessary to achieve maximum compliance with state labor laws in the underground economy and to ensure an effective disincentive for employers to engage in unlawful and anticompetitive business practices.
Although innovative labor law education programs and self-policing efforts by industry watchdog groups may have some success in educating some employers about their obligations under state labor laws, in other cases the only meaningful deterrent to unlawful conduct is the vigorous assessment and collection of civil penalties as provided in the Labor Code.
Staffing levels for state labor law enforcement agencies have, in general, declined over the last decade and are likely to fail to keep up with the growth of the labor market in the future.
It is therefore in the public interest to provide that civil penalties for violations of the Labor Code may also be assessed and collected by aggrieved employees acting as private attorneys general, while also ensuring that state labor law enforcement agencies’ enforcement actions have primacy over any private enforcement efforts undertaken pursuant to this act."
The co-sponsors of SB 796, the California Labor Federation, AFL-CIO and the California Rural Legal Assistance Foundation, argued that the bill would address inadequacies in labor law enforcement in two major ways. First, the bill assigned civil fine amounts to the large number of Labor Code provisions, which previously carried prohibitions or criminal fines, but not civil penalties. Second, it authorized the filing of civil actions to recover existing and new civil penalties by aggrieved workers acting as private attorneys general.
The PAGA was significantly amended by SB 1809 (Dunn), Chapter # 221, Statutes of 2004.
SB 1809 significantly amended the provisions of the PAGA by enacting specified procedural and administrative requirements that must be met prior to bringing a private action to recover civil penalties. Moreover, SB 1809 provided that no action shall be brought for a posting, notice, agency reporting, or filing requirement, except as specified.
The provisions of SB 1809 also expanded judicial review of PAGA claims by requiring courts to review and approve any penalties sought as part of a proposed settlement agreement, and those portions of settlements concerning violations of health and safety laws. In addition, courts were authorized to award a lesser amount if to do so otherwise would result in an award that is unjust, arbitrary and oppressive, or confiscatory.
Finally, SB 1809 appropriated $150,000 from the General Fund to the LWDA for the purposes of implementing its provisions, and changed the prior penalty formula to provide that 75 percent of most civil penalties recovered pursuant to PAGA shall go to the LWDA for labor law enforcement and education.
Existing Procedural Requirements Under PAGA
As discussed above, SB 1809 significantly amended the provisions of the PAGA by enacting specified procedural and administrative requirements that must be met prior to bringing a private action to recover civil penalties. SB 1809 essentially enacted three different procedural requirements depending on the type of violation.
"Serious" Labor Code Violations
SB 1809 established a new procedure that an aggrieved employee must follow prior to bringing a civil action to recover penalties for enumerated, serious Labor Code violations (including, but not limited to, violations of wage and hour, overtime, child labor, agricultural, entertainment and garment industry labor laws, and public works laws).
First, the aggrieved employee must provide written notice of the violation to the LWDA and to the employer. The LWDA has 30 days to decide if it will investigate the violation. If the LWDA decides to investigate the alleged violation, it must notify the employer and the aggrieved employee within 33 days. Within 120 days of that decision, the Labor Agency may investigate the alleged violation and issue any appropriate citation. If the LWDA fails to act, the aggrieved employee may pursue a civil action under PAGA.
Notice and Cure Provisions for Other Labor Code Violations
SB 1809 also established specified "notice and cure" provisions for those Labor Code violations not enumerated as "serious" above, nor subject to the Cal-OSHA provisions specified below.
For these violations, the following procedural requirements apply:
First, the aggrieved employee must give written notice to the LWDA and the employer of the alleged violation. The employer may cure the alleged violation within 33 days and give written notice to the employee and the LWDA if the alleged violation is cured.
If the alleged violation is cured, no civil action pursuant to PAGA may commence.
If the alleged violation is not cured within the 33-day period, the aggrieved employee may commence a civil action pursuant to PAGA. For the aggrieved employee to dispute that the alleged violation has been cured, the employee must provide written notice to the employer and the LWDA. Within 17 days the LWDA must review the actions of the employer and provide written notice of whether the alleged violation has been cured.
If the LWDA determines that the alleged violation has not been cured or if the agency fails to provide timely or any notification, the aggrieved employee may proceed with a civil action pursuant to PAGA. If the agency has determined that the alleged violation has been cured, but the employee still disagrees, the employee may appeal that determination to the superior court.
No employer may avail himself or herself of the "notice and cure" provisions more than three times in a 12-month period for the same violation or violations contained in the notice, regardless of the location of the worksite.
Cal-OSHA Violations
SB 1809 also established a new procedure that an aggrieved employee must follow prior to initiating a civil action to recover penalties for violations of Labor Code provisions pertaining to occupational safety and health (Cal-OSHA), as follows:
- The aggrieved employee must give written notice to the Division of Occupational Safety and Health (DOSH) within the Department of Industrial Relations (DIR) and the employer of the alleged violation.
- DOSH must inspect or investigate the alleged violation pursuant to existing provisions of law.
- If DOSH issues a citation, no civil action pursuant to PAGA may commence.
- If, by the end of the period for inspection or investigation, DOSH fails to issue a citation and the employee disputes that decision, the employee may challenge the decision in the superior court. If the court finds that DOSH should have issued a citation and orders DOSH to issue a citation, then no civil action pursuant to PAGA may commence.
- If DOSH fails to inspect or investigate the alleged violation within the period specified in existing law, the notice and cure provisions outlined above apply to the determination of the alleged violation.
- The superior court shall review any proposed settlement of alleged safety in employment violations to ensure that they are at least as effective as the protections or remedies provided in federal and state law.
Governor's Proposed Budget Changes to PAGA
The Governor's proposed budget released in January contains additional budget resources for the handling of PAGA cases, and also proposed a number of significant policy and procedural changes to the PAGA statute itself.
With respect to resources, the Governor's proposed budget change proposal (BCP) states the following:
"This proposal requests 1.0 position for the Labor and Workforce Development Agency (LWDA), 9.0 positions for the Department of Industrial Relations (DIR), and $1.6 million in the Labor and Workforce Development Fund (LWDF) for the 2016/17 fiscal year ($1.5 million ongoing) to stabilize and improve the handling of Private Attorneys General Act cases, largely to the benefit of workers, employers, and the state."
Further explaining the rationale for increased resources, the BCP states the following:
"As indicated in the Resource History and Workload History charts above, historically, the LWDA and DIR have not been staffed to perform the review and oversight functions contemplated by the Labor Code Sections 2698 - 2699.5 (PAGA). This has contributed to a range of concerns about the PAGA statute itself, Including that employers are being sued and incurring substantial costs defending against technical or frivolous claims, and that workers and the state often end up being shortchanged when these cases are settled. Employers are also concerned about potential exposure to large back pay and penalty claims, often pursued through PAGA actions, when courts make new precedential determinations in wage and hour cases. This proposal would address these by concerns by providing DIR with the staffing needed to effectively oversee and, when appropriate, step in to handle PAGA cases."
The BCP also proposes a number of significant policy and procedural changes (through proposed budget trailer bill language) to PAGA statute itself. The BCP describes these proposed statutory changes as follows:
"This proposal will also make a number of modest revisions to the PAGA statute to improve the state's oversight of PAGA cases and better insure that they are pursued in the public's interest and not just for private purposes. Proposed revisions would provide for the following:
- Require more detail in the PAGA claim notices filed with the LWDA and require that claims for ten or more employees be verified and accompanied by a copy of the proposed complaint.
- Extend the LWDA's time to review PAGA notices from 30 to 60 days, and specify that employers may submit a request for the LWDA to Investigate a PAGA claim.
- Require PAGA notices and employer responses to be submitted online and accompanied by a filing fee.
- Extend the time for the LWDA to investigate an accepted claim from 120 to 180 days.
- Require the Director of Industrial Relations to be served with a copy of the complaint when a PAGA case is filed.
- Require court approval of all PAGA case settlements, and require that the Director of DIR be provided with notice and an opportunity to object before the court determines whether to approve a settlement.
- Create a separate procedure through which interested parties may ask the Director of DIR to establish a temporary amnesty and safe harbor program to provide expedited back wage payments to employees and penalty relief to employers following the invalidation of a widespread industry practice (similar to Assembly Bill 1513, Chapter 754, Statutes of 2015)."
Recent LAO Analysis of Governor's Budget Proposal
On March 25, 2016, the LAO released an analysis of the PAGA proposals contained in the Governor's proposed budget. With respect to proposals related to proving more information to the LWDA, LAO stated:
"We think the Governor’s proposed amendments to PAGA requiring more information be provided to LWDA—specifically, more detail in the initial PAGA notice and that a copy of the PAGA complaint and any settlement be provided to LWDA—are a reasonable extension of LWDA’s oversight of the PAGA process that would make it possible to better assess the nature and extent of the undesirable outcomes highlighted in the Governor’s proposal. Information obtained about the disposition of PAGA claims could play an important role in future consideration of other potential proposals to modify the PAGA process."
However, with respect to some of the other proposals, LAO expressed concern that they should be addressed through policy, rather than the budget, process:
"In our view, the remaining proposed amendments to the PAGA process differ from those discussed immediately above in that they raise more significant policy issues that are more central to the Legislature’s intent for PAGA. For example, the remaining proposed changes touch on questions of employee access to the PAGA process, how long employees should wait for LWDA to conduct an investigation before the claim may proceed, and whether LWDA should be able to influence the outcome of a PAGA claim once it has decided not to investigate or issue a citation. While the proposed changes may have merit, such fundamental changes to PAGA, in our view, would be more appropriately considered in the legislative policy process rather than the state budget process. This policy deliberation also may be more productive once LWDA has more complete information about the outcomes of PAGA claims—as proposed by the Governor."
Committee Staff Comment
As discussed above, the Governor's proposed budget proposes some fairly substantial policy changes to PAGA.
This bill was introduced to serve as a potential policy vehicle, in light of the fact that the outcome of the Governor's proposed budget and trailer bill language is uncertain at this time. In addition, some stakeholders have expressed concerns about such significant policy changes being made through budget trailer bills. As discussed above, this concern was also echoed by the LAO in its recent analysis of the budget proposal.
Currently, this bill contains relatively minor changes allowing the LWDA more time to investigate and consider claims before a PAGA lawsuit may be filed. However, this bill may serve as a potential policy vehicle for further discussions as the year progresses, and depending on the outcome of budget negotiations.
Prior Related Legislation
In response to concerns about PAGA claims being filed for alleged technical violations of an employer's obligation to provide accurate wage statements, AB 1506 (Roger Hernández) of 2015 was enacted to amend PAGA to provide an employer with the right to cure a violation of failing to provide its employees with a wage statement containing the inclusive dates of the pay period and the name and address of the legal entity that is the employer. AB 1506 was enacted as an urgency statute and went into effect on October 2, 2015.
REGISTERED SUPPORT / OPPOSITION:
Support
None on file.
Opposition
None on file.
Analysis Prepared by: Ben Ebbink / L. & E. / (916) 319-2091
Bill Author
Bill Co-Author(s):