Bill Text: CA AB1138 | 2013-2014 | Regular Session | Amended
Bill Title: Workers' compensation: records.
Sponsorship: Partisan Bill (Democrat 1)
Status: (Introduced - Dead) 2014-02-03 - From committee without further action pursuant to Joint Rule 62(a). [AB1138 Detail]
Download: California-2013-AB1138-Amended.html
BILL NUMBER: AB 1138 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 16, 2013
AMENDED IN ASSEMBLY MARCH 21, 2013
INTRODUCED BY Assembly Member Chau
FEBRUARY 22, 2013
An act to amend Sections 3550, 3551, and 3602 of, and to
add Sections 3554, 3555, and 3556 to, the Labor Code,
add Section 1871.12 to the Insurance Code, relating to
workers' compensation.
LEGISLATIVE COUNSEL'S DIGEST
AB 1138, as amended, Chau. Workers' compensation: notice:
records: liability. records.
(1) Existing law establishes a workers' compensation system,
administered by the Administrative Director of the Division of
Workers' Compensation, to compensate an employee for injuries
sustained in the course of his or her employment. Existing law
establishes the Department of Industrial Relations. Existing law
provides for specified procedures to be used in notifying
employees regarding workers' compensation benefits and required
actions in pursuing a workers' compensation claim.
seeks to prevent workers' compensation fraud through various
procedures.
This bill would require employers to post a notice of covered
employees showing the full names of employees covered by the employer'
s workers' compensation carrier, and updated quarterly, as specified.
The employer would also be required to keep separate lists of
covered employees, that would include specified identifying
information for each covered employee, and make those lists available
in written and electronic form, as specified, upon request, to
specified governmental entities and the workers' compensation
insurer. The bill would require the employer to retain a copy of each
notice and each list for 5 years. Except as provided, failure by an
employer to retain or provide copies to specified government agencies
of these notices or lists and the absence of the name of any
employee from the notices or lists would conclusively establish that
the employer did not obtain workers' compensation insurance as
required by law. The bill would provide that these lists are not
public records subject to California Public Record Act.
(2) Existing law requires every employer required to obtain
workers' compensation coverage, except as provided, to give every new
employee, either at the time the employee is hired or by the end of
the first pay period, a written notice of specified workers'
compensation information.
This bill would require every notice required to be given to the
employee to contain his or her name and last four digits of the
employee's social security number. Every employer would be required
to retain a copy for 5 years thereafter, and make it available to
specified governmental entities and the insurer upon request. These
notices would not be public records subject to California Public
Record Act.
This bill would provide that any employer that violates these new
notice provisions would be subject to citation and civil penalty by
the Labor Commissioner, as provided.
(3) Existing law, except as provided, requires workers'
compensation benefits to be the exclusive remedy for workers injured
on the job.
This bill would add an exception to the exclusive remedy provision
when the compensable injury or illness was suffered during a period
that the employee was not listed on the notice of covered employees
or the list of covered employees or the employee was not provided
with the required written notice of specified workers' compensation
information.
This bill would require the employer, commencing January 1, 2014,
and January 1, 2015, to submit to its workers' compensation insurer
specified reports that it is required to submit to the Employment
Development Department, and the insurer would be required to include
the names of all covered employees in the workers' compensation
insurance policy. The employer would also be required to make a list
of all employees covered by its workers' compensation policy, which
would include specified identifying information for each covered
employee, to be available in written and electronic form, as
specified, upon request, to specified governmental entities and the
workers' compensation insurer. The bill would provide that these
lists are not public records subject to the California Public Records
Act.
(4)
(2) Existing constitutional provisions require that a
statute that limits the right of access to the writings of public
officials and agencies be adopted with findings demonstrating the
interest protected by the limitation and the need for protecting that
interest.
This bill would make legislative findings to that effect.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1871.12 is added to the Insurance
Code, immediately following Section 1871.9, to read:
1871.12. (a) (1) Commencing January 1, 2014, employers applying
for or renewing a policy of workers' compensation insurance shall
submit to the insurer the same wage data that is contained in annual,
quarterly, and reconciliation reports that are submitted to the
Employment Development Department pursuant to Section 1088 of the
Unemployment Insurance Code.
(2) The department shall adopt regulations to implement this
subdivision.
(b) (1) Commencing January 1, 2015, insured employers shall submit
to their workers' compensation insurer the data contained in reports
of new employees and reports of independent contractors that are
submitted to the Employment Development Department pursuant to
Sections 1088.5 and 1088.8 of the Unemployment Insurance Code.
(2) Insurers shall list the names of all covered employees in any
policy of workers'compensation insurance issued to an employer.
(3) The department shall adopt regulations to implement this
subdivision.
(c) A list of all employees covered by the workers' compensation
policy, including name, address, last four numbers of the employee's
social security number, and the employee identification number shall
be made available to the Director of Industrial Relations, the
Division of Labor Standards Enforcement, the Department of Insurance,
the Employment Development Department, or the insurer, upon request.
The list of covered employees shall be made available in written
form, and also in electronic form by employers that utilize a
computerized payroll system. These lists are not public records
subject to the California Public Records Act (Chapter 3.5 (commencing
with Section 6250) of Division 7 of Title 1 of the Government Code).
(d) A list of covered employees, with the full name only, shall be
made available to any employee upon request.
SECTION 1. Section 3550 of the Labor Code is
amended to read:
3550. (a) (1) Every employer subject to the compensation
provisions of this division shall post and keep posted in a
conspicuous location frequented by employees, and where the notice
may be easily read by employees during the hours of the workday, a
notice that states the name of the current compensation insurance
carrier of the employer, or the fact that the employer is
self-insured, if applicable, and who is responsible for claims
adjustment.
(2) (A) Every employer that secures payment of compensation from
an insurer duly authorized to write compensation insurance in this
state shall post a notice of covered employees that lists only the
full name of each person that is covered by the policy with the
compensation insurance carrier identified in paragraph (1),
immediately adjacent to the notice required in paragraph (1). This
notice of covered employees shall be updated quarterly, or if there
are no changes, upon each addition or removal of a covered employee.
(B) A list of covered employees, including name, address, last
four numbers of the employee's social security number, and the
employee identification number shall be made available to the
Director of Industrial Relations, the Division of Labor Standards
Enforcement, the Department of Insurance, the Employment Development
Department, and the insurer, upon request. The list of covered
employees shall be made available in written form, and also in
electronic form by employers that utilize a computerized payroll
system. These lists are not public records subject to the California
Public Records Act (Chapter 3.5 (commencing with Section 6250) of
Division 7 of Title 1 of the Government Code).
(C) Every employer shall retain copies of all notices of covered
employees required by subparagraph (A) and copies of all lists of
covered employees required by subparagraph (B) for a period of not
less than five years.
(3) (A) Except where an employer establishes workers' compensation
coverage for an employee that is provided by another employer
pursuant to subdivision (d) of Section 3602, absence of the name of
any employee on any notice of covered employees or any list of
covered employees required by paragraph (2) conclusively establishes
that the employer did not secure payment of compensation from an
insurance carrier, as required by Section 3700, for the purposes of
any proceeding pursuant to Sections 3710.1, 3710.2, and 3722.
(B) Failure by an employer to retain each notice of covered
employees or each list of covered employees or provide copies to the
Director of Industrial Relations or the Division of Labor Standards
Enforcement in compliance with paragraph (2) conclusively establishes
that the employer failed to secure payment of compensation from an
insurance carrier, as required by Section 3700, for the purposes of
any proceeding pursuant to Sections 3710.1, 3710.2, and 3722, unless
the employer establishes that there was coverage pursuant to
subdivision (d) of Section 3602.
(b) Failure to keep any notice required by paragraph (1) of
subdivision (a) conspicuously posted shall constitute a misdemeanor,
and shall be prima facie evidence of noninsurance.
(c) This section shall not apply with respect to the employment of
employees as defined in subdivision (d) of Section 3351.
(d) The form and content of the notice required by paragraph (1)
of subdivision (a) shall be prescribed by the administrative
director, after consultation with the Commission on Health and Safety
and Workers' Compensation, and shall advise employees that all
injuries should be reported to their employer. The notice shall be
easily understandable. It shall be posted in both English and Spanish
where there are Spanish-speaking employees. The notice shall include
the following information:
(1) How to get emergency medical treatment, if needed.
(2) The kinds of events, injuries, and illnesses covered by
workers' compensation.
(3) The injured employee's right to receive medical care.
(4) The rights of the employee to select and change the treating
physician pursuant to the provisions of Section 4600.
(5) The rights of the employee to receive temporary disability
indemnity, permanent disability indemnity, supplemental job
displacement, and death benefits, as appropriate.
(6) To whom injuries should be reported.
(7) The existence of time limits for the employer to be notified
of an occupational injury.
(8) The protections against discrimination provided pursuant to
Section 132a.
(9) The Internet Web site address and contact information that
employees may use to obtain further information about the workers'
compensation claims process and an injured employee's rights and
obligations, including the location and telephone number of the
nearest information and assistance officer.
(e) Failure of an employer to provide the notice required by
paragraph (1) of subdivision (a) shall automatically permit the
employee to be treated by his or her personal physician with respect
to an injury occurring during that failure.
(f) The form and content of the notice required to be posted by
paragraph (1) of subdivision (a) shall be made available to
self-insured employers and insurers by the administrative director.
Insurers shall provide this notice to each of their policyholders,
with advice concerning the requirements of this section and the
penalties for a failure to post this notice.
SEC. 2. Section 3551 of the Labor Code is
amended to read:
3551. (a) Every employer subject to the compensation provisions
of this code, except employers of employees defined in subdivision
(d) of Section 3351, shall give every new employee, either at the
time the employee is hired or by the end of the first pay period,
written notice of the information contained in subdivision (d) of
Section 3550. The content of the notice required by this section
shall be prescribed by the administrative director after consultation
with the Commission on Health and Safety and Workers' Compensation.
(b) The notice required by this section shall be easily
understandable and available in both English and Spanish. In addition
to the information contained in subdivision (d) of Section 3550, the
content of the notice required by this section shall include:
(1) Generally, how to obtain appropriate medical care for a job
injury.
(2) The role and function of the primary treating physician.
(3) A form that the employee may use as an optional method for
notifying the employer of the name of the employee's "personal
physician," as defined by Section 4600, or "personal chiropractor,"
as defined by Section 4601.
(c) The content of the notice required by this section shall be
made available to employers and insurers by the administrative
director. Insurers shall provide this notice to each of their
policyholders, with advice concerning the requirements of this
section and the penalties for a failure to provide this notice to all
employees.
(d) Notices required by this section shall be made available to
the Director of Industrial Relations, the Division of Labor Standards
Enforcement, the Department of Insurance, the Employment Development
Department, and the insurer upon request. These documents are not
public records subject to the California Public Records Act (Chapter
3.5 (commencing with Section 6250) of Division 7 of Title 1 of the
Government Code).
SEC. 3. Section 3554 is added to the Labor
Code, to read:
3554. (a) Any employer who violates subparagraph (A) of paragraph
(2) of subdivision (a) of Section 3550 shall be subject to citation,
pursuant to Section 3555, and a civil penalty in the amount of one
hundred dollars ($100) per employee for the first violation, and five
hundred dollars ($500) per employee for each violation in a
subsequent citation.
(b) Any employer that fails to turn over records pursuant to
subparagraph (B) of paragraph (2) of subdivision (a) of Section 3550
shall be subject to citation, pursuant to Section 3555, and a civil
penalty in the amount of two hundred fifty dollars ($250) per
employee for the first violation, and one thousand dollars ($1,000)
per employee for each violation in a subsequent citation.
SEC. 4. Section 3555 is added to the Labor
Code, to read:
3555. If, upon inspection or investigation, the Labor
Commissioner determines that an employer is in violation of Section
3550, the Labor Commissioner may issue a citation to that person. The
citation may be served personally or by registered mail in
accordance with subdivision (c) of Section 11505 of the Government
Code. Each citation shall be in writing and shall describe the nature
of the violation, including reference to the statutory provision
alleged to have been violated.
SEC. 5. Section 3556 is added to the Labor
Code, to read:
3556. The procedures for contesting and enforcing judgments for
citations or civil penalties issued by the Labor Commissioner for a
violation of this chapter shall be the same as those set out in
Section 226.5.
SEC. 6. Section 3602 of the Labor Code is
amended to read:
3602. (a) Where the conditions of compensation set forth in
Section 3600 concur, the right to recover compensation is, except as
specifically provided in this section and Sections 3706 and 4558, the
sole and exclusive remedy of the employee or his or her dependents
against the employer. The fact that either the employee or the
employer also occupied another or dual capacity prior to, or at the
time of, the employee's industrial injury shall not permit the
employee or his or her dependents to bring an action at law for
damages against the employer.
(b) An employee, or his or her dependents in the event of his or
her death, may bring an action at law for damages against the
employer, as if this division did not apply, in the following
instances:
(1) Where the employee's injury or death is proximately caused by
a willful physical assault by the employer.
(2) Where the employee's injury is aggravated by the employer's
fraudulent concealment of the existence of the injury and its
connection with the employment, in which case the employer's
liability shall be limited to those damages proximately caused by the
aggravation. The burden of proof respecting apportionment of damages
between the injury and any subsequent aggravation thereof is upon
the employer.
(3) Where the employee's injury or death is proximately caused by
a defective product manufactured by the employer and sold, leased, or
otherwise transferred for valuable consideration to an independent
third person, and that product is thereafter provided for the
employee's use by a third person.
(c) In all cases where the conditions of compensation set forth in
Section 3600 do not concur, the liability of the employer shall be
the same as if this division had not been enacted.
(d) (1) For the purposes of this division, including Sections 3700
and 3706, an employer may secure the payment of compensation on
employees provided to it by agreement by another employer by entering
into a valid and enforceable agreement with that other employer
under which the other employer agrees to obtain, and has, in fact,
obtained workers' compensation coverage for those employees. In those
cases, both employers shall be considered to have secured the
payment of compensation within the meaning of this section and
Sections 3700 and 3706 if there is a valid and enforceable agreement
between the employers to obtain that coverage, and that coverage, as
specified in subdivision (a) or (b) of Section 3700, has been in fact
obtained, and the coverage remains in effect for the duration of the
employment providing legally sufficient coverage to the employee or
employees who form the subject matter of the coverage. That agreement
shall not be made for the purpose of avoiding an employer's
appropriate experience rating as defined in subdivision (c) of
Section 11730 of the Insurance Code.
(2) Employers who have complied with this subdivision shall not be
subject to civil, criminal, or other penalties for failure to
provide workers' compensation coverage or tort liability in the event
of employee injury, but may, in the absence of compliance, be
subject to all three.
(e) Notwithstanding the provisions of subdivisions (a) to (c),
inclusive, the exclusive remedy provision shall not apply for
compensable injuries and illnesses suffered during a period that an
employee is not included in a notice of covered employees or list of
covered employees as required pursuant to Section 3550.
(f) As provided in paragraph (12) of subdivision (f) of Section
1202.4 of the Penal Code, in cases where an employer is convicted of
a crime against an employee, a payment to the employee or the
employee's dependent that is paid by the employer's workers'
compensation insurance carrier shall not be used to offset the amount
of the restitution order unless the court finds that the defendant
substantially met the obligation to pay premiums for that insurance
coverage.
SEC. 7. SEC. 2. The Legislature
finds and declares that Sections 1 and 2
Section 1 of this act impose a limitation on the public's right
of access to the writings of public officials and agencies within
the meaning of Section 3 of Article I of the California Constitution.
Pursuant to that constitutional provision, the Legislature makes the
following findings to demonstrate the interest protected by this
limitation and the need for protecting that interest:
In order to protect the inalienable right to privacy pursuant to
Section 1 of Article I of the California Constitution, it is
necessary to enact legislation that the documents containing employee
personal information provided pursuant to this act are maintained
confidential.
