Bill Text: CA AB197 | 2011-2012 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Public employees' retirement.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2012-09-12 - Chaptered by Secretary of State - Chapter 297, Statutes of 2012. [AB197 Detail]

Download: California-2011-AB197-Amended.html

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BILL NUMBER: AB 197	AMENDED
	BILL TEXT

	AMENDED IN SENATE  AUGUST 31, 2012
	AMENDED IN SENATE  JULY 5, 2012
	AMENDED IN SENATE  JUNE 2, 2011

INTRODUCED BY   Assembly Member  Monning  
Buchanan 

                        JANUARY 27, 2011

   An act to  add Section 1698.9 to the Labor Code, relating
to farm labor contractors   amend Sections 20516 and
31461 of the Government Code, relating to public employees'
retirement  .



	LEGISLATIVE COUNSEL'S DIGEST


   AB 197, as amended,  Monning   Buchanan 
.  Farm labor contractors: successors: wages and penalties.
  Public employees' retirement.  
   The Public Employees' Retirement Law establishes the Public
Employees' Retirement System (PERS) for the purpose of providing
pension benefits to specified public employees. PERS is funded by
investment returns and employer and employee contributions. Existing
law authorizes a contracting agency and its employees to agree in
writing to share the costs of any optional benefit that is
inapplicable to a contracting agency until the agency elects to be
subject to the benefit.  
   This bill would instead authorize a contracting agency and its
employees to agree in writing to share the costs of the employer
contribution with or without a change in benefits, as specified. The
bill would prohibit an employer from using impasse procedures to
impose member cost sharing on any contribution amount above that
which is authorized by law.  
   The County Employees Retirement Law of 1937 (CERL) authorizes
counties and districts, as defined, to provide a system of retirement
benefits to their employees. CERL defines compensation earnable for
the purpose of calculating benefits as the average compensation for
the period under consideration with respect to the average number of
days ordinarily worked by persons in the same grade or class of
positions during the period, and at the same rate of pay, as
determined by the retirement board.  
   This bill would exclude from the definition of compensation
earnable any compensation determined by the board to have been paid
to enhance a member's retirement benefit. The bill would also exclude
various payments from the definition of compensation earnable,
including payments for unused vacation, annual leave, personal leave,
sick leave, and compensatory time off, as well as payments made at
the termination of employment, except what may be earned and payable
in each 12-month period during the final average salary period.

   Existing law provides for the regulation and licensure of farm
labor contractors by the Labor Commissioner. Under existing law, a
violation of these provisions is a misdemeanor, punishable as
specified.  
   This bill would also provide that a successor to any licensed or
unlicensed farm labor contractor that owed wages or penalties to the
predecessor's former employee or employees is liable for those wages
or penalties if the successor meets certain criteria. Because failing
to discharge the liabilities would be a crime, this bill would
impose a state-mandated local program.  
   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: no. Fiscal committee:  yes
  no  . State-mandated local program:  yes
  no  .


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    Section 20516 of the  
Government Code   is amended to read: 
   20516.  (a) Notwithstanding any other provision of this part, 
with or without a change in benefits  a contracting agency and
its employees may agree, in writing, to share the costs of 
any optional benefit that is inapplicable to a contracting agency
until the agency elects to be subject to the benefit. The 
 the employer contribution. The cost sharing pursuant to this
section shall also apply for related nonrepresented employees as
approved in a resolution passed by the contracting agency. 
    (b)     The collective bargaining 
agreement shall specify the exact percentage of member compensation
that shall be paid toward the current service cost of the benefits by
members. The member contributions shall be  normal 
contributions over and above normal contributions otherwise required
by this part and shall be treated as normal contributions for all
purposes of this part. The contributions shall be uniform  ,
except as described in subdivision (c),  with respect to all
members within each of the following classifications: local
miscellaneous members, local police officers, local firefighters,
county peace officers, and all local safety members other than local
police officers, local firefighters, and county peace officers. The
balance of any costs shall be paid by the contracting agency and
shall be credited to the employer's account.  An employer shall
not use impasse procedures to impose member cost sharing on any
contribution amount above that which is authorized by law. 

   (b) This section shall not apply to any optional benefit that is
elected by a contracting agency prior to January 1, 1979. 

   (c) Member cost sharing may differ by classification for groups of
employees subject to different levels of benefits pursuant to
Sections 7522.20, 7522.25, and 20475, or by a recognized collective
bargaining unit if agreed to in a memorandum of understanding reached
pursuant to the applicable collective bargaining laws. 

   (c) 
    (d)  This section shall not apply to any contracting
agency nor to the employees of a contracting agency until the agency
elects to be subject to this section by contract or by amendment to
its contract made in the manner prescribed for approval of contracts.
Contributions provided by this section shall be withheld from member
compensation or otherwise collected when the contract amendment
becomes effective. 
   (d) 
    (e)  For the purposes of this section, all
contributions, liabilities, actuarial interest rates, and other
valuation factors shall be determined on the basis of actuarial
assumptions and methods that, in the aggregate, are reasonable and
which, in combination, offer the actuary's best estimate of
anticipated experience under this system. 
   (e) The additional employer contributions required under this
section shall be computed as a level percentage of member
compensation. The additional contribution rate required at the time
this section is added to a contract shall not be less than the sum of
(1) the actuarial normal cost, plus (2) the additional contribution
required to amortize the increase in accrued liability attributable
to benefits elected under this section over a period of not more than
30 years from the date this section becomes effective in the public
agency's contract. 
   (f) Nothing in this section shall preclude a contracting agency
and its employees from independently agreeing in a memorandum of
understanding to share the costs of any  optional benefit or
when initially entering into a contract, any  benefit, in a
manner inconsistent with this section. However, any agreement in a
memorandum of understanding that is inconsistent with this section
shall not be part of the contract between this system and the
contracting agency. 
   (g) If, and to the extent that, the board determines that a
cost-sharing agreement under this section would conflict with Title
26 of the United States Code, the board may refuse to approve the
agreement.  
   (h) Nothing in this section shall require a contracting agency to
enter into a memorandum of understanding or collective bargaining
agreement with a bargaining representative in order to increase the
amount of member contributions when such a member contribution
increase is authorized by other provisions under this part. 
   SEC. 2.    Section 31461 of the   Government
Code   is amended to read: 
   31461.   (a)    "Compensation earnable" by a
member means the average compensation as determined by the board, for
the period under consideration upon the basis of the average number
of days ordinarily worked by persons in the same grade or class of
positions during the period, and at the same rate of pay. The
computation for any absence shall be based on the compensation of the
position held by the member at the beginning of the absence.
Compensation, as defined in Section 31460, that has been deferred
shall be deemed "compensation earnable" when earned, rather than when
paid. 
   (b) "Compensation earnable" does not include, in any case, the
following:  
   (1) Any compensation determined by the board to have been paid to
enhance a member's retirement benefit under that system. That
compensation may include:  
   (A) Compensation that had previously been provided in kind to the
member by the employer or paid directly by the employer to a third
party other than the retirement system for the benefit of the member,
and which was converted to and received by the member in the form of
a cash payment in the final average salary period.  
   (B) Any one-time or ad hoc payment made to a member, but not to
all similarly situated members in the member's grade or class. 

   (C) Any payment that is made solely due to the termination of the
member's employment, but is received by the member while employed,
except those payments that do not exceed what is earned and payable
in each 12-month period during the final average salary period
regardless of when reported or paid.  
   (2) Payments for unused vacation, annual leave, personal leave,
sick leave, or compensatory time off, however denominated, whether
paid in a lump sum or otherwise, in an amount that exceeds that which
may be earned and payable in each 12-month period during the final
average salary period, regardless of when reported or paid. 

   (3) Payments for additional services rendered outside of normal
working hours, whether paid in a lump sum or otherwise.  
   (4) Payments made at the termination of employment, except those
payments that do not exceed what is earned and payable in each
12-month period during the final average salary period, regardless of
when reported or paid.  
   (c) The terms of subdivision (b) are intended to be consistent
with and not in conflict with the holdings in Salus v. San Diego
County Employees Retirement Association (2004) 117 Cal.App.4th 734
and In re Retirement Cases (2003)110 Cal.App.4th 426.  
  SECTION 1.    Section 1698.9 is added to the Labor
Code, to read:
   1698.9.  A successor to any licensed or unlicensed farm labor
contractor that owed wages or penalties to the predecessor's former
employee or employees is liable for those wages or penalties if the
successor meets any of the following criteria:
   (a) Uses substantially the same facilities or workforce to offer
substantially the same services as the predecessor employer.
   (b) Shares in the ownership, management, control of the workforce,
or interrelations of business operations with the predecessor
employer.
   (c) Employs in a managerial capacity any person who directly or
indirectly controlled the wages, hours, or working conditions of the
employees owed wages or penalties by the predecessor employer.
   (d) Is an immediate family member of any owner, partner, officer,
licensee, or director of the predecessor employer or of any person
who had a financial interest in the predecessor employer. For
purposes of this section, "immediate family member" means spouse,
father, mother, brother, sister, son, daughter, uncle, aunt, nephew,
niece, or grandparent.  
  SEC. 2.    No reimbursement is required by this
act pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.