Bill Text: CA AB2016 | 2017-2018 | Regular Session | Introduced
Bill Title: Labor Code Private Attorneys General Act of 2004: civil actions.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2018-04-18 - In committee: Set, second hearing. Failed passage. Reconsideration granted. [AB2016 Detail]
Download: California-2017-AB2016-Introduced.html
CALIFORNIA LEGISLATURE—
2017–2018 REGULAR SESSION
| Assembly Bill | No. 2016 |
| Introduced by Assembly Member Fong |
February 05, 2018 |
An act to amend Section 2699.3 of, and to add Section 2699.4 to, the Labor Code, relating to employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 2016, as introduced, Fong.
Labor Code Private Attorneys General Act of 2004: civil actions.
(1) The Labor Code Private Attorneys General Act of 2004 (act) authorizes an aggrieved employee who complies with specified notice and filing requirements to bring a civil action to recover specified civil penalties that would otherwise be assessed and collected by the Labor and Workforce Development Agency (agency). The act requires that the aggrieved employee or representative give written notice, as provided, to the agency and the employer of the specific provisions of the Labor Code alleged to have been violated, including the facts and theories to support the alleged violation.
This bill would instead require the notice to include a statement setting forth the relevant facts, legal contentions, and authorities supporting each alleged violation and an estimate of the number of current and former employees against whom the
alleged violation or violations were committed and on whose behalf relief is sought. If the aggrieved employee or representative seeks relief on behalf of 10 or more employees, the bill would require that the notice be verified in a manner prescribed by other law and that a copy of the proposed complaint be attached to the notice.
By requiring the notice to be verified as provided, thereby expanding the scope of the crime of perjury, this bill would impose a state-mandated local program.
(2) The act provides an employer a right to cure violations under its provisions before the aggrieved employee may bring a civil action. The act excludes from the right to cure various specified violations and other specified health and safety violations. The act requires the employer to cure a violation within 33 calendar days of the postmark date of the notice sent by the aggrieved employee or representative.
This bill would instead exclude only the health and safety violations from the right to cure provisions. The bill would also extend the period of time in which the employer may cure the violation from 33 to 65 calendar days.
(3) The act provides that an employee who prevails in an action under its provisions is entitled to recover his or her filing fees and reasonable attorney’s fees and costs. Existing law provides that civil penalties may be assessed against the employer, as provided.
This bill would provide that an aggrieved employee may be awarded civil penalties based only upon a violation by the employer actually suffered by that employee.
(4) 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.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YESBill Text
The people of the State of California do enact as follows:
SECTION 1.
Section 2699.3 of the Labor Code, as amended by Section 190 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. a statement setting forth the relevant
facts, legal contentions, and authorities supporting each alleged violation. The notice shall also include an estimate of the number of current and former employees against whom the alleged violation or violations were committed and on whose behalf relief is sought.
(B) If the aggrieved employee or representative seeks relief on behalf of 10 or more employees, the notice shall be verified in the manner prescribed by Section 446 of the Code of Civil Procedure and a copy of the proposed complaint shall be attached to the notice.
(B)
(C) 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)
(D) The fees paid pursuant to subparagraph (B) (C) 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 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) (A) 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. a statement setting forth the relevant facts, legal contentions, and authorities supporting each alleged violation. The notice shall also include an estimate of the number of current and former
employees against whom the alleged violation or violations were committed and on whose behalf relief is sought.
(B) If the aggrieved employee or representative seeks relief on behalf of 10 or more employees, the notice shall be verified in the manner prescribed by Section 446 of the Code of Civil Procedure and a copy of the proposed complaint shall be attached to the notice.
(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 division’s 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. a statement setting forth the relevant facts, legal contentions, and authorities supporting each alleged violation. The notice shall also include an estimate of the number of current and former employees against whom the alleged violation or violations were committed and on whose behalf relief is sought.
(B) If the aggrieved employee or representative seeks relief on behalf of 10 or more employees, the notice shall be
verified in the manner prescribed by Section 446 of the Code of Civil Procedure and a copy of the proposed complaint shall be attached to the notice.
(B)
(C) 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)
(D) The fees paid pursuant to subparagraph (B) (C) 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
65 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 65-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. repealed.
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. a statement setting forth the relevant
facts, legal contentions, and authorities supporting each alleged violation. The notice shall also include an estimate of the number of current and former employees against whom the alleged violation or violations were committed and on whose behalf relief is sought.
(B) If the aggrieved employee or representative seeks relief on behalf of 10 or more employees, the notice shall be verified in the manner prescribed by Section 446 of the Code of Civil Procedure and a copy of the proposed complaint shall be attached to the notice.
(B)
(C) 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)
(D) The fees paid pursuant to subparagraph (B) (C) 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 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) (A) 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.
a statement setting forth the relevant facts, legal contentions, and authorities supporting each alleged violation. The notice shall also include an estimate of the number of current and former employees against whom the alleged violation or violations were committed and on whose behalf relief is sought.
(B) If the aggrieved employee or representative seeks relief on behalf of 10 or more employees, the notice shall be verified in the manner prescribed by Section 446 of the Code of Civil Procedure and a copy of the proposed complaint shall be attached to the notice.
(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 division’s 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. a statement setting forth the relevant facts, legal contentions, and authorities supporting each alleged violation. The notice shall also include an estimate of the number of current and former employees against whom the
alleged violation or violations were committed and on whose behalf relief is sought.
(B) If the aggrieved employee or representative seeks relief on behalf of 10 or more employees, the notice shall be verified in the manner prescribed by Section 446 of the Code of Civil Procedure and a copy of the proposed complaint shall be attached to the notice.
(B)
(C) 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)
(D) The fees paid pursuant to subparagraph (B) (C) 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
65 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
65-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.
