BILL NUMBER: AB 241 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 24, 2013
AMENDED IN ASSEMBLY MARCH 19, 2013
INTRODUCED BY Assembly Member Ammiano
FEBRUARY 6, 2013
An act to amend Sections 3351, 3352, 3551, 3708, and 3715
of, and to add Part 4.5 (commencing with Section 1450) to
Division 2 of, the Labor Code, relating to domestic work employees.
LEGISLATIVE COUNSEL'S DIGEST
AB 241, as amended, Ammiano. Domestic work employees: labor
standards.
(1) Existing law regulates the wages, hours, and working
conditions of any man, woman, and minor employed in any occupation,
trade, or industry, whether compensation is measured by time, piece,
or otherwise, except as specified. Existing law creates the
Industrial Welfare Commission and authorizes it to adopt rules,
regulations, and orders to ensure that employers comply with those
provisions. Existing law makes violations of certain of these
provisions a misdemeanor.
This bill would specially regulate the wages, hours, and working
conditions of domestic work employees, as defined, with specified
exceptions. The bill would define domestic work as services related
to the care of persons in private households or maintenance of
private households or their premises, which would include childcare
providers, caregivers of people with disabilities, sick,
convalescing, or elderly persons, house cleaners, housekeepers,
maids, and other household occupations. The bill would provide an
overtime compensation rate for domestic work employees, with
specified exceptions. The bill would expressly apply Wage Order No.
15-2001 of the Industrial Welfare Commission, with specified
exceptions, to a domestic work employee, except that the new domestic
work provisions established by this bill will prevail over
provisions that afford less protection. The bill would prescribe
standards for determining whether travel time spent by a personal
attendant, as defined, accompanying a domestic work employer are to
be considered hours worked. The bill would further establish
standards for sleeping periods, including accommodations for a
domestic work employee who is required to sleep in a private
household and would apply provisions regarding meal and rest breaks,
as specified, to personal attendants. The bill would require
that a domestic worker, after one year of work with the same
employer, receive paid days of rest in each calendar year that would
be compensated at the employee's regular rate of pay and calculated
pursuant to a specified method related to the number of hours worked
in an average week. The bill would require the Division of
Labor Standards Enforcement to enforce these provisions. The bill
would also provide a domestic work employee a private right of action
to enforce these provisions. By expanding the definition of a crime,
this bill would impose a state-mandated local program.
(2) Existing law requires employers to secure the payment of
workers' compensation for injuries incurred by their employees that
arise out of and in the course of employment. The failure to secure
workers' compensation as required by the workers' compensation law is
a misdemeanor. Under existing law, employers of persons who engage
in specified types of household domestic service and who work less
than a specified number of hours are excluded from that definition of
employer and are therefore excluded from the requirement to secure
the payment of workers' compensation, as specified. By expanding the
definition of a crime, this bill would impose a state-mandated local
program.
This bill would remove that exclusion and require all domestic
work employers, as defined, to secure the payment of workers'
compensation and would make conforming changes. By expanding the
definition of a crime, this bill would impose a state-mandated local
program.
(3)
(2) 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.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) As recognized by the State of California in Resolution Chapter
119 of the Statutes of 2010, it is the policy of the state to
encourage and protect the rights of domestic work employees.
(b) California's domestic workers, which includes housekeepers,
nannies, and caregivers for children, persons with disabilities, and
the elderly, work in private households to care for the health,
safety, and well-being of the most important aspects of Californians'
lives: their families and homes.
(c) Domestic workers play a critical role in California's economy,
working to ensure the health and prosperity of California families
and freeing others to participate in the workforce, which is
increasingly necessary in these difficult economic times. The labor
of domestic workers is central to the ongoing prosperity of the state
but, despite the value of their work, domestic workers have not
received the same protection under state laws as workers in other
industries. Although domestic workers labor to support families and
children of their own, and often are primary income earners, many
earn low wages and live below the poverty line.
(d) Because domestic workers care for the most important elements
of their employers' lives, their families and homes, it is in the
interest of employees, employers, and the people of the State of
California to ensure that the rights of domestic workers are
respected, protected, and enforced.
(e) The vast majority of domestic workers are women of color and
immigrants and are particularly vulnerable to unlawful employment
practices. Domestic workers usually work alone, behind closed doors,
and out of the public eye, leaving them isolated, vulnerable to abuse
and exploitation by some employers, and unable to advocate
collectively for better working conditions. Many domestic workers
labor under harsh conditions and work long hours for low wages
without any benefits. For those who are live-in employees, when
terminated, they lose not only their jobs but their homes. This bill
recognizes that many personal attendants have positive working
relationships with their employers. However, it must also be
recognized that there are other situations where domestic workers are
verbally and physically abused or sexually assaulted, forced to
sleep in conditions unfit for human habitation, and stripped of their
privacy and dignity.
(f) Many domestic workers are still excluded from the most basic
protections afforded to the rest of the labor force under state and
federal law, including the rights to fair wages, safe and healthy
working conditions, workers' compensation, and
protection from discriminatory and abusive treatment. The treatment
of domestic workers under federal and state laws has historically
reflected stereotypical assumptions about the nature of domestic
work, specifically that the relationship between employer and
"servant" was "personal," rather than commercial, in character, that
employment within a household was not "real" productive work, and
that women did not work to support their families.
(g) Recognizing that people with disabilities often need personal
attendants in order to be active participants in work, community,
social, and cultural life, this bill creates certain modifications to
the definition of compensable hours worked to accommodate situations
when out-of-town travel with a personal attendant is necessary. The
bill further modifies the existing definition of compensable hours
worked in Wage Order No. 15-2001 of the Industrial Welfare Commission
to allow for an unpaid sleep period of up to eight hours for
personal attendants under specified circumstances. Personal
attendants, who have long been denied the right to take meal and rest
breaks, will be afforded the protection of Sections 11 and 12 of
Minimum Wage Order No. 15-2001, which includes a provision for
on-duty meals when the nature of the work prevents an employee from
being relieved of all duty.
(h) Given the limited legal protections historically provided to
domestic workers, and bearing in mind the unique conditions and
demands of this private, home-based industry, the Legislature, as an
exercise of the police power of the State of California for the
protection of the public welfare, prosperity, health, safety, and
peace of its people, further finds that domestic workers are entitled
to industry-specific protections and labor standards that eliminate
discriminatory provisions in the labor laws and guarantee domestic
workers basic workplace rights to ensure that domestic workers are
treated with equality, respect, and dignity.
SEC. 2. Part 4.5 (commencing with Section 1450) is added to
Division 2 of the Labor Code, to read:
PART 4.5. Domestic Work Employees
CHAPTER 1. GENERAL PROVISIONS AND DEFINITIONS
1450. This part shall be known and may be cited as the Domestic
Worker Bill of Rights.
1451. As used in this part, the following definitions apply:
(a) "Domestic work" means services related to the care of persons
in private households or maintenance of private households or their
premises. Domestic work occupations include childcare providers,
caregivers of people with disabilities, sick, convalescing, or
elderly persons, house cleaners, housekeepers, maids, and other
household occupations.
(b) (1) "Domestic work employee" means an individual who performs
domestic work and includes live-in domestic work employees and
personal attendants.
(2) "Domestic work employee" does not include any of the
following:
(A) Any person who performs services through the In-Home
Supportive Services program under Article 7 (commencing with Section
12300) of Chapter 3 of Part 3 of Division 9 of the Welfare and
Institutions Code.
(B) Any person who is the parent, grandparent, spouse, sibling,
child, or legally adopted child of the domestic work employer.
(C) Any person under 18 years of age who is employed as a
babysitter for a minor child of the domestic work employer in the
employer's home.
(D) Any person employed as a casual babysitter for a minor child
in the domestic employer's home. A casual babysitter is a person
whose employment is irregular and intermittent and who does not work
more than six hours per week caring for the same minor child or
children. If a person who performs babysitting services on an
irregular and intermittent basis does a significant amount of work
other than supervising, feeding, and dressing a child, this exemption
shall not apply and the person shall be considered a domestic work
employee. A person who is a casual babysitter who is over 18 years of
age retains the right to payment of minimum wage for all hours
worked, pursuant to Wage Order No. 15-2001 of the Industrial Welfare
Commission.
(E) Any person employed by a licensed health facility, as defined
in Section 1250 of the Health and Safety Code.
(F) Any person who is employed by, or contracts with, an
organization vendored or contracted through a regional center or the
State Department of Developmental Services pursuant to the Lanterman
Developmental Disabilities Services Act (Division 4.5 (commencing
with Section 4500) of the Welfare and Institutions Code) and the
California Early Intervention Services Act (Title 14 (commencing with
Section 95000) of the Government Code) to provide services and
support for persons with developmental disabilities, as defined in
Section 4512 of the Welfare and Institutions Code, when funding for
those services is provided through the State Department of
Developmental Services.
(G) Any person who provides child care and who, pursuant to
subdivision (d) or (f) of Section 1596.792 of the Health and Safety
Code, is exempt from the licensing requirements of Chapters 3.4
(commencing with Section 1596.70), 3.5 (commencing with Section
1596.90), and 3.6 (commencing with Section 1597.30) of Division 2 of
the Health and Safety Code, if the parent or guardian of the child to
whom child care is provided receives child care and development
services pursuant to any program authorized under the Child Care and
Development Services Act (Chapter 2 (commencing with Section 8200) of
Part 6 of Division 1 of Title 1 of the Education Code) or the
California Work Opportunity and Responsibility to Kids Act (Chapter 2
(commencing with Section 11200) of Part 3 of Division 9 of the
Welfare and Institutions Code).
(c) (1) "Domestic work employer" means a person, including
corporate officers or executives, who directly or indirectly, or
through an agent or any other person, including through the services
of a third-party employer, temporary service, or staffing agency or
similar entity, employs or exercises control over the wages, hours,
or working conditions of a domestic work employee.
(2) "Domestic work employer" does not include any of the
following:
(A) The State of California or an individual who receives domestic
work services through the In-Home Supportive Services program under
Article 7 (commencing with Section 12300) of Chapter 3 of Part 3 of
Division 9 of the Welfare and Institutions Code or who is eligible
for that program based on his or her income.
(B) An employment agency that complies with Section 1812.5095 of
the Civil Code and that operates solely to procure, offer, refer,
provide, or attempt to provide work to domestic workers if the
relationship between the employment agency and the domestic workers
for whom the agency procures, offers, refers, provides, or attempts
to provide domestic work is characterized by all of the factors
listed in subdivision (b) of Section 1812.5095 of the Civil Code and
Section 687.2 of the Unemployment Insurance Code.
(C) A licensed health facility, as defined in Section 1250 of the
Health and Safety Code.
(d) "Emergency" means an unpredictable or unavoidable occurrence
of a serious nature that occurs unexpectedly requiring immediate
action.
(e) "Hours worked" means the time during which a domestic work
employee is subject to the control of a domestic work employer and
includes all time the domestic work employee is suffered or permitted
to work, whether or not required to do so.
(f) "Live-in domestic work employee" means an employee who resides
in the domestic work employer's household at least five days per
week and for whom the employer makes sleep accommodations available
in compliance with Section 1457.
(g) "Personal attendant" means any person employed by a private
party or employed by any third-party employer recognized in the
health care industry to work in a private household, to supervise,
feed, or dress a person who, by reason of advanced age, physical
disability, or mental deficiency, needs supervision. A person is a
personal attendant only if no significant amount of work other than
the foregoing is required. For purposes of this subdivision, no
significant amount of work means that the work did not exceed 20
percent of the total weekly hours worked.
1452. The Division of Labor Standards Enforcement shall enforce
this part.
1453. (a) Any domestic work employee aggrieved by a violation of
this part may bring an administrative action pursuant to Section 98
or may bring a civil action in a court of competent jurisdiction
against the domestic work employer violating this part.
(b) A domestic work employee who brings an action pursuant to this
section and prevails shall be entitled to any legal or equitable
relief permitted by law as may be appropriate to remedy the
violation. A domestic work employee bringing a civil action pursuant
to this section shall also be entitled to an award of reasonable
attorney's fees and costs, including expert witness fees.
(c) The rights and remedies specified in this part are cumulative
and nonexclusive and are in addition to any other rights or remedies
afforded by contract or under other provisions of law. If a provision
of Wage Order No. 15-2001 of the Industrial Welfare Commission or
any other provision of law affords less protection to a domestic work
employee, this part shall prevail. If a provision of Wage Order No.
15-2001 of the Industrial Welfare Commission or any other provision
of law affords more protection to a domestic work employee, the wage
order shall prevail.
(d) Notwithstanding any provision of this code or Section 340 of
the Code of Civil Procedure, to commence an action for a violation of
this part a domestic work employee shall file an administrative or
civil complaint within three years of the violation.
CHAPTER 2. DOMESTIC WORK EMPLOYEE RIGHTS
1454. A domestic work employee shall be compensated pursuant to
Section 510, except as provided in Section 1455 or 1456.
1455. (a) A domestic work employee who is a live-in employee or
is required to be on duty for 24 consecutive hours or more shall have
a minimum of eight consecutive hours for uninterrupted sleep, except
in an emergency. Any time worked during an emergency interruption
constitutes hours worked.
(b) If a domestic work employee is a live-in employee or is
required to be on duty for 24 consecutive hours or more, the domestic
work employer and the domestic work employee may agree in writing to
exclude from hours worked a bona fide regularly scheduled sleeping
period of not more than eight hours for uninterrupted sleep from
hours worked, provided that the employee has eight hours free of duty
and available for continuous, uninterrupted sleep and the domestic
work employer otherwise complies with this section and Section 1457.
Absent a written agreement, the eight hours available for sleep shall
constitute hours worked.
1456. If a domestic work employer who is a person with a
disability needs to be accompanied by a personal attendant when
traveling out of town, all time spent accompanying the employer in
transit, and all time attending to, or carrying out, directives of
the employer constitutes hours worked. Periods during which the
personal attendant is completely relieved of duty, is not required to
be at the same location as the employer, and that are long enough to
enable the attendant to use the time effectively for his or her own
purposes do not constitute hours worked. The employer and the
employee may agree to exclude from hours worked a bona fide sleeping
period of not more than eight hours, provided that there is a written
agreement and the employee has eight hours free of duty and
available for continuous, uninterrupted sleep.
1457. Any domestic work employee who is required to sleep in the
private household of his or her employer shall be provided sleeping
accommodations that are adequate, decent, and sanitary according to
usual customary standards. These domestic work employees shall be
provided a room separate from any household resident and shall not be
required to share a bed.
1458. Sections 11 and 12 of Wage Order No. 15-2001 of the
Industrial Welfare Commission shall apply to a personal attendant.
1460. A domestic work employer shall permit a domestic work
employee who works five hours or more a day to choose the food he or
she eats and to prepare his or her own meals. A domestic work
employer shall permit a domestic work employee to use the job site's
kitchen facilities and kitchen appliances without charge or deduction
from pay. If a domestic work employee is informed that a person in
the household has bona fide health issues related to food, including,
but not limited to, food allergies, or has religious or dietary
restrictions which make presence of some foods unacceptable, the
employee shall not eat or prepare that food in the household.
1461. After one year of work with the same employer, a domestic
worker shall be entitled to paid days of rest in each calendar year
that shall be compensated at the employee's regular rate of pay and
calculated as follows:
(a) If the employee worked an average of fewer than a total of 20
hours per week for an employer over the last year, the employee is
entitled to one day of paid rest from that employer for the calendar
year, as long as the employee is not employed on a casual basis.
Employment on a casual basis, for purposes of this section, is work
that is intermittent or irregular.
(b) If the employee worked an average of 20 but fewer than 30
hours per week for an employer over the last year, the employee is
entitled to two days of paid rest from that employer for the calendar
year.
(c) If the employee worked an average of 30 or more hours per week
for an employer, the employee is entitled to three days of paid rest
for the calendar year from that employer.
(d) If an employee is terminated or quits without having used all
paid days of rest, the unused paid days of rest shall be paid to the
employee as wages at the final rate of pay. An employee shall carry
over accrued unused paid days of rest from one year to the next.
SEC. 3. Section 3351 of the Labor Code is
amended to read:
3351. "Employee" means every person in the service of an employer
under any appointment or contract of hire or apprenticeship, express
or implied, oral or written, whether lawfully or unlawfully
employed, and includes:
(a) Aliens and minors.
(b) All elected and appointed paid public officers.
(c) All officers and members of boards of directors of
quasi-public or private corporations while rendering actual service
for the corporations for pay; provided that, where the officers and
directors of the private corporation are the sole shareholders
thereof, the corporation and the officers and directors shall come
under the compensation provisions of this division only by election
as provided in subdivision (a) of Section 4151.
(d) A person employed by the owner or occupant of a residential
dwelling whose duties are incidental to the ownership, maintenance,
or use of the dwelling, including the care and supervision of
children, persons of advanced age, or persons with physical or mental
disabilities, or whose duties are personal and not in the course of
the trade, business, profession, or occupation of the owner or
occupant.
(e) All persons incarcerated in a state penal or correctional
institution while engaged in assigned work or employment or engaged
in work performed under contract.
(f) All working members of a partnership or limited liability
company receiving wages irrespective of profits from the partnership
or limited liability company, provided that where the working members
of the partnership or limited liability company are general partners
or managers, the partnership or limited liability company and the
partners or managers shall come under the compensation provisions of
this division only by election as provided in subdivision (a) of
Section 4151. If a private corporation is a general partner or
manager, "working members of a partnership or limited liability
company" shall include the corporation and the officers and directors
of the corporation, provided that the officers and directors are the
sole shareholders of the corporation. If a limited liability company
is a partner or member, "working members of the partnership or
limited liability company" shall include the managers of the limited
liability company.
(g) For the purposes of subdivisions (c) and (f), the persons
holding the power to revoke a trust as to shares of a private
corporation or as to general partnership or limited liability company
interests held in the trust, shall be deemed to be the shareholders
of the private corporation, or the general partners of the
partnership, or the managers of the limited liability company.
SEC. 4. Section 3352 of the Labor Code is
amended to read:
3352. "Employee" excludes the following:
(a) Any person defined in subdivision (d) of Section 3351 who is
employed by his or her parent, spouse, or child.
(b) Any person performing services in return for aid or sustenance
only, received from any religious, charitable, or relief
organization.
(c) Any person holding an appointment as deputy clerk or deputy
sheriff appointed for his or her own convenience, and who receives no
compensation from the county or municipal corporation or from the
citizens thereof for his or her services as the deputy. This
exclusion is operative only as to employment by the county or
municipal corporation and does not deprive any person so deputized
from recourse against a private person employing him or her for
injury occurring in the course of and arising out of the employment.
(d) Any person performing voluntary services at or for a
recreational camp, hut, or lodge operated by a nonprofit
organization, exempt from federal income tax under Section 501 of the
Internal Revenue Code, of which he or she or a member of his or her
family is a member and who receives no compensation for those
services other than meals, lodging, or transportation.
(e) Any person performing voluntary service as a ski patrolman who
receives no compensation for those services other than meals or
lodging or the use of ski tow or ski lift facilities.
(f) Any person employed by a ski lift operator to work at a snow
ski area who is relieved of and not performing any prescribed duties,
while participating in recreational activities on his or her own
initiative.
(g) Any person, other than a regular employee, participating in
sports or athletics who receives no compensation for the
participation other than the use of athletic equipment, uniforms,
transportation, travel, meals, lodgings, or other expenses incidental
thereto.
(h) Any person performing voluntary service for a public agency or
a private, nonprofit organization who receives no remuneration for
the services other than meals, transportation, lodging, or
reimbursement for incidental expenses.
(i) Any person, other than a regular employee, performing
officiating services relating to amateur sporting events sponsored by
any public agency or private, nonprofit organization, who receives
no remuneration for these services other than a stipend for each day
of service no greater than the amount established by the Department
of Human Resources as a per diem expense for employees or officers of
the state. The stipend shall be presumed to cover incidental
expenses involved in officiating, including, but not limited to,
meals, transportation, lodging, rule books and courses, uniforms, and
appropriate equipment.
(j) Any student participating as an athlete in amateur sporting
events sponsored by any public agency, public or private nonprofit
college, university or school, who receives no remuneration for the
participation other than the use of athletic equipment, uniforms,
transportation, travel, meals, lodgings, scholarships, grants-in-aid,
or other expenses incidental thereto.
(k) Any law enforcement officer who is regularly employed by a
local or state law enforcement agency in an adjoining state and who
is deputized to work under the supervision of a California peace
officer pursuant to paragraph (4) of subdivision (a) of Section 832.6
of the Penal Code.
(l) Any law enforcement officer who is regularly employed by the
Oregon State Police, the Nevada Department of Motor Vehicles and
Public Safety, or the Arizona Department of Public Safety and who is
acting as a peace officer in this state pursuant to subdivision (a)
of Section 830.32 of the Penal Code.
(m) Any person, other than a regular employee, performing services
as a sports official for an entity sponsoring an intercollegiate or
interscholastic sports event, or any person performing services as a
sports official for a public agency, public entity, or a private
nonprofit organization, which public agency, public entity, or
private nonprofit organization sponsors an amateur sports event. For
purposes of this subdivision, "sports official" includes an umpire,
referee, judge, scorekeeper, timekeeper, or other person who is a
neutral participant in a sports event.
(n) Any person who is an owner-builder, as defined in subdivision
(a) of Section 50692 of the Health and Safety Code, who is
participating in a mutual self-help housing program, as defined in
Section 50087 of the Health and Safety Code, sponsored by a nonprofit
corporation.
SEC. 5. Section 3551 of the Labor Code is
amended to read:
3551. (a) Every employer subject to the compensation provisions
of this code, 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 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 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.
SEC. 6. Section 3708 of the Labor Code is
amended to read:
3708. In such action it is presumed that the injury to the
employee was a direct result and grew out of the negligence of the
employer, and the burden of proof is upon the employer, to rebut the
presumption of negligence. It is not a defense to the employer that
the employee was guilty of contributory negligence, or assumed the
risk of the hazard complained of, or that the injury was caused by
the negligence of a fellow servant. No contract or regulation shall
restore to the employer any of the foregoing defenses.
SEC. 7. Section 3715 of the Labor Code is
amended to read:
3715. (a) Any employee whose employer has failed to secure the
payment of compensation as required by this division, or his or her
dependents in case death has ensued, may, in addition to proceeding
against his or her employer by civil action in the courts as provided
in Section 3706, file his or her application with the appeals board
for compensation and the appeals board shall hear and determine the
application for compensation in like manner as in other claims and
shall make the award to the claimant as he or she would be entitled
to receive if the employer had secured the payment of compensation as
required, and the employer shall pay the award in the manner and
amount fixed thereby or shall furnish to the appeals board a bond, in
any amount and with any sureties as the appeals board requires, to
pay the employee the award in the manner and amount fixed thereby.
(b) (1) In any claim in which it is alleged that the employer has
failed to secure the payment of compensation, the director, only for
purposes of this section and Section 3720, shall determine, on the
basis of the evidence available to him or her, whether the employer
was prima facie illegally uninsured. A finding that the employer was
prima facie illegally uninsured shall be made when the director
determines that there is sufficient evidence to constitute a prima
facie case that the employer employed an employee on the date of the
alleged injury and had failed to secure the payment of compensation,
and that the employee was injured arising out of, and occurring in
the course of, the employment.
(2) Failure of the employer to furnish within 10 days the written
statement in response to a written demand for a written statement
prescribed in Section 3711, addressed to the employer at its address
as shown on the official address record of the appeals board, shall
constitute in itself sufficient evidence for a prima facie case that
the employer failed to secure the payment of compensation.
(3) A written denial by the insurer named in the statement
furnished by the employer as prescribed in Section 3711, that the
employer was so insured as claimed, or the nonexistence of a valid
certificate of consent to self-insure for the time of the claimed
injury, if the statement furnished by the employer claims the
employer was self-insured, shall constitute in itself sufficient
evidence for a prima facie case that the employer had failed to
secure the payment of compensation.
(4) The nonexistence of a record of the employer's insurance with
the Workers' Compensation Insurance Rating Bureau shall constitute in
itself sufficient evidence for a prima facie case that the employer
failed to secure the payment of compensation.
(5) The unrebutted written declaration under penalty of perjury by
the injured employee, or applicant other than the employee, that the
employee was employed by the employer at the time of the injury, and
that he or she was injured in the course of his or her employment,
shall constitute, in itself, sufficient evidence for a prima facie
case that the employer employed the employee at the time of the
injury, and that the employee was injured arising out of, and
occurring in the course of, the employment.
(c) (1) When the director determines that an employer was prima
facie illegally uninsured, the director shall mail a written notice
of the determination to the employer at his or her address as shown
on the official address record of the appeals board, and to any other
more recent address the director may possess. The notice shall
advise the employer of its right to appeal the finding, and that a
lien may be placed against the employer's and any parent corporation'
s property, or the property of substantial shareholders of a
corporate employer as defined by Section 3717.
(2) Any employer aggrieved by a finding of the director that it
was prima facie illegally uninsured may appeal the finding by filing
a petition before the appeals board. The petition shall be filed
within 20 days after the finding is issued. The appeals board shall
hold a hearing on the petition within 20 days after the petition is
filed with the appeals board. The appeals board shall have exclusive
jurisdiction to determine appeals of the findings by the director,
and no court of this state has jurisdiction to review, annul, or
suspend the findings or the liens created thereunder, except as
provided by Article 2 (commencing with Section 5950) of Chapter 7 of
Part 4 of Division 4.
(d) (1) Any claim brought against an employer under this section
may be resolved by the director by compromise and release or
stipulated findings and award as long as the appeals board has
acquired jurisdiction over the employer and the employer has been
given notice and an opportunity to object.
(2) Notice may be given by service on the employer of an appeals
board notice of intention to approve the compromise and release or
stipulated findings and award. The employer shall have 20 days after
service of the notice of intention to file an objection with the
appeals board and show good cause therefor.
(3) If the employer objects, the appeals board shall determine if
there is good cause for the objection.
(4) If appeals board finds good cause for the objection, the
director may proceed with the compromise and release or stipulated
findings and award if doing so best serves the interest of the
Uninsured Employers Fund, but shall have no cause of action against
the employer under Section 3717 unless the appeals board case is
tried to its conclusion and the employer is found liable.
(5) If appeals board does not find good cause for the objection,
and the compromise and release or stipulated findings and award is
approved, the Uninsured Employers Fund shall have a cause of action
against the employer pursuant to Section 3717.
(e) The director may adopt regulations to implement and interpret
the procedures provided for in this section.
SEC. 8. SEC. 3. 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.