Bill Text: CA SB1038 | 2011-2012 | Regular Session | Chaptered
Bill Title: State government.
Spectrum: Unknown
Status: (Passed) 2012-06-27 - Chaptered by Secretary of State. Chapter 46, Statutes of 2012. [SB1038 Detail]
Download: California-2011-SB1038-Chaptered.html
BILL NUMBER: SB 1038 CHAPTERED
BILL TEXT
CHAPTER 46
FILED WITH SECRETARY OF STATE JUNE 27, 2012
APPROVED BY GOVERNOR JUNE 27, 2012
PASSED THE SENATE JUNE 27, 2012
PASSED THE ASSEMBLY JUNE 27, 2012
AMENDED IN ASSEMBLY JUNE 25, 2012
INTRODUCED BY Committee on Budget and Fiscal Review
FEBRUARY 6, 2012
An act to amend Section 19604 of the Business and Professions
Code, Section 318 of the Corporations Code, to amend Section 57031 of
the Food and Agriculture Code, to amend Sections 3502.5, 3507.1,
3507.3, 3513, 3527, 3541.3, 3563, 8240, 8241, 8245, 10210, 11139.5,
11532, 11538, 11540, 11544, 12804, 12901, 12903, 12904, 12905, 12906,
12925, 12930, 12935, 12944, 12946, 12947.5, 12950, 12950.1, 12961,
12963.5, 12964, 12965, 12966, 12973, 12974, 12975, 12980, 12981,
12981.1, 12983, 12985, 12988, 12989.1, 12989.2, 12990, 19704, 19815,
50085.5, 71632.5, 71636.1, 71636.3, and 71637 of, to add Section
12907 to, to add Division 4.5 (commencing with Section 3600) to Title
1 of, add Article 3 (commencing with Section 10270) to Chapter 1 of
Part 2 of Division 2 of Title 2 of, to repeal Sections 11535, 11536,
11537, 11543, 12967, 12968, 12969, 12970, 12972, 12987, 12987.1, and
12989 of, to repeal Article 1 (commencing with Section 8260) of
Chapter 3.5 of Division 1 of Title 2 of, to repeal Chapter 1
(commencing with Section 14995) of Part 5.6 of Division 3 of Title 2
of, the Government Code, to amend Section 102346 of the Health and
Safety Code, to amend Section 11770 of the Insurance Code, to amend
Sections 56, 138.7, 150, 151, 152, 153, 156, 511, 515.5, 515.6, 1202,
1773.3, 1776, 1777.5, 1777.7, 2012, 2013, 2686, 3072, 3073, 6332,
6401.7, 6409, 6409.1, 6410, 6411, 6413, and 6413.2 of, to amend the
heading of Chapter 7 (commencing with Section 150) of Division 1 of,
to add Chapter 4.5 (commencing with Section 108) to Division 1 of,
and to repeal Sections 65, 3099, 3099.2, 3099.3, 3099.4, and 3099.5
of, and to repeal Chapter 9 (commencing with Section 1137) of Part 3
of Division 2 of, the Labor Code, to amend Section 422.92, 13519,
13776, 13777.2, and 13836.1 of the Penal Code, to amend Sections
25051, 28850, 30750, 30751, 40120, 50120, 70120, 90300, 99561, 95650,
98162.5, 100301, 101341, 102401, 103401, and 125521 of the Public
Utilities Code, to amend Section 401 of the Unemployment Insurance
Code, to amend Section 4.2 of the Fresno Metropolitan Transit
District Act (Chapter 1932 of the Statutes of 1961), and to amend
Sections 13.90 and 13.91 of the West Bay Rapid Transit Authority Act
(Chapter 104 of the First Extraordinary Session of the Statutes of
1964), relating to state government, and making an appropriation
therefor, to take effect immediately, bill related to the budget.
LEGISLATIVE COUNSEL'S DIGEST
SB 1038, Committee on Budget and Fiscal Review. State government.
(1) Existing law establishes the California State Mediation and
Conciliation Service (CSMCS) within the Department of Industrial
Relations to investigate and mediate labor disputes, as specified.
Existing law governs public transportation labor disputes.
This bill would repeal and recast those provisions and establish
the CSMCS within the Public Employment Relations Board (PERB). The
bill would vest PERB with all of the powers, duties, purposes,
responsibilities and jurisdiction vested in the Department of
Industrial Relations and exercised or carried out through CSMCS.
(2) Existing law creates within state government the Commission on
the Status of Women, consisting of 17 members, including public
members appointed by specified executive and legislative officials.
Existing law sets forth the powers and duties of the commission, and
requires the commission to study certain topics. Existing law
requires the commission to act as a information center on the status
of women and women's educational, employment, and other related
needs.
This bill would rename the Commission on the Status of Women the
Commission on the Status of Women and Girls, and make various
conforming changes to that effect. This bill would require the
appointing powers, in making appointments of public members to the
commission, to make every effort to ensure that there is a geographic
balance of representation on the commission. This bill would modify
the topics that the commission is required to study by adding some
and removing others, including, among others, adding gender equity in
the media. This bill would instead require the commission to act as
a central information on issues that affect the lives of women and
girls. This bill would require the commission to develop a strategy
to attract financial support from private donors.
This bill would state that certain provisions of this bill will
prevail over a specified section of the Governor's Reorganization
Plan No. 2 of 2012, regardless of the dates on which this bill and
that Plan take effect.
(3) Existing law establishes in state government the Commission on
Uniform State Laws, with a specified membership.
This bill would transfer the Commission on Uniform State Laws to
the Legislative Counsel Bureau, and would make conforming changes in
law.
(4) Existing law establishes the Technology Services Board within
the Office of Technology Services. Existing law requires the
Secretary of California Technology to submit, for board
consideration, proposed rates for Office of Technology Services'
services. Existing law requires the secretary, prior to submitting
the rates to the board, to first submit the proposed rates to the
Department of Finance, and requires the department to evaluate the
reasonableness of the proposed rates.
This bill would repeal the provisions establishing the Technology
Services Board, and make various conforming changes. This bill would
also require the secretary to instead submit the proposed rates
directly to the Director of Finance, and would require the Director
of Finance to approve the proposed rates based on certain standards
and criteria.
(5) The California Fair Employment and Housing Act establishes the
Department of Fair Employment and Housing in the State and Consumer
Services Agency, with the power and duties to, among other things,
receive, investigate, and conciliate complaints relating to
employment and housing discrimination. The California Fair Employment
and Housing Act also establishes the Fair Employment and Housing
Commission within the State and Consumer Services Agency, with the
powers and duties to, among other things, conduct hearings, subpoena
witnesses, create or provide financial or technical assistance to
advisory agencies and conciliation councils, publish opinions and
publications, and conduct mediations at the request of the Department
of Fair Employment and Housing.
This bill would eliminate the Fair Employment and Housing
Commission and would transfer the duties of the commission to the
Department of Fair Employment and Housing. The bill would create
within the department a Fair Employment and Housing Council that
would succeed to the powers and duties of the former commission. The
bill would establish the Fair Employment and Housing Enforcement and
Litigation Fund in the State Treasury to be administered by the
department, subject to appropriation, for purposes of deposit of
attorney's fees and costs awarded to the department in specified
civil actions. The bill would expand specified powers of the
department related to complaints, mediations, and prosecutions, and
would provide mandatory dispute resolution at no cost to the parties
involved, as specified. The bill would eliminate a specified cap of
actual damages under the act, and would instead require certain
actions be brought in court by civil action, rather than by
accusation by the department. The bill would make these provisions
operative on January 1, 2013.
(6) Existing law creates the Electronic Funds Transfer Task Force,
consisting of 8 members appointed by specified agencies, boards,
departments, and offices.
This bill would eliminate the Electronic Funds Transfer Task
Force.
(7) Existing law establishes the Department of Industrial
Relations, divided into 6 divisions known as the Division of Worker's
Compensation, the Division of Occupational Safety and Health, the
Division of Labor Standards Enforcement, the Division of Labor
Statistics and Research, the Division of Apprenticeship Standards,
and the State Compensation Insurance Fund. Under existing law, the
Division of Labor Statistics and Research collects, compiles, and
presents facts and statistics relating to the condition of labor in
the state. Existing law provides that, except as specified, no use
shall be made in the reports of the Labor Statistics and Research
Division of the names of persons supplying information and makes any
agent or employee of the division who violates this provision guilty
of a misdemeanor.
This bill would abolish the Division of Labor Statistics and
Research and transfer the duties of that division to the Division of
Occupational Health and Safety and the Division of Labor Standards
Enforcement and make conforming changes. The bill would broaden the
application of the misdemeanor referenced above to any agent or
employee of the department, thereby creating a state-mandated local
program.
(8) Existing law requires the Division of Apprenticeship Standards
to establish and validate minimum standards for the competency and
training of electricians through a system of testing and
certification.
This bill would recast the electrician certification
responsibilities of the Division of Apprenticeship Standards under
the Division of Labor Standards Enforcement and make conforming
changes.
(9) Existing law provides that the Department of Industrial
Relations shall monitor and enforce compliance with applicable
prevailing wage requirements for any public works project paid for
out of public funds. Existing law provides that any awarding agency
whose public works contract is subject to provisions regulating the
employment of apprentices upon public works shall send a copy of the
award to the Division of Apprenticeship Standards.
This bill would instead require that an awarding agency whose
public works contract falls within the jurisdiction of specified
monitoring and enforcement compliance provisions, is subject to
provisions regulating the employment of apprentices upon public
works, or is subject to any other provision providing for the payment
of fees to the department for enforcing prevailing wage requirements
send a copy of the award to the department.
(10) Existing law provides that a contractor or subcontractor who
is determined to have knowingly committed a serious violation of
specified provisions may be denied the right to bid on or be awarded
or perform work on any public works for a period of time. Existing
law provides that an affected contractor, subcontractor, or
responsible officer may obtain a review of the determination imposing
the debarment or civil penalty within 30 days.
This bill would instead allow for the request of the review within
60 days and make other related changes.
(11) Existing law creates, in the Employment Development
Department, the California Unemployment Insurance Appeals Board,
consisting of 7 members, 2 of whom are required to be attorneys at
law admitted to practice in California. Existing law authorizes the
Governor to appoint 5 of the 7 members, as specified.
This bill would reduce the number of members of this board to 5
and reduce the number of members the Governor may appoint to 3. This
bill would require all members of the board to be attorneys at law
admitted to practice in any state of the United States with either a
minimum of one year of experience in conducting judicial or
administrative hearings or 5 years of experience in the practice of
law. This bill would provide that these amendments apply to
appointments made on or after January 1, 2013.
(12) This bill would appropriate $1,000 from the General Fund to
the Department of Finance for purposes of implementing this bill,
thereby making an appropriation.
(13) 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.
(14) This bill would declare that it is to take effect immediately
as a bill providing for appropriations related to the Budget Bill.
Appropriation: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 19604 of the Business and Professions Code is
amended to read:
19604. The board may authorize any racing association, racing
fair, betting system, or multijurisdictional wagering hub to conduct
advance deposit wagering in accordance with this section. Racing
associations, racing fairs, and their respective horsemen's
organizations may form a partnership, joint venture, or any other
affiliation in order to further the purposes of this section.
(a) As used in this section, the following definitions apply:
(1) "Advance deposit wagering" (ADW) means a form of parimutuel
wagering in which a person residing within California or outside of
this state establishes an account with an ADW provider, and
subsequently issues wagering instructions concerning the funds in
this account, thereby authorizing the ADW provider holding the
account to place wagers on the account owner's behalf.
(2) "ADW provider" means a licensee, betting system, or
multijurisdictional wagering hub, located within California or
outside this state, that is authorized to conduct advance deposit
wagering pursuant to this section.
(3) "Betting system" means a business conducted exclusively in
this state that facilitates parimutuel wagering on races it
simulcasts and other races it offers in its wagering menu.
(4) "Breed of racing" means as follows:
(A) With respect to associations and fairs licensed by the board
to conduct thoroughbred, fair, or mixed breed race meetings, "breed
of racing" shall mean thoroughbred.
(B) With respect to associations licensed by the board to conduct
quarter horse race meetings, "breed of racing" shall mean quarter
horse.
(C) With respect to associations and fairs licensed by the board
to conduct standardbred race meetings, "breed of racing" shall mean
standardbred.
(5) "Contractual compensation" means the amount paid to an ADW
provider from advance deposit wagers originating in this state.
Contractual compensation includes, but is not limited to, hub fee
payments, and may include host fee payments, if any, for out-of-state
and out-of-country races. Contractual compensation is subject to the
following requirements:
(A) Excluding contractual compensation for host fee payments,
contractual compensation shall not exceed 6.5 percent of the amount
wagered.
(B) The host fee payments included within contractual compensation
shall not exceed 3.5 percent of the amount wagered. Notwithstanding
this provision, the host fee payment with respect to wagers on the
Kentucky Derby, Preakness Stakes, Belmont Stakes, and selected
Breeders' Cup Championship races may be negotiated by the ADW
provider, the racing associations accepting wagers on those races
pursuant to Section 19596.2, and the horsemen's organization.
(C) In order to ensure fair and consistent market access fee
distributions to associations, fairs, horsemen, and breeders, for
each breed of racing, the percentage of wagers paid as contractual
compensation to an ADW provider pursuant to the terms of a hub
agreement with a racing association or fair when that racing
association or fair is conducting live racing shall be the same as
the percentage of wagers paid as contractual compensation to that ADW
provider when that racing association or fair is not conducting live
racing.
(6) "Horsemen's organization" means, with respect to a particular
racing meeting, the organization recognized by the board as
responsible for negotiating purse agreements on behalf of horsemen
participating in that racing meeting.
(7) "Hub agreement" means a written agreement providing for
contractual compensation paid with respect to advance deposit wagers
placed by California residents on a particular breed of racing
conducted outside of California. In the event a hub agreement exceeds
a term of two years, then an ADW provider, one or more racing
associations or fairs that together conduct no fewer than five weeks
of live racing for the breed covered by the hub agreement, and the
horsemen's organization responsible for negotiating purse agreements
for the breed covered by the hub agreement shall be signatories to
the hub agreement. A hub agreement is required for an ADW provider to
receive contractual compensation for races conducted outside of
California.
(8) "Hub agreement arbitration" means an arbitration proceeding
pursuant to which the disputed provisions of the hub agreement
pertaining to the hub or host fees from wagers on races conducted
outside of California provided pursuant to paragraph (2) of
subdivision (b) are determined in accordance with the provisions of
this paragraph. If a hub agreement arbitration is requested, all of
the following shall apply:
(A) The ADW provider shall be permitted to accept advance deposit
wagers from California residents.
(B) The contractual compensation received by the ADW provider
shall be the contractual compensation specified in the hub agreement
that is the subject of the hub agreement arbitration.
(C) The difference between the contractual compensation specified
in subparagraph (B) and the contractual compensation determined to be
payable at the conclusion of the hub agreement arbitration shall be
calculated and paid within 15 days following the arbitrator's
decision and order. The hub agreement arbitration shall be held as
promptly as possible, but in no event more than 60 days following the
demand for that arbitration. The arbitrator shall issue a decision
no later than 15 days following the conclusion of the arbitration. A
single arbitrator jointly selected by the ADW provider and the party
requesting a hub agreement arbitration shall conduct the hub
agreement arbitration. However, if the parties cannot agree on the
arbitrator within seven days of issuance of the written demand for
arbitration, then the arbitrator shall be selected pursuant to the
Streamlined Arbitration Rules and Procedures of the Judicial
Arbitration and Mediation Services, or pursuant to the applicable
rules of its successor organization. In making the hub agreement
arbitration determination, the arbitrator shall be required to choose
between the contractual compensation of the hub agreement agreed to
by the ADW provider or whatever different terms for the hub agreement
were proposed by the party requesting the hub agreement arbitration.
The arbitrator shall not be permitted to impose new, different, or
compromised terms to the hub agreement. The arbitrator's decision
shall be final and binding on the parties. If an arbitration is
requested, either party may bring an action in state court to compel
a party to go into arbitration or to enforce the decision of the
arbitrator. The cost of the hub agreement arbitration, including the
cost of the arbitrator, shall be borne in equal shares by the parties
to the hub agreement and the party or parties requesting a hub
agreement arbitration. The hub agreement arbitration shall be
administered by the Judicial Arbitration and Mediation Services
pursuant to its Streamlined Arbitration Rules and Procedures or its
successor organization.
(9) "Incentive awards" means those payments provided for in
Sections 19617.2, 19617.7, 19617.8, 19617.9, and 19619. The amount
determined to be payable for incentive awards under this section
shall be payable to the applicable official registering agency and
thereafter distributed as provided in this chapter.
(10) "Licensee" means any racing association or fair licensed to
conduct a live racing meet in this state, or affiliation thereof,
authorized under this section.
(11) "Market access fee" means the amount of advance deposit
wagering handle remaining after the payment of winning wagers, and
after the payment of contractual compensation, if any, to an ADW
provider. Market access fees shall be distributed in accordance with
subdivision (f).
(12) "Multijurisdictional wagering hub" means a business conducted
in more than one jurisdiction that facilitates parimutuel wagering
on races it simulcasts and other races it offers in its wagering
menu.
(13) "Racing fair" means a fair authorized by the board to conduct
live racing.
(14) "Zone" means the zone of the state, as defined in Section
19530.5, except as modified by the provisions of subdivision (f) of
Section 19601. For these purposes, the central and southern zones
shall together be considered one zone.
(b) Wagers shall be accepted according to the procedures set forth
in this subdivision.
(1) No ADW provider shall accept wagers or wagering instructions
on races conducted in California from a resident of California unless
all of the following conditions are met:
(A) The ADW provider is licensed by the board.
(B) A written agreement allowing those wagers exists with the
racing association or fair conducting the races on which the wagers
are made.
(C) The agreement referenced in subparagraph (B) shall have been
approved in writing by the horsemen's organization responsible for
negotiating purse agreements for the breed on which the wagers are
made in accordance with the Interstate Horseracing Act (15 U.S.C.
Sec. 3001 et seq.), regardless of the location of the ADW provider,
whether in California or otherwise, including, without limitation,
any and all requirements contained therein with respect to written
consents and required written agreements of horsemen's groups to the
terms and conditions of the acceptance of those wagers and any
arrangements as to the exclusivity between the host racing
association or fair and the ADW provider. For purposes of this
subdivision, the substantive provisions of the Interstate Horseracing
Act shall be taken into account without regard to whether, by its
own terms, that act is applicable to advance deposit wagering on
races conducted in California accepted from residents of California.
(2) No ADW provider shall accept wagers or wagering instructions
on races conducted outside of California from a resident of
California unless all of the following conditions are met:
(A) The ADW provider is licensed by the board.
(B) There is a hub agreement between the ADW provider and one or
both of (i) one or more racing associations or fairs that together
conduct no fewer than five weeks of live racing on the breed on which
wagering is conducted during the calendar year during which the
wager is placed, and (ii) the horsemen's organization responsible for
negotiating purse agreements for the breed on which wagering is
conducted.
(C) If the parties referenced in clauses (i) and (ii) of
subparagraph (B) are both signatories to the hub agreement, then no
party shall have the right to request a hub agreement arbitration.
(D) If only the party or parties referenced in clause (i) of
subparagraph (B) is a signatory to the hub agreement, then the
signatories to the hub agreement shall, within five days of execution
of the hub agreement, provide a copy of the hub agreement to the
horsemen's organization responsible for negotiating purse agreements
for the breed on which wagering is conducted for each race conducted
outside of California on which California residents may place advance
deposit wagers. Prior to receipt of the hub agreement, the horsemen'
s organization shall sign a nondisclosure agreement with the ADW
provider agreeing to hold confidential all terms of the hub
agreement. If the horsemen's organization wants to request a hub
agreement arbitration, it shall send written notice of its election
to the signatories to the hub agreement within 10 days after receipt
of the copy of the hub agreement, and shall provide its alternate
proposal to the hub and host fees specified in the hub agreement with
that written notice. If the horsemen's organization does not provide
that written notice within the 10-day period, then no party shall
have the right to request a hub agreement arbitration. If the
horsemen's organization does provide that written notice within the
10-day period, then the ADW provider shall have 10 days to elect in
writing to do one of the following:
(i) Abandon the hub agreement.
(ii) Accept the alternate proposal submitted by the horsemen's
organization.
(iii) Proceed with a hub agreement arbitration.
(E) If only the party referenced in clause (ii) of subparagraph
(B) is a signatory to the hub agreement, then the signatories to the
hub agreement shall, within five days of execution of the hub
agreement, provide written notice of the host and hub fees applicable
pursuant to the hub agreement for each race conducted outside of
California on which California residents may place advance deposit
wagers, which notice shall be provided to all racing associations and
fairs conducting live racing of the same breed covered by the hub
agreement. If any racing association or fair wants to request a hub
agreement arbitration, it shall send written notice of its election
to the signatories to the hub agreement within 10 days after receipt
of the notice of host and hub fees. It shall also provide its
alternate proposal to the hub and host fees specified in the hub
agreement with the notice of its election. If more than one racing
association or fair provides notice of their request for hub
agreement arbitration, those racing associations or fairs, or both,
shall have a period of five days to jointly agree upon which of their
alternate proposals shall be the official proposal for purposes of
the hub agreement arbitration. If one or more racing associations or
fairs that together conduct no fewer than five weeks of live racing
on the breed on which wagering is conducted during the calendar year
during which the wager is placed does not provide written notice of
their election to arbitrate within the 10-day period, then no party
shall have the right to request a hub agreement arbitration. If a
valid hub agreement arbitration request is made, then the ADW
provider shall have 10 days to elect in writing to do one of the
following:
(i) Abandon the hub agreement.
(ii) Accept the alternate proposal submitted by the racing
associations or fairs.
(iii) Proceed with a hub agreement arbitration.
The results of any hub agreement arbitration elected pursuant to
this subdivision shall be binding on all other associations and fairs
conducting live racing on that breed.
(F) The acceptance thereof is in compliance with the provisions of
the Interstate Horseracing Act (15 U.S.C. Sec. 3001 et seq.),
regardless of the location of the ADW provider, whether in California
or otherwise, including, without limitation, any and all
requirements contained therein with respect to written consents and
required written agreements of horsemen's groups to the terms and
conditions of the acceptance of the wagers and any arrangements as to
the exclusivity between the host racing association or fair and the
ADW provider.
(c) An advance deposit wager may be made only by the ADW provider
holding the account pursuant to wagering instructions issued by the
owner of the funds communicated by telephone call or through other
electronic media. The ADW provider shall ensure the identification of
the account's owner by using methods and technologies approved by
the board. Any ADW provider that accepts wagering instructions
concerning races conducted in California, or accepts wagering
instructions originating in California, shall provide a full
accounting and verification of the source of the wagers thereby made,
including the postal ZIP Code and breed of the source of the wagers,
in the form of a daily download of parimutuel data to a database
designated by the board. The daily download shall be delivered in a
timely basis using file formats specified by the database designated
by the board, and shall include any and all data necessary to
calculate and distribute moneys according to the rules and
regulations governing California parimutuel wagering. Any and all
reasonable costs associated with the creation, provision, and
transfer of this data shall be borne by the ADW provider.
(d) (1) (A) The board shall develop and adopt rules to license and
regulate all phases of operation of advance deposit wagering for ADW
providers operating in California, including advance deposit
wagering activity that takes place within a minisatellite wagering
facility. The board may recover any costs associated with the
licensing or regulation of advance deposit wagering activities in a
minisatellite wagering facility either directly from the ADW provider
or through an appropriate increase in the funding formula devised by
the board pursuant to paragraph (1) of subdivision (a) of Section
19616.51.
(B) The board shall not approve an application for an original or
renewal license as an ADW provider unless the entity, if requested in
writing by a bona fide labor organization no later than 90 days
prior to licensing, has entered into a contractual agreement with
that labor organization that provides all of the following:
(i) The labor organization has historically represented employees
who accept or process any form of wagering at the nearest horse
racing meeting located in California.
(ii) The agreement establishes the method by which the ADW
provider will agree to recognize and bargain in good faith with a
labor organization which has demonstrated majority status by
submitting authorization cards signed by those employees who accept
or process any form of wagering for which a California ADW license is
required.
(iii) The agreement requires the ADW provider to maintain its
neutrality concerning the choice of those employees who accept or
process any form of wagering for which a California ADW license is
required whether or not to authorize the labor organization to
represent them with regard to wages, hours, and other terms and
conditions of employment.
(iv) The agreement applies to those classifications of employees
who accept or process wagers for which a California ADW license is
required whether the facility is located within or outside of
California.
(C) (i) The agreement required by subparagraph (B) shall not be
conditioned by either party upon the other party agreeing to matters
outside the requirements of subparagraph (B).
(ii) The requirement in subparagraph (B) shall not apply to an ADW
provider which has entered into a collective bargaining agreement
with a bona fide labor organization that is the exclusive bargaining
representative of employees who accept or process parimutuel wagers
on races for which an ADW license is required whether the facility is
located within or outside of California.
(D) Permanent state or county employees and nonprofit
organizations that have historically performed certain services at
county, state, or district fairs may continue to provide those
services.
(E) Parimutuel clerks employed by racing associations or fairs or
employees of ADW providers who accept or process any form of wagers
who are laid off due to lack of work shall have preferential hiring
rights for new positions with their employer in occupations whose
duties include accepting or processing any form of wagers, or the
operation, repair, service, or maintenance of equipment that accepts
or processes any form of wagering at a racetrack, satellite wagering
facility, or ADW provider licensed by the board. The preferential
hiring rights established by this subdivision shall be conditioned
upon the employee meeting the minimum qualification requirements of
the new job.
(2) The board shall develop and adopt rules and regulations
requiring ADW providers to establish security access policies and
safeguards, including, but not limited to, the following:
(A) The ADW provider shall use board-approved methods to perform
location and age verification confirmation with respect to persons
establishing an advance deposit wagering account.
(B) The ADW provider shall use personal identification numbers
(PINs) or other technologies to assure that only the accountholder
has access to the advance deposit wagering account.
(C) The ADW provider shall provide for withdrawals from the
wagering account only by means of a check made payable to the
accountholder and sent to the address of the accountholder or by
means of an electronic transfer to an account held by the verified
accountholder or the accountholder may withdraw funds from the
wagering account at a facility approved by the board by presenting
verifiable account identification information.
(D) The ADW provider shall allow the board access to its premises
to visit, investigate, audit, and place expert accountants and other
persons it deems necessary for the purpose of ensuring that its rules
and regulations concerning credit authorization, account access, and
other security provisions are strictly complied with. To ensure that
the amounts retained from the parimutuel handle are distributed
under law, rules, or agreements, any ADW provider that accepts
wagering instructions concerning races conducted in California or
accepts wagering instructions originating in California shall provide
an independent "agreed-upon procedures" audit for each California
racing meeting, within 60 days of the conclusion of the race meeting.
The auditing firm to be used and the content and scope of the audit,
including host fee obligations, shall be set forth in the applicable
agreement. The ADW provider shall provide the board, horsemen's
organizations, and the host racing association with an annual
parimutuel audit of the financial transactions of the ADW provider
with respect to wagers authorized pursuant to this section, prepared
in accordance with generally accepted auditing standards and the
requirements of the board. Any and all reasonable costs associated
with those audits shall be borne by the ADW provider.
(3) The board shall prohibit advance deposit wagering advertising
that it determines to be deceptive to the public. The board shall
also require, by regulation, that every form of advertising contain a
statement that minors are not allowed to open or have access to
advance deposit wagering accounts.
(e) In order for a licensee, betting system, or
multijurisdictional wagering hub to be approved by the board as an
ADW provider, it shall meet both of the following requirements:
(1) All wagers thereby made shall be included in the appropriate
parimutuel pool under a contractual agreement with the applicable
host track.
(2) The amounts deducted from advance deposit wagers shall be in
accordance with the provisions of this chapter.
(f) After the payment of contractual compensation, the amounts
received as market access fees from advance deposit wagers, which
shall not be considered for purposes of Section 19616.51, shall be
distributed as follows:
(1) An amount equal to 0.0011 multiplied by the amount handled on
advance deposit wagers originating in California for each racing
meeting shall be distributed to the Center for Equine Health to
establish the Kenneth L. Maddy Fund for the benefit of the School of
Veterinary Medicine at the University of California at Davis.
(2) An amount equal to 0.0003 multiplied by the amount handled on
advance deposit wagers originating in California for each racing
meeting shall be distributed to the Public Employment Relations Board
to cover costs associated with audits conducted pursuant to Section
19526 and for the purposes of reimbursing the State Mediation and
Conciliation Service for costs incurred pursuant to this section.
However, if that amount would exceed the costs of the Public
Employment Relations Board, the amount distributed to that board
shall be reduced, and that reduction shall be forwarded to an
organization designated by the racing association or fair described
in subdivision (a) for the purpose of augmenting a compulsive
gambling prevention program specifically addressing that problem.
(3) An amount equal to 0.00165 multiplied by the amount handled on
advance deposit wagers that originate in California for each racing
meeting shall be distributed as follows:
(A) One-half of the amount shall be distributed to supplement the
trainer-administered pension plans for backstretch personnel
established pursuant to Section 19613. Moneys distributed pursuant to
this subparagraph shall supplement, and not supplant, moneys
distributed to that fund pursuant to Section 19613 or any other
provision of law.
(B) One-half of the amount shall be distributed to the welfare
fund established for the benefit of horsemen and backstretch
personnel pursuant to subdivision (b) of Section 19641. Moneys
distributed pursuant to this subparagraph shall supplement, and not
supplant, moneys distributed to that fund pursuant to Section 19641
or any other provision of law.
(4) With respect to wagers on each breed of racing that originate
in California, an amount equal to 2 percent of the first two hundred
fifty million dollars ($250,000,000) of handle from all advance
deposit wagers originating from within California annually, an amount
equal to 1.5 percent of the next two hundred fifty million dollars
($250,000,000) of handle from all advance deposit wagers originating
from within California annually, an amount equal to 1 percent of the
next two hundred fifty million dollars ($250,000,000) of handle from
all advance deposit wagers originating from within California
annually, and an amount equal to 0.50 percent of handle from all
advance deposit wagers originating from within California in excess
of seven hundred fifty million dollars ($750,000,000) annually, shall
be distributed as satellite wagering commissions. Satellite wagering
facilities that were not operational in 2001, other than one each in
the Cities of Inglewood and San Mateo, and two additional facilities
each operated by the Alameda County Fair and the Los Angeles County
Fair and their partners and other than existing facilities which are
relocated, are not eligible for satellite wagering commission
distributions under this section. The satellite wagering facility
commissions calculated in accordance with this subdivision shall be
distributed to each satellite wagering facility and racing
association or fair in the zone in which the wager originated in the
same relative proportions that the satellite wagering facility or the
racing association or fair generated satellite commissions during
the previous calendar year. If there is a reduction in the satellite
wagering commissions pursuant to this section, the benefits therefrom
shall be distributed equitably as purses and commissions to all
associations and racing fairs generating advance deposit wagers in
proportion to the handle generated by those associations and racing
fairs. If a satellite wagering facility is permanently closed other
than for renovation or remodeling, or if a satellite wagering
facility is unwilling or unable to accept
all of the signals that are available to that
facility, the commissions otherwise provided for in this subdivision
that would be payable to that facility shall be proportionately
reduced to take into account the time that satellite wagering is no
longer conducted by that facility, or the payment of those
commissions shall be eliminated entirely if the facility is
permanently closed, and, in either case, the satellite wagering
commissions not paid shall be proportionately redistributed to the
other eligible satellite wagering facilities. For purposes of this
section, the purse funds distributed pursuant to Section 19605.72
shall be considered to be satellite wagering facility commissions
attributable to thoroughbred races at the locations described in that
section.
(5) After the distribution of the amounts set forth in paragraphs
(1) to (4), inclusive, the remaining market access fees from advance
deposit wagers originating in California shall be as follows:
(A) With respect to wagers on each breed of racing, the amount
remaining shall be distributed to the racing association or fair that
is conducting live racing on that breed during the calendar period
in the zone in which the wager originated. That amount shall be
allocated to that racing association or fair as commissions, to
horsemen participating in that racing meeting in the form of purses,
and as incentive awards, in the same relative proportion as they were
generated or earned during the prior calendar year at that racing
association or fair on races conducted or imported by that racing
association or fair after making all deductions required by
applicable law. Notwithstanding any other provision of law, the
distributions with respect to each breed of racing set forth in this
subparagraph may be altered upon the approval of the board, in
accordance with an agreement signed by the respective associations,
fairs, horsemen's organizations, and breeders organizations receiving
those distributions.
(B) If the provisions of Section 19601.2 apply, then the amount
distributed to the applicable racing associations or fairs shall
first be divided between those racing associations or fairs in direct
proportion to the total amount wagered in the applicable zone on the
live races conducted by the respective association or fair.
Notwithstanding this requirement, when the provisions of subdivision
(b) of Section 19607.5 apply to the 2nd District Agricultural
Association in Stockton or the California Exposition and State Fair
in Sacramento, then the total amount distributed to the applicable
racing associations or fairs shall first be divided equally, with 50
percent distributed to applicable fairs and 50 percent distributed to
applicable associations.
(C) Notwithstanding any provisions of this section to the
contrary, with respect to wagers on out-of-state and out-of-country
thoroughbred races conducted after 6 p.m., Pacific time, 50 percent
of the amount remaining shall be distributed as commissions to
thoroughbred associations and racing fairs, as thoroughbred and fair
purses, and as incentive awards in accordance with subparagraph (A),
and the remaining 50 percent, together with the total amount
remaining from advance deposit wagering originating from California
out-of-state and out-of-country harness and quarter horse races
conducted after 6 p.m., Pacific time, shall be distributed as
commissions on a pro rata basis to the applicable licensed quarter
horse association and the applicable licensed harness association,
based upon the amount handled in state, both on- and off-track, on
each breed's own live races in the previous year by that association,
or its predecessor association. One-half of the amount thereby
received by each association shall be retained by that association as
a commission, and the other half of the money received shall be
distributed as purses to the horsemen participating in its current or
next scheduled licensed racing meeting.
(D) Notwithstanding any provisions of this section to the
contrary, with respect to wagers on out-of-state and out-of-country
nonthoroughbred races conducted before 6 p.m., Pacific time, 50
percent of the amount remaining shall be distributed as commissions
as provided in subparagraph (C) for licensed quarter horse and
harness associations, and the remaining 50 percent shall be
distributed as commissions to the applicable thoroughbred
associations or fairs, as thoroughbred and fair purses, and as
incentive awards in accordance with subparagraph (A).
(E) Notwithstanding any provision of this section to the contrary,
the distribution of market access fees pursuant to this subparagraph
may be altered upon the approval of the board, in accordance with an
agreement signed by all parties whose distributions would be
affected.
(g) A racing association, a fair, a satellite wagering facility,
or a minisatellite wagering facility may enter into an agreement with
an ADW provider to accept and facilitate the placement of any wager
from a patron at its facility that a California resident could make
through that ADW provider. Deductions from wagers made pursuant to
the agreement shall be distributed in accordance with the provisions
of this chapter governing wagers placed at that facility, except that
the board may authorize alternative distributions as agreed to by
the ADW provider, the operator of the facility accepting the wager,
the association or fair conducting that breed of racing in the zone
where the wager is placed, and the respective horsemen's
organization.
(h) Any issues concerning the interpretation or application of
this section shall be resolved by the board.
(i) Amounts distributed under this section shall be proportionally
reduced by an amount equal to 0.00295 multiplied by the amount
handled on advance deposit wagers originating in California for each
racing meeting, except for harness racing meetings, provided that the
amount of this reduction shall not exceed two million dollars
($2,000,000). The method used to calculate the reduction in
proportionate share shall be approved by the board. The amount
deducted shall be distributed as follows:
(1) Fifty percent of the money to the board to establish and to
administer jointly with the organization certified as the majority
representative of California-licensed jockeys pursuant to Section
19612.9, a defined contribution retirement plan for
California-licensed jockeys who retired from racing on or after
January 1, 2009.
(2) The remaining 50 percent of the money shall be distributed as
follows:
(A) Seventy percent shall be distributed to supplement the
trainer-administered pension plans for backstretch personnel
established pursuant to Section 19613. Moneys distributed pursuant to
this subparagraph shall supplement, and not supplant, moneys
distributed to that fund pursuant to Section 19613 or any other
provision of law.
(B) Thirty percent shall be distributed to the welfare fund
established for the benefit of horsemen and backstretch personnel
pursuant to subdivision (b) of Section 19641. Moneys distributed
pursuant to this subparagraph shall supplement, and not supplant,
moneys distributed to that fund pursuant to Section 19641 or any
other provision of law.
(j) Amounts distributed under this section shall be proportionally
reduced by an amount equal to 0.00295 multiplied by the amount
handled on advance deposit wagers originating in California for each
harness racing meeting, provided that the amount of this reduction
shall not exceed five hundred thousand dollars ($500,000). The method
used to calculate the reduction in proportionate share shall be
approved by the board. The amount deducted shall be distributed as
follows:
(1) First to the welfare fund established for the benefit of
horsemen and backstretch personnel, pursuant to subdivision (b) of
Section 19641, and administered by the organization representing the
horsemen participating in the race meeting, in the amount requested
by the welfare fund. Moneys distributed pursuant to this paragraph
shall supplement, and not supplant, moneys distributed to that fund
pursuant to Section 19641 or any other provision of law.
(2) The amount remaining, if any, shall be utilized for the
benefit of the horsemen as specified in a written agreement between
the racing association that conducts the live harness race meeting
and the organization representing the horsemen participating in the
race meeting.
SEC. 2. Section 318 of the Corporations Code is amended to read:
318. (a) The Secretary of State shall develop and maintain a
registry of distinguished women and minorities who are available to
serve on corporate boards of directors. As used in this section,
"minority" means an ethnic person of color including American
Indians, Asians (including, but not limited to, Chinese, Japanese,
Koreans, Pacific Islanders, Samoans, and Southeast Asians), Blacks,
Filipinos, and Hispanics.
(b) For each woman or minority who participates in the registry,
the Secretary of State shall maintain information on his or her
educational, professional, community service, and corporate
governance background. That information may include, but is not
limited to:
(1) Paid or volunteer employment.
(2) Service in elected public office or on public boards or
commissions.
(3) Directorships, officerships, and trusteeships of business and
nonprofit entities, including committee experience.
(4) Professional, academic, or community awards or honors.
(5) Publications.
(6) Government relations experience.
(7) Experience with corporate constituents.
(8) Any other areas of special expertise.
(c) In addition to the information subdivision (b) requires, each
woman or minority who participates in the registry may disclose any
number of personal attributes that may contribute to board diversity.
Those attributes may include, but are not limited to, gender,
physical disability, race, or ethnic origin.
(d) In addition to the information subdivision (b) requires, each
woman or minority who participates in the registry may indicate
characteristics of corporations for which he or she would consider,
or is especially interested in, serving as a director. These
characteristics may include, but are not limited to, company size,
industry, geographic location, board meeting frequency, director time
commitments, director compensation, director insurance or
indemnification, or social policy concerns.
(e) Any woman or minority may nominate himself or herself to the
registry by filing with the Secretary of State the information
required by subdivision (b) on a form the secretary prescribes. Any
registrant may attach a copy of his or her resume and up to two
letters of recommendation to his or her registration form. Each
registrant's registration form, together with any attached resume or
letters of recommendation, shall constitute his or her registry
transcript.
(f) The Secretary of State shall make appropriate rules requiring
registrants to renew or update their filings with the registry, as
necessary to ensure continued accuracy of registry information.
(g) The Secretary of State shall assign each registrant a file
number, then enter the information described in subdivisions (b),
(c), and (d) into a data base, using the registrant's file number to
identify him or her. The registry data base shall not disclose any
registrant's name or street address, but may list the city, county,
or ZIP Code of his or her business or residence address. The
secretary shall make data base information available to those persons
described in subdivisions (i) and (j). The secretary may provide
that access either by permitting direct data base searches or by
performing data base searches on written request.
(h) The Secretary of State may also make information contained in
the registry data base available to any person or entity qualified to
transact business in California that regularly engages in the
business of providing data base access or search services; provided,
that data base access will not be construed to entitle the user to
access to any registrant's transcript.
(i) The Secretary of State shall make information contained in a
reasonable number of registrants' transcripts available to any
corporation or its representative. A "representative," for purposes
of this subdivision, may be an attorney, an accountant, or a retained
executive recruiter. A "retained executive recruiter," for purposes
of this subdivision, is an individual or business entity engaged in
the executive search business that is regularly retained to locate
qualified candidates for appointment or election as corporate
directors or executive officers.
(j) The Secretary of State may also grant access to a reasonable
number of registrants' transcripts to any other person who
demonstrates to the secretary's satisfaction that the person does
both of the following:
(1) Seeks access to the registry in connection with an actual
search for a corporate director.
(2) Intends to use any information obtained from the registry only
for the purpose of finding qualified candidates for an open position
on a corporate board of directors.
(k) The Secretary of State may employ reasonable means to verify
that any party seeking access to registry transcript information is
one of those specified in subdivision (i) or (j). To that end, the
secretary may require a representative to identify its principal, but
may not disclose that principal's identity to any other person.
( l ) Upon written request specifying the registrant's
file number, the Secretary of State shall provide any party entitled
to access to registry transcripts with a copy of any registrant's
transcript. The secretary may by rule or regulation specify other
reasonable means by which persons entitled thereto may order copies
of registrants' transcripts.
(m) Notwithstanding any other law, a person shall not be entitled
to access to information the registry contains, except as this
section specifically provides.
(n) The Secretary of State shall charge fees for registering with
the registry, obtaining access to the registry data base, and
obtaining copies of registrants' transcripts. The Secretary of State,
in consultation with the Senate Commission on Corporate Governance,
Shareholder Rights, and Securities Transactions, shall fix those fees
by regulation. Fees shall be fixed so that the aggregate amount of
all fees collected shall be sufficient to cover the total cost of
administering the registry program. Registration fees shall be fixed
so as to encourage qualified women and minorities to participate.
Fees shall be deposited into the Secretary of State's Business Fee
Fund.
(o) The Secretary of State may make any rule, regulation,
guideline, or agreement the secretary deems necessary to carry out
the purposes and provisions of this section.
(p) The Secretary of State may cooperate with the Commission on
the Status of Women and Girls, the California Council to Promote
Business Ownership by Women, the Senate Commission on Corporate
Governance, Shareholder Rights, and Securities Transactions, women's
organizations, minority organizations, business and professional
organizations, and any other individual or entity the secretary deems
appropriate, for any of the following purposes:
(1) Promoting corporate use of the registry.
(2) Locating qualified women and minorities and encouraging them
to participate in the registry.
(3) Educating interested parties on the purpose and most effective
use of the registry.
The secretary may also prepare and distribute publications
designed to promote informed use of the registry.
(q) The Secretary of State may seek registrants' consent to be
listed in a published directory of women and minorities eligible to
serve as corporate directors, which will contain a summary of each
listed registrant's qualifications. The secretary may periodically
publish, or cause to be published, such a directory. Only those
registrants who so consent in writing may be included in the
directory. The printed directory shall be provided to any person upon
payment of a fee, which the Secretary of State will determine by
regulation, in consultation with the Senate Commission on Corporate
Governance, Shareholder Rights, and Securities Transactions.
(r) The Secretary of State shall implement this section no later
than January 1, 1995.
(s) At least once in each three-year period during which the
registry is available for corporate use, the Secretary of State, in
consultation with the Senate Commission on Corporate Governance,
Shareholder Rights, and Securities Transactions, shall report to the
Legislature on the extent to which the registry has helped women and
minorities progress toward achieving parity in corporate board
appointments or elections.
(t) The Secretary of State shall notify each University of
California campus and each California State University campus of the
opportunity to maintain the registry created pursuant to this
section. If more than one campus of the university or state
university expresses interest in maintaining the registry, the
Secretary of State shall select a campus based on a competitive
selection process. If a campus is selected, the Secretary of State
shall transfer the information contained in the registry, free of
cost, to that campus. Any University of California or California
State University campus selected to maintain the registry shall do so
in a manner consistent with this section. Funds deposited in the
Secretary of State's Business Fees Fund pursuant to this section
shall be transferred to the university selected to maintain the
registry, and shall be used to administer the registry program. The
Secretary of State shall maintain the registry until a University of
California or California State University campus agrees to do so.
SEC. 3. Section 57031 of the Food and Agricultural Code is amended
to read:
57031. (a) Any union representing registered unloaders is
authorized and entitled to bargain with the employer of the
registered unloaders to establish a scale of charges for unloading
produce.
(b) If the union or unions representing registered unloaders and
the employer of registered unloaders are unable to agree on a scale
of charges, the Public Employment Relations Board shall mediate the
dispute pursuant to Section 3601 of the Government Code.
(c) The scale of charges in effect on December 31, 1978, shall
remain in effect until new charges are established pursuant to this
section.
SEC. 4. Section 3502.5 of the Government Code is amended to read:
3502.5. (a) Notwithstanding Section 3502, any other provision of
this chapter, or any other law, rule, or regulation, an agency shop
agreement may be negotiated between a public agency and a recognized
public employee organization that has been recognized as the
exclusive or majority bargaining agent pursuant to reasonable rules
and regulations, ordinances, and enactments, in accordance with this
chapter. As used in this chapter, "agency shop" means an arrangement
that requires an employee, as a condition of continued employment,
either to join the recognized employee organization or to pay the
organization a service fee in an amount not to exceed the standard
initiation fee, periodic dues, and general assessments of the
organization.
(b) In addition to the procedure prescribed in subdivision (a), an
agency shop arrangement between the public agency and a recognized
employee organization that has been recognized as the exclusive or
majority bargaining agent shall be placed in effect, without a
negotiated agreement, upon (1) a signed petition of 30 percent of the
employees in the applicable bargaining unit requesting an agency
shop agreement and an election to implement an agency fee
arrangement, and (2) the approval of a majority of employees who cast
ballots and vote in a secret ballot election in favor of the agency
shop agreement. The petition may be filed only after the recognized
employee organization has requested the public agency to negotiate on
an agency shop arrangement and, beginning seven working days after
the public agency received this request, the two parties have had 30
calendar days to attempt good faith negotiations in an effort to
reach agreement. An election that may not be held more frequently
than once a year shall be conducted by the California State Mediation
and Conciliation Service in the event that the public agency and the
recognized employee organization cannot agree within 10 days from
the filing of the petition to select jointly a neutral person or
entity to conduct the election. In the event of an agency fee
arrangement outside of an agreement that is in effect, the recognized
employee organization shall indemnify and hold the public agency
harmless against any liability arising from a claim, demand, or other
action relating to the public agency's compliance with the agency
fee obligation.
(c) An employee who is a member of a bona fide religion, body, or
sect that has historically held conscientious objections to joining
or financially supporting public employee organizations shall not be
required to join or financially support a public employee
organization as a condition of employment. The employee may be
required, in lieu of periodic dues, initiation fees, or agency shop
fees, to pay sums equal to the dues, initiation fees, or agency shop
fees to a nonreligious, nonlabor charitable fund exempt from taxation
under Section 501(c)(3) of the Internal Revenue Code, chosen by the
employee from a list of at least three of these funds, designated in
a memorandum of understanding between the public agency and the
public employee organization, or if the memorandum of understanding
fails to designate the funds, then to a fund of that type chosen by
the employee. Proof of the payments shall be made on a monthly basis
to the public agency as a condition of continued exemption from the
requirement of financial support to the public employee organization.
(d) An agency shop provision in a memorandum of understanding that
is in effect may be rescinded by a majority vote of all the
employees in the unit covered by the memorandum of understanding,
provided that: (1) a request for that type of vote is supported by a
petition containing the signatures of at least 30 percent of the
employees in the unit, (2) the vote is by secret ballot, and (3) the
vote may be taken at any time during the term of the memorandum of
understanding, but in no event shall there be more than one vote
taken during that term. Notwithstanding the above, the public agency
and the recognized employee organization may negotiate, and by mutual
agreement provide for, an alternative procedure or procedures
regarding a vote on an agency shop agreement. The procedures in this
subdivision are also applicable to an agency shop agreement placed in
effect pursuant to subdivision (b).
(e) An agency shop arrangement shall not apply to management
employees.
(f) A recognized employee organization that has agreed to an
agency shop provision or is a party to an agency shop arrangement
shall keep an adequate itemized record of its financial transactions
and shall make available annually, to the public agency with which
the agency shop provision was negotiated, and to the employees who
are members of the organization, within 60 days after the end of its
fiscal year, a detailed written financial report thereof in the form
of a balance sheet and an operating statement, certified as to
accuracy by its president and treasurer or corresponding principal
officer, or by a certified public accountant. An employee
organization required to file financial reports under the federal
Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. Sec.
401 et seq.) covering employees governed by this chapter, or
required to file financial reports under Section 3546.5, may satisfy
the financial reporting requirement of this section by providing the
public agency with a copy of the financial reports.
SEC. 5. Section 3507.1 of the Government Code is amended to read:
3507.1. (a) Unit determinations and representation elections
shall be determined and processed in accordance with rules adopted by
a public agency in accordance with this chapter. In a representation
election, a majority of the votes cast by the employees in the
appropriate bargaining unit shall be required.
(b) Notwithstanding subdivision (a) and rules adopted by a public
agency pursuant to Section 3507, a bargaining unit in effect as of
the effective date of this section shall continue in effect unless
changed under the rules adopted by a public agency pursuant to
Section 3507.
(c) A public agency shall grant exclusive or majority recognition
to an employee organization based on a signed petition, authorization
cards, or union membership cards showing that a majority of the
employees in an appropriate bargaining unit desire the
representation, unless another labor organization has previously been
lawfully recognized as exclusive or majority representative of all
or part of the same unit. Exclusive or majority representation shall
be determined by a neutral third party selected by the public agency
and the employee organization who shall review the signed petition,
authorization cards, or union membership cards to verify the
exclusive or majority status of the employee organization. In the
event the public agency and the employee organization cannot agree on
a neutral third party, the California State Mediation and
Conciliation Service shall be the neutral third party and shall
verify the exclusive or majority status of the employee organization.
In the event that the neutral third party determines, based on a
signed petition, authorization cards, or union membership cards, that
a second labor organization has the support of at least 30 percent
of the employees in the unit in which recognition is sought, the
neutral third party shall order an election to establish which labor
organization, if any, has majority status.
SEC. 6. Section 3507.3 of the Government Code is amended to read:
3507.3. Professional employees shall not be denied the right to
be represented separately from nonprofessional employees by a
professional employee organization consisting of those professional
employees. In the event of a dispute on the appropriateness of a unit
of representation for professional employees, upon request of any of
the parties, the dispute shall be submitted to the California State
Mediation and Conciliation Service for mediation or for
recommendation for resolving the dispute.
"Professional employees," for the purposes of this section, means
employees engaged in work requiring specialized knowledge and skills
attained through completion of a recognized course of instruction,
including, but not limited to, attorneys, physicians, registered
nurses, engineers, architects, teachers, and the various types of
physical, chemical, and biological scientists.
SEC. 7. Section 3513 of the Government Code is amended to read:
3513. As used in this chapter:
(a) "Employee organization" means any organization that includes
employees of the state and that has as one of its primary purposes
representing these employees in their relations with the state.
(b) "Recognized employee organization" means an employee
organization that has been recognized by the state as the exclusive
representative of the employees in an appropriate unit.
(c) "State employee" means any civil service employee of the
state, and the teaching staff of schools under the jurisdiction of
the State Department of Education or the Superintendent of Public
Instruction, except managerial employees, confidential employees,
supervisory employees, employees of the Department of Personnel
Administration, professional employees of the Department of Finance
engaged in technical or analytical state budget preparation other
than the auditing staff, professional employees in the
Personnel/Payroll Services Division of the Controller's office
engaged in technical or analytical duties in support of the state's
personnel and payroll systems other than the training staff,
employees of the Legislative Counsel Bureau, employees of the Bureau
of State Audits, employees of the office of the Inspector General,
employees of the board, conciliators employed by the California State
Mediation and Conciliation Service, employees of the Office of the
State Chief Information Officer except as otherwise provided in
Section 11546.5, and intermittent athletic inspectors who are
employees of the State Athletic Commission.
(d) "Mediation" means effort by an impartial third party to assist
in reconciling a dispute regarding wages, hours and other terms and
conditions of employment between representatives of the public agency
and the recognized employee organization or recognized employee
organizations through interpretation, suggestion and advice.
(e) "Managerial employee" means any employee having significant
responsibilities for formulating or administering agency or
departmental policies and programs or administering an agency or
department.
(f) "Confidential employee" means any employee who is required to
develop or present management positions with respect to
employer-employee relations or whose duties normally require access
to confidential information contributing significantly to the
development of management positions.
(g) "Supervisory employee" means any individual, regardless of the
job description or title, having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other employees, or
responsibility to direct them, or to adjust their grievances, or
effectively to recommend this action, if, in connection with the
foregoing, the exercise of this authority is not of a merely routine
or clerical nature, but requires the use of independent judgment.
Employees whose duties are substantially similar to those of their
subordinates shall not be considered to be supervisory employees.
(h) "Board" means the Public Employment Relations Board. The
Educational Employment Relations Board established pursuant to
Section 3541 shall be renamed the Public Employment Relations Board
as provided in Section 3540. The powers and duties of the board
described in Section 3541.3 shall also apply, as appropriate, to this
chapter.
(i) "Maintenance of membership" means that all employees who
voluntarily are, or who voluntarily become, members of a recognized
employee organization shall remain members of that employee
organization in good standing for a period as agreed to by the
parties pursuant to a memorandum of understanding, commencing with
the effective date of the memorandum of understanding. A maintenance
of membership provision shall not apply to any employee who within 30
days prior to the expiration of the memorandum of understanding
withdraws from the employee organization by sending a signed
withdrawal letter to the employee organization and a copy to the
Controller's office.
(j) "State employer," or "employer," for the purposes of
bargaining or meeting and conferring in good faith, means the
Governor or his or her designated representatives.
(k) "Fair share fee" means the fee deducted by the state employer
from the salary or wages of a state employee in an appropriate unit
who does not become a member of and financially support the
recognized employee organization. The fair share fee shall be used to
defray the costs incurred by the recognized employee organization in
fulfilling its duty to represent the employees in their employment
relations with the state, and shall not exceed the standard
initiation fee, membership dues, and general assessments of the
recognized employee organization.
SEC. 8. Section 3527 of the Government Code is amended to read:
3527. As used in this chapter:
(a) "Employee" means a civil service employee of the State of
California. The "State of California" as used in this chapter
includes those state agencies, boards, and commissions as may be
designated by law that employ civil service employees, except the
University of California, Hastings College of the Law, and the
California State University.
(b) "Excluded employee," means all managerial employees, as
defined in subdivision (e) of Section 3513, all confidential
employees, as defined in subdivision (f) of Section 3513, and all
supervisory employees, as defined in subdivision (g) of Section 3513,
and all civil service employees of the Department of Personnel
Administration, professional employees of the Department of Finance
engaged in technical or analytical state budget preparation other
than the auditing staff, professional employees in the
Personnel/Payroll Services Division of the Controller's office
engaged in technical or analytical duties in support of the state's
personnel and payroll systems other than the training staff,
employees of the Legislative Counsel Bureau, employees of the Bureau
of State Audits, employees of the Public Employment Relations Board,
conciliators employed by the California State Mediation and
Conciliation Service, employees of the office of the State Chief
Information Officer except as provided in Section 11546.5, and
intermittent athletic inspectors who are employees of the State
Athletic Commission.
(c) "Supervisory employee organization" means an organization that
represents members who are supervisory employees under subdivision
(g) of Section 3513.
(d) "Excluded employee organization" means an organization that
includes excluded employees of the state, as defined in subdivision
(b), and that has as one of its primary purposes representing its
members in employer-employee relations. Excluded employee
organization includes supervisory employee organizations.
(e) "State employer" or "employer," for purposes of meeting and
conferring on matters relating to supervisory employer-employee
relations, means the Governor or his or her designated
representatives.
SEC. 9. Section 3541.3 of the Government Code is amended to read:
3541.3. The board shall have all of the following powers and
duties:
(a) To determine in disputed cases, or otherwise approve,
appropriate units.
(b) To determine in disputed cases whether a particular item is
within or without the scope of representation.
(c) To arrange for and supervise representation elections that
shall be conducted by means of secret ballot elections, and certify
the results of the elections.
(d) To establish lists of persons broadly representative of the
public and qualified by experience to be available to serve as
mediators, arbitrators, or factfinders.
(e) To establish by regulation appropriate procedures for review
of proposals to change unit determinations.
(f) Within its discretion, to conduct studies relating to
employer-employee relations, including the collection, analysis, and
making available of data relating to wages, benefits, and employment
practices in public and private employment, and, when it appears
necessary in its judgment to the accomplishment of the purposes of
this chapter, recommend legislation. The board shall report to the
Legislature by October 15 of each year on its activities during the
immediately preceding fiscal year. The board may enter into contracts
to develop and maintain research and training programs designed to
assist public employers and employee organizations in the discharge
of their mutual responsibilities under this chapter.
(g) To adopt, pursuant to Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2, rules and regulations to
carry out the provisions and effectuate the purposes and policies of
this chapter.
(h) To hold hearings, subpoena witnesses, administer oaths, take
the testimony or deposition of any person, and, in connection
therewith, to issue subpoenas duces tecum to require the production
and examination of any employer's or employee organization's records,
books, or papers relating to any matter within its jurisdiction.
Notwithstanding Section 11425.10, Chapter 4.5 (commencing with
Section 11400) of Part 1 of Division 3 of Title 2 does not apply to a
hearing by the board under this chapter, except a hearing to
determine an unfair practice charge.
(i) To investigate unfair practice charges or alleged violations
of this chapter, and take any action and make any determinations in
respect of these charges or alleged violations as the board deems
necessary to effectuate the policies of this chapter, except that in
an action to recover damages due to an unlawful strike, the board
shall have no authority to award strike-preparation expenses as
damages, and shall have no authority to award damages for costs,
expenses, or revenue losses incurred during, or as a consequence of,
an unlawful strike.
(j) To bring an action in a court of competent jurisdiction to
enforce any of its orders, decisions, or rulings, or to enforce the
refusal to obey a subpoena. Upon issuance of a complaint charging
that any person has engaged in or is engaging in an unfair practice,
the board may petition the court for appropriate temporary relief or
restraining order.
(k) To delegate its powers to any member of the board or to any
person appointed by the board for the performance of its functions,
except that no fewer than two board members may participate in the
determination of any ruling or decision on the merits of any dispute
coming before it, and except that a decision to refuse to issue a
complaint shall require the approval of two board members.
(l) To decide contested matters involving recognition,
certification, or decertification of employee organizations.
(m) To consider and decide issues relating to rights, privileges,
and duties of an employee organization in the event of a merger,
amalgamation, or transfer of jurisdiction between two or more
employee organizations.
(n) To take any other action as the board deems necessary to
discharge its powers and duties and otherwise to effectuate the
purposes of this chapter.
SEC. 10. Section 3563 of the Government Code is amended to read:
3563. This chapter shall be administered by the Public Employment
Relations Board. In administering this chapter the board shall have
all of the following rights, powers, duties and responsibilities:
(a) To determine in disputed cases, or otherwise approve,
appropriate units.
(b) To determine in disputed cases whether a particular item is
within or without the scope of representation.
(c) To arrange for and supervise representation elections which
shall be conducted by means of secret ballot elections, and to
certify the results of the elections.
(d) To establish lists of persons broadly representative of the
public and qualified by experience to be available to serve as
mediators, arbitrators, or factfinders.
(e) To establish by regulation appropriate procedures for review
of proposals to change unit determinations.
(f) To adopt, pursuant to Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2, rules and regulations to
carry out the provisions and effectuate the purposes and policies of
this chapter.
(g) To hold hearings, subpoena witnesses, administer oaths, take
the testimony or deposition of any person, and, in connection
therewith, to issue subpoenas duces tecum to require the production
and examination of any employer's or employee organization's records,
books, or papers relating to any matter within its jurisdiction,
except for those records, books, or papers confidential under
statute. Notwithstanding Section 11425.10, Chapter 4.5 (commencing
with Section 11400) of Part 1 of Division 3 of Title 2 does not apply
to a hearing by the board under this section, except a hearing to
determine an unfair practice charge.
(h) To investigate unfair practice charges or alleged violations
of this chapter, and to take any action and make any determinations
in respect of these charges or alleged violations as the board deems
necessary to effectuate the policies of this chapter.
(i) To bring an action in a court of competent jurisdiction to
enforce any of its orders, decisions or rulings or to enforce the
refusal to obey a subpoena. Upon issuance of a complaint charging
that any person has engaged in or is engaging in an unfair practice,
the board may petition the court for appropriate temporary relief or
restraining order.
(j) To delegate its powers to any member of the board or to any
person appointed by the board for the performance of its functions,
except that no fewer than two board members may participate in the
determination of any ruling or decision on the merits of any dispute
coming before it and except that a decision to refuse to issue a
complaint shall require the approval of two board members.
(k) To decide contested matters involving recognition,
certification, or decertification of employee organizations.
( l ) To consider and decide issues relating to rights,
privileges, and duties of an employee organization in the event of a
merger, amalgamation, or transfer of jurisdiction between two or
more employee organizations.
(m) To take any other action as the board deems necessary to
discharge its powers and duties and otherwise to effectuate the
purposes of this chapter.
SEC. 11. Division 4.5 (commencing with Section 3600) is added to
Title 1 of the Government Code, to read:
DIVISION 4.5. Mediation and Conciliation Service
CHAPTER 1. GENERAL PROVISIONS
3600. There is within the Public Employment Relations Board a
division known as the California State Mediation and Conciliation
Service, which shall conduct the services provided pursuant to
Section 3601 and carryout the functions vested by any other statute
in the California State Mediation and Conciliation Service, the State
Mediation and Conciliation Service, the State Conciliation Service,
or the Division of Conciliation of the Department of Industrial
Relations.
3601. The board may investigate and mediate labor disputes
providing any bona fide party to this type of dispute requests
intervention by the board and the board may proffer its services to
both parties when work stoppage is threatened and neither party
requests intervention. In the interest of preventing labor disputes,
the board shall endeavor to promote sound union-employer
relationships. The board may arbitrate or arrange for the selection
of boards of arbitration on those terms that as all of the bona fide
parties to the dispute may agree upon. Any decision or award arising
out of an arbitration conducted pursuant to this section is a public
record. Section 703.5 and Chapter 2 (commencing with Section 1115) of
Division 9 of the Evidence Code apply to a mediation conducted by
the California State Mediation and Conciliation Service, and any
person conducting the mediation. All other records of the California
State Mediation and Conciliation Service relating to labor disputes
are confidential.
3602. Notwithstanding any other law, the board may seek and
collect reimbursement from private and public sector employers, labor
unions, and employee organizations for election, arbitration,
training, and facilitation services provided by the California State
Mediation and Conciliation Service pursuant to Section 3601 and for
representation services, including the provision of hearing officers,
related to public transit labor relations provided by the California
State Mediation and Conciliation Service pursuant to the Public
Utilities Code.
CHAPTER 2. SUCCESSION TO FUNCTIONS AND RESPONSIBILITIES
3603. (a) The Public Employment Relations Board succeeds to and
is vested with all of the powers, duties, purposes, responsibilities,
and jurisdiction vested in the Department of Industrial Relations
and exercised or carried out through the California State Mediation
and Conciliation Service.
(b) All powers, duties, and responsibilities of the Director of
Industrial Relations or the Department of Industrial Relations under
Sections 19455 and 19604 of the Business and Professions Code,
Section 89542.5 of the Education Code, Section 57031 of the Food and
Agricultural Code, Sections 3502.5, 3507.1, 3507.3, 71632.5, 71636.1,
71636.3, 71637, 71802 to 71806, inclusive, and 71814 of the
Government Code, Sections 1164 and 2686 of the Labor Code, and
Sections 25051, 25052, 28850, 28851, 30750, 30751, 30756, 40120,
40122, 50120, 50121, 70120, 70122, 90300, 95650, 95651, 98162.5,
100301 to 100306, inclusive, 101341, 101342, 101344, 102401, 102403,
103401 to 103406, inclusive, 105142, 120502 to 120505, inclusive, and
125521 to 125526, inclusive, of the Public Utilities Code, Section
4.2 (as repealed and added by Chapter 1335 of the Regular Session of
the Statutes of 1971) and Section 4.4 (as added by the Chapter 1335
of the Regular Session of the Statutes of 1971) of the Fresno
Metropolitan Transit District Act of 1961, and Sections 13.90 to
13.96, inclusive, of the West Bay Rapid Transit Authority Act (as
added by Chapter 104 of the First Extraordinary Session of the
Statutes of 1964) are hereby transferred to the Public Employment
Relations Board.
(c) The regulations of the Director of Industrial Relations at
Subchapter 2.2 (Sections 15800 to 15875.1, inclusive) and Subchapter
7 (Section 17300) of Chapter 8 of Division 1 of Title 8 of the
California Code of Regulations shall remain in effect and shall be
deemed to be regulations of the Public Employment Relations Board.
(d) All persons serving in the state civil service, other than
temporary employees, in the California State Mediation and
Conciliation Service in the Department of Industrial Relations, and
engaged in the performance of functions transferred to the Public
Employment Relations Board, are transferred to the Public Employment
Relations Board. The status, positions, and rights of those persons
shall not be affected by their transfer and shall continue to be
retained by them pursuant to the State Civil Service Act (Part 2
(commencing with Section 18500) of Division 5 of Title 2), except as
to positions the duties of which are vested in a position exempt from
civil service. The personnel records of all transferred employees
shall be transferred to the Public Employment Relations Board.
(e) The property of the Department of Industrial Relations that is
used exclusively or primarily for the functions transferred to the
Public Employment Relations Board is transferred to the Public
Employment Relations Board. If any doubt arises as to whether or
where property is to be transferred, the Department of General
Services shall determine whether or where the property is to be
transferred.
(f) All unexpended balances of appropriations or other funds
available for use in connection with any function or the
administration of any law transferred to the Public Employment
Relations Board shall be transferred to the Public Employment
Relations Board. If any doubt arises as to whether or where those
balances and funds are to be transferred, the Department of Finance
shall determine whether or where those balances and funds are to be
transferred.
CHAPTER 3. PUBLIC TRANSPORTATION LABOR DISPUTES
3610. The definitions set forth in this section shall govern the
construction and meaning of the terms used in this chapter:
(a) "Local agency" means any city, county, special district, or
other public entity in the state. It includes a charter city or a
charter county.
(b) "Public transit employee" means an employee of any transit
district of the state, an employee of the Golden Gate Bridge, Highway
and Transportation District, and an employee of any local agency who
is employed to work for transit service provided by that agency.
3611. Notwithstanding any other law, the following provisions
shall govern disputes between exclusive bargaining representatives of
public transit employees and local agencies:
(a) The disputes shall not be subject to any fact-finding
procedure otherwise provided by law.
(b) Each party shall exchange contract proposals not less than 90
days before the expiration of a contract, and shall be in formal
collective bargaining not less than 60 days before that expiration.
(c) Each party shall supply to the other party all reasonable data
as requested by the other party.
(d) At the request of either party to a dispute, a conciliator
from the California State Mediation and Conciliation Service shall be
assigned to mediate the dispute and shall have access to all formal
negotiations.
The provisions of this section shall not apply to any local agency
subject to the provisions of Chapter 10 (commencing with Section
3500) of Division 4.
3612. (a) Whenever in the opinion of the Governor, a threatened
or actual strike or lockout will, if permitted to occur or continue,
significantly disrupt public transportation services and endanger the
public's health, safety, or welfare, and upon the request of either
party to the dispute, the Governor may appoint a board to investigate
the issues involved in the dispute and to make a written report to
him or her within seven days. The report shall include a statement of
the facts with respect to the dispute, including the respective
positions of the parties, but shall not contain recommendations. The
report shall be made available to the public.
(b) Any strike or lockout during the period of investigation of
the board appointed pursuant to this section is prohibited.
3613. The board of investigation shall be composed of no more
than five members, one of whom shall be designated by the Governor as
chairperson. Members of the board shall receive one hundred dollars
($100) for each day actually spent by them in the work of the board
and shall receive their actual and necessary expenses incurred in the
performance of their duties.
The board may hold public hearings to ascertain the facts with
respect to the causes and circumstances of the dispute. For the
purpose of any hearing or investigation, the board may summon and
subpoena witnesses, require the production of papers, books,
accounts, reports, documents, records, and papers of any kind and
description, to issue subpoenas, and to take all necessary means to
compel the attendance of witnesses and procure testimony.
3614. Upon receiving a report from a board of investigation, the
Governor may request the Attorney General to, and he or she shall,
petition any court of competent jurisdiction to enjoin the strike or
lockout or the continuing thereof, for a period of 60 days. The court
shall issue an order enjoining the strike or lockout, or the
continuation thereof, if the court finds that the threatened or
actual strike or lockout, if permitted to occur or continue, will
significantly disrupt public transportation services and endanger the
public's health, safety, or welfare.
3615. If the charter or establishing legislation of the local
agency establishes a time period for the negotiating or meeting and
conferring process which is shorter than 60 days, the provisions of
this chapter shall not be applicable to any disputes which may arise
between the exclusive bargaining representative of public transit
employees and the local agency.
3616. Except as expressly provided by subdivision (b) of Section
3612 and Section 3614, nothing in this chapter shall be construed to
grant or deprive employees of a right to strike.
SEC. 12. Section 8240 of the Government Code is amended to read:
8240. The Legislature finds and declares that despite the fact
that women apparently have greater equality in California than in
many states, they still are not able to contribute to society
according to their full potential. With a view to developing
recommendations which will enable women to make the maximum
contribution to society, the Legislature has created the Commission
on the Status of Women and Girls.
SEC. 13. Section 8241 of the Government Code is amended to read:
8241. (a) There is in the state government the Commission on the
Status of Women and Girls. The commission shall consist of 17 members
to be appointed as follows:
(1) Three Members of the Senate and one public member appointed by
the Senate Committee on Rules.
(2) Three Members of the Assembly and one public member appointed
by the Speaker.
(3) One public member appointed by the Superintendent of Public
Instruction, and the Chief of the Division of Industrial Welfare in
the Department of Industrial Relations.
(4) Seven public members appointed by the Governor, with the
consent of the Senate.
(b) The Members of the Legislature shall serve at the pleasure of
the appointing powers.
(c) Public member appointees of the Speaker and the Senate
Committee on Rules, and appointees of the Governor shall serve
four-year terms. All persons appointed pursuant to Section 2 of
Chapter 1378 of the Statutes of 1965, as amended by Chapter 382 of
the Statutes of 1973, shall continue in office until the expiration
of their term and the appointment of their successors. The appointing
powers may reappoint a member whose term has expired, and shall
immediately fill any vacancy for the unexpired portion of the term in
which it occurs. The appointing powers shall, in making appointments
of public members to
the commission, make every effort to ensure that there is a
geographic balance of representation on the commission.
(d) All appointees shall hold office until the appointment of
their successors.
SEC. 14. Section 8245 of the Government Code is amended to read:
8245. (a) The commission shall study the following policy areas,
including, but not limited to, for the purpose of examining any laws,
practices, or conditions concerning or affecting women and girls
which impose special limitations or burdens upon them or upon
society, or which limit or tend to limit opportunities available to
women and girls:
(1) Gender equity in the media.
(2) Educational needs of women and girls.
(3) Gender in the workplace and employment.
(4) Health and safety of women and girls.
(5) Women in the military, women veterans, and military families.
(6) State laws in regard to the civil and political rights of
women, including pensions, tax requirements, property rights,
marriage and dissolution of marriage provisions, and similar matters.
(7) The effect of social attitudes and pressures and economic
considerations in shaping the roles to be assumed by women in the
society.
(b) The commission shall act as an information center on issues
that affect the lives of women and girls.
(c) The commission shall recommend, develop, prepare, or
coordinate materials, projects, or other activities, and shall give
technical and consultative advice to public or private groups or
persons concerned with any of the following:
(1) Preventing or minimizing problems brought about by the
changing roles and responsibilities of women.
(2) Developing programs to encourage and enable women to be fully
contributing members of society.
(d) The commission shall develop a strategy to attract financial
support from private donors in order to reduce the commission's
dependence on state funding.
(e) A prime function of the commission shall be to encourage women'
s and girls' organizations and other groups to institute local
self-help activities designed to meet women's educational,
employment, and related needs. The commission shall make reports on
its activities, findings, and recommendations to the Legislature from
time to time, but not less often than every odd-numbered year.
SEC. 15. Article 1 (commencing with Section 8260) of Chapter 3.5
of Division 1 of Title 2 of the Government Code is repealed.
SEC. 16. Section 10210 of the Government Code is amended to read:
10210. Subject to Article 3 (commencing with Section 10270),
neither the Legislative Counsel nor any employee of the bureau shall
oppose or urge legislation.
SEC. 17. Article 3 (commencing with Section 10270) is added to
Chapter 1 of Part 2 of Division 2 of Title 2 of the Government Code,
to read:
Article 3. Commission on Uniform State Laws
10270. There is, in the Legislative Counsel Bureau, the
Commission on Uniform State Laws.
10271. (a) The commission consists of one Member of the Senate,
appointed by the Senate Committee on Rules; one Member of the
Assembly, appointed by the Speaker of the Assembly; six additional
members, appointed by the Governor; the Legislative Counsel; any
person, not otherwise a member of the commission, elected as a life
member of the National Conference of Commissioners on Uniform State
Laws based upon service as a member of the commission; and any
person, not otherwise a member of the commission, who served as a
member of the commission, other than as an appointee of the Governor,
for a period of at least five years.
(b) The Members of the Legislature appointed to the commission
shall serve at the pleasure of the appointing power and shall
participate in the activities of the commission to the extent that
the participation is not incompatible with their positions as Members
of the Legislature. For the purposes of this article, the Members of
the Legislature shall constitute a joint interim investigating
committee on the subject of this article, and shall have the powers
and duties imposed upon those committees by the Joint Rules of the
Senate and Assembly.
10272. Each appointed member of the commission shall be any of
the following:
(a) A member in good standing of the State Bar of California.
(b) A person admitted to practice before the highest court of any
other state of the United States.
(c) A judge of a court of record in this state.
10273. Each member appointed by the Governor to the commission
shall hold office for a term of four years and until the appointment
and qualification of a successor.
10274. When a vacancy occurs in an office filled by appointment
by the Governor, the Governor shall appoint a person to the office
for the balance of the unexpired term.
10275. A member of the commission is eligible for reappointment.
10276. A member of the commission shall not receive compensation
for services as a member, but shall receive one hundred dollars
($100) for each day while on official business of the commission. In
addition, each member shall be allowed actual expenses incurred in
the discharge of his or her duties, including actual and necessary
travel expenses.
10277. The commission may participate in the work of the National
Conference of Commissioners on Uniform State Laws, and the
Legislative Counsel may allocate funds to cover the commission's
proportionate share of the expenses of the National Conference of
Commissioners on Uniform State Laws. This proportionate share shall
be based upon the population of the state in comparison to that of
other states.
10278. The commission shall meet at some place in the state at
least once every two years. The commission shall elect one of its
members as chairperson and another as secretary, who shall hold their
respective offices for a term of two years, and until their
successors are elected and qualified.
10279. The members of the commission shall attend the meetings of
the National Conference of Commissioners on Uniform State Laws. The
attendance of a member at this meeting is an excused or authorized
absence from employment.
10280. The commission shall do all in its power to promote
uniformity in state laws upon all subjects where uniformity is deemed
desirable and practicable.
10281. The commission shall bring about, as far as practicable,
the passage of the various uniform acts recommended by the National
Conference of Commissioners on Uniform State Laws, and shall devise
and recommend additional legislation or other course of action as is
deemed necessary to accomplish the purposes of this article.
10282. The commission shall report to the Legislature from time
to time as the commission deems desirable and practicable, giving an
account of its transactions and its advice and recommendations for
legislation.
SEC. 18. Section 11139.5 of the Government Code is amended to
read:
11139.5. The Secretary of California Health and Human Services,
with the advice and concurrence of the Fair Employment and Housing
Council of the Department of Fair Employment and Housing, shall
establish standards for determining which persons are protected by
this article and standards for determining what practices are
discriminatory. The secretary, with the cooperation of the Fair
Employment and Housing Council of the Department of Fair Employment
and Housing, shall assist state agencies in coordinating their
programs and activities and shall consult with such agencies, as
necessary, so that consistent policies, practices, and procedures are
adopted with respect to the enforcement of the provisions of the
article.
SEC. 19. Section 11532 of the Government Code is amended to read:
11532. For purposes of this chapter, the following terms shall
have the following meanings, unless the context requires otherwise:
(a) "Director" means the Director of the Office of Technology
Services.
(b) "Technology" includes, but is not limited to, all electronic
technology systems and services, automated information handling,
system design and analysis, conversion of data, computer programming,
information storage and retrieval, and business telecommunications
systems and services.
(c) "Business telecommunications systems and services" includes,
but is not limited to, wireless or wired systems for transport of
voice, video, and data communications, network systems, requisite
facilities, equipment, system controls, simulation, electronic
commerce, and all related interactions between people and machines.
Public safety communications are excluded from this definition.
(d) "Public agencies" include, but are not limited to, all state
and local governmental agencies in the state, including cities,
counties, other political subdivisions of the state, state
departments, agencies, boards, and commissions, and departments,
agencies, boards, and commissions of other states and federal
agencies.
SEC. 20. Section 11535 of the Government Code is repealed.
SEC. 21. Section 11536 of the Government Code is repealed.
SEC. 22. Section 11537 of the Government Code is repealed.
SEC. 23. Section 11538 of the Government Code is amended to read:
11538. The director shall be appointed by, and serve at the
pleasure of, the Governor, subject to Senate confirmation.
SEC. 24. Section 11540 of the Government Code is amended to read:
11540. The Secretary of California Technology shall propose to
the Director of Finance rates for Office of Technology Services'
services based on a formal rate methodology. The Director of Finance
shall approve the proposal based on the reasonableness of the rates
and any significant impact on departmental budgets. The secretary and
the Director of Finance shall coordinate to develop policies and
procedures to implement this section, including, but not limited to,
the format and timeframe of the rate proposal.
SEC. 25. Section 11543 of the Government Code is repealed.
SEC. 26. Section 11544 of the Government Code is amended to read:
11544. (a) The Technology Services Revolving Fund, hereafter
known as the fund, is hereby created within the State Treasury. The
fund shall be administered by the Secretary of California Technology
to receive all revenues from the sale of technology or technology
services provided for in this chapter, for other services rendered by
the California Technology Agency, and all other moneys properly
credited to the California Technology Agency from any other source,
to pay, upon appropriation by the Legislature, all costs arising from
this chapter and rendering of services to state and other public
agencies, including, but not limited to, employment and compensation
of necessary personnel and expenses, such as operating and other
expenses of the California Technology Agency, and costs associated
with approved information technology projects, and to establish
reserves. At the discretion of the Secretary of California
Technology, segregated, dedicated accounts within the fund may be
established. The amendments made to this section by the act adding
this sentence shall apply to all revenues earned on or after July 1,
2010.
(b) The fund shall consist of all of the following:
(1) Moneys appropriated and made available by the Legislature for
the purposes of this chapter.
(2) Any other moneys that may be made available to the California
Technology Agency from any other source, including the return from
investments of moneys by the Treasurer.
(c) The California Technology Agency may collect payments from
public agencies for providing services to those agencies that the
agencies have requested from the California Technology Agency. The
California Technology Agency may require monthly payments by client
agencies for the services the agencies have requested. Pursuant to
Section 11255, the Controller shall transfer any amounts so
authorized by the California Technology Agency, consistent with the
annual budget of each department, to the fund. The California
Technology Agency shall notify each affected state agency upon
requesting the Controller to make the transfer.
(d) At the end of any fiscal year, if the balance remaining in the
fund at the end of that fiscal year exceeds 25 percent of the
portion of the California Technology Agency's current fiscal year
budget used for support of data center and other client services, the
excess amount shall be used to reduce the billing rates for services
rendered during the following fiscal year.
SEC. 27. Section 12804 of the Government Code is amended to read:
12804. The Agriculture and Services Agency is hereby renamed the
State and Consumer Services Agency.
The State and Consumer Services Agency consists of the following:
the Department of General Services; the Department of Consumer
Affairs; the Franchise Tax Board; the Public Employees' Retirement
System; the State Teachers' Retirement System; the Department of Fair
Employment and Housing; the California Science Center; the
California Victim Compensation and Government Claims Board; the
California African American Museum; the California Building and
Standards Commission; the Alfred E. Alquist Seismic Safety
Commission; and the Office of Privacy Protection.
SEC. 28. Section 12901 of the Government Code is amended to read:
12901. (a) There is in the state government, in the State and
Consumer Services Agency, the Department of Fair Employment and
Housing. The department is under the direction of an executive
officer known as the Director of Fair Employment and Housing, who is
appointed by the Governor, subject to confirmation by the Senate, and
who holds office at the pleasure of the Governor. The annual salary
of the director is provided for by Chapter 6 (commencing with Section
11550) of Part 1 of Division 3 of Title 2.
(b) Unless the context clearly requires otherwise, whenever the
term "Fair Employment and Housing Commission" appears in any
regulation, or contract, it shall be deemed to refer to the Fair
Employment and Housing Council of the Department of Fair Employment
and Housing.
SEC. 29. Section 12903 of the Government Code is amended to read:
12903. There is in the Department of Fair Employment and Housing
the Fair Employment and Housing Council. The council shall consist of
seven members, to be known as council members, who shall be
appointed by the Governor, by and with the advice and consent of the
Senate, and one of whom shall be designated as chairperson by the
Governor. The term of office of each member of the council shall be
for four years. The Director of the Department of Fair Employment and
Housing shall serve as a nonvoting ex-officio member of the council.
SEC. 30. Section 12904 of the Government Code is amended to read:
12904. Any member chosen to fill a vacancy on the council
occurring otherwise than by expiration of term shall be appointed for
the unexpired term of the member whom he or she is to succeed. Four
members of the council shall constitute a quorum for the purpose of
conducting the business thereof.
SEC. 31. Section 12905 of the Government Code is amended to read:
12905. Each member of the council shall serve without
compensation but shall receive one hundred dollars ($100) for each
day actually spent in the performance of his or her duties under this
part and shall also be entitled to his or her expenses actually and
necessarily incurred in the performance of his or her duties.
SEC. 32. Section 12906 of the Government Code is amended to read:
12906. Any member of the council may be removed by the Governor
for inefficiency, for neglect of duty, misconduct or malfeasance in
office, after being given a written statement of the charges and an
opportunity to be heard thereon.
SEC. 33. Section 12907 is added to the Government Code, to read:
12907. (a) The Fair Employment and Housing Enforcement and
Litigation Fund is hereby established in the State Treasury, to be
administered by the Department of Fair Employment and Housing.
(b) The fund shall consist of attorney's fees and costs awarded by
a court to the Department of Fair Employment and Housing when the
department is the prevailing party in a civil action brought under
the California Fair Employment and Housing Act.
(c) Upon appropriation by the Legislature in the annual Budget
Act, moneys in the fund may be used to offset the costs of the
department.
SEC. 34. Section 12925 of the Government Code is amended to read:
12925. As used in this part, unless a different meaning clearly
appears from the context:
(a) "Council" means the Fair Employment and Housing Council and
"council member" means a member of the council.
(b) "Department" means the Department of Fair Employment and
Housing.
(c) "Director" means the Director of Fair Employment and Housing.
(d) "Person" includes one or more individuals, partnerships,
associations, corporations, limited liability companies, legal
representatives, trustees, trustees in bankruptcy, and receivers or
other fiduciaries.
SEC. 35. Section 12930 of the Government Code is amended to read:
12930. The department shall have the following functions, powers,
and duties:
(a) To establish and maintain a principal office and any other
offices within the state as are necessary to carry out the purposes
of this part.
(b) To meet and function at any place within the state.
(c) To appoint attorneys, investigators, conciliators, mediators,
and other employees as it may deem necessary, fix their compensation
within the limitations provided by law, and prescribe their duties.
(d) To obtain upon request and utilize the services of all
governmental departments and agencies and, in addition, with respect
to housing discrimination, of conciliation councils.
(e) To adopt, promulgate, amend, and rescind suitable procedural
rules and regulations to carry out the investigation, prosecution,
and dispute resolution functions and duties of the department
pursuant to this part.
(f) (1) To receive, investigate, conciliate, mediate, and
prosecute complaints alleging practices made unlawful pursuant to
Chapter 6 (commencing with Section 12940).
(2) To receive, investigate, conciliate, mediate, and prosecute
complaints alleging a violation of Section 51, 51.5, 51.7, 54, 54.1,
or 54.2 of the Civil Code. The remedies and procedures of this part
shall be independent of any other remedy or procedure that might
apply.
(g) In connection with any matter under investigation or in
question before the department pursuant to a complaint filed under
Section 12960, 12961, or 12980:
(1) To issue subpoenas to require the attendance and testimony of
witnesses and the production of books, records, documents, and
physical materials.
(2) To administer oaths, examine witnesses under oath and take
evidence, and take depositions and affidavits.
(3) To issue written interrogatories.
(4) To request the production for inspection and copying of books,
records, documents, and physical materials.
(5) To petition the superior courts to compel the appearance and
testimony of witnesses, the production of books, records, documents,
and physical materials, and the answering of interrogatories.
(h) To bring civil actions pursuant to Section 12965 or 12981 and
to prosecute those civil actions before state and federal trial
courts.
(i) To issue those publications and those results of
investigations and research as in its judgment will tend to promote
good will and minimize or eliminate discrimination in employment on
the bases enumerated in this part and discrimination in housing
because of race, religious creed, color, sex, gender, gender
identity, gender expression, marital status, national origin,
ancestry, familial status, disability, genetic information, or sexual
orientation.
(j) To investigate, approve, certify, decertify, monitor, and
enforce nondiscrimination programs proposed by a contractor to be
engaged in pursuant to Section 12990.
(k) To render annually to the Governor and to the Legislature a
written report of its activities and of its recommendations.
(l) To conduct mediations at any time after a complaint is filed
pursuant to Section 12960, 12961, or 12980. The department may end
mediation at any time.
(m) The following shall apply with respect to any accusation
pending before the former Fair Employment and Housing Commission on
or after January 1, 2013:
(1) If an accusation issued under former Section 12965 includes a
prayer either for damages for emotional injuries as a component of
actual damages, or for administrative fines, or both, or if an
accusation is amended for the purpose of adding a prayer either for
damages for emotional injuries as a component of actual damages, or
for administrative fines, or both, with the consent of the party
accused of engaging in unlawful practices, the department may
withdraw an accusation and bring a civil action in superior court.
(2) If an accusation was issued under former Section 12981, with
the consent of the aggrieved party filing the complaint an aggrieved
person on whose behalf a complaint is filed, or the party accused of
engaging in unlawful practices, the department may withdraw the
accusation and bring a civil action in superior court.
(3) Where removal to court is not feasible, the department shall
retain the services of the Office of Administrative Hearings to
adjudicate the administrative action pursuant to Sections 11370.3 and
11502.
(n) On any Section 1094.5 Code of Civil Procedure challenge to a
decision of the former Fair Employment and Housing Commission pending
on or after January 1, 2013, the director or his or her designee
shall consult with the Attorney General regarding the defense of that
writ petition.
SEC. 36. Section 12935 of the Government Code is amended to read:
12935. The council shall have the following functions, powers,
and duties:
(a) To adopt, promulgate, amend, and rescind suitable rules,
regulations, and standards that do either of the following:
(1) Interpret, implement, and apply all provisions of this part.
(2) Carry out all other functions and duties of the council
pursuant to this part.
(3) To meet at any place within the state and function in any
office of the department.
(b) To create or provide technical assistance to any advisory
agencies and conciliation councils, local or otherwise, as in its
judgment will aid in effectuating the purposes of this part, and to
empower them to study the problems of discrimination in all or
specific fields of human relationships or in particular instances of
employment discrimination on the bases enumerated in this part or in
specific instances of housing discrimination on the bases enumerated
in this part and to foster, through community effort or otherwise,
good will, cooperation, and conciliation among the groups and
elements of the population of the state and to make recommendations
to the Fair Employment and Housing Council for the development of
policies and procedures in general except for procedural rules and
regulations that carry out the investigation, prosecution, and
dispute resolution functions and duties of the department. These
advisory agencies and conciliation councils shall be composed of
representative citizens, serving without pay.
(c) To hold hearings, issue publications, results of inquiries and
research, and reports to the Governor and the Legislature that, in
its judgment, will tend to aid in the effectuating the purpose of
this part, promote good will, cooperation and conciliation, and
minimize or eliminate unlawful discrimination, or advance civil
rights in the State of California.
SEC. 37. Section 12944 of the Government Code is amended to read:
12944. (a) It shall be unlawful for a licensing board to require
any examination or establish any other qualification for licensing
that has an adverse impact on any class by virtue of its race, creed,
color, national origin or ancestry, sex, gender, gender identity,
gender expression, age, medical condition, genetic information,
physical disability, mental disability, or sexual orientation, unless
the practice can be demonstrated to be job related.
If an examination or other qualification for licensing is
determined to be unlawful under this section, that determination
shall not void, limit, repeal, or otherwise affect any right,
privilege, status, or responsibility previously conferred upon any
person by the examination or by a license issued in reliance on the
examination or qualification.
(b) It shall be unlawful for a licensing board to fail or refuse
to make reasonable accommodation to an individual's mental or
physical disability or medical condition.
(c) It shall be unlawful for any licensing board, unless
specifically acting in accordance with federal equal employment
opportunity guidelines or regulations approved by the council, to
print or circulate or cause to be printed or circulated any
publication, or to make any non-job-related inquiry, either verbal or
through use of an application form, which expresses, directly or
indirectly, any limitation, specification, or discrimination as to
race, religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, genetic
information, sex, gender, gender identity, gender expression, age, or
sexual orientation or any intent to make any such limitation,
specification, or discrimination. Nothing in this subdivision shall
prohibit any licensing board from making, in connection with
prospective licensure or certification, an inquiry as to, or a
request for information regarding, the physical fitness of applicants
if that inquiry or request for information is directly related and
pertinent to the license or the licensed position the applicant is
applying for. Nothing in this subdivision shall prohibit any
licensing board, in connection with prospective examinations,
licensure, or certification, from inviting individuals with physical
or mental disabilities to request reasonable accommodations or from
making inquiries related to reasonable accommodations.
(d) It is unlawful for a licensing board to discriminate against
any person because the person has filed a complaint, testified, or
assisted in any proceeding under this part.
(e) It is unlawful for any licensing board to fail to keep records
of applications for licensing or certification for a period of two
years following the date of receipt of the applications.
(f) As used in this section, "licensing board" means any state
board, agency, or authority in the State and Consumer Services Agency
that has the authority to grant licenses or certificates which are
prerequisites to employment
eligibility or professional status.
SEC. 38. Section 12946 of the Government Code is amended to read:
12946. It shall be an unlawful practice for employers, labor
organizations, and employment agencies subject to the provisions of
this part to fail to maintain and preserve any and all applications,
personnel, membership, or employment referral records and files for a
minimum period of two years after the records and files are
initially created or received, or for employers to fail to retain
personnel files of applicants or terminated employees for a minimum
period of two years after the date of the employment action taken.
For the purposes of this section, the State Personnel Board is exempt
from the two-year retention requirement and shall instead, maintain
the records and files for a period of one year. Upon notice that a
verified complaint against it has been filed under this part, any
such employer, labor organization, or employment agency shall
maintain and preserve any and all records and files until the
complaint is fully and finally disposed of and all appeals or related
proceedings terminated. The council shall adopt suitable rules,
regulations, and standards to carry out the purposes of this section.
Where necessary, the department, pursuant to its powers under
Section 12974, may seek temporary or preliminary judicial relief to
enforce this section.
SEC. 39. Section 12947.5 of the Government Code is amended to
read:
12947.5. (a) It shall be an unlawful employment practice for an
employer to refuse to permit an employee to wear pants on account of
the sex of the employee.
(b) Nothing in this section shall prohibit an employer from
requiring employees in a particular occupation to wear a uniform.
(c) Nothing in this section shall prohibit an employer from
requiring an employee to wear a costume while that employee is
portraying a specific character or dramatic role.
(d) The council may exempt an employer from the requirements of
this section for good cause shown and shall adopt standards and
procedures for granting exemptions.
SEC. 40. Section 12950 of the Government Code is amended to read:
12950. In addition to employer responsibilities set forth in
subdivisions (j) and (k) of Section 12940 and in rules adopted by the
department and the council, every employer shall act to ensure a
workplace free of sexual harassment by implementing the following
minimum requirements:
(a) The department shall amend its current poster on
discrimination in employment to include information relating to the
illegality of sexual harassment. This amended poster shall be
distributed to employers when the supply of the current poster is
exhausted. One copy of the amended poster shall be provided by the
department to an employer upon request. The amended poster shall be
available at each office of the department, and shall be mailed if
the request includes a self-addressed envelope with postage affixed.
Multiple copies of the amended poster shall be made available online
by the Department of Fair Employment and Housing. Each employer shall
post the amended poster in a prominent and accessible location in
the workplace.
(b) Each employer shall obtain from the department its information
sheet on sexual harassment, which the department shall make
available to employers for reproduction and distribution to
employees. One copy of the information sheet shall be provided by the
department to an employer upon request. The information sheets shall
be available at each office of the department, and shall be mailed
if the request includes a self-addressed envelope with postage
affixed. Multiple copies of the information sheet shall be made
available online by the Department of Fair Employment and Housing.
Each employer shall distribute this information sheet to its
employees, unless the employer provides equivalent information to its
employees that contains, at a minimum, components on the following:
(1) The illegality of sexual harassment.
(2) The definition of sexual harassment under applicable state and
federal law.
(3) A description of sexual harassment, utilizing examples.
(4) The internal complaint process of the employer available to
the employee.
(5) The legal remedies and complaint process available through the
department.
(6) Directions on how to contact the department.
(7) The protection against retaliation provided by Title 2 of the
California Code of Regulations for opposing the practices prohibited
by this article or for filing a complaint with, or otherwise
participating in an investigation, proceeding, or hearing conducted
by, the department or the council.
(c) The information sheet or information required to be
distributed to employees pursuant to subdivision (b) shall be
delivered in a manner that ensures distribution to each employee,
such as including the information sheet or information with an
employee's pay.
(d) Notwithstanding subdivisions (j) and (k) of Section 12940, a
claim that the information sheet or information required to be
distributed pursuant to this section did not reach a particular
individual or individuals shall not in and of itself result in the
liability of any employer to any present or former employee or
applicant in any action alleging sexual harassment. Conversely, an
employer's compliance with this section does not insulate the
employer from liability for sexual harassment of any current or
former employee or applicant.
(e) If an employer violates the requirements of this section, the
department may seek an order requiring the employer to comply with
these requirements.
SEC. 41. Section 12950.1 of the Government Code is amended to
read:
12950.1. (a) By January 1, 2006, an employer having 50 or more
employees shall provide at least two hours of classroom or other
effective interactive training and education regarding sexual
harassment to all supervisory employees in California who are
employed as of July 1, 2005, and to all new supervisory employees
within six months of their assumption of a supervisory position. Any
employer who has provided this training and education to a
supervisory employee after January 1, 2003, is not required to
provide training and education by the January 1, 2006, deadline.
After January 1, 2006, each employer covered by this section shall
provide sexual harassment training and education to each supervisory
employee in California once every two years. The training and
education required by this section shall include information and
practical guidance regarding the federal and state statutory
provisions concerning the prohibition against and the prevention and
correction of sexual harassment and the remedies available to victims
of sexual harassment in employment. The training and education shall
also include practical examples aimed at instructing supervisors in
the prevention of harassment, discrimination, and retaliation, and
shall be presented by trainers or educators with knowledge and
expertise in the prevention of harassment, discrimination, and
retaliation.
(b) The state shall incorporate the training required by
subdivision (a) into the 80 hours of training provided to all new
supervisory employees pursuant to subdivision (b) of Section 19995.4,
using existing resources.
(c) For purposes of this section only, "employer" means any person
regularly employing 50 or more persons or regularly receiving the
services of 50 or more persons providing services pursuant to a
contract, or any person acting as an agent of an employer, directly
or indirectly, the state, or any political or civil subdivision of
the state, and cities.
(d) Notwithstanding subdivisions (j) and (k) of Section 12940, a
claim that the training and education required by this section did
not reach a particular individual or individuals shall not in and of
itself result in the liability of any employer to any present or
former employee or applicant in any action alleging sexual
harassment. Conversely, an employer's compliance with this section
does not insulate the employer from liability for sexual harassment
of any current or former employee or applicant.
(e) If an employer violates this section, the department may seek
an order requiring the employer to comply with these requirements.
(f) The training and education required by this section is
intended to establish a minimum threshold and should not discourage
or relieve any employer from providing for longer, more frequent, or
more elaborate training and education regarding workplace harassment
or other forms of unlawful discrimination in order to meet its
obligations to take all reasonable steps necessary to prevent and
correct harassment and discrimination.
SEC. 42. Section 12961 of the Government Code is amended to read:
12961. Where an unlawful practice alleged in a verified complaint
adversely affects, in a similar manner, a group or class of persons
of which the aggrieved person filing the complaint is a member, or
where such an unlawful practice raises questions of law or fact which
are common to such a group or class, the aggrieved person or the
director may file the complaint on behalf and as representative of
such a group or class. Any complaint so filed may be investigated as
a group or class complaint, and, if in the judgment of the director
circumstances warrant, shall be treated as such for purposes of
conciliation, dispute resolution, and civil action.
SEC. 43. Section 12963.5 of the Government Code is amended to
read:
12963.5. (a) The superior courts shall have jurisdiction to
compel the attendance and testimony of witnesses, the production of
books, records, documents, and physical materials, and the answering
of interrogatories. If an individual or organization fails to comply
with a subpoena, interrogatory, request for production, or
examination under oath by refusing to respond fully or objecting
thereto, or by obstructing any proceeding before the department, the
department may file with a superior court a petition for an order
compelling compliance, naming as respondent the individual or
organization that has failed to comply. Such an action may be brought
in any county in which the department's investigation or inquiry
takes place, but if the respondent is not found within any such
county, such an action may be brought in the county of the respondent'
s residence or principal office.
(b) The petition shall describe the inquiry or investigation
before the department, the basis for its jurisdiction therein, and
state facts showing that the subpoena, interrogatory, request for
production, or examination under oath was issued or carried out in
accordance with the requirements of this part, that the information
sought was identified with sufficient particularity to permit
response and is reasonably relevant to the inquiry or investigation
before the department, and that the respondent has failed to comply.
If the petition sets forth good cause for relief, the court shall
issue an order to show cause to the respondent; otherwise the court
shall enter an order denying the petition. The order to show cause
shall be served, along with the department's petition, on the
respondent in the same manner as summons must be served in civil
actions, and the order shall be returnable not less than 10 days from
its issuance nor later than 45 days after the filing of the
petition. The respondent shall have the right to serve and file a
written answer or other response to the petition and order to show
cause.
(c) Unless otherwise stipulated by the parties, the court shall no
later than 30 days after the filing of the petition file its order
granting or denying the petition. However, the court may on its own
motion for good cause extend such time an additional 30 days. If the
order grants the petition in whole or part, the order shall set forth
the manner in which the respondent shall comply and the period of
time following the effective date of the order within which such
compliance is required. A copy of the order shall be served by mail
by the clerk upon the parties. If the order grants the petition in
whole or in part, the order shall not become effective until 10 days
after it is served. If the order denies the petition, it shall become
effective on the date it is served.
(d) The order of the superior court shall be final and not subject
to review by appeal. A party aggrieved by such order, or any part
thereof, may within 15 days after the service of the superior court's
order, serve and file in the appropriate court of appeal a petition
for a writ of mandamus to compel the superior court to set aside or
otherwise modify its order. If or whenever such review is sought from
an order granting discovery, the order of the trial court shall be
stayed upon the filing of the petition for a writ of mandamus,
provided, however, the court of appeal may dissolve or modify the
stay thereafter if it is in the public interest to do so. If or
whenever such review is sought from a denial of discovery, the trial
court's order shall not be stayed by the court of appeal except upon
a clear showing of probable error.
(e) Within 15 days after the end of the compliance period
specified in the final order of the superior court, after the
exhaustion of any challenges to the order in higher courts, the
department shall in writing certify to the court either that the
order has been complied with or that the respondent has failed to
comply. A copy of the certified statement shall be served on the
respondent by personal delivery or certified mail. After receipt of a
certified statement indicating the respondent's failure to comply
with the order, the court may compel obedience to its order by
contempt proceedings, and by making such additional orders as may be
appropriate. Following such proceedings, the department shall, within
15 days after the respondent complies with the original order of the
court, certify in writing to the court that such order has been
complied with. A copy of the certified statement shall be served on
the respondent by personal delivery or certified mail.
(f) The period of time within which the department is directed to
initiate a civil action by Section 12965 shall be extended by the
length of the period between the filing of a petition under this
section and either (1) the final effective date, after the exhaustion
of any challenges to the original order in higher courts, of an
order of the superior court denying the petition, or (2) the filing
by the department of a certified statement, pursuant to subdivision
(e), indicating the respondent's compliance with the order of the
superior court granting the petition in whole or in part, whichever
occurs later.
SEC. 44. Section 12964 of the Government Code is amended to read:
12964. Any agreement entered into by conference, conciliation,
persuasion, or other dispute resolution shall be reduced to writing,
signed by all parties, and, where the department is a signatory,
approved by the director or the authorized representative of the
director. Within one year of the effective date of every agreement
signed by the department, the department shall conduct a compliance
review to determine whether the agreement has been fully obeyed and
implemented. Whenever the department believes, on the basis of
evidence presented to it, that any person is violating or about to
violate any agreement, the department may bring an action in the
superior court against the person to enjoin him or her from
continuing or engaging in the violation, or from doing anything in
furtherance of the violation. In the action an order or judgment may
be entered awarding a temporary restraining order or a preliminary or
final injunction as may be proper. The action may be brought in any
county in which actions may be brought under subdivision (a) of
Section 12965. In resolving allegedly unlawful practices through
conciliation the resolutions may be in the nature of, but are not
limited to, types of remedies that might be ordered after in a civil
action.
SEC. 45. Section 12965 of the Government Code is amended to read:
12965. (a) In the case of failure to eliminate an unlawful
practice under this part through conference, conciliation, mediation,
or persuasion, or in advance thereof if circumstances warrant, the
director in his or her discretion may bring a civil action in the
name of the department on behalf of the person claiming to be
aggrieved. Prior to filing a civil action, the department shall
require all parties to participate in mandatory dispute resolution in
the department's internal dispute resolution division free of charge
to the parties in an effort to resolve the dispute without
litigation. In any civil action, the person claiming to be aggrieved
shall be the real party in interest and shall have the right to
participate as a party and be represented by his or her own counsel.
The civil action shall be brought in any county in which unlawful
practices are alleged to have been committed, in the county in which
records relevant to the alleged unlawful practices are maintained and
administered, or in the county in which the person claiming to be
aggrieved would have worked or would have had access to public
accommodation, but for the alleged unlawful practices. If the
defendant is not found in any of these counties, the action may be
brought within the county of the defendant's residence or principal
office.
For any complaint treated by the director as a group or class
complaint for purposes of investigation, conciliation, mediation, or
civil action pursuant to Section 12961, a civil action shall be
brought, if at all, within two years after the filing of the
complaint. For any complaint alleging a violation of Section 51.7 of
the Civil Code, a civil action shall be brought, if at all, within
two years after the filing of the complaint. For all other
complaints, a civil action shall be brought, if at all, within one
year after the filing of a complaint. If the director determines,
pursuant to Section 12961, that a complaint investigated as a group
or class complaint under Section 12961 is to be treated as a group or
class complaint for purposes of conciliation, mediation, or civil
action as well, that determination shall be made and shall be
communicated in writing within one year after the filing of the
complaint to each person, employer, labor organization, employment
agency, or public entity alleged in the complaint to have committed
an unlawful practice.
(b) If a civil action is not brought by the department within 150
days after the filing of a complaint, or if the department earlier
determines that no civil action will be brought, the department shall
promptly notify, in writing, the person claiming to be aggrieved
that the department shall issue, on his or her request, the
right-to-sue notice. This notice shall indicate that the person
claiming to be aggrieved may bring a civil action under this part
against the person, employer, labor organization, or employment
agency named in the verified complaint within one year from the date
of that notice. If the person claiming to be aggrieved does not
request a right-to-sue notice, the department shall issue the notice
upon completion of its investigation, and not later than one year
after the filing of the complaint. A city, county, or district
attorney in a location having an enforcement unit established on or
before March 1, 1991, pursuant to a local ordinance enacted for the
purpose of prosecuting HIV/AIDS discrimination claims, acting on
behalf of any person claiming to be aggrieved due to HIV/AIDS
discrimination, may also bring a civil action under this part against
the person, employer, labor organization, or employment agency named
in the notice. The superior courts of the State of California shall
have jurisdiction of those actions, and the aggrieved person may file
in these courts. An action may be brought in any county in the state
in which the unlawful practice is alleged to have been committed, in
the county in which the records relevant to the practice are
maintained and administered, or in the county in which the aggrieved
person would have worked or would have had access to the public
accommodation but for the alleged unlawful practice, but if the
defendant is not found within any of these counties, an action may be
brought within the county of the defendant's residence or principal
office. A copy of any complaint filed pursuant to this part shall be
served on the principal offices of the department. The remedy for
failure to send a copy of a complaint is an order to do so. Those
actions may not be filed as class actions or may not be maintained as
class actions by the person or persons claiming to be aggrieved
where those persons have filed a civil class action in the federal
courts alleging a comparable claim of employment discrimination
against the same defendant or defendants. In civil actions brought
under this section, the court, in its discretion, may award to the
prevailing party, including the department, reasonable attorney's
fees and costs, including expert witness fees.
(c) A court may grant as relief in any action filed pursuant to
subdivision (a) any relief a court is empowered to grant in a civil
action brought pursuant to subdivision (b), in addition to any other
relief that, in the judgment of the court, will effectuate the
purpose of this part. This relief may include a requirement that the
employer conduct training for all employees, supervisors, and
management on the requirements of this part, the rights and remedies
of those who allege a violation of this part, and the employer's
internal grievance procedures. In addition, in order to vindicate the
purposes and policies of this part, a court may assess against the
defendant, if the civil complaint or amended civil complaint so
prays, a civil penalty of up to twenty-five thousand dollars
($25,000) to be awarded to a person denied any right provided for by
Section 51.7 of the Civil Code, as an unlawful practice prohibited
under this part.
(d) (1) Notwithstanding subdivision (b), the one-year statute of
limitations, commencing from the date of the right-to-sue notice by
the Department of Fair Employment and Housing, to the person claiming
to be aggrieved, shall be tolled when all of the following
requirements have been met:
(A) A charge of discrimination or harassment is timely filed
concurrently with the Equal Employment Opportunity Commission and the
Department of Fair Employment and Housing.
(B) The investigation of the charge is deferred by the Department
of Fair Employment and Housing to the Equal Employment Opportunity
Commission.
(C) A right-to-sue notice is issued to the person claiming to be
aggrieved upon deferral of the charge by the Department of Fair
Employment and Housing to the Equal Employment Opportunity
Commission.
(2) The time for commencing an action for which the statute of
limitations is tolled under paragraph (1) expires when the federal
right-to-sue period to commence a civil action expires, or one year
from the date of the right-to-sue notice by the Department of Fair
Employment and Housing, whichever is later.
(3) This subdivision is intended to codify the holding in Downs v.
Department of Water and Power of City of Los Angeles (1997) 58
Cal.App.4th 1093.
(e) (1) Notwithstanding subdivision (b), the one-year statute of
limitations, commencing from the date of the right-to-sue notice by
the Department of Fair Employment and Housing, to the person claiming
to be aggrieved, shall be tolled when all of the following
requirements have been met:
(A) A charge of discrimination or harassment is timely filed
concurrently with the Equal Employment Opportunity Commission and the
Department of Fair Employment and Housing.
(B) The investigation of the charge is deferred by the Equal
Employment Opportunity Commission to the Department of Fair
Employment and Housing.
(C) After investigation and determination by the Department of
Fair Employment and Housing, the Equal Employment Opportunity
Commission agrees to perform a substantial weight review of the
determination of the department or conducts its own investigation of
the claim filed by the aggrieved person.
(2) The time for commencing an action for which the statute of
limitations is tolled under paragraph (1) shall expire when the
federal right-to-sue period to commence a civil action expires, or
one year from the date of the right-to-sue notice by the Department
of Fair Employment and Housing, whichever is later.
SEC. 46. Section 12966 of the Government Code is amended to read:
12966. Where the department initiates a civil action, or is about
to do so, and the party accused of engaging in unlawful practices
under this part is a state contractor or is a supplier of goods and
services to the state, the director shall send a written notice of
the civil action and a copy of the civil complaint to the appropriate
awarding agency and request a report of any action which the
awarding agency takes in response to the department's notification
and filing of a civil action.
SEC. 47. Section 12967 of the Government Code is repealed.
SEC. 48. Section 12968 of the Government Code is repealed.
SEC. 49. Section 12969 of the Government Code is repealed.
SEC. 50. Section 12970 of the Government Code is repealed.
SEC. 51. Section 12972 of the Government Code is repealed.
SEC. 52. Section 12973 of the Government Code is amended to read:
12973. Within one year of the effective date of every final order
or decision issued pursuant to this part, the department shall
conduct a compliance review to determine whether the order or
decision has been fully obeyed and implemented.
SEC. 53. Section 12974 of the Government Code is amended to read:
12974. Whenever a complaint is filed with the department and the
department concludes on the basis of a preliminary investigation that
prompt judicial action is necessary to carry out the purposes of
this part, the director or his authorized representative may bring a
civil action for appropriate temporary or preliminary relief pending
final disposition of such complaint. Any temporary restraining order
or other order granting preliminary or temporary relief shall be
issued in accordance with Section 527 of the Code of Civil Procedure.
An action seeking such temporary or preliminary relief may be
brought in any county in which actions may be brought under
subdivision (b) of Section 12965. In civil actions brought under this
section, the court, in its discretion, may award to the department
reasonable attorney's fees and costs, including expert witness fees,
when it is the prevailing party for the purposes
of the order granting temporary or preliminary
relief.
SEC. 54. Section 12975 of the Government Code is amended to read:
12975. Any person who shall willfully resist, prevent, impede, or
interfere with any member of the department or the council or any of
its agents or employees in the performance of duties pursuant to the
provisions of this part relating to employment discrimination, or
who shall in any manner willfully violate an order of the court
relating to such matter, is guilty of a misdemeanor, punishable by
imprisonment in a county jail, not exceeding six months, or by a fine
not exceeding one thousand dollars ($1,000), or both.
SEC. 55. Section 12980 of the Government Code is amended to read:
12980. This article governs the procedure for the prevention and
elimination of discrimination in housing made unlawful pursuant to
Article 2 (commencing with Section 12955) of Chapter 6.
(a) Any person claiming to be aggrieved by an alleged violation of
Section 12955, 12955.1, or 12955.7 may file with the department a
verified complaint in writing that shall state the name and address
of the person alleged to have committed the violation complained of,
and that shall set forth the particulars of the alleged violation and
contain any other information required by the department.
The filing of a complaint and pursuit of conciliation or remedy
under this part shall not prejudice the complainant's right to pursue
effective judicial relief under other applicable laws, but if a
civil action has been filed under Section 52 of the Civil Code, the
department shall terminate proceedings upon notification of the entry
of final judgment unless the judgment is a dismissal entered at the
complainant's request.
(b) The Attorney General or the director may, in a like manner,
make, sign, and file complaints citing practices that appear to
violate the purpose of this part or any specific provisions of this
part relating to housing discrimination.
No complaint may be filed after the expiration of one year from
the date upon which the alleged violation occurred or terminated.
(c) The department may thereupon proceed upon the complaint in the
same manner and with the same powers as provided in this part in the
case of an unlawful practice, except that where the provisions of
this article provide greater rights and remedies to an aggrieved
person than the provisions of Article 1 (commencing with Section
12960), the provisions of this article shall prevail.
(d) Upon the filing of a complaint, the department shall serve
notice upon the complainant of the time limits, rights of the
parties, and choice of forums provided for under the law.
(e) The department shall commence proceedings with respect to a
complaint within 30 days of filing of the complaint.
(f) An investigation of allegations contained in any complaint
filed with the department shall be completed within 100 days after
receipt of the complaint, unless it is impracticable to do so. If the
investigation is not completed within 100 days, the complainant and
respondent shall be notified, in writing, of the department's reasons
for not doing so.
(g) Upon the conclusion of each investigation, the department
shall prepare a final investigative report containing all of the
following:
(1) The names of any witnesses and the dates of any contacts with
those witnesses.
(2) A summary of the dates of any correspondence or other contacts
with the aggrieved persons or the respondent.
(3) A summary of witness statements.
(4) Answers to interrogatories.
(5) A summary description of other pertinent records.
A final investigative report may be amended if additional evidence
is later discovered.
(h) If a civil action is not brought by the department within 100
days after the filing of a complaint, or if the department earlier
determines that no civil action will be brought, the department shall
promptly notify the person claiming to be aggrieved. This notice
shall, in any event, be issued no more than 30 days after the date of
the determination or 30 days after the date of the expiration of the
100-day period, whichever date first occurs. The notice shall
indicate that the person claiming to be aggrieved may bring a civil
action under this part against the person named in the verified
complaint within the time period specified in Section 12989.1. The
notice shall also indicate, unless the department has determined that
no civil action will be brought, that the person claiming to be
aggrieved has the option of continuing to seek redress for the
alleged discrimination through the procedures of the department if he
or she does not desire to file a civil action. The superior courts
of the State of California shall have jurisdiction of these actions,
and the aggrieved person may file in these courts. The action may be
brought in any county in the state in which the violation is alleged
to have been committed, or in the county in which the records
relevant to the alleged violation are maintained and administered,
but if the defendant is not found within that county, the action may
be brought within the county of the defendant's residence or
principal office. A copy of any complaint filed pursuant to this part
shall be served on the principal offices of the department. The
remedy for failure to send a copy of a complaint is an order to do
so. In a civil action brought under this section, the court, in its
discretion, may award to the prevailing party reasonable attorney's
fees.
(i) All agreements reached in settlement of any housing
discrimination complaint filed pursuant to this section shall be made
public, unless otherwise agreed by the complainant and respondent,
and the department determines that the disclosure is not required to
further the purposes of the act.
(j) All agreements reached in settlement of any housing
discrimination complaint filed pursuant to this section shall be
agreements between the respondent and complainant, and shall be
subject to approval by the department.
SEC. 56. Section 12981 of the Government Code is amended to read:
12981. (a) In the case of failure to eliminate a violation of
Section 12955, 12955.1, or 12955.7 that has occurred, or is about to
occur, through conference, conciliation, mediation, or persuasion, or
in advance thereof if circumstances warrant, the director shall
bring a civil action in the name of the department on behalf of the
aggrieved person as a real party in interest, notwithstanding Section
12971, in the same manner and with the same powers as provided in
Section 12965, except that where the provisions of this article
provide greater rights and remedies to an aggrieved person than
Section 12965, the provisions of this article shall prevail. Prior to
filing a civil action, the department shall require all parties to
participate in the department's mandatory dispute resolution division
free of charge to the parties in an effort to resolve the dispute
without litigation. A civil action alleging an unfair housing
practice shall be issued within 100 days after the filing of a
complaint unless it is impracticable to do so. The civil action shall
be filed in any county in the state in which the unlawful practice
is alleged to have been committed, in the county in which the records
relevant to that practice are maintained and administered, or in the
county in which the aggrieved person would have resided in the
housing accommodation. If the defendant is not found within that
county, the action may be filed in the county of the defendant's
residence or principal office. Any aggrieved person may intervene as
a matter of right in the proceeding, and the appeal or other judicial
review of that proceeding.
(b) If the department determines that an allegation concerns the
legality of any zoning or other land use law or ordinance, the
department or the Attorney General shall take appropriate action with
respect to the complaint according to the procedures established in
this part for other complaints of housing discrimination.
(c) Within one year of the effective date of every final order or
decision issued pursuant to this part, the department shall conduct a
compliance review to determine whether the order or decision has
been fully obeyed and implemented.
(d) Whenever the department has reasonable cause to believe that a
respondent has breached a conciliation agreement signed by the
department, the department shall initiate a civil action to enforce
the agreement.
SEC. 57. Section 12981.1 of the Government Code is amended to
read:
12981.1. The department shall not dismiss a complaint unless the
complainant withdraws the complaint or the department determines
after a thorough investigation that, based on the facts, no
reasonable cause exists to believe that an unlawful housing practice,
as prohibited by this part, has occurred or is about to occur.
SEC. 58. Section 12983 of the Government Code is amended to read:
12983. The department at any time after a complaint is filed with
it and it has been determined that probable cause exists for
believing that the allegations of the complaint are true and
constitute a violation of this part, may bring an action in the
superior court to enjoin the owner of the property from taking
further action with respect to the rental, lease, or sale of the
property, as well as to require compliance with Section 12956, until
the department has completed its investigation and made its
determination; but a temporary restraining order obtained under this
section shall not, in any event, be in effect for more than 20 days.
In this action an order or judgment may be entered awarding the
temporary restraining order or the preliminary or final injunction in
accordance with Section 527 of the Code of Civil Procedure. In civil
actions brought under this section, the court, in its discretion,
may award to the department reasonable attorney's fees and costs,
including expert witness fees, when it is the prevailing party for
the purposes of the order granting temporary or preliminary relief.
SEC. 59. Section 12985 of the Government Code is amended to read:
12985. When a person is contacted by the department or a member
of the department's staff, following the filing of a complaint
against that person, the person shall be informed whether the contact
is for the purpose of investigation or conference, conciliation,
persuasion, or mediation, and if it is for conference, conciliation,
persuasion, or mediation, the person shall be informed that all
matters relating thereto are privileged and confidential.
SEC. 60. Section 12987 of the Government Code is repealed.
SEC. 61. Section 12987.1 of the Government Code is repealed.
SEC. 62. Section 12988 of the Government Code is amended to read:
12988. The department may engage in affirmative actions with
owners in furtherance of the purpose of this part as expressed in
Section 12920.
SEC. 63. Section 12989 of the Government Code is repealed.
SEC. 64. Section 12989.1 of the Government Code is amended to
read:
12989.1. An aggrieved person may commence a civil action in an
appropriate court not later than two years after the occurrence or
the termination of an alleged discriminatory housing practice, or the
breach of a conciliation agreement entered into, whichever occurs
last, to obtain appropriate relief with respect to the discriminatory
housing practice or breach. The computation of the two-year period
shall not include any time during which an administrative proceeding
under this part was pending with respect to a complaint under this
part based upon the discriminatory housing practice or breach.
An aggrieved person may commence a civil action whether or not a
complaint has been filed under this part and without regard to the
status of any complaint. Any aggrieved person who is aggrieved with
respect to the issues to be determined in a civil action filed under
this part, may intervene in that civil action. However, if the
department has obtained a conciliation agreement with the consent of
an aggrieved person, no action may be filed under this part by the
aggrieved person with respect to the alleged discriminatory housing
practice that forms the basis for the complaint, except for the
purpose of enforcing the terms of the agreement.
An aggrieved person may not commence a civil action with respect
to an alleged discriminatory housing practice that forms the basis of
a civil action brought by the department.
SEC. 65. Section 12989.2 of the Government Code is amended to
read:
12989.2. In a civil action brought under Section 12981 or
12989.1, if the court finds that a discriminatory housing practice
has occurred or is about to occur, the court may award the plaintiff
actual and punitive damages and may grant other relief, including the
issuance of a temporary or permanent injunction, or temporary
restraining order, or other order, as it deems appropriate to prevent
any defendant from engaging in or continuing to engage in an
unlawful practice. In a civil action brought under this section, the
court may, at its discretion, award the prevailing party, including
the department, reasonable attorney's fees and costs, including
expert witness fees, against any party other than the state. If the
court finds that the defendant has engaged in an unlawful practice
under this part and is liable for actual or punitive damages any
amount due to the defendant by a state agency may be offset to
satisfy the court's final order or decision.
SEC. 66. Section 12990 of the Government Code is amended to read:
12990. (a) Any employer who is, or wishes to become, a contractor
with the state for public works or for goods or services is subject
to the provisions of this part relating to discrimination in
employment and to the nondiscrimination requirements of this section
and any rules and regulations that implement it.
(b) Prior to becoming a contractor or subcontractor with the
state, an employer may be required to submit a nondiscrimination
program to the department for approval and certification and may be
required to submit periodic reports of its compliance with that
program.
(c) Every state contract and subcontract for public works or for
goods or services shall contain a nondiscrimination clause
prohibiting discrimination on the bases enumerated in this part by
contractors or subcontractors. The nondiscrimination clause shall
contain a provision requiring contractors and subcontractors to give
written notice of their obligations under that clause to labor
organizations with which they have a collective bargaining or other
agreement. These contractual provisions shall be fully and
effectively enforced. This subdivision does not apply to a credit
card purchase of goods of two thousand five hundred dollars ($2,500)
or less. The total amount of exemption authorized herein shall not
exceed seven thousand five hundred dollars ($7,500) per year for each
company from which a state agency is purchasing goods by credit
card. It shall be the responsibility of each state agency to monitor
the use of this exemption and adhere to these restrictions on these
purchases.
(d) The department shall periodically develop rules and
regulations for the application and implementation of this section,
and submit them to the council for consideration and adoption in
accordance with the provisions of Chapter 3.5 (commencing with
Section 11340) of Part 1. Those rules and regulations shall describe
and include, but not be limited to, all of the following:
(1) Procedures for the investigation, approval, certification,
decertification, monitoring, and enforcement of nondiscrimination
programs.
(2) The size of contracts or subcontracts below which any
particular provision of this section shall not apply.
(3) The circumstances, if any, under which a contractor or
subcontractor is not subject to this section.
(4) Criteria for determining the appropriate plant, region,
division, or other unit of a contractor's or subcontractor's
operation for which a nondiscrimination program is required.
(5) Procedures for coordinating the nondiscrimination requirements
of this section and its implementing rules and regulations with the
California Plan for Equal Opportunity in Apprenticeship, with the
provisions and implementing regulations of Article 9.5 (commencing
with Section 11135) of Chapter 1 of Part 1, and with comparable
federal laws and regulations concerning nondiscrimination, equal
employment opportunity, and affirmative action by those who contract
with the United States.
(6) The basic principles and standards to guide the department in
administering and implementing this section.
(e) Where a contractor or subcontractor is required to prepare an
affirmative action, equal employment, or nondiscrimination program
subject to review and approval by a federal compliance agency, that
program may be filed with the department, instead of any
nondiscrimination program regularly required by this section or its
implementing rules and regulations. Such a program shall constitute a
prima facie demonstration of compliance with this section. Where the
department or a federal compliance agency has required the
preparation of an affirmative action, equal employment, or
nondiscrimination program subject to review and approval by the
department or a federal compliance agency, evidence of such a program
shall also constitute prima facie compliance with an ordinance or
regulation of any city, city and county, or county that requires an
employer to submit such a program to a local awarding agency for its
approval prior to becoming a contractor or subcontractor with that
agency.
(f) Where the department determines and certifies that the
provisions of this section or its implementing rules and regulations
are violated or determines a contractor or subcontractor is engaging
in practices made unlawful under this part, the department may
recommend appropriate sanctions to the awarding agency. Any such
recommendation shall take into account the severity of the violation
or violations and any other penalties, sanctions, or remedies
previously imposed.
SEC. 67. Chapter 1 (commencing with Section 14995) of Part 5.6 of
Division 3 of Title 2 of the Government Code is repealed.
SEC. 68. Section 19704 of the Government Code is amended to read:
19704. (a) It is unlawful to require, permit, or suffer any
notation or entry to be made upon or in any application, examination
paper, or other paper, book, document, or record used under this part
indicating or in any way suggesting or pertaining to any basis
listed in subdivision (a) of Section 12940, as those bases are
defined in Sections 12926 and 12926.1.
(b) Notwithstanding subdivision (a), subsequent to employment,
ethnic, marital status, and gender data may be obtained and
maintained for research and statistical purposes when safeguards
preventing misuse of the information exist as approved by the Fair
Employment and Housing Council, except that in no event shall any
notation, entry, or record of that data be made on papers or records
relating to the examination, appointment, or promotion of an
individual.
SEC. 69. Section 19815 of the Government Code is amended to read:
19815. As used in this part:
(a) "Department" means the Department of Personnel Administration.
(b) "Director" means the Director of the Department of Personnel
Administration.
(c) "Division" means the Division of Labor Relations.
(d) "Employee" or "state employee," except where otherwise
indicated, means employees subject to the Ralph C. Dills Act (Chapter
10.3 (commencing with Section 3512), Division 4, Title 1),
supervisory employees as defined in subdivision (g) of Section 3513,
managerial employees as defined in subdivision (e) of Section 3513,
confidential employees as defined in subdivision (f) of Section 3513,
employees of the Legislative Counsel Bureau, employees of the Bureau
of State Audits, employees of the office of the Inspector General,
employees of the Public Employment Relations Board, conciliators
employed by the California State Mediation and Conciliation Service,
employees of the Department of Personnel Administration, professional
employees of the Department of Finance engaged in technical or
analytical state budget preparation other than audit staff,
intermittent athletic inspectors who are employees of the State
Athletic Commission, professional employees in the Personnel/Payroll
Services Division of the Controller's office and all employees of the
executive branch of government who are not elected to office.
SEC. 70. Section 50085.5 of the Government Code is amended to
read:
50085.5. (a) Every local agency shall provide to the Fair
Employment and Housing Council a copy of any affirmative action plan
and subsequent amendments to such plan adopted by the local agency.
(b) Every local agency that is required by federal law, rule or
regulation to submit an annual statistical survey of the employment
of the agency to the United States Equal Employment Opportunity
Commission shall annually, commencing with January 1, 2013, submit a
copy of the survey to the Fair Employment and Housing Council.
(c) These reports and information shall constitute public records.
SEC. 71. Section 71632.5 of the Government Code is amended to
read:
71632.5. (a) Notwithstanding any other provision of law, rule, or
regulation, an agency shop agreement may be negotiated between a
trial court and a recognized employee organization that has been
recognized as the exclusive or majority bargaining agent pursuant to
reasonable rules and regulations, and enactments, in accordance with
this article. As used in this article, "agency shop" means an
arrangement that requires an employee, as a condition of continued
employment, either to join the recognized employee organization, or
to pay the organization a service fee in an amount not to exceed the
standard initiation fee, periodic dues, and general assessments of
that organization for the duration of the agreement or a period of
three years from the effective date of the agreement, whichever comes
first. However, any employee who is a member of a bona fide
religion, body, or sect that has historically held conscientious
objections to joining or financially supporting recognized employee
organizations shall not be required to join or financially support
any recognized employee organization as a condition of employment.
That employee may be required, in lieu of periodic dues, initiation
fees, or agency shop fees to pay sums equal to those dues, initiation
fees, or agency shop fees to a nonreligious, nonlabor charitable
organization fund exempt from taxation under Section 501 (c)(3) of
the Internal Revenue Code, chosen by the employee from a list of at
least three funds, designated in a memorandum of understanding or
agreement between the trial court and the recognized employee
organization, or if the memorandum of understanding or agreement
fails to designate any funds, then to any fund chosen by the
employee. Proof of those payments shall be made on a monthly basis to
the trial court as a condition of continued exemption from the
requirement of financial support to the recognized employee
organization.
(b) An agency shop provision in a memorandum of understanding or
agreement which is in effect may be rescinded by a majority vote of
all the employees in the unit covered by the memorandum of
understanding or agreement under the following circumstances:
(1) A request for the vote is supported by a petition containing
the signatures of at least 30 percent of the employees in the unit.
(2) The vote is by secret ballot.
(3) The vote may be taken at any time during the term of the
memorandum of understanding or agreement, but in no event shall there
be more than one vote taken during that term.
(c) In addition to the procedure prescribed in subdivision (a), an
agency shop arrangement between the trial court and a recognized
employee organization or recognized employee organizations shall be
placed in effect, without a negotiated agreement, upon (1) a signed
petition of at least 30 percent of the employees in the applicable
bargaining unit requesting an agency shop agreement and an election
to implement an agency fee arrangement, and (2) the approval of a
majority of employees who cast ballots and vote in a secret ballot
election in favor of the agency shop agreement. The petition may only
be filed after the recognized employee organization has requested
the trial court to negotiate on an agency shop arrangement and,
beginning seven working days after the trial court received this
request, the two parties have had 30 calendar days to attempt good
faith negotiations in an effort to reach agreement. An election, that
may not be held more frequently than once a year, shall be conducted
by the California State Mediation and Conciliation Service in the
event that the trial court and the recognized employee organization
cannot agree within 10 days from the filing of the petition to select
jointly a neutral person or entity to conduct the election. In the
event of an agency fee arrangement outside of an agreement that was
in effect on January 1, 2002, the recognized employee organization
shall defend, indemnify, and hold the trial court harmless against
any liability arising from any claims, demands, or other action
relating to the trial court's compliance with the agency fee
obligation. Upon notification to the trial court by the recognized
employee organization, the amount of the fee shall be deducted by the
trial court from the wages or salary of the employee and paid to the
employee organization. This subdivision shall be applicable on the
operative date of this section, except that if a memorandum of
understanding or agreement between the trial court and a recognized
employee organization was in effect before January 1, 2002, as to the
employees covered by the memorandum of understanding or agreement,
the implementation date of this subdivision shall be either the date
a successor memorandum of understanding or agreement is effective or,
if no agreement for a successor memorandum of understanding or
agreement is reached, 90 days from the date of the expiration of the
predecessor memorandum of understanding or agreement. The trial court
and representatives of recognized employee organizations may
mutually agree to a different date on which this subdivision is
applicable.
(d) Notwithstanding subdivisions (a), (b), and (c), the trial
court and the recognized employee organization may negotiate, and by
mutual agreement provide for, an alternative procedure or procedures
regarding a vote on any agency
shop agreement.
(e) An agency shop agreement or arrangement does not apply to
management, confidential, or supervisory employees. If those
employees nonetheless choose to join the recognized employee
organization and pay dues or pay the organization a service fee,
Section 71638 shall apply to those employees, and the trial court
shall administer deductions for which the recognized employee
organization shall defend, indemnify, and hold the trial court
harmless.
(f) Every recognized employee organization that has agreed to an
agency shop provision, or is a party to an agency shop arrangement,
shall keep an adequate itemized record of its financial transactions
and shall make available annually, to the trial court with which the
agency shop provision was negotiated, and to the employees who are
members of the organization, within 60 days after the end of its
fiscal year, a detailed written financial report thereof in the form
of a balance sheet and an operating statement, certified as to
accuracy by its president and treasurer or corresponding principal
officer, or by a certified public accountant. An employee
organization required to file financial reports under the federal
Labor-Management Disclosure Act of 1959 covering employees governed
by this chapter or required to file financial reports under Section
3546.5, may satisfy the financial reporting requirement of this
section by providing the trial court with a copy of those financial
reports.
(g) This section shall become operative only if Section 3502.5 is
amended to provide that a 30-percent or greater showing of interest
by means of a petition requires an election regarding an agency shop,
and a vote at that election of 50 percent plus one of those voting
secures an agency shop arrangement.
(h) A trial court may not offer employees inducements or benefits
of any kind in return for employees opposing or rescinding an agency
shop arrangement.
SEC. 72. Section 71636.1 of the Government Code is amended to
read:
71636.1. In the absence of local procedures for resolving
disputes on the appropriateness of a unit of representation, upon the
request of any of the parties, the dispute shall be submitted to the
California State Mediation and Conciliation Service for the
mediation or for recommendation for resolving the dispute.
SEC. 73. Section 71636.3 of the Government Code is amended to
read:
71636.3. (a) Unit determinations and representation elections
shall be determined and processed in accordance with rules adopted by
a trial court in accordance with this chapter. In a representation
election, a majority of the votes cast by the employees in the
appropriate bargaining unit shall be required.
(b) Notwithstanding subdivision (a) and rules adopted by a trial
court pursuant to Section 71636, a bargaining unit in effect as of
January 1, 2002, shall continue in effect unless changed under the
rules adopted by the trial court pursuant to Section 71636.
(c) A trial court shall grant exclusive or majority recognition to
an employee organization based on a signed petition, authorization
cards, or union membership cards showing that a majority of the
employees in an appropriate bargaining unit desire the
representation, unless another labor organization has previously been
lawfully recognized as exclusive or majority representative of all
or part of the same unit. Exclusive or majority representation shall
be determined by a neutral third party, selected by the trial court
and the employee organization, who shall review the signed petition,
authorization cards, or union membership cards to verify the
exclusive or majority status of the employee organization. If the
trial court and the employee organization cannot agree on a neutral
third party, the California State Mediation and Conciliation Service
shall be the neutral third party and shall verify the exclusive or
majority status of the employee organization. If the neutral third
party determines, based on a signed petition, authorization cards, or
union membership cards, that a second labor organization has the
support of at least 30 percent of the employees in the unit in which
recognition is sought, the neutral third party shall order an
election to establish which labor organization, if any, has majority
status.
SEC. 74. Section 71637 of the Government Code is amended to read:
71637. (a) For purposes of this article, professional employees
shall not be denied the right to be represented separately from
nonprofessional employees by a professional employee organization
consisting of those professional employees. In the event of a dispute
on the appropriateness of a unit of representation for professional
employees, upon request of any of the parties, the dispute shall be
submitted to the California State Mediation and Conciliation Service
for mediation or for recommendation for resolving the dispute.
(b) For the purpose of this section, "professional employees"
means employees engaged in work requiring specialized knowledge and
skills attained through completion of a recognized course of
instruction, including, but not limited to, attorneys.
SEC. 75. Section 102346 of the Health and Safety Code is amended
to read:
102346. (a) The local registrar of births and deaths shall
transmit each month to the Department of Industrial Relations a copy
of each certificate of death for which the death has been marked as
work-related and which was accepted for registration by him or her
during the preceding month.
(b) This section shall become operative on January 1, 2003.
SEC. 76. Section 11770 of the Insurance Code is amended to read:
11770. (a) The State Compensation Insurance Fund is continued in
existence, to be administered by its board of directors for the
purpose of transacting workers' compensation insurance, and insurance
against the expense of defending any suit for serious and willful
misconduct, against an employer or his or her agent, and insurance to
employees and other persons of the compensation fixed by the workers'
compensation laws for employees and their dependents. Any
appropriation made therefrom or thereto before the effective date of
this code shall continue to be available for the purposes for which
it was made.
(b) (1) The Board of Directors of the State Compensation Insurance
Fund is composed of 11 members, nine of whom shall be appointed by
the Governor. The Governor shall appoint the chairperson. One of the
members appointed by the Governor shall be from organized labor. The
members appointed by the Governor, other than the labor member, shall
have substantial experience in positions involving workers'
compensation, legal, investment, financial, corporate governance and
management, accounting, or auditing responsibilities with entities of
sufficient size as to make their qualifications relevant to an
enterprise of the financial and operational size of the State
Compensation Insurance Fund. At all times the board shall have a
member with auditing background for the purposes of fulfilling the
responsibility of the chair of the audit committee. A quorum is a
majority of those appointed, provided that at no time shall a quorum
be established with fewer than five members.
(2) The Speaker of the Assembly shall appoint one member who shall
represent organized labor, and the Senate Committee on Rules shall
appoint one member who shall have been a policyholder of the State
Compensation Insurance Fund, or an officer or employee of a
policyholder, for one year immediately preceding the appointment, and
must continue in this status during the period of his or her
membership.
(3) The Director of Industrial Relations shall be an ex officio,
nonvoting member of the board, and shall not be counted as members of
the board for quorum purposes or any other purpose.
(4) Notwithstanding subdivision (c), the initial term of the
members of the board added in the 2008 portion of the 2007-08 Regular
Session shall be as follows:
(A) One of the members appointed by the Governor shall serve an
initial term of two years, one shall serve an initial term of four
years, and two shall serve an initial term of five years.
(B) The member appointed by the Senate Committee on Rules shall
serve an initial term of four years.
(C) The member appointed by the Speaker of the Assembly shall
serve an initial term of three years.
(c) The term of office of the members of the board, other than
that of the director, shall be five years and they shall hold office
until the appointment and qualification of their successors.
(d) (1) Each member of the board shall receive his or her actual
and necessary traveling expenses incurred in the performance of his
or her duties as a member and, with the exception of the ex officio
members, one hundred dollars ($100) for each day of his or her actual
attendance at meetings of the board.
(2) (A) Each member of the board appointed pursuant to paragraphs
(1) and (2) of subdivision (b) shall receive the compensation fixed
pursuant to subparagraph (B).
(B) Each board member described in subparagraph (A) shall be paid
an annual compensation of fifty thousand dollars ($50,000), to be
automatically adjusted beginning January 1, 2010, by multiplying the
compensation in effect the prior June 30 by the percentage of
inflation that occurred during the previous year, adding this amount
to the annual compensation from the previous year, and rounding off
the result to the nearest dollar. "Percentage of inflation" means the
percentage of inflation specified in the Consumer Price Index for
All Urban Consumers, as published by the Department of Industrial
Relations, or its successor index.
(e) Each member of the board of directors shall attend training
approved by the board of directors that covers topics, including, but
not limited to, the duties and obligations of members of a board of
directors, corporate governance, ethics, board of director legal
issues, insurance, finance and investment, and information
technology. The training shall be conducted by persons or entities
not affiliated with the State Compensation Insurance Fund.
(f) No person who has had a direct or indirect interest in any
transaction with the State Compensation Insurance Fund since the
beginning of the last fiscal year of the fund, or who has a direct or
indirect material interest in any proposed transaction with the
fund, where the amount involved in the transaction exceeds one
hundred twenty thousand dollars ($120,000) shall be eligible for
appointment as a member of the board of directors of the fund. Once
appointed, no member of the board of directors shall have a financial
conflict of interest, as defined in Chapter 7 of Title 9 (commencing
with Section 87100) of the Government Code, and every member shall
be subject to Article 4 (commencing with Section 1090) of Chapter 1
of Division 4 of Title 1 of the Government Code, provided that the
existence of a contract of insurance between the State Compensation
Insurance Fund and the policyholder member appointed by the Senate
Committee on Rules shall not constitute a conflict of interest
pursuant to this subdivision. For purposes of board actions affecting
generally applicable rates, a member of the board of directors shall
not be deemed to have a financial interest, as defined in Article 4
(commencing with Section 1090) of Chapter 1 of Division 4 of Title 1
of, or pursuant to Chapter 7 (commencing with Section 87100) of Title
9 of, the Government Code, in a contract of insurance between the
State Compensation Insurance Fund and an organization of which any
member of the board of directors is an owner, officer, or employee.
(g) The appointing authority of a member of the board may remove
the member and make an appointment replacing the member for the
duration of the term if the member ceases to discharge the duties of
his or her office for the period of three consecutive board meetings.
(h) The board of the State Compensation Insurance Fund shall
create, at a minimum, an audit committee, an investment committee, a
corporate governance committee, and other committees as the board
determines are necessary.
SEC. 77. Section 56 of the Labor Code is amended to read:
56. The work of the department shall be divided into at least
five divisions known as the Division of Workers' Compensation, the
Division of Occupational Safety and Health, the Division of Labor
Standards Enforcement, the Division of Apprenticeship Standards, and
the State Compensation Insurance Fund.
SEC. 78. Section 65 of the Labor Code is repealed.
SEC. 79. Chapter 4.5 (commencing with Section 108) is added to
Division 1 of the Labor Code, to read:
CHAPTER 4.5. ELECTRICIAN CERTIFICATION
108. (a) The Division of Labor Standards Enforcement shall do all
of the following:
(1) Maintain minimum standards for the competency and training of
electricians through a system of testing and certification.
(2) Maintain an advisory committee and panels as necessary to
carry out the functions under this section. There shall be contractor
representation from both joint apprenticeship programs and
unilateral nonunion programs in the electrical contracting industry.
(3) Establish and collect fees necessary to implement this
section.
(4) Carry out the responsibilities of the Division of
Apprenticeship Standards that are specified in Subchapter 4
(commencing with Section 290) of Chapter 2 of Division 1 of Title 8
of the California Code of Regulations. The Labor Commissioner may
amend or repeal existing regulations or adopt new regulations as
necessary to enforce this section. Pending amendments to conform to
this section, any reference within the Subchapter 4 regulations to
the Chief of the Division of Apprenticeship Standards is deemed a
reference to the Labor Commissioner, and references to prior
statutory sections are deemed to refer to current statutory language
as follows:
(A) References to former Section 3099 refer to current Section
108.
(B) References to former Section 3099.2 refer to current Section
108.2.
(C) References to former Section 3099.3 refer to current Section
108.3.
(D) References to former Section 3099.4 refer to current Section
108.4.
(E) References to former Section 3099.5 refer to current Section
108.5.
(5) Issue certification cards to electricians who have been
certified pursuant to this section. Notwithstanding Section 13340 of
the Government Code, fees collected pursuant to paragraph (3) are
continuously appropriated in an amount sufficient to pay the costs of
issuing certification cards, and that amount may be expended for
that purpose by the division.
(6) Maintain an electrical certification curriculum committee
comprised of representatives of the State Department of Education,
the California Community Colleges, and the division. The electrical
certification curriculum committee shall do all of the following:
(A) Establish written educational curriculum standards for
enrollees in training programs established pursuant to Section 108.4.
(B) If an educational provider's curriculum meets the written
educational curriculum standards established in accordance with
subparagraph (A), designate that curriculum as an approved curriculum
of classroom instruction.
(C) At the committee's discretion, review the approved curriculum
of classroom instruction of any designated educational provider. The
committee may withdraw its approval of the curriculum if the
educational provider does not continue to meet the established
written educational curriculum standards.
(D) Require each designated educational provider to submit an
annual notice to the committee stating whether the educational
provider is continuing to offer the approved curriculum of classroom
instruction and whether any material changes have been made to the
curriculum since its approval.
(b) There shall be no discrimination for or against any person
based on membership or nonmembership in a union.
(c) As used in this section, "electricians" includes all persons
who engage in the connection of electrical devices for electrical
contractors licensed pursuant to Section 7058 of the Business and
Professions Code, specifically, contractors classified as electrical
contractors in the Contractors' State License Board Rules and
Regulations. This section does not apply to electrical connections
under 100 volt-amperes. This section does not apply to persons
performing work to which Section 7042.5 of the Business and
Professions Code is applicable, or to electrical work ordinarily and
customarily performed by stationary engineers. This section does not
apply to electrical work in connection with the installation,
operation, or maintenance of temporary or portable electrical
equipment performed by technicians in the theatrical, motion picture
production, television, hotel, exhibition, or trade show industries.
108.2. (a) Persons who perform work as electricians shall become
certified pursuant to Section 108. Uncertified persons shall not
perform electrical work for which certification is required.
(b) (1) Certification is required only for those persons who
perform work as electricians for contractors licensed as class C-10
electrical contractors under the Contractors' State License Board
Rules and Regulations.
(2) Certification is not required for persons performing work for
contractors licensed as class C-7 low voltage systems or class C-45
electric sign contractors as long as the work performed is within the
scope of the class C-7 or class C-45 license, including incidental
and supplemental work as defined in Section 7059 of the Business and
Professions Code, and regardless of whether the same contractor is
also licensed as a class C-10 contractor.
(3) Certification is not required for work performed by a worker
on a high-voltage electrical transmission or distribution system
owned by a local publicly owned electric utility, as defined in
Section 224.3 of the Public Utilities Code; an electrical
corporation, as defined in Section 218 of the Public Utilities Code;
a person, as defined in Section 205 of the Public Utilities Code; or
a corporation, as defined in Section 204 of the Public Utilities
Code; when the worker is employed by the utility or a licensed
contractor principally engaged in installing or maintaining
transmission or distribution systems.
(4) Individuals desiring to be certified shall submit an
application for certification and examination that includes an
employment history report from the Social Security Administration.
The individual may redact his or her social security number from the
employment history report before it is submitted.
(c) The division shall maintain separate certifications for
general electrician, fire/life safety technician, residential
electrician, voice data video technician, and nonresidential lighting
technician.
(d) Notwithstanding subdivision (a), certification is not required
for registered apprentices performing electrical work as part of an
apprenticeship program approved under Chapter 4 of Division 3
(commencing with Section 3070), a federal Office of Apprenticeship
program, or a state apprenticeship program authorized by the federal
Office of Apprenticeship. An apprentice who is within one year of
completion of his or her term of apprenticeship shall be permitted to
take the certification examination and, upon passing the
examination, shall be certified immediately upon completion of the
term of apprenticeship.
(e) Notwithstanding subdivision (a), certification is not required
for any person employed pursuant to Section 108.4.
(f) Notwithstanding subdivision (a), certification is not required
for a nonresidential lighting trainee (1) who is enrolled in an
on-the-job instructional training program approved by the Chief of
the Division of Apprenticeship Standards pursuant to Section 3090,
and (2) who is under the onsite supervision of a nonresidential
lighting technician certified pursuant to Section 108.
(g) Notwithstanding subdivision (a), the qualifying person for a
class C-10 electrical contractor license issued by the Contractors'
State License Board need not also be certified pursuant to Section
108 to perform electrical work for that licensed contractor or to
supervise an uncertified person employed by that licensed contractor
pursuant to Section 108.4.
(h) The following shall constitute additional grounds for
disciplinary proceedings, including suspension or revocation of the
license of a class C-10 electrical contractor pursuant to Article 7
(commencing with Section 7090) of Chapter 9 of Division 3 of the
Business and Professions Code:
(1) The contractor willfully employs one or more uncertified
persons to perform work as electricians in violation of this section.
(2) The contractor willfully fails to provide the adequate
supervision of uncertified workers required by paragraph (3) of
subdivision (a) of Section 108.4.
(3) The contractor willfully fails to provide adequate supervision
of apprentices performing work pursuant to subdivision (d).
(i) The Labor Commissioner shall maintain a process for referring
cases to the Contractors' State License Board when it has been
determined that a violation of this section has likely occurred. The
Labor Commissioner shall have a memorandum of understanding with the
Registrar of Contractors in furtherance of this section.
(j) Upon receipt of a referral by the Labor Commissioner alleging
a violation under this section, the Registrar of Contractors shall
open an investigation. Any disciplinary action against the licensee
shall be initiated within 60 days of the receipt of the referral. The
Registrar of Contractors may initiate disciplinary action against
any licensee upon his or her own investigation, the filing of any
complaint, or any finding that results from a referral from the Labor
Commissioner alleging a violation under this section. Failure of the
employer or employee to provide evidence of certification or trainee
status shall create a rebuttable presumption of violation of this
provision.
(k) For the purposes of this section, "electricians" has the same
meaning as the definition set forth in Section 108.
108.3. The Division of Labor Standards Enforcement shall do all
of the following:
(a) Make information about electrician certification available in
non-English languages spoken by a substantial number of construction
workers, as defined in Section 7296.2 of the Government Code.
(b) Provide for the administration of certification tests in
Spanish and, to the extent practicable, other non-English languages
spoken by a substantial number of applicants, as defined in Section
7296.2 of the Government Code, except insofar as the ability to
understand warning signs, instructions, and certain other information
in English is necessary for safety reasons.
(c) Ensure, in conjunction with the California Apprenticeship
Council, that all electrician apprenticeship programs approved under
Chapter 4 (commencing with Section 3070) of Division 3 that impose
minimum formal education requirements as a condition of entry provide
for reasonable alternative means of satisfying those requirements.
(d) Ensure, in conjunction with the California Apprenticeship
Council, that all electrician apprenticeship programs approved under
Chapter 4 (commencing with Section 3070) of Division 3 have adopted
reasonable procedures for granting credit toward a term of
apprenticeship for other vocational training and on-the-job training
experience.
108.4. (a) An uncertified person may perform electrical work for
which certification is required under Section 108 in order to acquire
the necessary on-the-job experience for certification, if all of the
following requirements are met:
(1) The person is registered with the Labor Commissioner. A list
of current registrants shall be maintained by the division and made
available to the public upon request.
(2) The person either has completed or is enrolled in an approved
curriculum of classroom instruction.
(3) The employer attests that the person shall be under the direct
supervision of an electrician certified pursuant to Section 108 who
is responsible for supervising no more than one uncertified person.
An employer who is found by the division to have failed to provide
adequate supervision may be barred by the division from employing
uncertified individuals pursuant to this section in the future.
(b) For purposes of this section, "an approved curriculum of
classroom instruction" means a curriculum of classroom instruction
approved by the electrician certification curriculum committee
established pursuant to paragraph (6) of subdivision (a) of Section
108 and provided under the jurisdiction of the State Department of
Education, the Board of Governors of the California Community
Colleges, or the Bureau for Private Postsecondary and Vocational
Education.
(c) The curriculum committee may grant approval to an educational
provider that presently offers only a partial curriculum if the
educational provider intends in the future to offer, or to cooperate
with other educational providers to offer, a complete curriculum for
the type of certification involved. The curriculum committee may
require an educational provider receiving approval for a partial
curriculum to periodically renew its approval with the curriculum
committee until a complete curriculum is offered and approved. A
partial curriculum means a combination of classes that does not
include all classroom educational components of the complete
curriculum for one of the categories of certification established in
accordance with subdivision (c) of Section 108.2.
(d) An educational provider that receives approval for a partial
curriculum must disclose in all communications to students and to the
public that the educational provider has only received approval for
a partial curriculum and shall not make any representations that the
provider offers a complete approved curriculum of classroom
instruction as established by subparagraph (A) of paragraph (6) of
subdivision (a) of Section 108.
(e) For purposes of this section, a person is enrolled in an
approved curriculum of classroom instruction if the person is
attending classes on a full-time or part-time basis toward the
completion of an approved curriculum.
(f) Registration under this section shall be renewed annually and
the registrant shall provide to the division certification of the
classwork completed and on-the-job experience acquired since the
prior registration.
(g) For purposes of verifying the information provided by a person
registered with the division, an educational provider of an approved
curriculum of
classroom instruction shall, upon the division's request, provide the
division with information regarding the enrollment status and
instruction completed by a person registered. By registering with the
division in accordance with this section, a person consents to the
release of this information.
(h) The division shall establish registration fees necessary to
implement this section, not to exceed twenty-five dollars ($25) for
the initial registration. There shall be no fee for annual renewal of
registration. Notwithstanding Section 13340 of the Government Code,
fees collected are continuously appropriated in an amount sufficient
to administer this section and that amount may be expended by the
division for this purpose.
(i) The division shall issue regulations to implement this
section.
(j) For purposes of Section 1773, persons employed pursuant to
this section do not constitute a separate craft, classification, or
type of worker.
(k) Notwithstanding any other provision of law, an uncertified
person who has completed an approved curriculum of classroom
instruction and is currently registered with the division may take
the certification examination. The person shall be certified upon
passing the examination and satisfactorily completing the requisite
number of on-the-job hours required for certification. A person who
passes the examination prior to completing the requisite hours of
on-the-job experience shall continue to comply with subdivision (f).
108.5. (a) The Electrician Certification Fund is established as a
special account in the State Treasury. Proceeds of the fund may be
expended by the department, upon appropriation by the Legislature,
for the costs of the Division of Labor Standards Enforcement program
to validate and certify electricians as provided by Section 108, and
shall not be used for any other purpose.
(b) The fund shall consist of the fees collected pursuant to
Section 108.
SEC. 80. Section 138.7 of the Labor Code, as amended by Section 3
of Chapter 568 of the Statutes of 2011, is amended to read:
138.7. (a) Except as expressly permitted in subdivision (b), a
person or public or private entity not a party to a claim for workers'
compensation benefits may not obtain individually identifiable
information obtained or maintained by the division on that claim. For
purposes of this section, "individually identifiable information"
means any data concerning an injury or claim that is linked to a
uniquely identifiable employee, employer, claims administrator, or
any other person or entity.
(b) (1) (A) The administrative director, or a statistical agent
designated by the administrative director, may use individually
identifiable information for purposes of creating and maintaining the
workers' compensation information system as specified in Section
138.6.
(B) The administrative director may publish the identity of claims
administrators in the annual report disclosing the compliance rates
of claims administrators pursuant to subdivision (d) of Section
138.6.
(2) (A) The State Department of Public Health may use individually
identifiable information for purposes of establishing and
maintaining a program on occupational health and occupational disease
prevention as specified in Section 105175 of the Health and Safety
Code.
(B) (i) The State Department of Health Care Services may use
individually identifiable information for purposes of seeking
recovery of Medi-Cal costs incurred by the state for treatment
provided to injured workers that should have been incurred by
employers and insurance carriers pursuant to Article 3.5 (commencing
with Section 14124.70) of Chapter 7 of Part 3 of Division 9 of the
Welfare and Institutions Code.
(ii) The Department of Industrial Relations shall furnish
individually identifiable information to the State Department of
Health Care Services, and the State Department of Health Care
Services may furnish the information to its designated agent,
provided that the individually identifiable information shall not be
disclosed for use other than the purposes described in clause (i).
The administrative director may adopt regulations solely for the
purpose of governing access by the State Department of Health Care
Services or its designated agents to the individually identifiable
information as defined in subdivision (a).
(3) (A) Individually identifiable information may be used by the
Division of Workers' Compensation and the Division of Occupational
Safety and Health as necessary to carry out their duties. The
administrative director shall adopt regulations governing the access
to the information described in this subdivision by these divisions.
Any regulations adopted pursuant to this subdivision shall set forth
the specific uses for which this information may be obtained.
(B) Individually identifiable information maintained in the
workers' compensation information system and the Division of Workers'
Compensation may be used by researchers employed by or under
contract to the Commission on Health and Safety and Workers'
Compensation as necessary to carry out the commission's research. The
administrative director shall adopt regulations governing the access
to the information described in this subdivision by commission
researchers. These regulations shall set forth the specific uses for
which this information may be obtained and include provisions
guaranteeing the confidentiality of individually identifiable
information. Individually identifiable information obtained under
this subdivision shall not be disclosed to commission members. No
individually identifiable information obtained by researchers under
contract to the commission pursuant to this subparagraph may be
disclosed to any other person or entity, public or private, for a use
other than that research project for which the information was
obtained. Within a reasonable period of time after the research for
which the information was obtained has been completed, the data
collected shall be modified in a manner so that the subjects cannot
be identified, directly or through identifiers linked to the
subjects.
(4) The administrative director shall adopt regulations allowing
reasonable access to individually identifiable information by other
persons or public or private entities for the purpose of bona fide
statistical research. This research shall not divulge individually
identifiable information concerning a particular employee, employer,
claims administrator, or any other person or entity. The regulations
adopted pursuant to this paragraph shall include provisions
guaranteeing the confidentiality of individually identifiable
information. Within a reasonable period of time after the research
for which the information was obtained has been completed, the data
collected shall be modified in a manner so that the subjects cannot
be identified, directly or through identifiers linked to the
subjects.
(5) (A) This section shall not operate to exempt from disclosure
any information that is considered to be a public record pursuant to
the California Public Records Act (Chapter 3.5 (commencing with
Section 6250) of Division 7 of Title 1 of the Government Code)
contained in an individual's file once an application for
adjudication has been filed pursuant to Section 5501.5.
(B) However, individually identifiable information shall not be
provided to any person or public or private entity who is not a party
to the claim unless that person identifies himself or herself or
that public or private entity identifies itself and states the reason
for making the request. The administrative director may require the
person or public or private entity making the request to produce
information to verify that the name and address of the requester is
valid and correct. If the purpose of the request is related to
preemployment screening, the administrative director shall notify the
person about whom the information is requested that the information
was provided and shall include the following in 12-point type:
"IT MAY BE A VIOLATION OF FEDERAL AND STATE LAW TO DISCRIMINATE
AGAINST A JOB APPLICANT BECAUSE THE APPLICANT HAS FILED A CLAIM FOR
WORKERS' COMPENSATION BENEFITS."
(C) Any residence address is confidential and shall not be
disclosed to any person or public or private entity except to a party
to the claim, a law enforcement agency, an office of a district
attorney, any person for a journalistic purpose, or other
governmental agency.
(D) Nothing in this paragraph shall be construed to prohibit the
use of individually identifiable information for purposes of
identifying bona fide lien claimants.
(c) Except as provided in subdivision (b), individually
identifiable information obtained by the division is privileged and
is not subject to subpoena in a civil proceeding unless, after
reasonable notice to the division and a hearing, a court determines
that the public interest and the intent of this section will not be
jeopardized by disclosure of the information. This section shall not
operate to restrict access to information by any law enforcement
agency or district attorney's office or to limit admissibility of
that information in a criminal proceeding.
(d) It shall be unlawful for any person who has received
individually identifiable information from the division pursuant to
this section to provide that information to any person who is not
entitled to it under this section.
(e) This section shall remain in effect only until January 1,
2017, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2017, deletes or extends
that date.
SEC. 81. Section 138.7 of the Labor Code, as amended by Section 4
of Chapter 568 of the Statutes of 2011, is amended to read:
138.7. (a) Except as expressly permitted in subdivision (b), a
person or public or private entity not a party to a claim for workers'
compensation benefits may not obtain individually identifiable
information obtained or maintained by the division on that claim. For
purposes of this section, "individually identifiable information"
means any data concerning an injury or claim that is linked to a
uniquely identifiable employee, employer, claims administrator, or
any other person or entity.
(b) (1) (A) The administrative director, or a statistical agent
designated by the administrative director, may use individually
identifiable information for purposes of creating and maintaining the
workers' compensation information system as specified in Section
138.6.
(B) The administrative director may publish the identity of claims
administrators in the annual report disclosing the compliance rates
of claims administrators pursuant to subdivision (d) of Section
138.6.
(2) The State Department of Public Health may use individually
identifiable information for purposes of establishing and maintaining
a program on occupational health and occupational disease prevention
as specified in Section 105175 of the Health and Safety Code.
(3) (A) Individually identifiable information may be used by the
Division of Workers' Compensation and the Division of Occupational
Safety and Health as necessary to carry out their duties. The
administrative director shall adopt regulations governing the access
to the information described in this subdivision by these divisions.
Any regulations adopted pursuant to this subdivision shall set forth
the specific uses for which this information may be obtained.
(B) Individually identifiable information maintained in the
workers' compensation information system and the Division of Workers'
Compensation may be used by researchers employed by or under
contract to the Commission on Health and Safety and Workers'
Compensation as necessary to carry out the commission's research. The
administrative director shall adopt regulations governing the access
to the information described in this subdivision by commission
researchers. These regulations shall set forth the specific uses for
which this information may be obtained and include provisions
guaranteeing the confidentiality of individually identifiable
information. Individually identifiable information obtained under
this subdivision shall not be disclosed to commission members. No
individually identifiable information obtained by researchers under
contract to the commission pursuant to this subparagraph may be
disclosed to any other person or entity, public or private, for a use
other than that research project for which the information was
obtained. Within a reasonable period of time after the research for
which the information was obtained has been completed, the data
collected shall be modified in a manner so that the subjects cannot
be identified, directly or through identifiers linked to the
subjects.
(4) The administrative director shall adopt regulations allowing
reasonable access to individually identifiable information by other
persons or public or private entities for the purpose of bona fide
statistical research. This research shall not divulge individually
identifiable information concerning a particular employee, employer,
claims administrator, or any other person or entity. The regulations
adopted pursuant to this paragraph shall include provisions
guaranteeing the confidentiality of individually identifiable
information. Within a reasonable period of time after the research
for which the information was obtained has been completed, the data
collected shall be modified in a manner so that the subjects cannot
be identified, directly or through identifiers linked to the
subjects.
(5) (A) This section shall not operate to exempt from disclosure
any information that is considered to be a public record pursuant to
the California Public Records Act (Chapter 3.5 (commencing with
Section 6250) of Division 7 of Title 1 of the Government Code)
contained in an individual's file once an application for
adjudication has been filed pursuant to Section 5501.5.
(B) However, individually identifiable information shall not be
provided to any person or public or private entity who is not a party
to the claim unless that person identifies himself or herself or
that public or private entity identifies itself and states the reason
for making the request. The administrative director may require the
person or public or private entity making the request to produce
information to verify that the name and address of the requester is
valid and correct. If the purpose of the request is related to
preemployment screening, the administrative director shall notify the
person about whom the information is requested that the information
was provided and shall include the following in 12-point type:
"IT MAY BE A VIOLATION OF FEDERAL AND STATE LAW TO DISCRIMINATE
AGAINST A JOB APPLICANT BECAUSE THE APPLICANT HAS FILED A CLAIM FOR
WORKERS' COMPENSATION BENEFITS."
(C) Any residence address is confidential and shall not be
disclosed to any person or public or private entity except to a party
to the claim, a law enforcement agency, an office of a district
attorney, any person for a journalistic purpose, or other
governmental agency.
(D) Nothing in this paragraph shall be construed to prohibit the
use of individually identifiable information for purposes of
identifying bona fide lien claimants.
(c) Except as provided in subdivision (b), individually
identifiable information obtained by the division is privileged and
is not subject to subpoena in a civil proceeding unless, after
reasonable notice to the division and a hearing, a court determines
that the public interest and the intent of this section will not be
jeopardized by disclosure of the information. This section shall not
operate to restrict access to information by any law enforcement
agency or district attorney's office or to limit admissibility of
that information in a criminal proceeding.
(d) It shall be unlawful for any person who has received
individually identifiable information from the division pursuant to
this section to provide that information to any person who is not
entitled to it under this section.
(e) This section shall become operative on January 1, 2017.
SEC. 82. The heading of Chapter 7 (commencing with Section 150) of
Division 1 of the Labor Code is amended to read:
CHAPTER 7. LABOR STATISTICS AND RESEARCH
SEC. 83. Section 150 of the Labor Code is amended to read:
150. (a) The department shall collect, compile, and present facts
and statistics relating to the condition of labor in the state,
including information as to cost of living, labor supply and demand,
industrial relations, industrial disputes, industrial accidents and
safety, labor productivity, sanitary and other conditions, prison
labor, and such other matters in relation to labor as the Director of
Industrial Relations deems desirable.
(b) To the extent not in conflict with this or any other section,
on the date this subdivision becomes operative, the responsibilities
of the Division of Labor Statistics and Research that are specified
in Subchapter 1 (commencing with Section 14000) and Subchapter 2
(commencing with Section 14900) of Chapter 7 of Division 1 of Title 8
of the California Code of Regulations are reassigned to the Division
of Occupational Safety and Health and the responsibilities of the
Division of Labor Statistics and Research that are specified in
Subchapter 3 (commencing with Section 16000) of Chapter 8 of Division
1 of Title 8 of the California Code of Regulations are reassigned to
the Division of Labor Standards Enforcement.
SEC. 84. Section 151 of the Labor Code is amended to read:
151. (a) The department shall conduct an annual survey of the
ethnic derivation of the individuals who are parties to apprentice
agreements described in Section 3077. In conducting this survey, the
division shall use any pertinent data which the federal government
may provide to avoid duplication of effort.
(b) The Division of Apprenticeship Standards shall cooperate in
the accomplishment of the survey required by this section. The
occasion of this survey may be used to gather such additional current
data as may be of benefit to apprenticeship programs.
(c) Data gathered pursuant to this section shall not be evidence
per se of an unlawful employment practice.
(d) Nothing in this section shall be construed to authorize any
state agency to require an employer to employ a specified percentage
of individuals of any particular ethnic derivation irrespective of
such individuals' qualifications for employment.
SEC. 85. Section 152 of the Labor Code is amended to read:
152. The Director of Industrial Relations and authorized
employees of the department may issue subpoenas to compel the
attendance of witnesses and production of books, papers, and records;
administer oaths; examine witnesses under oath; take the
verification or proof of written instruments; and take depositions
and affidavits for the purpose of carrying out the provisions of this
code and performing the duties required by this chapter. They shall
have free access to all places of labor. Any person, or agent or
officer thereof, who willfully neglects or refuses to furnish
statistics requested by the division, which are in his or her
possession, or under his or her control, or who refuses to admit the
director or his or her authorized employee to a place of labor, is
guilty of a misdemeanor. The director may direct the chief and the
employees of other divisions of the department to transmit any
statistical information in their possession, or to conduct
investigations and otherwise assist in the gathering of whatever
statistics the director deems desirable.
SEC. 86. Section 153 of the Labor Code is amended to read:
153. Except as provided in Section 151 no use shall be made in
the statistical or other reports prepared pursuant to this chapter of
the names of persons supplying the information required under this
code. Any agent or employee of the department who violates this
section is guilty of a misdemeanor.
SEC. 87. Section 156 of the Labor Code is amended to read:
156. An annual report containing statistics on California work
injuries and occupational diseases and fatalities by industry
classifications shall be completed and published by the department no
later than December 31 of the following calendar year. All of the
reports and statistics shall be available to the public.
SEC. 88. Section 511 of the Labor Code is amended to read:
511. (a) Upon the proposal of an employer, the employees of an
employer may adopt a regularly scheduled alternative workweek that
authorizes work by the affected employees for no longer than 10 hours
per day within a 40-hour workweek without the payment to the
affected employees of an overtime rate of compensation pursuant to
this section. A proposal to adopt an alternative workweek schedule
shall be deemed adopted only if it receives approval in a secret
ballot election by at least two-thirds of affected employees in a
readily identifiable work unit. The regularly scheduled alternative
workweek proposed by an employer for adoption by employees may be a
single work schedule that would become the standard schedule for
workers in the work unit, or a menu of work schedule options, from
which each employee in the unit would be entitled to choose.
Notwithstanding subdivision (c) of Section 500, the menu of work
schedule options may include a regular schedule of eight-hour days
that are compensated in accordance with subdivision (a) of Section
510. Employees who adopt a menu of work schedule options may, with
employer consent, move from one schedule option to another on a
weekly basis.
(b) An affected employee working longer than eight hours but not
more than 12 hours in a day pursuant to an alternative workweek
schedule adopted pursuant to this section shall be paid an overtime
rate of compensation of no less than one and one-half times the
regular rate of pay of the employee for any work in excess of the
regularly scheduled hours established by the alternative workweek
agreement and for any work in excess of 40 hours per week. An
overtime rate of compensation of no less than double the regular rate
of pay of the employee shall be paid for any work in excess of 12
hours per day and for any work in excess of eight hours on those days
worked beyond the regularly scheduled workdays established by the
alternative workweek agreement. Nothing in this section requires an
employer to combine more than one rate of overtime compensation in
order to calculate the amount to be paid to an employee for any hour
of overtime work.
(c) An employer shall not reduce an employee's regular rate of
hourly pay as a result of the adoption, repeal, or nullification of
an alternative workweek schedule.
(d) An employer shall make a reasonable effort to find a work
schedule not to exceed eight hours in a workday, in order to
accommodate any affected employee who was eligible to vote in an
election authorized by this section and who is unable to work the
alternative schedule hours established as the result of that
election. An employer shall be permitted to provide a work schedule
not to exceed eight hours in a workday to accommodate any employee
who was hired after the date of the election and who is unable to
work the alternative schedule established as the result of that
election. An employer shall explore any available reasonable
alternative means of accommodating the religious belief or observance
of an affected employee that conflicts with an adopted alternative
workweek schedule, in the manner provided by subdivision (j) of
Section 12940 of the Government Code.
(e) The results of any election conducted pursuant to this section
shall be reported by an employer to the Division of Labor Standards
Enforcement within 30 days after the results are final.
(f) Any type of alternative workweek schedule that is authorized
by this code and that was in effect on January 1, 2000, may be
repealed by the affected employees pursuant to this section. Any
alternative workweek schedule that was adopted pursuant to Wage Order
Number 1, 4, 5, 7, or 9 of the Industrial Welfare Commission is null
and void, except for an alternative workweek providing for a regular
schedule of no more than 10 hours' work in a workday that was
adopted by a two-thirds vote of affected employees in a secret ballot
election pursuant to wage orders of the Industrial Welfare
Commission in effect prior to 1998. This subdivision does not apply
to exemptions authorized pursuant to Section 515.
(g) Notwithstanding subdivision (f), an alternative workweek
schedule in the health care industry adopted by a two-thirds vote of
affected employees in a secret ballot election pursuant to Wage Order
Numbers 4 and 5 in effect prior to 1998 that provided for workdays
exceeding 10 hours but not exceeding 12 hours in a day without the
payment of overtime compensation shall be valid until July 1, 2000.
An employer in the health care industry shall make a reasonable
effort to accommodate any employee in the health care industry who is
unable to work the alternative schedule established as the result of
a valid election held in accordance with provisions of Wage Order
Number 4 or 5 that were in effect prior to 1998.
(h) Notwithstanding subdivision (f), if an employee is voluntarily
working an alternative workweek schedule providing for a regular
work schedule of not more than 10 hours' work in a workday as of July
1, 1999, an employee may continue to work that alternative workweek
schedule without the entitlement of the payment of daily overtime
compensation for the hours provided in that schedule if the employer
approves a written request of the employee to work that schedule.
(i) For purposes of this section, "work unit" includes a division,
a department, a job classification, a shift, a separate physical
location, or a recognized subdivision thereof. A work unit may
consist of an individual employee as long as the criteria for an
identifiable work unit in this section is met.
SEC. 89. Section 515.5 of the Labor Code is amended to read:
515.5. (a) Except as provided in subdivision (b), an employee in
the computer software field shall be exempt from the requirement that
an overtime rate of compensation be paid pursuant to Section 510 if
all of the following apply:
(1) The employee is primarily engaged in work that is intellectual
or creative and that requires the exercise of discretion and
independent judgment.
(2) The employee is primarily engaged in duties that consist of
one or more of the following:
(A) The application of systems analysis techniques and procedures,
including consulting with users, to determine hardware, software, or
system functional
specifications.
(B) The design, development, documentation, analysis, creation,
testing, or modification of computer systems or programs, including
prototypes, based on and related to user or system design
specifications.
(C) The documentation, testing, creation, or modification of
computer programs related to the design of software or hardware for
computer operating systems.
(3) The employee is highly skilled and is proficient in the
theoretical and practical application of highly specialized
information to computer systems analysis, programming, or software
engineering. A job title shall not be determinative of the
applicability of this exemption.
(4) The employee's hourly rate of pay is not less than thirty-six
dollars ($36.00) or, if the employee is paid on a salaried basis, the
employee earns an annual salary of not less than seventy-five
thousand dollars ($75,000) for full-time employment, which is paid at
least once a month and in a monthly amount of not less than six
thousand two hundred fifty dollars ($6,250). The department shall
adjust both the hourly pay rate and the salary level described in
this paragraph on October 1 of each year to be effective on January 1
of the following year by an amount equal to the percentage increase
in the California Consumer Price Index for Urban Wage Earners and
Clerical Workers.
(b) The exemption provided in subdivision (a) does not apply to an
employee if any of the following apply:
(1) The employee is a trainee or employee in an entry-level
position who is learning to become proficient in the theoretical and
practical application of highly specialized information to computer
systems analysis, programming, and software engineering.
(2) The employee is in a computer-related occupation but has not
attained the level of skill and expertise necessary to work
independently and without close supervision.
(3) The employee is engaged in the operation of computers or in
the manufacture, repair, or maintenance of computer hardware and
related equipment.
(4) The employee is an engineer, drafter, machinist, or other
professional whose work is highly dependent upon or facilitated by
the use of computers and computer software programs and who is
skilled in computer-aided design software, including CAD/CAM, but who
is not engaged in computer systems analysis, programming, or any
other similarly skilled computer-related occupation.
(5) The employee is a writer engaged in writing material,
including box labels, product descriptions, documentation,
promotional material, setup and installation instructions, and other
similar written information, either for print or for onscreen media
or who writes or provides content material intended to be read by
customers, subscribers, or visitors to computer-related media such as
the World Wide Web or CD-ROMs.
(6) The employee is engaged in any of the activities set forth in
subdivision (a) for the purpose of creating imagery for effects used
in the motion picture, television, or theatrical industry.
SEC. 90. Section 515.6 of the Labor Code is amended to read:
515.6. (a) Section 510 shall not apply to any employee who is a
licensed physician or surgeon, who is primarily engaged in duties
that require licensure pursuant to Chapter 5 (commencing with Section
2000) of Division 2 of the Business and Professions Code, and whose
hourly rate of pay is equal to or greater than fifty-five dollars
($55.00). The department shall adjust this threshold rate of pay each
October 1, to be effective the following January 1, by an amount
equal to the percentage increase in the California Consumer Price
Index for Urban Wage Earners and Clerical Workers.
(b) The exemption provided in subdivision (a) shall not apply to
an employee employed in a medical internship or resident program or
to a physician employee covered by a valid collective bargaining
agreement pursuant to Section 514.
SEC. 91. Chapter 9 (commencing with Section 1137) of Part 3 of
Division 2 of the Labor Code is repealed.
SEC. 92. Section 1202 of the Labor Code is amended to read:
1202. Upon the request of the commission, the department shall
cause such statistics and other data and information to be gathered,
and investigations made, as the commission may require. The cost
thereof shall be paid out of the appropriations made for the expenses
of the commission.
SEC. 93. Section 1773.3 of the Labor Code is amended to read:
1773.3. An awarding agency whose public works contract falls
within the jurisdiction of Section 1771.3, 1771.5, or 1777.5, or any
other statute providing for the payment of fees to the Department of
Industrial Relations for enforcing prevailing wage requirements on
that project, shall, within five days of the award, send a copy of
the award to the department. In lieu of responding to any specific
request for contract award information, the department my make such
information available for public review by posting on its Internet
Web site. Within five days of a finding of any discrepancy regarding
the ratio of apprentices to journeymen, pursuant to the certificated
fixed number of apprentices to journeymen, the awarding agency shall
notify the Division of Labor Standards Enforcement.
SEC. 94. Section 1776 of the Labor Code is amended to read:
1776. (a) Each contractor and subcontractor shall keep accurate
payroll records, showing the name, address, social security number,
work classification, straight time and overtime hours worked each day
and week, and the actual per diem wages paid to each journeyman,
apprentice, worker, or other employee employed by him or her in
connection with the public work. Each payroll record shall contain or
be verified by a written declaration that it is made under penalty
of perjury, stating both of the following:
(1) The information contained in the payroll record is true and
correct.
(2) The employer has complied with the requirements of Sections
1771, 1811, and 1815 for any work performed by his or her employees
on the public works project.
(b) The payroll records enumerated under subdivision (a) shall be
certified and shall be available for inspection at all reasonable
hours at the principal office of the contractor on the following
basis:
(1) A certified copy of an employee's payroll record shall be made
available for inspection or furnished to the employee or his or her
authorized representative on request.
(2) A certified copy of all payroll records enumerated in
subdivision (a) shall be made available for inspection or furnished
upon request to a representative of the body awarding the contract
and the Division of Labor Standards Enforcement of the Department of
Industrial Relations.
(3) A certified copy of all payroll records enumerated in
subdivision (a) shall be made available upon request by the public
for inspection or for copies thereof. However, a request by the
public shall be made through either the body awarding the contract or
the Division of Labor Standards Enforcement. If the requested
payroll records have not been provided pursuant to paragraph (2), the
requesting party shall, prior to being provided the records,
reimburse the costs of preparation by the contractor, subcontractors,
and the entity through which the request was made. The public may
not be given access to the records at the principal office of the
contractor.
(c) The certified payroll records shall be on forms provided by
the Division of Labor Standards Enforcement or shall contain the same
information as the forms provided by the division. The payroll
records may consist of printouts of payroll data that are maintained
as computer records, if the printouts contain the same information as
the forms provided by the division and the printouts are verified in
the manner specified in subdivision (a).
(d) A contractor or subcontractor shall file a certified copy of
the records enumerated in subdivision (a) with the entity that
requested the records within 10 days after receipt of a written
request.
(e) Except as provided in subdivision (f), any copy of records
made available for inspection as copies and furnished upon request to
the public or any public agency by the awarding body or the Division
of Labor Standards Enforcement shall be marked or obliterated to
prevent disclosure of an individual's name, address, and social
security number. The name and address of the contractor awarded the
contract or the subcontractor performing the contract shall not be
marked or obliterated. Any copy of records made available for
inspection by, or furnished to, a joint labor-management committee
established pursuant to the federal Labor Management Cooperation Act
of 1978 (29 U.S.C. Sec. 175a) shall be marked or obliterated only to
prevent disclosure of an individual's name and social security
number. A joint labor management committee may maintain an action in
a court of competent jurisdiction against an employer who fails to
comply with Section 1774. The court may award restitution to an
employee for unpaid wages and may award the joint labor management
committee reasonable attorney's fees and costs incurred in
maintaining the action. An action under this subdivision may not be
based on the employer's misclassification of the craft of a worker on
its certified payroll records. Nothing in this subdivision limits
any other available remedies for a violation of this chapter.
(f) (1) Notwithstanding any other provision of law, agencies that
are included in the Joint Enforcement Strike Force on the Underground
Economy established pursuant to Section 329 of the Unemployment
Insurance Code and other law enforcement agencies investigating
violations of law shall, upon request, be provided nonredacted copies
of certified payroll records. Any copies of records or certified
payroll made available for inspection and furnished upon request to
the public by an agency included in the Joint Enforcement Strike
Force on the Underground Economy or to a law enforcement agency
investigating a violation of law shall be marked or redacted to
prevent disclosure of an individual's name, address, and social
security number.
(2) An employer shall not be liable for damages in a civil action
for any reasonable act or omission taken in good faith in compliance
with this subdivision.
(g) The contractor shall inform the body awarding the contract of
the location of the records enumerated under subdivision (a),
including the street address, city, and county, and shall, within
five working days, provide a notice of a change of location and
address.
(h) The contractor or subcontractor has 10 days in which to comply
subsequent to receipt of a written notice requesting the records
enumerated in subdivision (a). In the event that the contractor or
subcontractor fails to comply within the 10-day period, he or she
shall, as a penalty to the state or political subdivision on whose
behalf the contract is made or awarded, forfeit one hundred dollars
($100) for each calendar day, or portion thereof, for each worker,
until strict compliance is effectuated. Upon the request of the
Division of Labor Standards Enforcement, these penalties shall be
withheld from progress payments then due. A contractor is not subject
to a penalty assessment pursuant to this section due to the failure
of a subcontractor to comply with this section.
(i) The body awarding the contract shall cause to be inserted in
the contract stipulations to effectuate this section.
(j) The director shall adopt rules consistent with the California
Public Records Act (Chapter 3.5 (commencing with Section 6250) of
Division 7 of Title 1 of the Government Code) and the Information
Practices Act of 1977 (Title 1.8 (commencing with Section 1798) of
Part 4 of Division 3 of the Civil Code) governing the release of
these records, including the establishment of reasonable fees to be
charged for reproducing copies of records required by this section.
SEC. 95. Section 1777.5 of the Labor Code is amended to read:
1777.5. (a) Nothing in this chapter shall prevent the employment
of properly registered apprentices upon public works.
(b) Every apprentice employed upon public works shall be paid the
prevailing rate of per diem wages for apprentices in the trade to
which he or she is registered and shall be employed only at the work
of the craft or trade to which he or she is registered.
(c) Only apprentices, as defined in Section 3077, who are in
training under apprenticeship standards that have been approved by
the Chief of the Division of Apprenticeship Standards and who are
parties to written apprentice agreements under Chapter 4 (commencing
with Section 3070) of Division 3 are eligible to be employed at the
apprentice wage rate on public works. The employment and training of
each apprentice shall be in accordance with either of the following:
(1) The apprenticeship standards and apprentice agreements under
which he or she is training.
(2) The rules and regulations of the California Apprenticeship
Council.
(d) When the contractor to whom the contract is awarded by the
state or any political subdivision, in performing any of the work
under the contract, employs workers in any apprenticeable craft or
trade, the contractor shall employ apprentices in at least the ratio
set forth in this section and may apply to any apprenticeship program
in the craft or trade that can provide apprentices to the site of
the public work for a certificate approving the contractor under the
apprenticeship standards for the employment and training of
apprentices in the area or industry affected. However, the decision
of the apprenticeship program to approve or deny a certificate shall
be subject to review by the Administrator of Apprenticeship. The
apprenticeship program or programs, upon approving the contractor,
shall arrange for the dispatch of apprentices to the contractor. A
contractor covered by an apprenticeship program's standards shall not
be required to submit any additional application in order to include
additional public works contracts under that program.
"Apprenticeable craft or trade," as used in this section, means a
craft or trade determined as an apprenticeable occupation in
accordance with rules and regulations prescribed by the California
Apprenticeship Council. As used in this section, "contractor"
includes any subcontractor under a contractor who performs any public
works not excluded by subdivision (o).
(e) Prior to commencing work on a contract for public works, every
contractor shall submit contract award information to an applicable
apprenticeship program that can supply apprentices to the site of the
public work. The information submitted shall include an estimate of
journeyman hours to be performed under the contract, the number of
apprentices proposed to be employed, and the approximate dates the
apprentices would be employed. A copy of this information shall also
be submitted to the awarding body if requested by the awarding body.
Within 60 days after concluding work on the contract, each contractor
and subcontractor shall submit to the awarding body, if requested,
and to the apprenticeship program a verified statement of the
journeyman and apprentice hours performed on the contract. The
information under this subdivision shall be public. The
apprenticeship programs shall retain this information for 12 months.
(f) The apprenticeship program that can supply apprentices to the
area of the site of the public work shall ensure equal employment and
affirmative action in apprenticeship for women and minorities.
(g) The ratio of work performed by apprentices to journeymen
employed in a particular craft or trade on the public work may be no
higher than the ratio stipulated in the apprenticeship standards
under which the apprenticeship program operates where the contractor
agrees to be bound by those standards, but, except as otherwise
provided in this section, in no case shall the ratio be less than one
hour of apprentice work for every five hours of journeyman work.
(h) This ratio of apprentice work to journeyman work shall apply
during any day or portion of a day when any journeyman is employed at
the jobsite and shall be computed on the basis of the hours worked
during the day by journeymen so employed. Any work performed by a
journeyman in excess of eight hours per day or 40 hours per week
shall not be used to calculate the ratio. The contractor shall employ
apprentices for the number of hours computed as above before the end
of the contract or, in the case of a subcontractor, before the end
of the subcontract. However, the contractor shall endeavor, to the
greatest extent possible, to employ apprentices during the same time
period that the journeymen in the same craft or trade are employed at
the jobsite. Where an hourly apprenticeship ratio is not feasible
for a particular craft or trade, the Administrator of Apprenticeship,
upon application of an apprenticeship program, may order a minimum
ratio of not less than one apprentice for each five journeymen in a
craft or trade classification.
(i) A contractor covered by this section that has agreed to be
covered by an apprenticeship program's standards upon the issuance of
the approval certificate, or that has been previously approved for
an apprenticeship program in the craft or trade, shall employ the
number of apprentices or the ratio of apprentices to journeymen
stipulated in the applicable apprenticeship standards, but in no
event less than the 1-to-5 ratio required by subdivision (g).
(j) Upon proper showing by a contractor that he or she employs
apprentices in a particular craft or trade in the state on all of his
or her contracts on an annual average of not less than one hour of
apprentice work for every five hours of labor performed by
journeymen, the Administrator of Apprenticeship may grant a
certificate exempting the contractor from the 1-to-5 hourly ratio, as
set forth in this section for that craft or trade.
(k) An apprenticeship program has the discretion to grant to a
participating contractor or contractor association a certificate,
which shall be subject to the approval of the Administrator of
Apprenticeship, exempting the contractor from the 1-to-5 ratio set
forth in this section when it finds that any one of the following
conditions is met:
(1) Unemployment for the previous three-month period in the area
exceeds an average of 15 percent.
(2) The number of apprentices in training in the area exceeds a
ratio of 1 to 5.
(3) There is a showing that the apprenticeable craft or trade is
replacing at least one-thirtieth of its journeymen annually through
apprenticeship training, either on a statewide basis or on a local
basis.
(4) Assignment of an apprentice to any work performed under a
public works contract would create a condition that would jeopardize
his or her life or the life, safety, or property of fellow employees
or the public at large, or the specific task to which the apprentice
is to be assigned is of a nature that training cannot be provided by
a journeyman.
(l) When an exemption is granted pursuant to subdivision (k) to an
organization that represents contractors in a specific trade from
the 1-to-5 ratio on a local or statewide basis, the member
contractors shall not be required to submit individual applications
for approval to local joint apprenticeship committees, if they are
already covered by the local apprenticeship standards.
(m) (1) A contractor to whom a contract is awarded, who, in
performing any of the work under the contract, employs journeymen or
apprentices in any apprenticeable craft or trade shall contribute to
the California Apprenticeship Council the same amount that the
director determines is the prevailing amount of apprenticeship
training contributions in the area of the public works site. A
contractor may take as a credit for payments to the council any
amounts paid by the contractor to an approved apprenticeship program
that can supply apprentices to the site of the public works project.
The contractor may add the amount of the contributions in computing
his or her bid for the contract.
(2) At the conclusion of the 2002-03 fiscal year and each fiscal
year thereafter, the California Apprenticeship Council shall
distribute training contributions received by the council under this
subdivision, less the expenses of the Department of Industrial
Relations for administering this subdivision, by making grants to
approved apprenticeship programs for the purpose of training
apprentices. The funds shall be distributed as follows:
(A) If there is an approved multiemployer apprenticeship program
serving the same craft or trade and geographic area for which the
training contributions were made to the council, a grant to that
program shall be made.
(B) If there are two or more approved multiemployer apprenticeship
programs serving the same craft or trade and geographic area for
which the training contributions were made to the council, the grant
shall be divided among those programs based on the number of
apprentices registered in each program.
(C) All training contributions not distributed under subparagraphs
(A) and (B) shall be used to defray the future expenses of the
Department of Industrial Relations for the administration and
enforcement of apprenticeship standards and requirements under this
code.
(3) All training contributions received pursuant to this
subdivision shall be deposited in the Apprenticeship Training
Contribution Fund, which is hereby created in the State Treasury.
Upon appropriation by the Legislature, all moneys in the
Apprenticeship Training Contribution Fund shall be used for the
purpose of carrying out this subdivision and to pay the expenses of
the Department of Industrial Relations.
(n) The body awarding the contract shall cause to be inserted in
the contract stipulations to effectuate this section. The
stipulations shall fix the responsibility of compliance with this
section for all apprenticeable occupations with the prime contractor.
(o) This section does not apply to contracts of general
contractors or to contracts of specialty contractors not bidding for
work through a general or prime contractor when the contracts of
general contractors or those specialty contractors involve less than
thirty thousand dollars ($30,000).
(p) An awarding body that implements an approved labor compliance
program in accordance with subdivision (b) of Section 1771.5 may,
with the approval of the director, assist in the enforcement of this
section under the terms and conditions prescribed by the director.
SEC. 96. Section 1777.7 of the Labor Code is amended to read:
1777.7. (a) (1) A contractor or subcontractor that is determined
by the Labor Commissioner to have knowingly violated Section 1777.5
shall forfeit as a civil penalty an amount not exceeding one hundred
dollars ($100) for each full calendar day of noncompliance. The
amount of this penalty may be reduced by the Labor Commissioner if
the amount of the penalty would be disproportionate to the severity
of the violation. A contractor or subcontractor that knowingly
commits a second or subsequent violation of Section 1777.5 within a
three-year period, where the noncompliance results in apprenticeship
training not being provided as required by this chapter, shall
forfeit as a civil penalty the sum of not more than three hundred
dollars ($300) for each full calendar day of noncompliance.
Notwithstanding Section 1727, upon receipt of a determination that a
civil penalty has been imposed by the Labor Commissioner, the
awarding body shall withhold the amount of the civil penalty from
contract progress payments then due or to become due.
(2) In lieu of the penalty provided for in this subdivision, the
Labor Commissioner may, for a first-time violation and with the
concurrence of an apprenticeship program described in subdivision
(d), order the contractor or subcontractor to provide apprentice
employment equivalent to the work hours that would have been provided
for apprentices during the period of noncompliance.
(b) In the event a contractor or subcontractor is determined by
the Labor Commissioner to have knowingly committed a serious
violation of any provision of Section 1777.5, the Labor Commissioner
may also deny to the contractor or subcontractor, and to its
responsible officers, the right to bid on or be awarded or perform
work as a subcontractor on any public works contract for a period of
up to one year for the first violation and for a period of up to
three years for a second or subsequent violation. Each period of
debarment shall run from the date the determination of noncompliance
by the Labor Commissioner becomes a final order.
(c) (1) An affected contractor, subcontractor, or responsible
officer may obtain a review of the determination of the Labor
Commissioner imposing the debarment or civil penalty by transmitting
a written request to the office of the Labor Commissioner that
appears on the determination within 60 days after service of the
determination of debarment or civil penalty. If no hearing is
requested within 60 days after service of the determination, the
determination shall become final.
(2) The provisions of Section 1742 shall apply to the review of
any determination issued pursuant to subdivision (a) or (b), subject
to the following:
(A) The provisions of Section 1742 and any regulations
implementing that section shall apply to a responsible officer who
requests review of a determination under this section to the same
extent as any affected contractor or subcontractor who requests
review.
(B) In the review of a determination under this section, the
affected contractor, subcontractor, or responsible officer shall have
the burden of providing evidence of compliance with Section 1777.5.
(3) For purposes of this section, a determination issued pursuant
to subdivision (a) or (b) includes a determination that has been
approved by the Labor Commissioner and issued by an awarding body
that has been authorized to assist the director in the enforcement of
Section 1777.5 pursuant to subdivision (p) of that section. The
Labor Commissioner shall have the right to intervene in any
proceeding for review of a determination issued by an awarding body.
If the involvement of the Labor Commissioner in a labor compliance
program enforcement action is limited to a review of the
determination and the matter is resolved without litigation by or
against the Labor Commissioner or the department, the awarding body
shall enforce any applicable penalties, as specified in this section,
and shall deposit any penalties and forfeitures collected in the
General Fund.
(4) The Labor Commissioner may certify a copy of
the final order of the Director of Industrial Relations and file it
with the clerk of the superior court in any county in which the
affected contractor or subcontractor has property or has or had a
place of business. The clerk, immediately upon the filing, shall
enter judgment for the state against the person assessed in the
amount shown on the certified order. A judgment entered pursuant to
this section shall bear the same rate of interest and shall have the
same effect as other judgments and be given the same preference
allowed by the law on other judgments rendered for claims for taxes.
The clerk shall not charge for the service performed by him or her
pursuant to this section. An awarding body that has withheld funds in
response to a determination imposing a penalty under this section
shall, upon receipt of a certified copy of a final order that is no
longer subject to judicial review, promptly transmit the withheld
funds, up to the amount of the certified order, to the Labor
Commissioner.
(d) If a subcontractor is found to have violated Section 1777.5,
the prime contractor of the project is not liable for any penalties
under subdivision (a), unless the prime contractor had knowledge of
the subcontractor's failure to comply with the provisions of Section
1777.5 or unless the prime contractor fails to comply with any of the
following requirements:
(1) The contract executed between the contractor and the
subcontractor or the performance of work on the public works project
shall include a copy of the provisions of Sections 1771, 1775, 1776,
1777.5, 1813, and 1815.
(2) The contractor shall continually monitor a subcontractor's use
of apprentices required to be employed on the public works project
pursuant to subdivision (d) of Section 1777.5, including, but not
limited to, periodic review of the certified payroll of the
subcontractor.
(3) Upon becoming aware of a failure of the subcontractor to
employ the required number of apprentices, the contractor shall take
corrective action, including, but not limited to, retaining funds due
the subcontractor for work performed on the public works project
until the failure is corrected.
(4) Prior to making the final payment to the subcontractor for
work performed on the public works project, the contractor shall
obtain a declaration signed under penalty of perjury from the
subcontractor that the subcontractor has employed the required number
of apprentices on the public works project.
(e) Any funds withheld by the awarding body pursuant to this
section shall be deposited in the General Fund if the awarding body
is a state entity, or in the equivalent fund of an awarding body if
the awarding body is an entity other than the state.
(f) (1) The Labor Commissioner shall consider, in setting the
amount of a monetary penalty, in determining whether a violation is
serious, and in determining whether and for how long a party should
be debarred for violating this section, all of the following
circumstances:
(A) Whether the violation was intentional.
(B) Whether the party has committed other violations of Section
1777.5.
(C) Whether, upon notice of the violation, the party took steps to
voluntarily remedy the violation.
(D) Whether, and to what extent, the violation resulted in lost
training opportunities for apprentices.
(E) Whether, and to what extent, the violation otherwise harmed
apprentices or apprenticeship programs.
(2) If a party seeks review of a decision by the Labor
Commissioner to impose a monetary penalty or period of debarment, the
Director of Industrial Relations shall decide de novo the
appropriate penalty, by considering the same factors set forth above.
(g) The interpretation of Section 1777.5 and the substantive
requirements of this section, including the limitations period for
issuing a determination under subdivision (a) or (b), shall be in
accordance with the regulations of the California Apprenticeship
Council. The Director of Industrial Relations may adopt regulations
to establish guidelines for the imposition of monetary penalties and
periods of debarment and may designate precedential decisions under
Section 11425.60 of the Government Code.
SEC. 97. Section 2012 of the Labor Code is amended to read:
2012. The department shall keep constantly advised of industrial
conditions throughout the State as affecting the employment of labor.
Whenever the Governor represents or the division has reason to
believe, that a period of extraordinary unemployment caused by
industrial depression exists in the state, it shall immediately hold
an inquiry into the facts relating thereto, and report to the
Governor whether, in fact, such condition exists.
SEC. 98. Section 2013 of the Labor Code is amended to read:
2013. If the department reports to the Governor that a condition
of extraordinary unemployment caused by industrial depression does
exist within this state, the Department of Finance may apportion the
available Emergency Fund among the several state agencies for the
extension of the public works of the state under the charge or
direction thereof, in the manner which the Department of Finance
believes to be best adapted to advance the public interest by
providing the maximum of public employment consistent with the most
useful, permanent, and economic extension of public works.
SEC. 99. Section 2686 of the Labor Code is amended to read:
2686. Upon the written request of any manufacturer or contractor,
the California State Mediation and Conciliation Service shall notify
the other party to the dispute of the request for arbitration and
shall, within seven days of receipt of the request, appoint an
arbitration panel to hear and render a decision regarding the
dispute. The panel shall be constituted as follows:
(a) A management level representative from a manufacturer in the
general geographic area in which the dispute arises, provided that
insofar as possible the manufacturer shall not be a direct competitor
of the manufacturer involved in the dispute to be arbitrated. This
panel member also shall be selected in accordance with the terms of
the written contract.
(b) A representative from the contractors' association whose
membership encompasses the general geographic area in which the
dispute arises. This panel member also shall be selected in
accordance with the terms of the written contract.
(c) A third party to be chosen and agreed upon by the first two
parties to the dispute from a list of arbitrators provided by the
American Arbitration Association. This party shall act as chairperson
of the panel.
SEC. 100. Section 3072 of the Labor Code is amended to read:
3072. The Director of Industrial Relations is ex officio the
Administrator of Apprenticeship and is authorized to appoint
assistants as necessary to effectuate the purposes of this chapter.
SEC. 101. Section 3073 of the Labor Code is amended to read:
3073. The Chief of the Division of Apprenticeship Standards, or
his or her duly authorized representative, shall administer the
provisions of this chapter; act as secretary of the California
Apprenticeship Council; shall foster, promote, and develop the
welfare of the apprentice and industry, improve the working
conditions of apprentices, and advance their opportunities for
profitable employment; shall ensure that selection procedures are
impartially administered to all applicants for apprenticeship; shall
gather and promptly disseminate information through apprenticeship
and training information centers; shall maintain on public file in
all high schools and field offices of the Employment Development
Department the name and location of the local area apprenticeship
committees, the filing date, and minimum requirements for application
of all registered apprenticeship programs; shall cooperate in the
development of apprenticeship programs and may advise with them on
problems affecting apprenticeship standards; shall audit all
selection and disciplinary proceedings of apprentices or prospective
apprentices; may enter joint agreements with the Employment
Development Department outreach education and employment programs,
and educational institutions on the operation of apprenticeship
information centers, including positive efforts to achieve
information on equal opportunity and affirmative action programs for
women and minorities; and shall supervise and recommend
apprenticeship agreements as to these standards and perform such
other duties associated therewith as the California Apprenticeship
Council may recommend. The chief shall coordinate the exchange, by
the California Apprenticeship Council, the apprenticeship program
sponsors, the Fair Employment and Housing Council, community
organizations, and other interested persons, of information on
available minorities and women who may serve as apprentices.
SEC. 102. Section 3099 of the Labor Code is repealed.
SEC. 103. Section 3099.2 of the Labor Code is repealed.
SEC. 104. Section 3099.3 of the Labor Code is repealed.
SEC. 105. Section 3099.4 of the Labor Code is repealed.
SEC. 106. Section 3099.5 of the Labor Code is repealed.
SEC. 107. Section 6332 of the Labor Code is amended to read:
6332. (a) For purposes of this section, the following terms have
the following meanings:
(1) "Community health care worker" means an individual who
provides health care or health care-related services to clients in
home settings.
(2) "Employer" means a person or entity that employs a community
health care worker. "Employer" does not include an individual who is
a recipient of home-based services and who is responsible for hiring
his or her own community health care worker.
(3) "Violence" means a physical assault or a threat of a physical
assault.
(b) Every employer shall keep a record of any violence committed
against a community health care worker and shall file a copy of that
record with the department in the form and detail and within the time
limits prescribed by the department.
SEC. 108. Section 6401.7 of the Labor Code is amended to read:
6401.7. (a) Every employer shall establish, implement, and
maintain an effective injury prevention program. The program shall be
written, except as provided in subdivision (e), and shall include,
but not be limited to, the following elements:
(1) Identification of the person or persons responsible for
implementing the program.
(2) The employer's system for identifying and evaluating workplace
hazards, including scheduled periodic inspections to identify unsafe
conditions and work practices.
(3) The employer's methods and procedures for correcting unsafe or
unhealthy conditions and work practices in a timely manner.
(4) An occupational health and safety training program designed to
instruct employees in general safe and healthy work practices and to
provide specific instruction with respect to hazards specific to
each employee's job assignment.
(5) The employer's system for communicating with employees on
occupational health and safety matters, including provisions designed
to encourage employees to inform the employer of hazards at the
worksite without fear of reprisal.
(6) The employer's system for ensuring that employees comply with
safe and healthy work practices, which may include disciplinary
action.
(b) The employer shall correct unsafe and unhealthy conditions and
work practices in a timely manner based on the severity of the
hazard.
(c) The employer shall train all employees when the training
program is first established, all new employees, and all employees
given a new job assignment, and shall train employees whenever new
substances, processes, procedures, or equipment are introduced to the
workplace and represent a new hazard, and whenever the employer
receives notification of a new or previously unrecognized hazard. An
employer in the construction industry who is required to be licensed
under Chapter 9 (commencing with Section 7000) of Division 3 of the
Business and Professions Code may use employee training provided to
the employer's employees under a construction industry occupational
safety and health training program approved by the division to comply
with the requirements of subdivision (a) relating to employee
training, and shall only be required to provide training on hazards
specific to an employee's job duties.
(d) The employer shall keep appropriate records of steps taken to
implement and maintain the program. An employer in the construction
industry who is required to be licensed under Chapter 9 (commencing
with Section 7000) of Division 3 of the Business and Professions Code
may use records relating to employee training provided to the
employer in connection with an occupational safety and health
training program approved by the division to comply with this
subdivision, and shall only be required to keep records of those
steps taken to implement and maintain the program with respect to
hazards specific to an employee's job duties.
(e) (1) The standards board shall adopt a standard setting forth
the employer's duties under this section, on or before January 1,
1991, consistent with the requirements specified in subdivisions (a),
(b), (c), and (d). The standards board, in adopting the standard,
shall include substantial compliance criteria for use in evaluating
an employer's injury prevention program. The board may adopt less
stringent criteria for employers with few employees and for employers
in industries with insignificant occupational safety or health
hazards.
(2) Notwithstanding subdivision (a), for employers with fewer than
20 employees who are in industries that are not on a designated list
of high hazard industries and who have a workers' compensation
experience modification rate of 1.1 or less, and for any employers
with fewer than 20 employees who are in industries that are on a
designated list of low hazard industries, the board shall adopt a
standard setting forth the employer's duties under this section
consistent with the requirements specified in subdivisions (a), (b),
and (c), except that the standard shall only require written
documentation to the extent of documenting the person or persons
responsible for implementing the program pursuant to paragraph (1) of
subdivision (a), keeping a record of periodic inspections pursuant
to paragraph (2) of subdivision (a), and keeping a record of employee
training pursuant to paragraph (4) of subdivision (a). To any extent
beyond the specifications of this subdivision, the standard shall
not require the employer to keep the records specified in subdivision
(d).
(3) (A) The division shall establish a list of high hazard
industries using the methods prescribed in Section 6314.1 for
identifying and targeting employers in high hazard industries. For
purposes of this subdivision, the "designated list of high hazard
industries" shall be the list established pursuant to this paragraph.
(B) For the purpose of implementing this subdivision, the
Department of Industrial Relations shall periodically review, and as
necessary revise, the list.
(4) For the purpose of implementing this subdivision, the
Department of Industrial Relations shall also establish a list of low
hazard industries, and shall periodically review, and as necessary
revise, that list.
(f) The standard adopted pursuant to subdivision (e) shall
specifically permit employer and employee occupational safety and
health committees to be included in the employer's injury prevention
program. The board shall establish criteria for use in evaluating
employer and employee occupational safety and health committees. The
criteria shall include minimum duties, including the following:
(1) Review of the employer's periodic, scheduled worksite
inspections; investigation of causes of incidents resulting in
injury, illness, or exposure to hazardous substances; and
investigation of any alleged hazardous condition brought to the
attention of any committee member. When determined necessary by the
committee, the committee may conduct its own inspections and
investigations.
(2) (A) Upon request from the division, verification of abatement
action taken by the employer as specified in division citations.
(B) If an employer's occupational safety and health committee
meets the criteria established by the board, it shall be presumed to
be in substantial compliance with paragraph (5) of subdivision (a).
(g) The division shall adopt regulations specifying the procedures
for selecting employee representatives for employer-employee
occupational health and safety committees when these procedures are
not specified in an applicable collective bargaining agreement. No
employee or employee organization shall be held liable for any act or
omission in connection with a health and safety committee.
(h) The employer's injury prevention program, as required by this
section, shall cover all of the employer's employees and all other
workers who the employer controls or directs and directly supervises
on the job to the extent these workers are exposed to worksite and
job assignment specific hazards. Nothing in this subdivision shall
affect the obligations of a contractor or other employer that
controls or directs and directly supervises its own employees on the
job.
(i) When a contractor supplies its employee to a state agency
employer on a temporary basis, the state agency employer may assess a
fee upon the contractor to reimburse the state agency for the
additional costs, if any, of including the contract employee within
the state agency's injury prevention program.
(j) (1) The division shall prepare a Model Injury and Illness
Prevention Program for Non-High-Hazard Employment, and shall make
copies of the model program prepared pursuant to this subdivision
available to employers, upon request, for posting in the workplace.
An employer who adopts and implements the model program prepared by
the division pursuant to this paragraph in good faith shall not be
assessed a civil penalty for the first citation for a violation of
this section issued after the employer's adoption and implementation
of the model program.
(2) For purposes of this subdivision, the division shall establish
a list of non-high-hazard industries in California. These
industries, identified by their Standard Industrial Classification
Codes, as published by the United States Office of Management and
Budget in the Manual of Standard Industrial Classification Codes,
1987 Edition, are apparel and accessory stores (Code 56), eating and
drinking places (Code 58), miscellaneous retail (Code 59), finance,
insurance, and real estate (Codes 60-67), personal services (Code
72), business services (Code 73), motion pictures (Code 78) except
motion picture production and allied services (Code 781), legal
services (Code 81), educational services (Code 82), social services
(Code 83), museums, art galleries, and botanical and zoological
gardens (Code 84), membership organizations (Code 86), engineering,
accounting, research, management, and related services (Code 87),
private households (Code 88), and miscellaneous services (Code 89).
To further identify industries that may be included on the list, the
division shall also consider data from a rating organization, as
defined in Section 11750.1 of the Insurance Code, and all other
appropriate information. The list shall be established by June 30,
1994, and shall be reviewed, and as necessary revised, biennially.
(3) The division shall prepare a Model Injury and Illness
Prevention Program for Employers in Industries with Intermittent
Employment, and shall determine which industries have historically
utilized seasonal or intermittent employees. An employer in an
industry determined by the division to have historically utilized
seasonal or intermittent employees shall be deemed to have complied
with the requirements of subdivision (a) with respect to a written
injury prevention program if the employer adopts the model program
prepared by the division pursuant to this paragraph and complies with
any instructions relating thereto.
(k) With respect to any county, city, city and county, or
district, or any public or quasi-public corporation or public agency
therein, including any public entity, other than a state agency, that
is a member of, or created by, a joint powers agreement, subdivision
(d) shall not apply.
(l) Every workers' compensation insurer shall conduct a review,
including a written report as specified below, of the injury and
illness prevention program (IIPP) of each of its insureds with an
experience modification of 2.0 or greater within six months of the
commencement of the initial insurance policy term. The review shall
determine whether the insured has implemented all of the required
components of the IIPP, and evaluate their effectiveness. The
training component of the IIPP shall be evaluated to determine
whether training is provided to line employees, supervisors, and
upper level management, and effectively imparts the information and
skills each of these groups needs to ensure that all of the insured's
specific health and safety issues are fully addressed by the
insured. The reviewer shall prepare a detailed written report
specifying the findings of the review and all recommended changes
deemed necessary to make the IIPP effective. The reviewer shall be or
work under the direction of a licensed California professional
engineer, certified safety professional, or a certified industrial
hygienist.
SEC. 109. Section 6409 of the Labor Code is amended to read:
6409. (a) Every physician as defined in Section 3209.3 who
attends any injured employee shall file a complete report of every
occupational injury or occupational illness to the employee with the
employer, or if insured, with the employer's insurer, on forms
prescribed for that purpose by the Department of Industrial
Relations. A portion of the form shall be completed by the injured
employee, if he or she is able to do so, describing how the injury or
illness occurred. The form shall be filed within five days of the
initial examination. Inability or failure of an injured employee to
complete his or her portion of the form shall not affect the employee'
s rights under this code, and shall not excuse any delay in filing
the form. The employer or insurer, as the case may be, shall file the
physician's report with the department within five days of receipt.
Each report of occupational injury or occupational illness shall
indicate the social security number of the injured employee. If the
treatment is for pesticide poisoning or a condition suspected to be
pesticide poisoning, the physician shall also file a complete report,
which need not include the affidavit required pursuant to this
section, with the department, and within 24 hours of the initial
examination shall file a complete report with the local health
officer by facsimile transmission or other means. If the treatment is
for pesticide poisoning or a condition suspected to be pesticide
poisoning, the physician shall not be compensated for the initial
diagnosis and treatment unless the report is filed with the employer,
or if insured, with the employer's insurer, and includes or is
accompanied by a signed affidavit which certifies that a copy of the
report was filed with the local health officer pursuant to this
section.
(b) As used in this section, "occupational illness" means any
abnormal condition or disorder caused by exposure to environmental
factors associated with employment, including acute and chronic
illnesses or diseases which may be caused by inhalation, absorption,
ingestion, or direct contact.
SEC. 110. Section 6409.1 of the Labor Code, as amended by Section
6 of Chapter 885 of the Statutes of 2002, is amended to read:
6409.1. (a) Every employer shall file a complete report of every
occupational injury or occupational illness, as defined in
subdivision (b) of Section 6409, to each employee which results in
lost time beyond the date of the injury or illness, or which requires
medical treatment beyond first aid, with the Department of
Industrial Relations or, if an insured employer, with the insurer, on
a form prescribed for that purpose by the department. A report shall
be filed concerning each injury and illness which has, or is alleged
to have, arisen out of and in the course of employment, within five
days after the employer obtains knowledge of the injury or illness.
Each report of occupational injury or occupational illness shall
indicate the social security number of the injured employee. In the
case of an insured employer, the insurer shall file with the division
immediately upon receipt, a copy of the employer's report, which has
been received from the insured employer. In the event an employer
has filed a report of injury or illness pursuant to this subdivision
and the employee subsequently dies as a result of the reported injury
or illness, the employer shall file an amended report indicating the
death with the department or, if an insured employer, with the
insurer, within five days after the employer is notified or learns of
the death. A copy of any amended reports received by the insurer
shall be filed with the division immediately upon receipt.
(b) In every case involving a serious injury or illness, or death,
in addition to the report required by subdivision (a), a report
shall be made immediately by the employer to the Division of
Occupational Safety and Health by telephone or telegraph. An employer
who violates this subdivision may be assessed a civil penalty of not
less than five thousand dollars ($5,000). Nothing in this
subdivision shall be construed to increase the maximum civil penalty,
pursuant to Sections 6427 to 6430, inclusive, that may be imposed
for a violation of this section.
SEC. 111. Section 6410 of the Labor Code is amended to read:
6410. (a) The reports required by subdivision (a) of Section 6409
and Section 6413 shall be made in the form and detail and within the
time limits prescribed by reasonable rules and regulations adopted
by the Department of Industrial Relations in accordance with Chapter
3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title
2 of the Government Code.
(b) Nothing in this chapter requiring recordkeeping and reporting
by employers shall relieve the employer of maintaining records and
making reports to the assistant secretary, United States Department
of Labor, as required under the federal Occupational Safety and
Health Act of 1970 (P.L. 91-596). The Division of Occupational Safety
and Health shall prescribe and provide the forms necessary for
maintenance of the required records, and shall enforce by citation
and penalty assessment any
violation of the recordkeeping requirements of this chapter.
(c) All state and local government employers shall maintain
records and make reports in the same manner and to the same extent as
required of other employers by this section.
SEC. 112. Section 6411 of the Labor Code is amended to read:
6411. Every employer or insurer receiving forms with directions
from the Department of Industrial Relations to complete them shall
cause them to be properly filled out so as to answer fully and
correctly each question propounded therein. In case of inability to
answer any questions, a good and sufficient reason shall be given for
such failure.
SEC. 113. Section 6413 of the Labor Code is amended to read:
6413. (a) The Department of Corrections and Rehabilitation, and
every physician or surgeon who attends any injured state prisoner,
shall file with the Division of Occupational Safety and Health a
complete report, on forms prescribed under Sections 6409 and 6409.1,
of every injury to each state prisoner, resulting from any labor
performed by the prisoner unless disability resulting from such
injury does not last through the day or does not require medical
service other than ordinary first aid treatment.
(b) Where the injury results in death a report, in addition to the
report required by subdivision (a), shall forthwith be made by the
Department of Corrections and Rehabilitation to the Division of
Occupational Safety and Health by telephone or telegraph.
(c) Except as provided in Section 6304.2, nothing in this section
or in this code shall be deemed to make a prisoner an employee, for
any purpose, of the Department of Corrections and Rehabilitation.
(d) Notwithstanding subdivision (a), no physician or surgeon who
attends any injured state prisoner outside of a Department of
Corrections and Rehabilitation institution shall be required to file
the report required by subdivision (a), but the Department of
Corrections and Rehabilitation shall file the report.
SEC. 114. Section 6413.2 of the Labor Code is amended to read:
6413.2. (a) With regard to any report required by Section 6413,
the Division of Occupational Safety and Health may make
recommendations to the Department of Corrections and Rehabilitation
of ways in which the department might improve the safety of the
working conditions and work areas of state prisoners, and other
safety matters. The Department of Corrections and Rehabilitation
shall not be required to comply with these recommendations.
(b) With regard to any report required by Section 6413, the
Division of Occupational Safety and Health may, in any case in which
the Department of Corrections and Rehabilitation has not complied
with recommendations made by the division pursuant to subdivision
(b), or in any other case in which the division deems the safety of
any state prisoner shall require it, conduct hearings and, after
these hearings, adopt special orders, rules, or regulations or
otherwise proceed as authorized in Chapter 1 (commencing with Section
6300) of this part as it deems necessary. The Department of
Corrections and Rehabilitation shall comply with any order, rule, or
regulation so adopted by the Division of Occupational Safety and
Health.
SEC. 115. Section 422.92 of the Penal Code is amended to read:
422.92. (a) Every state and local law enforcement agency in this
state shall make available a brochure on hate crimes to victims of
these crimes and the public.
(b) The Department of Fair Employment and Housing shall provide
existing brochures, making revisions as needed, to local law
enforcement agencies upon request for reproduction and distribution
to victims of hate crimes and other interested parties. In carrying
out these responsibilities, the department shall consult the Fair
Employment and Housing Council, the Department of Justice and the
Victim Compensation and Government Claims Board.
SEC. 116. Section 13519 of the Penal Code is amended to read:
13519. (a) The commission shall implement by January 1, 1986, a
course or courses of instruction for the training of law enforcement
officers in California in the handling of domestic violence
complaints and also shall develop guidelines for law enforcement
response to domestic violence. The course or courses of instruction
and the guidelines shall stress enforcement of criminal laws in
domestic violence situations, availability of civil remedies and
community resources, and protection of the victim. Where appropriate,
the training presenters shall include domestic violence experts with
expertise in the delivery of direct services to victims of domestic
violence, including utilizing the staff of shelters for battered
women in the presentation of training.
(b) As used in this section, "law enforcement officer" means any
officer or employee of a local police department or sheriff's office,
any peace officer of the Department of Parks and Recreation, as
defined in subdivision (f) of Section 830.2, any peace officer of the
University of California Police Department, as defined in
subdivision (b) of Section 830.2, any peace officer of the California
State University Police Departments, as defined in subdivision (c)
of Section 830.2, a peace officer, as defined in subdivision (d) of
Section 830.31, or a peace officer as defined in subdivisions (a) and
(b) of Section 830.32.
(c) The course of basic training for law enforcement officers
shall, no later than January 1, 1986, include adequate instruction in
the procedures and techniques described below:
(1) The provisions set forth in Title 5 (commencing with Section
13700) relating to response, enforcement of court orders, and data
collection.
(2) The legal duties imposed on peace officers to make arrests and
offer protection and assistance including guidelines for making
felony and misdemeanor arrests.
(3) Techniques for handling incidents of domestic violence that
minimize the likelihood of injury to the officer and that promote the
safety of the victim.
(4) The nature and extent of domestic violence.
(5) The signs of domestic violence.
(6) The legal rights of, and remedies available to, victims of
domestic violence.
(7) The use of an arrest by a private person in a domestic
violence situation.
(8) Documentation, report writing, and evidence collection.
(9) Domestic violence diversion as provided in Chapter 2.6
(commencing with Section 1000.6) of Title 6 of Part 2.
(10) Tenancy issues and domestic violence.
(11) The impact on children of law enforcement intervention in
domestic violence.
(12) The services and facilities available to victims and
batterers.
(13) The use and applications of this code in domestic violence
situations.
(14) Verification and enforcement of temporary restraining orders
when (A) the suspect is present and (B) the suspect has fled.
(15) Verification and enforcement of stay-away orders.
(16) Cite and release policies.
(17) Emergency assistance to victims and how to assist victims in
pursuing criminal justice options.
(d) The guidelines developed by the commission shall also
incorporate the foregoing factors.
(e) (1) All law enforcement officers who have received their basic
training before January 1, 1986, shall participate in supplementary
training on domestic violence subjects, as prescribed and certified
by the commission.
(2) Except as provided in paragraph (3), the training specified in
paragraph (1) shall be completed no later than January 1, 1989.
(3) (A) The training for peace officers of the Department of Parks
and Recreation, as defined in subdivision (g) of Section 830.2,
shall be completed no later than January 1, 1992.
(B) The training for peace officers of the University of
California Police Department and the California State University
Police Departments, as defined in Section 830.2, shall be completed
no later than January 1, 1993.
(C) The training for peace officers employed by a housing
authority, as defined in subdivision (d) of Section 830.31, shall be
completed no later than January 1, 1995.
(4) Local law enforcement agencies are encouraged to include, as a
part of their advanced officer training program, periodic updates
and training on domestic violence. The commission shall assist where
possible.
(f) (1) The course of instruction, the learning and performance
objectives, the standards for the training, and the guidelines shall
be developed by the commission in consultation with appropriate
groups and individuals having an interest and expertise in the field
of domestic violence. The groups and individuals shall include, but
shall not be limited to, the following: one representative each from
the California Peace Officers' Association, the Peace Officers'
Research Association of California, the State Bar of California, the
California Women Lawyers' Association, and the State Commission on
the Status of Women and Girls; two representatives from the
commission; two representatives from the California Partnership to
End Domestic Violence; two peace officers, recommended by the
commission, who are experienced in the provision of domestic violence
training; and two domestic violence experts, recommended by the
California Partnership to End Domestic Violence, who are experienced
in the provision of direct services to victims of domestic violence
and at least one representative of service providers serving the
lesbian, gay, bisexual, and transgender community in connection with
domestic violence. At least one of the persons selected shall be a
former victim of domestic violence.
(2) The commission, in consultation with these groups and
individuals, shall review existing training programs to determine in
what ways domestic violence training might be included as a part of
ongoing programs.
(g) Each law enforcement officer below the rank of supervisor who
is assigned to patrol duties and would normally respond to domestic
violence calls or incidents of domestic violence shall complete,
every two years, an updated course of instruction on domestic
violence that is developed according to the standards and guidelines
developed pursuant to subdivision (d). The instruction required
pursuant to this subdivision shall be funded from existing resources
available for the training required pursuant to this section. It is
the intent of the Legislature not to increase the annual training
costs of local government entities.
SEC. 117. Section 13776 of the Penal Code is amended to read:
13776. The following definitions apply for the purposes of this
title:
(a) "Anti-reproductive-rights crime" means a crime committed
partly or wholly because the victim is a reproductive health services
client, provider, or assistant, or a crime that is partly or wholly
intended to intimidate the victim, any other person or entity, or any
class of persons or entities from becoming or remaining a
reproductive health services client, provider, or assistant.
"Anti-reproductive-rights crime" includes, but is not limited to, a
violation of subdivision (a) or (c) of Section 423.2.
(b) "Subject matter experts" includes, but is not limited to, the
Commission on the Status of Women and Girls, law enforcement agencies
experienced with anti-reproductive-rights crimes, including the
Attorney General and the Department of Justice, and organizations
such as the American Civil Liberties Union, the American College of
Obstetricians and Gynecologists, the California Council of Churches,
the California Medical Association, the Feminist Majority Foundation,
NARAL Pro-Choice California, the National Abortion Federation, the
California National Organization for Women, the Planned Parenthood
Federation of America, Planned Parenthood Affiliates of California,
and the Women's Health Specialists clinic that represent reproductive
health services clients, providers, and assistants.
(c) "Crime of violence," "nonviolent," "reproductive health
services;" "reproductive health services client, provider, or
assistant;" and "reproductive health services facility" each has the
same meaning as set forth in Section 423.1.
SEC. 118. Section 13777.2 of the Penal Code is amended to read:
13777.2. (a) The Commission on the Status of Women and Girls
shall convene an advisory committee consisting of one person
appointed by the Attorney General and one person appointed by each of
the organizations named in subdivision (b) of Section 13776 that
chooses to appoint a member, and any other subject matter experts the
commission may appoint. The advisory committee shall elect its chair
and any other officers of its choice.
(b) The advisory committee shall make two reports, the first by
December 31, 2007, and the second by December 31, 2011, to the
Committees on Health, Judiciary, and Public Safety of the Senate and
Assembly, to the Attorney General, the Commission on Peace Officer
Standards and Training, and the Commission on the Status of Women and
Girls. The reports shall evaluate the implementation of Chapter 899
of the Statutes of 2001 and any subsequent amendments made to this
title and the effectiveness of the plan developed by the Attorney
General pursuant to paragraph (4) of subdivision (a) of Section
13777. The reports shall also include recommendations concerning
whether the Legislature should extend or repeal the sunset dates in
Section 13779, recommendations regarding any other legislation, and
recommendations for any other actions by the Attorney General,
Commission on Peace Officer Standards and Training, or the Commission
on the Status of Women and Girls.
(c) The Commission on the Status of Women and Girls shall transmit
the reports of the advisory committee to the appropriate committees
of the Legislature, including, but not limited to, the Committees on
Health, Judiciary, and Public Safety in the Senate and Assembly, and
make the reports available to the public, including by posting them
on the Commission on the Status of Women and Girls' Internet Web
site. To avoid production and distribution costs, the Commission on
the Status of Women and Girls may submit the reports electronically
or as part of any other report that the Commission on the Status of
Women and Girls submits to the Legislature.
(d) The Commission on Peace Officer Standards and Training shall
make the telecourse that it produced in 2002 pursuant to subdivision
(a) of Section 13778 available to the advisory committee. However,
before providing the telecourse to the advisory committee or
otherwise making it public, the commission shall remove the name and
face of any person who appears in the telecourse as originally
produced who informs the commission in writing that he or she has a
reasonable apprehension that making the telecourse public without the
removal will endanger his or her life or physical safety.
(e) Nothing in this section requires any state agency to pay for
compensation, travel, or other expenses of any advisory committee
member.
SEC. 119. Section 13836.1 of the Penal Code is amended to read:
13836.1. The committee shall consist of 11 members. Five shall be
appointed by the secretary, and shall include three district
attorneys or assistant or deputy district attorneys, one
representative of a city police department or a sheriff or a
representative of a sheriff's department, and one public defender or
assistant or deputy public defender of a county. Six shall be public
members appointed by the Commission on the Status of Women and Girls,
and shall include one representative of a rape crisis center, and
one medical professional experienced in dealing with sexual assault
trauma victims. The committee members shall represent the points of
view of diverse ethnic and language groups.
Members of the committee shall receive no compensation for their
services but shall be reimbursed for their expenses actually and
necessarily incurred by them in the performance of their duties.
Staff support for the committee shall be provided by the agency.
SEC. 120. Section 25051 of the Public Utilities Code is amended to
read:
25051. (a) If a majority of the employees employed by a transit
district in a unit appropriate for collective bargaining indicate a
desire to be represented by a labor organization, the transit board,
after determining pursuant to Section 25052 that the labor
organization represents the employees in the appropriate unit, shall
bargain with the accredited representative of those employees. Both
parties shall bargain in good faith and make all reasonable efforts
to reach agreement on the terms of a written contract governing
wages, salaries, hours, working conditions, and grievance procedures.
(1) If a dispute arises over the terms of a written contract
governing wages, salaries, hours, or working conditions that is not
resolved by negotiations conducted in good faith between the transit
board and the representatives of the employees, then upon the
agreement of both parties, the transit board and the representatives
of the employees may submit the dispute to an arbitration board. The
decision of a majority of the arbitration board shall be final.
(2) (A) The arbitration board shall be composed of two
representatives of the transit board, two representatives of the
labor organization, and a fifth member to be agreed upon by the
representatives of the transit board and labor organization.
(B) If the representatives of the transit board and labor
organization are unable to agree on the fifth member, then the names
of five persons experienced in labor arbitration shall be obtained
from the California State Mediation and Conciliation Service. The
labor organization and the transit district shall, alternately,
strike a name from the list supplied by the California State
Mediation and Conciliation Service. The labor organization and the
transit district shall determine by lot who shall first strike a name
from the list. After the labor organization and the transit district
have stricken four names, the name remaining shall be designated as
the arbitrator.
(C) The transit board and the labor organization shall each pay
one-half of the cost of the impartial arbitrator.
(b) A contract or agreement shall not be made with any labor
organization, association, group, or individual that denies
membership on any basis listed in subdivision (a) of Section 12940 of
the Government Code, as those bases are defined in Sections 12926
and 12926.1 of the Government Code. However, the organization may
preclude from membership any individual who advocates the overthrow
of the government by force or violence.
(c) The district shall not discriminate with regard to employment
against any person on any basis listed in subdivision (a) of Section
12940 of the Government Code, as those bases are defined in Sections
12926 and 12926.1 of the Government Code, except as otherwise
provided in Section 12940 of the Government Code.
SEC. 121. Section 28850 of the Public Utilities Code is amended to
read:
28850. (a) If a majority of the employees employed by a district
in a unit appropriate for collective bargaining indicate a desire to
be represented by a labor organization, then the board, after
determining pursuant to Section 28851 that the labor organization
represents the employees in the appropriate unit, shall bargain with
the accredited representative of those employees. Both parties shall
bargain in good faith and make all reasonable efforts to reach
agreement on the terms of a written contract governing wages,
salaries, hours, working conditions, and grievance procedures.
(1) If a dispute arises over the terms of a written contract
governing wages, salaries, hours, or working conditions that is not
resolved by negotiations conducted in good faith between the board
and the representatives of the employees, then upon the agreement of
both parties, the board and the representatives of the employees may
submit the dispute to an arbitration board. The decision of a
majority of the arbitration board shall be final.
(2) (A) The arbitration board shall be composed of two
representatives of the district, two representatives of the labor
organization, and a fifth member to be agreed upon by the
representatives of the district and the labor organization.
(B) If the representatives of the district and the labor
organization are unable to agree on the fifth member, then the names
of five persons experienced in labor arbitration shall be obtained
from the California State Mediation and Conciliation Service. The
labor organization and the district shall, alternately, strike a name
from the list supplied by the California State Mediation and
Conciliation Service. The labor organization and the district shall
determine by lot who shall first strike a name from the list. After
the labor organization and the district have stricken four names, the
name remaining shall be designated as the arbitrator.
(C) The transit board and the labor organization shall each pay
one-half of the cost of the impartial arbitrator.
(b) A contract or agreement shall not be made with any labor
organization, association, group, or individual that denies
membership on any basis listed in subdivision (a) of Section 12940 of
the Government Code, as those bases are defined in Sections 12926
and 12926.1 of the Government Code. However, the organization may
preclude from membership any individual who advocates the overthrow
of the government by force or violence.
(c) The district shall not discriminate with regard to employment
against any person on any basis listed in subdivision (a) of Section
12940 of the Government Code, as those bases are defined in Sections
12926 and 12926.1 of the Government Code, except as otherwise
provided in Section 12940 of the Government Code.
SEC. 122. Section 30750 of the Public Utilities Code is amended to
read:
30750. (a) Subject to subdivision (b), if a majority of the
employees employed by a district in a unit appropriate for collective
bargaining indicate a desire to be represented by a labor
organization, then the board, after determining pursuant to Section
30751 that the labor organization represents the employees in the
appropriate unit, shall bargain with the accredited representative of
those employees. Both parties shall bargain in good faith and make
all reasonable efforts to reach agreement on the terms of a written
contract governing wages, hours, and working conditions. In the
absence of the expression of the desire to be represented by a labor
organization, employees are subject to any personnel system
established pursuant to Section 30257.
(b) Upon the acquisition by the district of the property of the
Los Angeles Metropolitan Transit Authority pursuant to Chapter 8
(commencing with Section 31000), the district shall assume and
observe all existing labor contracts and shall recognize the labor
organization certified to represent the employees in each existing
bargaining unit as the sole representative of the employees in each
of those bargaining units. Any certification of a labor organization
previously made by the California State Mediation and Conciliation
Service under the provisions of the Los Angeles Metropolitan Transit
Authority Act of 1957 to represent or act for the employees in any
collective bargaining unit shall remain in full force and effect and
shall be binding upon the district. Those certifications and any
certifications made under this subdivision shall not be subject to
challenge on the grounds that a new substantial question of
representation within the collective bargaining unit exists until the
lapse of one year from the date of certification or the expiration
of any collective bargaining agreement, whichever is later; provided,
that no collective bargaining agreement shall be construed to be a
bar to representation proceedings for a period of more than two
years.
(c) The obligation of the district to bargain in good faith with a
duly designated or certified labor organization and to execute a
written collective bargaining agreement with that labor organization
covering the wages, hours, and working conditions of the employees
represented by that labor organization in an appropriate unit, and to
comply with the terms of that collective bargaining agreement, shall
not be limited or restricted by any other provision of law. The
obligation of the district to bargain collectively shall extend to
all subjects of collective bargaining, including, but not limited to,
retroactive pay increases. Notwithstanding any other provision of
law, the district shall make deductions from the wages and salaries
of its employees, upon receipt of authorization to make those
deductions, for the payment of union dues, fees, or assessments, for
the payment of contributions pursuant to any health and welfare plan
or pension plan, or for any other purpose for which deductions may be
authorized by employees where the deductions are pursuant to a
collective bargaining agreement with a duly designated or certified
labor organization.
(d) (1) If a dispute arises over wages, hours, or working
conditions that is not resolved by negotiations conducted in good
faith between the board and the representatives of the employees,
then upon the agreement of both parties, the board and the
representative of the employees may submit the dispute to an
arbitration board. The decision of a majority of the arbitration
board shall be final and binding.
(2) (A) The arbitration board shall be composed of two
representatives of the district, two representatives of the labor
organization, and a fifth member to be agreed upon by the
representatives of the district and labor organization.
(B) If the representatives of the district and labor organization
are unable to agree on the fifth member, then the names of five
persons experienced in labor arbitration shall be obtained from the
California State Mediation and Conciliation Service. The labor
organization and the district shall, alternately, strike a name from
the list supplied by the California State Mediation and Conciliation
Service. The labor organization and the district shall determine by
lot who shall first strike a name from the list. After the labor
organization and the district have stricken four names, the name
remaining shall be designated as the arbitrator. The decision of a
majority of the arbitration board shall be final and binding upon the
parties.
(C) The district and the labor organization shall each pay half of
the cost of the impartial arbitrator.
(e) A contract or agreement shall not be made with any labor
organization, association, group, or individual that denies
membership on any basis listed in subdivision (a) of Section 12940 of
the Government Code, as
those bases are defined in Sections 12926 and 12926.1 of the
Government Code. However, the organization may preclude from
membership any individual who advocates the overthrow of the
government by force or violence.
(f) The district shall not discriminate with regard to employment
against any person on any basis listed in subdivision (a) of Section
12940 of the Government Code, as those bases are defined in Sections
12926 and 12926.1 of the Government Code, except as otherwise
provided in Section 12940 of the Government Code.
SEC. 123. Section 30751 of the Public Utilities Code is amended to
read:
30751. Any question which may arise with respect to whether a
majority of the employees in an appropriate unit desire to be
represented by a labor organization shall be submitted to the Public
Employment Relations Board. In resolving those questions of
representation including the determination of the appropriate unit or
units, petitions, the conduct of hearings and elections, the board
shall apply the relevant federal law and administrative practice
developed under the Labor Management Relations Act, 1947, as amended,
and for this purpose shall adopt appropriate rules and regulations.
Those rules and regulations shall be administered by the California
State Mediation and Conciliation Service and shall provide for a
prompt public hearing and a secret ballot election to determine the
question of representation.
SEC. 124. Section 40120 of the Public Utilities Code is amended to
read:
40120. Whenever a majority of the employees employed by the
district in a unit appropriate for collective bargaining indicate a
desire to be represented by a labor organization, the district, upon
determining as provided in Section 40122 that the labor organization
represents the employees in the appropriate unit, shall enter into a
written contract with the accredited representative of those
employees governing wages, salaries, hours, and working conditions.
In case of a dispute over wages, salaries, hours, or working
conditions, which is not resolved by negotiations in good faith
between the district and the labor organization, upon the request of
both, the district and the labor organization may submit the dispute
to the decision of the majority of an arbitration board, and the
decision of the majority of the arbitration board shall be final. The
arbitration board shall be composed of two representatives of the
district, and two representatives of the labor organization, and they
shall endeavor to agree upon the selection of the fifth member. If
they are unable to agree, the names of five persons experienced in
labor arbitration shall be obtained from the California State
Mediation and Conciliation Service. The labor organization and the
district shall, alternately, strike a name from the list so supplied,
and the name remaining after the labor organization and the district
have stricken four names, shall be designated as the arbitrator. The
labor organization and the district shall determine by lot who shall
first strike from the list. The decision of a majority of the
arbitration board shall be final and binding upon the parties
thereto. The expenses of arbitration shall be borne equally by the
parties. Each party shall bear his or her own costs.
SEC. 125. Section 50120 of the Public Utilities Code is amended to
read:
50120. (a) If a majority of the employees employed by a transit
district in a unit appropriate for collective bargaining indicate a
desire to be represented by a labor organization, then the board,
after determining pursuant to Section 50121 that the labor
organization represents the employees in the appropriate unit, shall
bargain with the accredited representative of those employees. Both
parties shall bargain in good faith and make all reasonable efforts
to reach agreement on the terms of a written contract governing
wages, salaries, hours, working conditions, and grievance procedures.
(b) (1) If a dispute arises over the terms of a written contract
governing wages, salaries, hours, or working conditions that is not
resolved by negotiations conducted in good faith between the board
and the representatives of the employees, then the board and the
representatives of the employees shall submit the dispute to an
arbitration board. The decision of a majority of the arbitration
board shall be final.
(2) (A) The arbitration board shall be composed of two
representatives of the transit board, two representatives of the
labor organization, and a fifth member to be agreed upon by the
representatives of the transit board and labor organization.
(B) If the representatives of the transit board and labor
organization are unable to agree on the fifth member, then the names
of five persons experienced in labor arbitration shall be obtained
from the California State Mediation and Conciliation Service. The
labor organization and the district shall, alternately, strike a name
from the list supplied by the California State Mediation and
Conciliation Service. The labor organization and the district shall
determine by lot who shall first strike a name from the list. After
the labor organization and the transit district have stricken four
names, the name remaining shall be designated as the arbitrator.
(C) The transit board and the labor organization shall each pay
one-half of the cost of the impartial arbitrator.
(c) A contract or agreement shall not be made with any labor
organization, association, group, or individual that denies
membership on any basis listed in subdivision (a) of Section 12940 of
the Government Code, as those bases are defined in Sections 12926
and 12926.1 of the Government Code. However, the organization may
preclude from membership any individual who advocates the overthrow
of the government by force or violence.
(d) The district shall not discriminate with regard to employment
against any person on any basis listed in subdivision (a) of Section
12940 of the Government Code, as those bases are defined in Sections
12926 and 12926.1 of the Government Code, except as otherwise
provided in Section 12940 of the Government Code.
SEC. 126. Section 70120 of the Public Utilities Code is amended to
read:
70120. Employees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection. It is declared to be in the public
interest that the district shall not express any preference for one
union over another. Notwithstanding any other provision of this part,
whenever a majority of the employees employed by the district in a
unit appropriate for collective bargaining indicate a desire to be
represented by a labor organization, the district, upon determining
as provided in Section 70122 that the labor organization represents
the employees in the appropriate unit, shall enter into a written
contract with the accredited representative of the employees
governing wages, salaries, hours and working conditions. In case of a
dispute over wages, salaries, hours or working conditions, which is
not resolved by negotiations in good faith between the district and
the labor organization, upon the request of either, the district and
the labor organization may submit the dispute to the decision of the
majority of an arbitration board, and the decision of the majority of
the arbitration board shall be final. The arbitration board shall be
composed of two representatives of the district, and two
representatives of the labor organization, and they shall endeavor to
agree upon the selection of the fifth member. If they are unable to
agree, the names of five persons experienced in labor arbitration
shall be obtained from the California State Mediation and
Conciliation Service. The labor organization and the district shall,
alternately, strike a name from the list so supplied, and the name
remaining after the labor organization and the district have stricken
four names, shall be designated as the arbitrator. The labor
organization and the district shall determine by lot who shall first
strike from the list. The decision of a majority of the arbitration
board shall be final and binding upon the parties. The expenses of
arbitration shall be borne equally by the parties. Each party shall
bear his or her own costs.
In the event the board and the representatives of the employees do
not agree to submit the dispute to an arbitration board as herein
provided, the California State Mediation and Conciliation Service may
be notified by either party that a dispute exists and that there is
no agreement to arbitrate. The service shall determine whether or not
the dispute may be resolved by the parties and, if not, the issues
concerning which the dispute exists. Upon the determination, the
service shall certify its findings to the Governor who shall, within
10 days of receipt of certification appoint a fact finding commission
consisting of three persons which shall immediately convene and
inquire into and investigate the issues involved in the dispute. The
commission shall report to the Governor within 30 days of the date of
its creation.
After the creation of the commission and for 30 days after the
commission has made its report to the Governor, no change, except by
mutual agreement, shall be made by the parties to the controversy in
the conditions out of which the dispute arose and service to the
public shall be provided.
SEC. 127. Section 90300 of the Public Utilities Code is amended to
read:
90300. (a) Employees have the right to self-organize, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection. It is declared to be in the public
interest that the district not express any preference for one union
over another.
(1) (A) Notwithstanding any other provision of this act, if a
majority of the employees employed by a district in a unit
appropriate for collective bargaining indicate a desire to be
represented by a labor organization, then the district, after
determining pursuant to subdivision (f) that the labor organization
represents the employees in the appropriate unit, shall enter into a
written contract with the accredited representative of those
employees governing wages, salaries, hours, and working conditions.
(B) (i) If a dispute arises over wages, salaries, hours, or
working conditions that is not resolved by negotiations conducted in
good faith between the district and the labor organization, then upon
the request of either party, the district and the labor organization
may submit the dispute to an arbitration board. The decision of a
majority of the arbitration board shall be final.
(ii) The arbitration board shall be composed of two
representatives of the district, two representatives of the labor
organization, and a fifth member to be agreed upon by the
representatives of the district and labor organization.
(iii) If the representatives of the district and labor
organization are unable to agree on the fifth member, then the names
of five persons experienced in labor arbitration shall be obtained
from the California State Mediation and Conciliation Service. The
labor organization and the district shall, alternately, strike a name
from the list supplied by the California State Mediation and
Conciliation Service. The labor organization and the district shall
determine by lot who shall first strike a name from the list. After
the labor organization and the district have stricken four names, the
name remaining shall be designated as the arbitrator. The decision
of a majority of the arbitration board shall be final and binding
upon the parties.
(iv) The expenses of arbitration shall be borne equally by the
parties. Each party shall bear the party's own costs.
(b) If the board and the representatives of the employees do not
agree to submit the dispute to an arbitration board as provided in
subdivision (a), either party may notify the California State
Mediation and Conciliation Service that a dispute exists and that
there is no agreement to arbitrate. The California State Mediation
and Conciliation Service shall determine whether or not the dispute
can be resolved by the parties and, if not, the issues that are the
subject of the dispute. After making its determination, the service
shall certify its findings to the Governor who shall, within 10 days
of receipt of certification, appoint a factfinding commission
consisting of three persons. The factfinding commission shall
immediately convene and investigate the issues involved in the
dispute. The commission shall report to the Governor within 30 days
of the date of its creation.
(c) After the creation of the commission and for 30 days after the
date the commission made its report to the Governor, the parties to
the controversy shall not make any change, except by mutual
agreement, in the conditions out of which the dispute arose. Service
to the public shall be provided during that time.
(d) A contract or agreement shall not be made, or assumed, with
any labor organization, association, group, or individual that denies
membership to, or in any manner discriminates against, any employee
on any basis listed in subdivision (a) of Section 12940 of the
Government Code, as those bases are defined in Sections 12926 and
12926.1 of the Government Code. However, the organization may
preclude from membership any individual who advocates the overthrow
of the government by force or violence.
(e) The district shall not discriminate with regard to employment
against any person on any basis listed in subdivision (a) of Section
12940 of the Government Code, as those bases are defined in Sections
12926 and 12926.1 of the Government Code, except as otherwise
provided in Section 12940 of the Government Code.
(f) (1) Any questions regarding whether a labor organization
represents a majority of employees or whether the proposed unit is or
is not appropriate, shall be submitted to the California State
Mediation and Conciliation Service for disposition. The California
State Mediation and Conciliation Service shall promptly hold a public
hearing after due notice to all interested parties to determine the
unit appropriate for the purposes of collective bargaining. In making
that determination and in establishing rules and regulations
governing petitions and the conduct of hearings and elections, the
California State Mediation and Conciliation Service shall be guided
by relevant federal law and administrative practice, developed under
the Labor-Management Relations Act of 1947 (29 U.S.C. Sec. 141 et
seq.).
(2) The California State Mediation and Conciliation Service shall
provide for an election to determine the question of representation
and shall certify the results to the parties. A certification of a
labor organization to represent or act for the employees in any
collective bargaining unit shall not be subject to challenge on the
grounds that a new substantial question of representation within the
collective bargaining unit exists until the lapse of one year from
the date of certification or the expiration of any collective
bargaining agreement, whichever is later. However, no collective
bargaining agreement shall be construed to be a bar to representation
proceedings for a period of more than two years.
(g) If the district acquires existing facilities from a publicly
or privately owned public utility, either in proceedings by eminent
domain or otherwise, the district shall assume and observe all
existing labor contracts.
(1) To the extent necessary for operation of facilities, all of
the employees of the acquired public utility whose duties pertain to
the facilities acquired shall be appointed to comparable positions in
the district without examination, subject to all the rights and
benefits of this act. Those employees shall be given sick leave,
seniority, vacation, and pension credits in accordance with the
records and labor agreements of the acquired public utility.
(2) Members and beneficiaries of any pension or retirement system,
or other benefits established by the public utility, shall continue
to have the rights, privileges, benefits, obligations, and status
with respect to the established system. No employee of any acquired
public utility may be subject to a reduction in wages, seniority,
pension, vacation, or other benefits as a result of the acquisition.
(3) The district may extend the benefits of this section to
officers or supervisory employees of the acquired utility.
(h) The district shall not do any of the following:
(1) Acquire any existing system or part of an existing system,
whether by purchase, lease, condemnation, or otherwise.
(2) Dispose of or lease any transit system or part of the transit
system.
(3) Merge, consolidate, or coordinate any transit system or part
of the transit system.
(4) Reduce or limit the lines or service of any existing system or
of the district's system unless the district has first made adequate
provision for any employees who are or may be displaced. The terms
and conditions of that provision shall be a proper subject of
collective bargaining.
(i) Notwithstanding any provision of the Government Code, the
district may make deductions from the wages and salaries of its
employees who authorize the deductions for the following purposes:
(1) Pursuant to a collective bargaining agreement with a duly
designated or certified labor organization, for the payment of union
dues, fees, or assessments.
(2) For the payment of contributions pursuant to any health and
welfare plan, or pension or retirement plan.
(3) For any purpose for which employees of any private employer
may authorize deductions.
(j) (1) The obligation of the district to bargain in good faith
with a duly designated or certified labor organization and to execute
a written collective bargaining agreement with that labor
organization covering the wages, hours, and working conditions of the
employees represented by that labor organization in an appropriate
unit, and to comply with the terms of the collective bargaining
agreement, shall not be limited or restricted by any provision of
law. The obligation of the district to bargain collectively shall
extend to all subjects of collective bargaining that are or may be
proper subjects of collective bargaining with a private employer,
including retroactive provisions.
(2) Notwithstanding any other provision of law, the district shall
make deductions from the wages and salaries of its employees, upon
receipt of authorization to make those deductions, for the payment of
union dues, fees, or assessments, for the payment of contributions
pursuant to any health and welfare plan or pension plan, or for any
other purpose for which employees of any private employer may
authorize deductions, where those deductions are pursuant to a
collective bargaining agreement with a duly designated or certified
labor organization.
(k) The district may provide for a retirement system, provided
that the adoption, terms, and conditions of any retirement system
covering employees of the district represented by a labor
organization in accordance with this section shall be pursuant to a
collective bargaining agreement between the labor organization and
the district.
( l ) The district shall take any steps that may be
necessary to obtain coverage for the district and its employees under
Title II of the Federal Social Security Act (42 U.S.C. Sec. 401 et
seq.), and the related provisions of the Federal Insurance
Contributions Act (26 U.S.C. Sec. 3101 et seq.).
(m) The district shall take any steps that may be necessary to
obtain coverage for the district and its employees under the workers'
compensation (Division 4 (commencing with Section 3200) and Division
4.5 (commencing with Section 6100) of the Labor Code), unemployment
compensation disability (Part 2 (commencing with Section 2691) of
Division 1 of the Unemployment Insurance Code), and unemployment
insurance (Part 1 (commencing with Section 100) of Division 1 of the
Unemployment Insurance Code) laws of the State of California.
SEC. 128. Section 99561 of the Public Utilities Code is amended to
read:
99561. This chapter shall be administered by the Public
Employment Relations Board. In administering this chapter the board
shall have all of the following rights, powers, duties, and
responsibilities:
(a) To determine in disputed cases, or otherwise approve,
appropriate units.
(b) To determine in disputed cases whether a particular item is
within or without the scope of representation.
(c) To arrange for, and supervise, representation elections that
shall be conducted by means of secret ballot elections, and to
certify the results of the elections.
(d) To establish lists of persons broadly representative of the
public and qualified by experience to be available to serve as
mediators, arbitrators, or factfinders.
(e) To establish by regulation appropriate procedures for review
of proposals to change unit determinations.
(f) To adopt, pursuant to Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code,
rules and regulations to carry out the provisions and effectuate the
purposes and policies of this chapter.
(g) To hold hearings, subpoena witnesses, administer oaths, take
the testimony or deposition of any person, and, in connection
therewith, to issue subpoenas duces tecum to require the production
and examination of any employer's or employee organization's records,
books, or papers relating to any matter within its jurisdiction,
except for those records, books, or papers confidential under
statute. Notwithstanding Section 11425.10 of the Government Code,
Chapter 4.5 (commencing with Section 11400) of Part 1 of Division 3
of Title 2 of the Government Code does not apply to a hearing by the
board under this section, except a hearing to determine an unfair
practice charge.
(h) To investigate unfair practice charges or alleged violations
of this chapter, and to take any action and make any determinations
in respect of these charges or alleged violations as the board deems
necessary to effectuate the policies of this chapter, except that in
an action to recover damages due to an unlawful strike, the board
shall have no authority to award strike-preparation expenses as
damages, and shall have no authority to award damages for costs,
expenses, or revenue losses incurred during, or as a consequence of,
an unlawful strike.
(i) To bring an action in a court of competent jurisdiction to
enforce any of its orders, decisions, or rulings or to enforce the
refusal to obey a subpoena. Upon issuance of a complaint charging
that any person has engaged in or is engaging in an unfair practice,
the board may petition the court for appropriate temporary relief or
restraining order.
(j) To delegate its powers to any member of the board or to any
person appointed by the board for the performance of its functions,
except that no fewer than two board members may participate in the
determination of any ruling or decision on the merits of any dispute
coming before it, and except that a decision to refuse to issue a
complaint shall require the approval of two board members.
(k) To decide contested matters involving recognition,
certification, or decertification of employee organizations.
( l ) To consider and decide issues relating to rights,
privileges, and duties of an employee organization in the event of a
merger, amalgamation, or transfer of jurisdiction between two or
more employee organizations.
(m) To take any other action as the board deems necessary to
discharge its powers and duties and otherwise to effectuate the
purposes of this chapter.
SEC. 129. Section 95650 of the Public Utilities Code is amended to
read:
95650. (a) If a majority of the employees employed by a transit
district in a unit appropriate for collective bargaining indicate a
desire to be represented by a labor organization, then the board
after determining pursuant to Section 95651 that the labor
organization represents the employees in the appropriate unit, shall
bargain with the accredited representative of those employees. Both
parties shall bargain in good faith and make all reasonable efforts
to reach agreement on the terms of a written contract governing
wages, salaries, hours, working conditions, and grievance procedures.
(1) If a dispute arises over the terms of a written contract
governing wages, salaries, hours, or working conditions that is not
resolved by negotiations conducted in good faith between the board
and the representatives of the employees, then the board and the
representatives of the employees shall submit the dispute to an
arbitration board. The decision of a majority of the arbitration
board shall be final.
(2) (A) The arbitration board shall be composed of two
representatives of the transit board, two representatives of the
labor organization, and a fifth member to be agreed upon by the
representatives of the transit board and labor organization. If the
representatives of the transit board and labor organization are
unable to agree on the fifth member, then the names of five persons
experienced in labor arbitration shall be obtained from the
California State Mediation and Conciliation Service.
(B) The labor organization and the district shall, alternately,
strike a name from the list supplied by the California State
Mediation and Conciliation Service. The labor organization and the
district shall determine by lot who shall first strike a name from
the list. After the labor organization and the district have stricken
four names, the name remaining shall be designated as the
arbitrator.
(C) The transit board and labor organization shall each pay half
of the cost of the impartial arbitrator.
(b) A contract or agreement shall not be made with any labor
organization, association, group, or individual that denies
membership on any basis listed in subdivision (a) of Section 12940 of
the Government Code, as those bases are defined in Sections 12926
and 12926.1 of the Government Code. However, the organization may
preclude from membership any individual who advocates the overthrow
of the government by force or violence.
(c) The district shall not discriminate with regard to employment
against any person on any basis listed in subdivision (a) of Section
12940 of the Government Code, as those bases are defined in Sections
12926 and 12926.1 of
the Government Code, except as otherwise provided in Section 12940 of
the Government Code.
SEC. 130. Section 98162.5 of the Public Utilities Code is amended
to read:
98162.5. Any question which may arise with respect to whether a
majority of the employees in an appropriate unit desire to be
represented by a labor organization shall be submitted to the Public
Employment Relations Board.
In resolving the questions of representation, including the
determination of the appropriate unit or units, petitions, and the
conduct of hearings and elections, the director shall apply the
relevant federal law and administrative practice developed under the
Labor Management Relations Act, 1947, as amended, and for this
purpose shall adopt appropriate rules and regulations. The rules and
regulations shall be administered by the California State Mediation
and Conciliation Service and shall provide for a prompt public
hearing and a secret ballot election to determine the question of
representation.
SEC. 131. Section 100301 of the Public Utilities Code is amended
to read:
100301. Any question which may arise with respect to whether a
majority of employees in an appropriate unit desire to be represented
by a labor organization shall be submitted to the Public Employment
Relations Board. In resolving those questions of representation
including the determination of the appropriate unit or units,
petitions, the conduct of hearings and elections, the board shall
apply the relevant federal law and administrative practice developed
under the Labor Management Relations Act of 1947, as amended, and for
this purpose shall adopt appropriate rules and regulations. The
California State Mediation and Conciliation Service shall administer
the rules and regulations and shall provide for a prompt public
hearing and secret ballot election to determine the question of
representation and shall certify the results to the parties. Any
certification of a labor organization to represent or act for the
employees in any collective bargaining unit shall not be subject to
challenge on the grounds that a new substantial question of
representation within the collective bargaining unit exists until the
lapse of one year from the date of certification or the expiration
of any collective bargaining agreement, whichever is later, except
that no collective bargaining agreement shall be considered to be a
bar to representation proceedings for a period of more than two
years.
SEC. 132. Section 101341 of the Public Utilities Code is amended
to read:
101341. Whenever a majority of the employees employed by the
district in a unit appropriate for collective bargaining indicate a
desire to be represented by a labor organization, the district, upon
determining as provided in Section 101344 that the labor organization
represents the employees in the appropriate unit, shall enter into a
written contract with the accredited representative of the employees
governing wages, salaries, hours, and working conditions. In case of
a dispute over wages, salaries, hours, or working conditions, which
is not resolved by negotiations in good faith between the district
and the labor organization, the district and the labor organization
may submit the dispute to the decision of the majority of an
arbitration board, and the decision of the majority of the
arbitration board shall be final.
The arbitration board shall be composed of two representatives of
the district, and two representatives of the labor organization, and
they shall endeavor to agree upon the selection of the fifth member.
If they are unable to agree, the names of five persons experienced in
labor arbitration shall be obtained from the California State
Mediation and Conciliation Service. The labor organization and the
district shall, alternately, strike a name from the list so supplied,
and the name remaining after the labor organization and the district
have stricken four names, shall be designated as the arbitrator. The
labor organization and the district shall determine by lot who shall
first strike from the list. The decision of a majority of the
arbitration board shall be final and binding upon the parties. The
expenses of arbitration shall be borne equally by the parties. Each
party shall bear his or her own costs.
SEC. 133. Section 102401 of the Public Utilities Code is amended
to read:
102401. Notwithstanding any other provision of this part,
whenever a majority of the employees employed by the district in a
unit appropriate for collective bargaining indicate a desire to be
represented by a labor organization, the district, upon determining,
as provided in Section 102403, that the labor organization represents
the employees in the appropriate unit, shall enter into a written
contract with the accredited representative of the employees
governing wages, salaries, hours, pensions, and working conditions.
If, after a reasonable period of time, representatives of the
district and the accredited representatives of the employees fail to
reach agreement either on the terms of a written contract governing
wages, hours, pensions, and working conditions or the interpretation
or application of the terms of an existing contract, upon the
agreement of both the district and the representatives of the
employees, the dispute may be submitted to an arbitration board and
the decision of the majority of the arbitration board shall be final
and binding.
The arbitration board shall be composed of two representatives of
the district, and two representatives of the labor organization, and
they shall endeavor to agree upon the selection of the fifth member.
If they are unable to agree, the names of five persons experienced in
labor arbitration shall be obtained from the California State
Mediation and Conciliation Service. The labor organization and the
district shall, alternately, strike a name from the list so supplied,
and the name remaining after the labor organization and the district
have stricken four names, shall be designated as the arbitrator. The
labor organization and the district shall determine by lot who shall
first strike from the list. The decision of a majority of the
arbitration board shall be final and binding upon the parties. The
expenses of arbitration shall be borne equally by the parties. Each
party shall bear his or her own costs.
SEC. 134. Section 103401 of the Public Utilities Code is amended
to read:
103401. Any question which may arise with respect to whether a
majority of employees in an appropriate unit desire to be represented
by a labor organization shall be submitted to the Public Employment
Relations Board. In resolving those questions of representation,
including the determination of the appropriate unit or units,
petitions, and the conduct of hearings and elections, the director
shall apply the relevant federal law and administrative practice
developed under the Labor Management Relations Act, 1947, as amended,
and, for this purpose, shall adopt appropriate rules and
regulations.
The California State Mediation and Conciliation Service shall
administer any rules and regulations and shall provide for a prompt
public hearing and secret ballot election to determine the question
of representation and shall certify the results to the parties.
Any certification of a labor organization to represent or act for
the employees in any collective bargaining unit shall not be subject
to challenge on the grounds that a new substantial question of
representation within the collective bargaining unit exists until the
lapse of one year from the date of certification or the expiration
of any collective bargaining agreement, whichever is later, except
that no collective bargaining agreement shall be considered to be a
bar to representation proceedings for a period of more than two
years.
SEC. 135. Section 125521 of the Public Utilities Code is amended
to read:
125521. Any question which may arise with respect to whether a
majority of employees in an appropriate unit desire to be represented
by a labor organization shall be submitted to the Public Employment
Relations Board. In resolving those questions of representation,
including the determination of the appropriate unit or units,
petitions, and the conduct of hearings and elections, the board shall
apply the relevant federal law and administrative practice developed
under the Labor Management Relations Act, 1947, as amended, and, for
this purpose, shall adopt appropriate rules and regulations.
The California State Mediation and Conciliation Service shall
administer any rules and regulations and shall provide for a prompt
public hearing and secret ballot election to determine the question
of representation and shall certify the results to the parties.
Any certification of a labor organization to represent or act for
the employees in any collective-bargaining unit shall not be subject
to challenge on the grounds that a new substantial question of
representation within the collective-bargaining unit exists until the
lapse of one year from the date of certification or the expiration
of any collective-bargaining agreement, whichever is later, except
that no collective-bargaining agreement shall be considered to be a
bar to representation proceedings for a period of more than two
years.
SEC. 136. Section 401 of the Unemployment Insurance Code is
amended to read:
401. (a) There is in the department an Appeals Division
consisting of the California Unemployment Insurance Appeals Board and
its employees. The appeals board consists of five members. Three
members shall be appointed by the Governor, subject to the approval
of the Senate. One member shall be appointed by the Speaker of the
Assembly, and one member shall be appointed by the Senate Committee
on Rules. All of the members of the appeals board shall be attorneys
at law admitted to practice in any state of the United States, and
shall have, at a minimum, one year of experience in conducting
judicial or administrative hearings or five years of experience in
the practice of law. Each member of the board shall devote his or her
full time to the performance of his or her duties. The chairperson
and each member of the board shall receive the annual salary provided
for by Chapter 6 (commencing with Section 11550) of Part 1 of
Division 3 of Title 2 of the Government Code. The Governor shall
designate the chairperson of the appeals board from the membership of
the appeals board. The person so designated shall hold the office of
chairperson at the pleasure of the Governor. The chairperson shall
designate a member of the appeals board to act as chairperson in his
or her absence.
(b) The amendments made to this section by the act adding this
subdivision shall apply to appointments made on or after January 1,
2013.
(c) It is the intent of the Legislature that the two California
Unemployment Insurance Appeals Board member positions that are
eliminated pursuant to this act be those board member positions that
could have been appointed by the Governor, but were not, and that are
currently vacant and have been vacant since October 2011.
SEC. 137. Section 4.2 of the Fresno Metropolitan Transit District
Act (Chapter 1932 of the Statutes of 1961), as repealed and added by
Section 2 of Chapter 1335 of Statutes 1971, is amended to read:
Sec. 4.2. Whenever a majority of the employees employed by the
district in a unit appropriate for collective bargaining indicate a
desire to be represented by a labor organization, the district, upon
determining, as provided in Section 4.4, that such labor organization
represents the employees in the appropriate unit, shall enter into a
written contract with the accredited representative of such
employees governing wages, hours, pensions, and working conditions.
In case of a dispute over wages, salaries, hours, or working
conditions, which is not resolved by negotiations in good faith
between the district and the labor organization, upon the request of
either, the district and the labor organization may submit the
dispute to the decision of the majority of an arbitration board, and
the decision of the majority of such arbitration board shall be
final.
The arbitration board shall be composed of two representatives of
the district, and two representatives of the labor organization, and
they shall endeavor to agree upon the selection of the fifth member.
If they are unable to agree, the names of five persons experienced in
labor arbitration shall be obtained from the California State
Mediation and Conciliation Service. The labor organization and the
district shall, alternately, strike a name from the list so supplied,
and the name remaining after the labor organization and the district
have stricken four names, shall be designated as the arbitrator. The
labor organization and the district shall determine by lot who shall
first strike from the list. The decision of a majority of the
arbitration board shall be final and binding upon the parties
thereto. The expenses of arbitration shall be borne equally by the
parties. Each party shall bear his own costs.
SEC. 138. Section 13.90 of the West Bay Area Rapid Transit
Authority Act, as added by Chapter 104 of the First Extraordinary
Session of the Statutes of 1964, is amended to read:
Sec. 13.90. (a) Whenever a majority of the employees employed by
the authority in a unit appropriate for collective bargaining
indicate a desire to be represented by a labor organization, the
authority, upon determining as provided in Section 13.91 that the
labor organization represents the employees in the appropriate unit,
and the accredited representative shall bargain in good faith and
make all reasonable efforts to reach agreement on the terms of a
written contract governing wages, hours, and working conditions. In
the absence of the expression of that desire, employees would be
subject to any personnel system established pursuant to the
provisions of Section 13.97.
(b) The obligation of the authority to bargain in good faith with
a duly designated or certified labor organization and to execute a
written collective bargaining agreement with the labor organization
covering the wages, hours, and working conditions of the employees
represented by the labor organization in an appropriate unit, and to
comply with the terms thereof shall not be limited or restricted by
the provisions of the Government Code or other laws or statutes and
the obligation of the authority to bargain collectively shall extend
to all subjects of collective bargain-ing, including without
limitation retroactive pay increases. Notwithstanding the provisions
of the Government Code or other laws or statutes, the authority shall
make deductions from wages and salaries of its employees upon
receipt of authorization for the payment of union dues, fees, or
assessments, for the payment of contributions pursuant to any health
and welfare plan or pension plan or any other purpose for which
deductions may be authorized by employees where those deductions are
pursuant to a collective bargaining agreement with a duly designated
or certified labor organization.
(c) In case of dispute over wages, hours, or working conditions
which is not resolved by negotiations in good faith between the
authority and the representatives of the employees, upon the
agreement of both the authority and the representative of the
employees, the dispute may be submitted to an arbitration board, and
the decision of a majority of the arbitration board shall be final
and binding. The arbitration board shall be composed of two
representatives of the authority and two representatives of the labor
organization, and they shall endeavor to agree upon the selection of
a fifth member. If they are unable to agree, the names of five
persons experienced in labor arbitration shall be obtained from the
California State Mediation and Conciliation Service. The labor
organization and the authority shall, alternately, strike a name from
the list so supplied, and the name remaining after the labor
organization and the authority have stricken four names, shall be
designated as the arbitrator. The labor organization and the
authority shall determine by lot who shall first strike a name from
the list. The decision of a majority of the arbitration board shall
be final and binding upon the parties thereto. The expenses of the
impartial arbitrator shall be provide one-half by the authority
one-half by the labor organization.
(d) No contract or agreement shall be made with any labor
organization, association, group or individual where the
organization, association, group or individual denies membership on
the grounds of race, creed or color; provided, the organization may
preclude from membership any individual who advocates the overthrow
of the government by force or violence.
SEC. 139. Section 13.91 of the West Bay Rapid Transit Authority
Act, as added by Chapter 104 of the First Extraordinary Session of
the Statutes of 1964, is amended to read:
Sec. 13.91. Any question which may arise with respect to whether a
majority of the employees in an appropriate unit desire to be
represented by a labor organization shall be submitted to the Public
Employment Relations Board. In resolving those questions of
representation including the determination of the appropriate unit or
units, petitions, the conduct of hearings and elections, the board
shall apply the relevant federal law and administrative practice
developed under the Labor Management Relations Act, 1947, as amended,
and for this purpose shall adopt appropriate rules and regulations.
The rules and regulations shall be administered by the California
State Mediation and Conciliation Service and shall provide for a
prompt public hearing and a secret ballot election to determine the
question of representation.
SEC. 140. Notwithstanding any other provision of this act to the
contrary, the amendments, additions, and repeals in Sections 18, 27
to 66, inclusive, 68, 70, 101, 115, and 144 shall not become
operative until January 1, 2013.
SEC. 141. (a) Notwithstanding Section 12080.8 of the Government
Code, or any other law, Sections 12, 13, and 14 of this act shall
prevail over Section 89 of the Governor's Reorganization Plan No. 2
of 2012, regardless of the dates on which this act and that plan take
effect.
(b) Subdivision (a) shall become operative only if the Governor's
Reorganization Plan No. 2 of 2012 becomes effective.
SEC. 142. 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.
SEC. 143. The sum of one thousand dollars ($1,000) is hereby
appropriated from the General Fund to the Department of Finance to
implement this act.
SEC. 144. This act is a bill providing for appropriations related
to the Budget Bill within the meaning of subdivision (e) of Section
12 of Article IV of the California Constitution, has been identified
as related to the budget in the Budget Bill, and shall take effect
immediately.
