2673.1.
(a) To ensure that employees are paid for all hours worked, an employee engaged in the performance of garment manufacturing, as defined in subdivision (b) of Section 2671, shall not be paid by the piece or unit, or by piece rate. Nothing in this section shall be deemed to prohibit incentive-based bonuses. This section shall not apply to workplaces where employees are covered by a bona fide collective bargaining agreement, or other enforceable agreement, if the agreement expressly provides for wages, hours of work, working conditions, stewards or monitors, and a process to resolve disputes concerning nonpayment of wages.(b) (1) To ensure that employees are paid for all hours worked, a person engaged in garment manufacturing, as defined in subdivision (b) of Section 2671, who contracts with another person for the performance of garment manufacturing operations shall jointly and severally share with a contractor, as defined in subdivision (e) of Section 2671, and brand guarantor, as defined in subdivision (c) of Section 2671, all civil legal responsibility and civil liability for all workers employed by that contractor, and shall guarantee, both of the following:
(A) The payment of the unpaid minimum wages, overtime pay, break premiums, liquidated damages, and any other penalties, and attorney’s fees.
(B) Failure to secure valid workers’ compensation coverage as required
by Section 3700.
(2) Nothing in this section shall prevent or prohibit two or more parties, who are held jointly and severally liable under this section after a final judgment is rendered by the court, from establishing, exercising, or enforcing, by contract or otherwise, any lawful or equitable remedies, including, but not limited to, a right of contribution and indemnity against each other for liability created by acts of the other.
(c) Employees may enforce this guarantee solely by filing a claim with the Labor Commissioner against the contractor and the guarantor or guarantors, if known, to recover unpaid wages. Guarantors whose identity or existence is unknown at the time the claim
is filed may be added to the claim pursuant to paragraph (2) of subdivision (d).
(d) Claims filed with the Labor Commissioner for payment of wages pursuant to subdivision (c) shall be subject to the following procedure:
(1) Within 10 business days of receiving a claim pursuant subdivision (c), the Labor Commissioner shall give written notice to the employee, the contractor, and persons that may be guarantors of the nature of the claim and the date of the meet-and-confer conference on the claim. Within 10 business days of receiving the claim, the Labor Commissioner shall issue a subpoena duces tecum requiring the contractor to submit to the Labor Commissioner those books and records as may be necessary to investigate the claim and determine the identity of any potential
guarantors for the payment of the wage claim, including, but not limited to, invoices for work performed for any and all persons during the period included in the claim. Compliance with a request for books and records, within 10 days of the mailing of the notice, shall be a condition of continued registration pursuant to Section 2675. At the request of any party, the Labor Commissioner shall provide to that party copies of all books and records received by the Labor Commissioner in conducting its investigation.
(2) Within 30 days of receiving a claim pursuant to subdivision (c), the Labor Commissioner shall send a notice of the claim and of the meet-and-confer conference to any other persons who may be guarantors with respect to the claim.
(3) Within 60 days of receiving a claim
pursuant to subdivision (c), the Labor Commissioner shall hold a meet-and-confer conference with the employee, the contractor, and all known potential guarantors to attempt to resolve the claim. Prior to the meet-and-confer conference, the Labor Commissioner shall conduct and complete an investigation of the claim, shall make a finding and assessment of the amount of wages owed, and shall conduct an investigation and determine liability. The investigation shall include, but not be limited to, interviewing the employee and their witnesses and making a finding and assessment of back wages due, if any, to the employee. If an employee provides the Labor Commissioner with
labels, or the equivalent thereto, from a brand guarantor or garment manufacturer, there shall be a presumption that the brand guarantor or garment manufacturer is a guarantor with respect to the claim. An employee’s claim of hours worked, back wages due, and the identity of guarantors shall be presumed valid and shall be the Labor Commissioner’s assessment, unless the brand guarantor, garment manufacturer, contractor, or subcontractor provides specific, compelling, and reliable written evidence to the contrary and is able to produce records pursuant to subdivision (d) of Section 1174 or Section 2673 that are accurate and contemporaneous, itemized wage deduction statements pursuant to Section 226, bona fide complete and accurate payroll records, evidence of the precise hours worked by the employee for each pay period during the period of the claim, and evidence, including a
purchase order or invoice relating to the guarantor for whom work was performed. In the absence of the provision of accurate and contemporaneous records pursuant to subdivision (d) of Section 1174 or Section 2673, written or oral declarations from a brand guarantor, garment manufacturer, or contractor is not sufficient to rebut the presumption of liability. If the Labor Commissioner finds falsification by the contractor of payroll records submitted for any pay period of the claim, any other payroll records submitted by the contractor shall be presumed false and disregarded.
The Labor Commissioner shall present their findings and assessment of the amount of wages owed
to the parties at the meet-and-confer conference and shall make a demand for payment of the amount of the assessment. If no resolution is reached, the Labor Commissioner shall, at the meet-and-confer conference, set the matter for hearing pursuant to paragraph (4). The Labor Commissioner’s assessment, pursuant to this paragraph, of the amount of back wages due is solely for purposes of the meet-and-confer conference and shall not be admissible or be given any weight in the hearing conducted pursuant to paragraph (4). If the Labor Commissioner has not identified any potential guarantors after investigation and the matter is not resolved at the conclusion of the meet-and-confer conference, the Commissioner shall proceed against the contractor pursuant to Section 98.
(4) The hearing shall commence within 30 days of, and shall be
completed within 45 days of, the date of the meet-and-confer conference. If an employee has provided the Labor Commissioner with labels, or the equivalent thereto, from a brand guarantor or garment manufacturer, there shall be a presumption that the brand guarantor or garment manufacturer is a guarantor with respect to the claim. An employee’s claim of hours worked, back wages due, and identity of guarantors, shall be presumed valid and shall be the Labor Commissioner’s assessment, unless the brand guarantor, garment manufacturer, contractor or subcontractor provides specific, compelling, and reliable written evidence to the contrary, and is able to produce records pursuant to subdivision (d) of Section 1174 or Section 2673 that are accurate and contemporaneous, itemized wage deduction statements pursuant to Section 226, bona fide complete and accurate payroll records, and evidence of the
precise hours worked by the employee for each pay period during the period of the claim, or evidence, including purchase orders or invoices relating to the guarantor for whom work was performed. In the absence of the provision of accurate and contemporaneous records pursuant to subdivision (d) of Section 1174 or Section 2673, a written declaration from a brand guarantor, garment manufacturer, or contractor will not be deemed sufficient to rebut the presumption of liability. If the Labor Commissioner finds falsification by the contractor of payroll records submitted for any pay period of the claim, any other payroll records submitted by the contractor shall be presumed false and disregarded. Any party may present evidence at the hearing to support or rebut the proposed findings, however, written declarations from a brand guarantor, garment manufacturer, or contractor will not be deemed
sufficient to rebut the presumption of liability. Except as provided in this paragraph, the hearing shall be held in accordance with the procedure set forth in subdivisions (b) to (h), inclusive, of Section 98. It is the intent of the Legislature that these hearings be conducted in an informal setting preserving the rights of the parties.
(5) Within 15 days of the completion of the hearing, the Labor Commissioner shall issue an order, decision, or award with respect to the claim and shall file the order, decision, or award in accordance with Section 98.1.
(e) An employee shall be entitled to recover, liquidated damages in an amount equal to the wages unlawfully withheld, as set forth in Section 1194.2, and liquidated damages in an amount equal to unpaid overtime compensation
due. A guarantor under subdivision (b) shall be liable for those liquidated damages if the guarantor has acted in bad faith, including, but not limited to, failure to pay or unreasonably delaying payment to its contractor, unreasonably reducing payment to its contractor where it is established that the guarantor knew or reasonably should have known that the price set for the work was insufficient to cover the minimum wage and overtime pay owed by the contractor, asserting frivolous defenses, or unreasonably delaying or impeding the Labor Commissioner’s investigation of the claim.
(f) If either the contractor or guarantor refuses to pay the assessment, and the employee prevails at the hearing, the party that refuses to pay shall pay the employee’s reasonable attorney’s fees and costs. If the employee rejects the assessment of the Labor Commissioner
and prevails at the hearing, the employer shall pay the employee’s reasonable attorney’s fees and costs. The guarantor shall be jointly and severally liable for the attorney’s fees and costs awarded to an employee.
(g) Any party shall have the right to judicial review of the order, decision, or award of the Labor Commissioner made pursuant to paragraph (5) of subdivision (d) as provided in Section 98.2. As a condition precedent to filing an appeal, the contractor or the guarantor, whichever appeals, shall post a bond with the Commissioner in an amount equal to one and one-half times the amount of the award. No bond shall be required of an employee filing an appeal pursuant to Section 98.2. At the employee’s request, the Labor Commissioner shall represent the employee in the judicial review as provided in Section 98.4.
(h) If the contractor or guarantor appeals the order, decision, or award of the Labor Commissioner and the employee prevails on appeal, the court shall order the contractor or guarantor, as the case may be, to pay the reasonable attorney’s fees and costs of the employee incurred in pursuing their claim. If the employee appeals the order, decision, or award of the Labor Commissioner and the contractor or guarantor prevails on appeal, the court may order the employee to pay the reasonable attorney’s fees and costs of the contractor employer or guarantor only if the court determines that the employee acted in bad faith in bringing the claim.
(i) The rights and remedies provided by this section do not preclude an employee from pursuing any other rights and remedies under any
other provision of state or federal law. If a finding and assessment is not issued as specified and within the time limits in paragraph (3) of subdivision (d), the employee may bring a civil action for the recovery of unpaid wages pursuant to any other rights and remedies under any other provision of the laws of this state unless, prior to the employee bringing the civil action, the guarantor files a petition for writ of mandate within 10 days of the date the assessment should have been issued. If findings and assessments are not made, or a hearing is not commenced or an order, decision, or award is not issued within the time limits specified in paragraphs (4) and (5) of subdivision (d), any party may file a petition for writ of mandate to compel the Labor Commissioner to issue findings and assessments, commence the hearing, or issue the order, decision, or award. All time requirements specified in this
section shall be mandatory and shall be enforceable by a writ of mandate.
(j) The Labor Commissioner may enforce the wage guarantee described in this section in the same manner as a proceeding against the contractor. The Labor Commissioner may, with or without a complaint being filed by an employee, conduct an investigation as to whether all the employees of persons engaged in garment manufacturing are being paid minimum wage or overtime compensation and, with or without the consent of the employees affected, commence a civil action to enforce the wage guarantee. Prior to commencing such a civil action and pursuant to rules of practice and procedure adopted by the Labor Commissioner, the commissioner shall provide notice of the investigation to each guarantor and employee, issue findings and an assessment of the amount of wages due,
hold a meet-and-confer conference with the guarantors and employees to attempt to resolve the matter, and provide for a hearing.
(k) Any employee who has experienced a violation of this code shall have a private right of action Except as expressly provided in this section, this section shall not be deemed to create any new right to bring a civil action of any kind for unpaid minimum
wages, overtime pay, break premiums, liquidated damages, and any other penalties, wage assessments, attorney’s fees, or costs against a brand guarantor, garment manufacturer, contractor, or subcontractor.
(l) The payment of the wage guarantee provided in this section
shall not be used as a basis for finding that the registered garment manufacturer making the payment is a joint employer, coemployer, or single employer of any employees of a contractor that is also a registered garment manufacturer.
(m) The Labor Commissioner may, in their discretion, revoke the registration under this part of any registrant that fails to pay, on a timely basis, any wages awarded pursuant to this section, after the award has become final.
(n) The Labor Commissioner may also enforce this section by issuing stop orders or citations. The procedures for issuing, contesting, and enforcing judgments for citations issued by the Labor Commissioner under this section shall be the same as those set forth in subdivisions (b) through (k), inclusive, of Section 1197.1.