CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Senate Bill No. 229

Introduced by Senator Hertzberg

February 07, 2019

An act to amend Section 98.74 of the Labor Code, relating to employment.


LEGISLATIVE COUNSEL'S DIGEST


SB 229, as introduced, Hertzberg. Discrimination: complaints: administrative review.
Existing law authorizes a person who believes that they have been discharged or otherwise discriminated against in violation of any law under the jurisdiction of the Labor Commissioner to file a complaint with the Division of Labor Standards Enforcement. Existing law authorizes the commissioner to issue a citation to a person determined, upon investigation of such a complaint, to be responsible for the violation. Existing law requires the citation to be in writing, to describe the nature of the violation and the amount of wages and penalties due, and to include appropriate relief, including directing the person cited to cease and desist from the violation and take any action necessary to remedy the violation.
Existing law authorizes a person issued a citation to obtain review of the citation by making a written request for a hearing before a hearing officer for the commissioner. Existing law requires that, upon receipt of a timely request, a hearing be commenced within a specified period. Existing law requires the hearing officer, within a specified period after the conclusion of the hearing, to issue a written decision consisting of a statement of findings, conclusions of law, and an order. Existing law authorizes a person to obtain review of the decision by filing a petition for a writ of mandate to the appropriate superior court, as prescribed.
This bill would make the hearing an informal hearing. The bill would specify that the petition for a writ of mandate is to obtain review of the written decision and order.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 98.74 of the Labor Code is amended to read:

98.74.
 (a) If the Labor Commissioner determines, after an investigation of a retaliation or discrimination complaint filed in accordance with Section 98.7, that a violation has occurred and the Labor Commissioner proceeds with a citation, the Labor Commissioner shall issue, with reasonable promptness, a citation to the person who has been determined to be responsible for the violation. The citation shall be in writing, shall describe the nature of the violation and the amount of wages and penalties due, and shall include any and all appropriate relief. Appropriate relief includes directing the person cited to cease and desist from the violation and take any action necessary to remedy the violation, including, where appropriate, rehiring or reinstatement, reimbursement of lost wages and interest thereon, and posting notices to employees. Service of the citation shall be completed pursuant to Section 1013 of the Code of Civil Procedure by first-class and certified mail to the person cited. The citation shall advise the person cited of the procedure for obtaining review of the citation.
(b) A person issued a citation pursuant to this section may obtain review of the citation by transmitting a written request for an informal hearing to the office of the Labor Commissioner at the address that appears on the citation within 30 days after service of the citation. If no hearing is requested within 30 days after service of the citation, the citation shall become final.
(c) Upon receipt of a timely request, a an informal hearing shall be commenced within 90 days before a hearing officer for the Labor Commissioner. Within 90 days of the conclusion of the hearing, the hearing officer shall issue a written decision. The decision shall consist of a statement of findings, conclusions of law, and an order. This decision shall be served on all parties pursuant to Section 1013 of the Code of Civil Procedure by first-class mail at the last known address of the party on file with the Labor Commissioner. The Labor Commissioner shall adopt regulations setting forth procedures for hearings under this subdivision.
(d) (1) A person issued a citation pursuant to this section may obtain review of the written decision and order of the Labor Commissioner by filing a petition for a writ of mandate to the appropriate superior court pursuant to Section 1094.5 of the Code of Civil Procedure within 45 days after service of the Labor Commissioner’s decision.
(2) As a condition to filing a petition for a writ of mandate, the petitioner seeking the writ shall first post a bond with the Labor Commissioner equal to the total amount of any minimum wages, liquidated damages, and overtime compensation that are due and owing as determined pursuant to subdivision (a). The bond amount shall not include amounts for penalties. The bond shall be issued by a surety duly authorized to do business in this state and shall be issued in favor of the employee or employees who suffered the violation or violations.
(3) If no petition for writ of mandate is filed within 45 days after service of the decision, the order shall become final. If it is claimed in a petition for writ of mandate that the findings are not supported by the evidence, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.
(e) An employer who willfully refuses to comply with a final order pursuant to this section to hire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for relief, or who refuses to comply with an order to post a notice to employees or otherwise cease and desist from the violation, in addition to any other penalties available, shall be subject to a penalty of one hundred dollars ($100) per day for each day the employer continues to be in noncompliance with the order, up to a maximum of twenty thousand dollars ($20,000). Any penalty pursuant to this section shall be paid to the affected employee.