California 2009 2009-2010 Regular Session

California Senate Bill SB404 Amended / Bill

Filed 05/19/2009

 BILL NUMBER: SB 404AMENDED BILL TEXT AMENDED IN SENATE MAY 19, 2009 AMENDED IN SENATE APRIL 14, 2009 INTRODUCED BY Senator Benoit FEBRUARY 26, 2009 An act to amend Section 226 of the Labor Code,  and to amend Section 19853 of the Revenue and Taxation Code, relating to   relating to  employment. LEGISLATIVE COUNSEL'S DIGEST SB 404, as amended, Benoit. Employment: information for employees. Existing law requires an employer to provide its employees with specified information regarding their wages either semimonthly or at the time of each wage payment.  Under existing law, an employer is also required, in connection with the annual wage statement, to notify all of its employees that they may be eligible for the earned income tax credit (EITC).  This bill would clarify that the employer may provide the wage information either on a detachable part of the payment made to the employee or on a separate page  and would specify that the employer is not required to include the hours worked by employees who are exempt from certain overtime requirements. The bill would limit the EITC notification, requiring the employer to notify only those employees to whom it pays a gross annual salary of $50,000 or less  . Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 226 of the Labor Code is amended to read: 226. (a) Every employer shall, semimonthly or at the time of each payment of wages, furnish each of his or her employees, either as a detachable part of the check, draft, or voucher paying the employee's wages, or on a separate page, an accurate itemized statement in writing showing the following: (1) Gross wages earned. (2) Total hours worked by the employee, except for any employee  whose compensation is solely based on a salary and  who is exempt from payment of overtime under subdivision (a) of Section 515 or any applicable order of the Industrial Welfare Commission. (3) The number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate basis. (4) All deductions, provided that all deductions made on written orders of the employee may be aggregated and shown as one item. (5) Net wages earned. (6) The inclusive dates of the period for which the employee is paid. (7) The name of the employee and the last four digits of his or her social security number or an employee identification number other than a social security number. (8) The name and address of the legal entity that is the employer. (9) All applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee. The deductions made from payments of wages shall be recorded in ink or other indelible form, properly dated, showing the month, day, and year, and a copy of the statement or a record of the deductions shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California. (b) An employer that is required by this code or any regulation adopted pursuant to this code to keep the information required by subdivision (a) shall afford current and former employees the right to inspect or copy the records pertaining to that current or former employee, upon reasonable request to the employer. The employer may take reasonable steps to assure the identity of a current or former employee. If the employer provides copies of the records, the actual cost of reproduction may be charged to the current or former employee. (c) An employer who receives a written or oral request to inspect or copy records pursuant to subdivision (b) pertaining to a current or former employee shall comply with the request as soon as practicable, but no later than 21 calendar days from the date of the request. A violation of this subdivision is an infraction. Impossibility of performance, not caused by or a result of a violation of law, shall be an affirmative defense for an employer in any action alleging a violation of this subdivision. An employer may designate the person to whom a request under this subdivision will be made. (d) This section does not apply to an employer of any person employed by the owner or occupant of a residential dwelling whose duties are incidental to the ownership, maintenance, or use of the dwelling, including the care and supervision of children, or whose duties are personal and not in the course of the trade, business, profession, or occupation of the owner or occupant. (e) An employee suffering injury as a result of a knowing and intentional failure by an employer to comply with subdivision (a) is entitled to recover the greater of all actual damages or fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred dollars ($100) per employee for each violation in a subsequent pay period, not exceeding an aggregate penalty of four thousand dollars ($4,000), and is entitled to an award of costs and reasonable attorney's fees. (f) A failure by an employer to permit a current or former employee to inspect or copy records within the time set forth in subdivision (c) entitles the current or former employee or the Labor Commissioner to recover a seven-hundred-fifty-dollar ($750) penalty from the employer. (g) An employee may also bring an action for injunctive relief to ensure compliance with this section, and is entitled to an award of costs and reasonable attorney's fees. (h) This section does not apply to the state, to any city, county, city and county, district, or to any other governmental entity, except that if the state or a city, county, city and county, district, or other governmental entity furnishes its employees with a check, draft, or voucher paying the employee's wages, the state or a city, county, city and county, district, or other governmental entity shall use no more than the last four digits of the employee's social security number or shall use an employee identification number other than the social security number on the itemized statement provided with the check, draft, or voucher.  SEC. 2.   Section 19853 of the Revenue and Taxation Code is amended to read: 19853. (a) An employer shall notify all employees to whom the employer pays a gross annual salary of fifty thousand dollars ($50,000) or less that they may be eligible for the EITC within one week before or after, or at the same time, that the employer provides an annual wage summary, including, but not limited to, a Form W-2 or a Form 1099, to any employee. (b) The employer shall provide the notification required by subdivision (a) by handing directly to the employee or mailing to the employee's last known address either of the following: (1) Instructions on how to obtain any notices available from the Internal Revenue Service for this purpose, including, but not limited to, the IRS Notice 797 and Form W-5, or any successor notice or form. (2) Any notice created by the employer, as long as it contains substantially the same language as the notice described in paragraph (1) or in Section 19854. (c) The employer shall not satisfy the notification required by subdivision (a) by posting a notice on an employee bulletin board or sending it through office mail. However, these methods of notification are encouraged to help inform all employees of the EITC. (d) Every employer shall process, in accordance with federal law, Form W-5 for advance payments of the EITC, upon the request of the employee.