California Assembly Bill AB1138 Latest Draft

 BILL NUMBER: AB 1138AMENDED BILL TEXT AMENDED IN ASSEMBLY APRIL 16, 2013 AMENDED IN ASSEMBLY MARCH 21, 2013 INTRODUCED BY Assembly Member Chau FEBRUARY 22, 2013 An act to  amend Sections 3550, 3551, and 3602 of, and to add Sections 3554, 3555, and 3556 to, the Labor Code,   add Section 1871.12 to the Insurance Code,  relating to workers' compensation. LEGISLATIVE COUNSEL'S DIGEST AB 1138, as amended, Chau. Workers' compensation:  notice: records: liability.   records.  (1) Existing law establishes a workers' compensation system, administered by the Administrative Director of the Division of Workers' Compensation, to compensate an employee for injuries sustained in the course of his or her employment. Existing law establishes the Department of Industrial Relations. Existing law  provides for specified procedures to be used in notifying employees regarding workers' compensation benefits and required actions in pursuing a workers' compensation claim.   seeks to prevent workers' compensation fraud through various procedures.   This bill would require employers to post a notice of covered employees showing the full names of employees covered by the employer' s workers' compensation carrier, and updated quarterly, as specified. The employer would also be required to keep separate lists of covered employees, that would include specified identifying information for each covered employee, and make those lists available in written and electronic form, as specified, upon request, to specified governmental entities and the workers' compensation insurer. The bill would require the employer to retain a copy of each notice and each list for 5 years. Except as provided, failure by an employer to retain or provide copies to specified government agencies of these notices or lists and the absence of the name of any employee from the notices or lists would conclusively establish that the employer did not obtain workers' compensation insurance as required by law. The bill would provide that these lists are not public records subject to California Public Record Act.   (2) Existing law requires every employer required to obtain workers' compensation coverage, except as provided, to give every new employee, either at the time the employee is hired or by the end of the first pay period, a written notice of specified workers' compensation information.   This bill would require every notice required to be given to the employee to contain his or her name and last four digits of the employee's social security number. Every employer would be required to retain a copy for 5 years thereafter, and make it available to specified governmental entities and the insurer upon request. These notices would not be public records subject to California Public Record Act.   This bill would provide that any employer that violates these new notice provisions would be subject to citation and civil penalty by the Labor Commissioner, as provided.   (3) Existing law, except as provided, requires workers' compensation benefits to be the exclusive remedy for workers injured on the job.   This bill would add an exception to the exclusive remedy provision when the compensable injury or illness was suffered during a period that the employee was not listed on the notice of covered employees or the list of covered employees or the employee was not provided with the required written notice of specified workers' compensation information.   This bill would require the employer, commencing January 1, 2014, and January 1, 2015, to submit to its workers' compensation insurer specified reports that it is required to submit to the Employment Development Department, and the insurer would be required to include the names of all covered employees in the workers' compensation insurance policy. The employer would also be required to make a list of all employees covered by its workers' compensation policy, which would include specified identifying information for each covered employee, to be available in written and electronic form, as specified, upon request, to specified governmental entities and the workers' compensation insurer. The bill would provide that these lists are not public records subject to the California Public Records Act.   (4)   (2)  Existing constitutional provisions require that a statute that limits the right of access to the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest. This bill would make legislative findings to that effect. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:  SECTION 1.   Section 1871.12 is added to the Insurance Code, immediately following Section 1871.9, to read: 1871.12. (a) (1) Commencing January 1, 2014, employers applying for or renewing a policy of workers' compensation insurance shall submit to the insurer the same wage data that is contained in annual, quarterly, and reconciliation reports that are submitted to the Employment Development Department pursuant to Section 1088 of the Unemployment Insurance Code. (2) The department shall adopt regulations to implement this subdivision. (b) (1) Commencing January 1, 2015, insured employers shall submit to their workers' compensation insurer the data contained in reports of new employees and reports of independent contractors that are submitted to the Employment Development Department pursuant to Sections 1088.5 and 1088.8 of the Unemployment Insurance Code. (2) Insurers shall list the names of all covered employees in any policy of workers'compensation insurance issued to an employer. (3) The department shall adopt regulations to implement this subdivision. (c) A list of all employees covered by the workers' compensation policy, including name, address, last four numbers of the employee's social security number, and the employee identification number shall be made available to the Director of Industrial Relations, the Division of Labor Standards Enforcement, the Department of Insurance, the Employment Development Department, or the insurer, upon request. The list of covered employees shall be made available in written form, and also in electronic form by employers that utilize a computerized payroll system. These lists are not public records subject to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code). (d) A list of covered employees, with the full name only, shall be made available to any employee upon request.   SECTION 1.   Section 3550 of the Labor Code is amended to read: 3550. (a) (1) Every employer subject to the compensation provisions of this division shall post and keep posted in a conspicuous location frequented by employees, and where the notice may be easily read by employees during the hours of the workday, a notice that states the name of the current compensation insurance carrier of the employer, or the fact that the employer is self-insured, if applicable, and who is responsible for claims adjustment. (2) (A) Every employer that secures payment of compensation from an insurer duly authorized to write compensation insurance in this state shall post a notice of covered employees that lists only the full name of each person that is covered by the policy with the compensation insurance carrier identified in paragraph (1), immediately adjacent to the notice required in paragraph (1). This notice of covered employees shall be updated quarterly, or if there are no changes, upon each addition or removal of a covered employee. (B) A list of covered employees, including name, address, last four numbers of the employee's social security number, and the employee identification number shall be made available to the Director of Industrial Relations, the Division of Labor Standards Enforcement, the Department of Insurance, the Employment Development Department, and the insurer, upon request. The list of covered employees shall be made available in written form, and also in electronic form by employers that utilize a computerized payroll system. These lists are not public records subject to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code). (C) Every employer shall retain copies of all notices of covered employees required by subparagraph (A) and copies of all lists of covered employees required by subparagraph (B) for a period of not less than five years. (3) (A) Except where an employer establishes workers' compensation coverage for an employee that is provided by another employer pursuant to subdivision (d) of Section 3602, absence of the name of any employee on any notice of covered employees or any list of covered employees required by paragraph (2) conclusively establishes that the employer did not secure payment of compensation from an insurance carrier, as required by Section 3700, for the purposes of any proceeding pursuant to Sections 3710.1, 3710.2, and 3722. (B) Failure by an employer to retain each notice of covered employees or each list of covered employees or provide copies to the Director of Industrial Relations or the Division of Labor Standards Enforcement in compliance with paragraph (2) conclusively establishes that the employer failed to secure payment of compensation from an insurance carrier, as required by Section 3700, for the purposes of any proceeding pursuant to Sections 3710.1, 3710.2, and 3722, unless the employer establishes that there was coverage pursuant to subdivision (d) of Section 3602. (b) Failure to keep any notice required by paragraph (1) of subdivision (a) conspicuously posted shall constitute a misdemeanor, and shall be prima facie evidence of noninsurance. (c) This section shall not apply with respect to the employment of employees as defined in subdivision (d) of Section 3351. (d) The form and content of the notice required by paragraph (1) of subdivision (a) shall be prescribed by the administrative director, after consultation with the Commission on Health and Safety and Workers' Compensation, and shall advise employees that all injuries should be reported to their employer. The notice shall be easily understandable. It shall be posted in both English and Spanish where there are Spanish-speaking employees. The notice shall include the following information: (1) How to get emergency medical treatment, if needed. (2) The kinds of events, injuries, and illnesses covered by workers' compensation. (3) The injured employee's right to receive medical care. (4) The rights of the employee to select and change the treating physician pursuant to the provisions of Section 4600. (5) The rights of the employee to receive temporary disability indemnity, permanent disability indemnity, supplemental job displacement, and death benefits, as appropriate. (6) To whom injuries should be reported. (7) The existence of time limits for the employer to be notified of an occupational injury. (8) The protections against discrimination provided pursuant to Section 132a. (9) The Internet Web site address and contact information that employees may use to obtain further information about the workers' compensation claims process and an injured employee's rights and obligations, including the location and telephone number of the nearest information and assistance officer. (e) Failure of an employer to provide the notice required by paragraph (1) of subdivision (a) shall automatically permit the employee to be treated by his or her personal physician with respect to an injury occurring during that failure. (f) The form and content of the notice required to be posted by paragraph (1) of subdivision (a) shall be made available to self-insured employers and insurers by the administrative director. Insurers shall provide this notice to each of their policyholders, with advice concerning the requirements of this section and the penalties for a failure to post this notice.   SEC. 2.   Section 3551 of the Labor Code is amended to read: 3551. (a) Every employer subject to the compensation provisions of this code, except employers of employees defined in subdivision (d) of Section 3351, shall give every new employee, either at the time the employee is hired or by the end of the first pay period, written notice of the information contained in subdivision (d) of Section 3550. The content of the notice required by this section shall be prescribed by the administrative director after consultation with the Commission on Health and Safety and Workers' Compensation. (b) The notice required by this section shall be easily understandable and available in both English and Spanish. In addition to the information contained in subdivision (d) of Section 3550, the content of the notice required by this section shall include: (1) Generally, how to obtain appropriate medical care for a job injury. (2) The role and function of the primary treating physician. (3) A form that the employee may use as an optional method for notifying the employer of the name of the employee's "personal physician," as defined by Section 4600, or "personal chiropractor," as defined by Section 4601. (c) The content of the notice required by this section shall be made available to employers and insurers by the administrative director. Insurers shall provide this notice to each of their policyholders, with advice concerning the requirements of this section and the penalties for a failure to provide this notice to all employees. (d) Notices required by this section shall be made available to the Director of Industrial Relations, the Division of Labor Standards Enforcement, the Department of Insurance, the Employment Development Department, and the insurer upon request. These documents are not public records subject to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code).   SEC. 3.   Section 3554 is added to the Labor Code, to read: 3554. (a) Any employer who violates subparagraph (A) of paragraph (2) of subdivision (a) of Section 3550 shall be subject to citation, pursuant to Section 3555, and a civil penalty in the amount of one hundred dollars ($100) per employee for the first violation, and five hundred dollars ($500) per employee for each violation in a subsequent citation. (b) Any employer that fails to turn over records pursuant to subparagraph (B) of paragraph (2) of subdivision (a) of Section 3550 shall be subject to citation, pursuant to Section 3555, and a civil penalty in the amount of two hundred fifty dollars ($250) per employee for the first violation, and one thousand dollars ($1,000) per employee for each violation in a subsequent citation.   SEC. 4.   Section 3555 is added to the Labor Code, to read: 3555. If, upon inspection or investigation, the Labor Commissioner determines that an employer is in violation of Section 3550, the Labor Commissioner may issue a citation to that person. The citation may be served personally or by registered mail in accordance with subdivision (c) of Section 11505 of the Government Code. Each citation shall be in writing and shall describe the nature of the violation, including reference to the statutory provision alleged to have been violated.   SEC. 5.   Section 3556 is added to the Labor Code, to read: 3556. The procedures for contesting and enforcing judgments for citations or civil penalties issued by the Labor Commissioner for a violation of this chapter shall be the same as those set out in Section 226.5.   SEC. 6.   Section 3602 of the Labor Code is amended to read: 3602. (a) Where the conditions of compensation set forth in Section 3600 concur, the right to recover compensation is, except as specifically provided in this section and Sections 3706 and 4558, the sole and exclusive remedy of the employee or his or her dependents against the employer. The fact that either the employee or the employer also occupied another or dual capacity prior to, or at the time of, the employee's industrial injury shall not permit the employee or his or her dependents to bring an action at law for damages against the employer. (b) An employee, or his or her dependents in the event of his or her death, may bring an action at law for damages against the employer, as if this division did not apply, in the following instances: (1) Where the employee's injury or death is proximately caused by a willful physical assault by the employer. (2) Where the employee's injury is aggravated by the employer's fraudulent concealment of the existence of the injury and its connection with the employment, in which case the employer's liability shall be limited to those damages proximately caused by the aggravation. The burden of proof respecting apportionment of damages between the injury and any subsequent aggravation thereof is upon the employer. (3) Where the employee's injury or death is proximately caused by a defective product manufactured by the employer and sold, leased, or otherwise transferred for valuable consideration to an independent third person, and that product is thereafter provided for the employee's use by a third person. (c) In all cases where the conditions of compensation set forth in Section 3600 do not concur, the liability of the employer shall be the same as if this division had not been enacted. (d) (1) For the purposes of this division, including Sections 3700 and 3706, an employer may secure the payment of compensation on employees provided to it by agreement by another employer by entering into a valid and enforceable agreement with that other employer under which the other employer agrees to obtain, and has, in fact, obtained workers' compensation coverage for those employees. In those cases, both employers shall be considered to have secured the payment of compensation within the meaning of this section and Sections 3700 and 3706 if there is a valid and enforceable agreement between the employers to obtain that coverage, and that coverage, as specified in subdivision (a) or (b) of Section 3700, has been in fact obtained, and the coverage remains in effect for the duration of the employment providing legally sufficient coverage to the employee or employees who form the subject matter of the coverage. That agreement shall not be made for the purpose of avoiding an employer's appropriate experience rating as defined in subdivision (c) of Section 11730 of the Insurance Code. (2) Employers who have complied with this subdivision shall not be subject to civil, criminal, or other penalties for failure to provide workers' compensation coverage or tort liability in the event of employee injury, but may, in the absence of compliance, be subject to all three. (e) Notwithstanding the provisions of subdivisions (a) to (c), inclusive, the exclusive remedy provision shall not apply for compensable injuries and illnesses suffered during a period that an employee is not included in a notice of covered employees or list of covered employees as required pursuant to Section 3550. (f) As provided in paragraph (12) of subdivision (f) of Section 1202.4 of the Penal Code, in cases where an employer is convicted of a crime against an employee, a payment to the employee or the employee's dependent that is paid by the employer's workers' compensation insurance carrier shall not be used to offset the amount of the restitution order unless the court finds that the defendant substantially met the obligation to pay premiums for that insurance coverage.   SEC. 7.   SEC. 2.  The Legislature finds and declares that  Sections 1 and 2   Section 1  of this act impose a limitation on the public's right of access to the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest: In order to protect the inalienable right to privacy pursuant to Section 1 of Article I of the California Constitution, it is necessary to enact legislation that the documents containing employee personal information provided pursuant to this act are maintained confidential.