unpaid wages

Labor Commissioner to Enforce Local Minimum Wage Laws

I have represented scores of employees and employers before the California Labor Commissioner. Recently, with more and more cities and counties passing local ordinances raising the minimum wage for employees working within specific cities, the Labor Commissioner has sometimes taken the position that it is authorized to enforce local minimum wage laws.  I’ve spent a great deal of time reviewing the minimum wage ordinances passed in Oakland, San Jose, San Francisco and Emeryville, and to my knowledge none of the ordinances grant the Labor Commissioner authority to enforce those laws.  More importantly, the California legislature did not give the Labor Commissioner the power to enforce local minimum wage laws.

Labor Commissioner to Enforce Local Minimum Wage Laws

AB 970, which becomes effective on January 1, 2016, will now allow the Labor Commissioner to enforce local minimum wage laws.  AB 970 amends several Labor Code sections, including Labor Code section 558 (c), which will now state:

In a jurisdiction where a local entity has the legal authority to issue a citation against an employer for a violation of any applicable local overtime law, the Labor Commissioner, pursuant to a request from the local entity, may issue a citation against an employer for a violation of any applicable local overtime law if the local entity has not cited the employer for the same violation. If the Labor Commissioner issues a citation, the local entity shall not cite the employer for the same violation.

Labor Code section 1197 will now read:

The minimum wage for employees fixed by the commission or by any applicable state or local law, is the minimum wage to be paid to employees, and the payment of a lower wage than the minimum so fixed is unlawful. This section does not change the applicability of local minimum wage laws to any entity.

The law does not require the Labor Commissioner to enforce the minimum wage laws, but it gives them the authority to do so if it chooses.  Additionally, the law prohibits local agencies and the Labor Commission from issuing citations against the same employer for the same violations.  Employers don’t have to worry that a city will cite them and then the Labor Commissioner will cite them for the same violation.  Of course, the Labor Commissioner can cite the employer for other violations outside the local government’s authority.

From my experience, the local agencies are not yet prepared to enforce the local minimum wage laws.  With the recent rise of local minimum wage laws, it is unclear how easily an already burdened Labor Commissioner will be able to enforce local minimum wage laws.  These new laws will give employees a new way to enforce local minimum wage laws.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

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