Employment and
Employer Related Laws:
AB 22 was passed, which will become revised Civil Code
§ 178.20.5. This law, effective January 1, 2012, prohibits
an employer or prospective employer from using a consumer credit report for
employment purposes. Existing federal
and state law specifies the procedures an employer is required to follow before
requesting a report, and if adverse action is taken based upon the report. Under existing state law, an employer may
request a credit report for employment purposes so long as he or she provides
prior written notice of the request to the person for whom the report is
sought. Also, the written notice must
inform the person that a report will be used, the source of the report, and
contain space for the employee/applicant to request a copy of the report. If an employer bases adverse employment
decisions upon information contained in a consumer credit report, under
existing law, the employer is required to so advise the employee/applicant, and
provide him/her with the name and address of the consumer credit agency making
the report.
AB 22, however, prohibits the employer or prospective
employer, with the exception of certain financial institutions, from obtaining
a consumer credit report for employment purposes unless the position of the employee/applicant is (1) a position in
the state Department of Justice, (2) a managerial position, as defined in the statute,
(3) that of a sworn peace officer or other law enforcement position, (4) a
position for which the information contained in the report is required by law
to be disclosed or obtained, (5) a position that involves regular access to
specified personal information for any purpose other than the routine
solicitation and processing of credit card applications in a retail establishment,
(6) a position in which the person is or would be named signatory on the
employer’s bank or credit card account, or authorized to transfer money or
enter into financial contracts on the employer’s behalf, (7) a position that
involves access to confidential or proprietary information, as specified in the
statute, or (8) a position that involves regular access to $10,000 or more of
cash, as specified. If one of these
eight exceptions applies, the employer must inform the employee/applicant which
of the specific reasons applies for obtaining the report, and then comply with
existing law as it relates to the process for securing the report, and
reporting if an adverse employment decision is made. This may be a case where the exceptions
swallow the rule, but strict employer compliance is crucial.
Next on the employment front, AB 240 was passed, amending Labor
Code § 98, authorizing the Labor Commissioner (“LC”) to recover liquidated
damages for an employee who brings a complaint alleging payment of less than
the minimum wage. Existing law
authorizes the LC to investigate employee complaints and to provide for a
hearing to recover wages, penalties and other compensation demands properly
before the LC or the Division of Labor Standards Enforcement. Existing law allows an employee to recover
liquidated damages in a court action alleging payment of less than the state
minimum wage; this statute essentially now allows a similar recovery when being
heard pursuant to a complaint before the Labor Commissioner. The amount of liquidated damages presently authorized
by statute is twice the wages unlawfully unpaid, and interest thereon.
Mechanic’s Liens:
AB 456 clarifies an issue relative to the service of a
recorded mechanic’s lien upon the owner or purported owner of a property. Existing law requires a claim of mechanic’s
lien to be served on the “owner or reputed owner” of the property in order to
be valid. Accompanying the lien is a
proof of service affidavit which is required to state the name of the person
upon whom the mechanic’s lien was served (but not the capacity in which that
person was served). This bill, amending Civil
Code §§ 3084 and 8416, clarifies that the affidavit must state not only the
name of the owner or reputed owner of the property, but also the title or
capacity in which that person or entity was served, effective January 1, 2012. As you know from attending my annual
mechanic’s lien seminars, strict compliance with the mechanic’s lien statutes
is critical, as an error, no matter how seemingly minor, will likely invalidate
your mechanic’s lien.
AB 424 gives design professionals providing services for
private works of improvement the ability to convert a design professional’s
lien into a mechanic’s lien. Under current
law, a design professional may validly lien the project site, even if the planned
work of improvement fails to commence, for the amount of the design
professional’s fee provided under the contract, or the reasonable value of
those services, whichever is less. Subject
to specified conditions, a design professional may record a mechanic’s lien for
providing work authorized for a work of improvement. AB 424, amends Civil Code § 8319, to
allow a design professional to convert a recorded design professional lien to a
mechanic’s lien if (1) the design professional lien has expired, (2) the design
professional lien remains fully or partially unpaid, (3) the design professional
records a mechanic’s lien within 30 days of the expiration of the design
professional lien, and (4) the mechanic’s lien states that it is a converted
design professional lien. The design
professional is required to comply with all laws regarding recordation of a
mechanic’s lien, except any preliminary notice requirements. The converted design professional lien is
entitled to the same priority as a mechanic’s lien, set forth in Civil Code
§ 8450.
Questions? Concerns about
how this may impact your business?
Comment, or send me an email, and let’s discuss.
Please also consider visiting the Santa Maria Valley Contractor’s
Association website at www.smvca.org, and
sign up for my Mechanic’s Liens and contractor’s statutory rights and remedies
seminar, scheduled for December 16, 2011 in Santa Maria, California! Don’t get caught without the best information
and construction forms for doing your business in 2012!
Nothing in this blog is intended to create an
attorney-client relationship. This article
is intended to provide a general overview of the current status of the law for
informational purposes only, and is not intended to constitute, or serve as a
substitute for, a professional legal consultation. Laws change every day; please consult an
attorney regarding the current status of the law, and how the law affects your
specific circumstances. Thank you.
