Section 238.3 Of Article 1. General Occupations From California Labor Code >> Division 2. >> Part 1. >> Chapter 1. >> Article 1.
238.3
. (a) The Labor Commissioner may create a lien on any personal
property in California of an employer that conducts business in
violation of Section 238 for the full amount of any wages, interest,
and penalties claimed to be owed to any employee. To the extent
attorney's fees are specifically allowed to be recovered by this
code, such as by, but not limited to, subdivision (f) of Section
2673.1 and Section 2802, during a hearing pursuant to Section 98, the
Labor Commissioner may include that amount in the lien.
(b) The Labor Commissioner may create the lien provided in this
section by filing a notice of lien with the Secretary of State on the
standard form of initial financing statement pursuant to Section
9521 of the Commercial Code. The standard form shall be completed in
the following manner:
(1) The Labor Commissioner shall be identified as the secured
party.
(2) The employer shall be identified as the debtor.
(3) The description of the collateral shall include the following
statements:
(A) A statement of the Labor Commissioner's demand for payment of
the wages, penalties, interest, and attorney's fees, if applicable.
The statement shall specify the amount owed to the employee, and if
the amount is estimated, shall provide an explanation for the basis
of the estimate.
(B) A general statement of the kind of work furnished by the
employee and the dates of employment.
(c) For the purpose of the Secretary of State's index pursuant to
Sections 9515, 9516, and 9522 of the Commercial Code and for the
purpose of the issuance of a certificate pursuant to Section 9519 or
9528 of the Commercial Code, the Secretary of State shall treat a
notice of lien pursuant to this section as a financing statement.
(d) The lien attaches to all personal property that is owned by
the employer at the time of the filing of the notice of lien, or that
is subsequently acquired by the employer, that can be made subject
to a security interest under the Commercial Code.
(e) The Labor Commissioner shall file a termination statement,
releasing the lien created under this section, upon final
satisfaction of any judgment entered in favor of the employee, upon
adjudication of the claim in favor of the employer, upon the filing
of a surety bond in a form acceptable to the Labor Commissioner
sufficient to secure the claim.
(f) The notice of claim of lien to which the termination statement
relates ceases to be effective upon the filing of a termination
statement with the office of the Secretary of State. A termination
statement for a notice of lien may be filed in the same manner as a
termination statement for a financing statement filed pursuant to
Section 9513 of the Commercial Code.
(g) Unless the lien is satisfied or released, a lien under this
section shall continue until 10 years from the date of its creation.
(h) Prior to using this lien procedure in this section, the Labor
Commissioner shall provide at least 20 days' preliminary notice to
the employer. The preliminary notice shall advise the employer of the
nature and amount of the employee's claim and of the Labor
Commissioner's authority to create a lien on the employer's personal
property to secure payment of the claim.
(i) The Labor Commissioner shall serve the preliminary notice on
the employer by certified mail with return receipt requested,
evidenced by a certificate of mailing, postage prepaid, addressed to
the employer at the employer's residence or place of business. The
Labor Commissioner shall serve a copy of any notice of lien on the
employer in the same manner.
(j) Upon entry of a final order, decision, or award issued in an
appeal pursuant to Section 98.2 against the employer for unpaid
wages, or entry of a final judgment against the employer for unpaid
wages in an action filed in the superior court, the Labor
Commissioner may bring an action to foreclose on any lien created
pursuant to this section.
(k) A lien created pursuant to this section in addition to any
other lien rights available to an employee or to the Labor
Commissioner shall not be construed to limit those rights.