Section 2699.3 Of Part 13. The Labor Code Private Attorneys General Act Of 2004 From California Labor Code >> Division 2. >> Part 13.
2699.3
. (a) A civil action by an aggrieved employee pursuant to
subdivision (a) or (f) of Section 2699 alleging a violation of any
provision listed in Section 2699.5 shall commence only after the
following requirements have been met:
(1) The aggrieved employee or representative shall give written
notice by certified mail to the Labor and Workforce Development
Agency and the employer of the specific provisions of this code
alleged to have been violated, including the facts and theories to
support the alleged violation.
(2) (A) The agency shall notify the employer and the aggrieved
employee or representative by certified mail that it does not intend
to investigate the alleged violation within 30 calendar days of the
postmark date of the notice received pursuant to paragraph (1). Upon
receipt of that notice or if no notice is provided within 33 calendar
days of the postmark date of the notice given pursuant to paragraph
(1), the aggrieved employee may commence a civil action pursuant to
Section 2699.
(B) If the agency intends to investigate the alleged violation, it
shall notify the employer and the aggrieved employee or
representative by certified mail of its decision within 33 calendar
days of the postmark date of the notice received pursuant to
paragraph (1). Within 120 calendar days of that decision, the agency
may investigate the alleged violation and issue any appropriate
citation. If the agency determines that no citation will be issued,
it shall notify the employer and aggrieved employee of that decision
within five business days thereof by certified mail. Upon receipt of
that notice or if no citation is issued by the agency within the
158-day period prescribed by subparagraph (A) and this subparagraph
or if the agency fails to provide timely or any notification, the
aggrieved employee may commence a civil action pursuant to Section
2699.
(C) Notwithstanding any other provision of law, a plaintiff may as
a matter of right amend an existing complaint to add a cause of
action arising under this part at any time within 60 days of the time
periods specified in this part.
(b) A civil action by an aggrieved employee pursuant to
subdivision (a) or (f) of Section 2699 alleging a violation of any
provision of Division 5 (commencing with Section 6300) other than
those listed in Section 2699.5 shall commence only after the
following requirements have been met:
(1) The aggrieved employee or representative shall give notice by
certified mail to the Division of Occupational Safety and Health and
the employer, with a copy to the Labor and Workforce Development
Agency, of the specific provisions of Division 5 (commencing with
Section 6300) alleged to have been violated, including the facts and
theories to support the alleged violation.
(2) (A) The division shall inspect or investigate the alleged
violation pursuant to the procedures specified in Division 5
(commencing with Section 6300).
(i) If the division issues a citation, the employee may not
commence an action pursuant to Section 2699. The division shall
notify the aggrieved employee and employer in writing within 14
calendar days of certifying that the employer has corrected the
violation.
(ii) If by the end of the period for inspection or investigation
provided for in Section 6317, the division fails to issue a citation
and the aggrieved employee disputes that decision, the employee may
challenge that decision in the superior court. In such an action, the
superior court shall follow precedents of the Occupational Safety
and Health Appeals Board. If the court finds that the division should
have issued a citation and orders the division to issue a citation,
then the aggrieved employee may not commence a civil action pursuant
to Section 2699.
(iii) A complaint in superior court alleging a violation of
Division 5 (commencing with Section 6300) other than those listed in
Section 2699.5 shall include therewith a copy of the notice of
violation provided to the division and employer pursuant to paragraph
(1).
(iv) The superior court shall not dismiss the action for
nonmaterial differences in facts or theories between those contained
in the notice of violation provided to the division and employer
pursuant to paragraph (1) and the complaint filed with the court.
(B) If the division fails to inspect or investigate the alleged
violation as provided by Section 6309, the provisions of subdivision
(c) shall apply to the determination of the alleged violation.
(3) (A) Nothing in this subdivision shall be construed to alter
the authority of the division to permit long-term abatement periods
or to enter into memoranda of understanding or joint agreements with
employers in the case of long-term abatement issues.
(B) Nothing in this subdivision shall be construed to authorize an
employee to file a notice or to commence a civil action pursuant to
Section 2699 during the period that an employer has voluntarily
entered into consultation with the division to ameliorate a condition
in that particular worksite.
(C) An employer who has been provided notice pursuant to this
section may not then enter into consultation with the division in
order to avoid an action under this section.
(4) The superior court shall review and approve any proposed
settlement of alleged violations of the provisions of Division 5
(commencing with Section 6300) to ensure that the settlement
provisions are at least as effective as the protections or remedies
provided by state and federal law or regulation for the alleged
violation. The provisions of the settlement relating to health and
safety laws shall be submitted to the division at the same time that
they are submitted to the court. This requirement shall be construed
to authorize and permit the division to comment on those settlement
provisions, and the court shall grant the division's commentary the
appropriate weight.
(c) A civil action by an aggrieved employee pursuant to
subdivision (a) or (f) of Section 2699 alleging a violation of any
provision other than those listed in Section 2699.5 or Division 5
(commencing with Section 6300) shall commence only after the
following requirements have been met:
(1) The aggrieved employee or representative shall give written
notice by certified mail to the Labor and Workforce Development
Agency and the employer of the specific provisions of this code
alleged to have been violated, including the facts and theories to
support the alleged violation.
(2) (A) The employer may cure the alleged violation within 33
calendar days of the postmark date of the notice. The employer shall
give written notice by certified mail within that period of time to
the aggrieved employee or representative and the agency if the
alleged violation is cured, including a description of actions taken,
and no civil action pursuant to Section 2699 may commence. If the
alleged violation is not cured within the 33-day period, the employee
may commence a civil action pursuant to Section 2699.
(B) (i) Subject to the limitation in clause (ii), no employer may
avail himself or herself of the notice and cure provisions of this
subdivision more than three times in a 12-month period for the same
violation or violations contained in the notice, regardless of the
location of the worksite.
(ii) No employer may avail himself or herself of the notice and
cure provisions of this subdivision with respect to alleged
violations of paragraph (6) or (8) of subdivision (a) of Section 226
more than once in a 12-month period for the same violation or
violations contained in the notice, regardless of the location of the
worksite.
(3) If the aggrieved employee disputes that the alleged violation
has been cured, the aggrieved employee or representative shall
provide written notice by certified mail, including specified grounds
to support that dispute, to the employer and the agency. Within 17
calendar days of the postmark date of that notice, the agency shall
review the actions taken by the employer to cure the alleged
violation, and provide written notice of its decision by certified
mail to the aggrieved employee and the employer. The agency may grant
the employer three additional business days to cure the alleged
violation. If the agency determines that the alleged violation has
not been cured or if the agency fails to provide timely or any
notification, the employee may proceed with the civil action pursuant
to Section 2699. If the agency determines that the alleged violation
has been cured, but the employee still disagrees, the employee may
appeal that determination to the superior court.
(d) The periods specified in this section are not counted as part
of the time limited for the commencement of the civil action to
recover penalties under this part.