Current through Register 2024 Notice Reg. No. 38, September 20, 2024
(a) When enforcing
client employer liability under Labor Code section
2810.3 where a
labor contractor provides the same worker(s) to perform labor, work, or
services at the premises or worksite of more than one client employer in a
workweek or workday, the shared statutory liability for wages, damages, and
penalties for each client employer must be allocated among the client
employers. Allocation may be based upon any of the following methods, at the
discretion of the Labor Commissioner in an administrative proceeding or the
court in a civil action, as appropriate under the circumstances of the case:
(1) Hours Worked Per Workweek by the Worker
for Each Client Employer. The amount of time that the worker spent performing
labor, work, or services at the worksite or premises of each client employer,
including compensable travel time to and from the first and last worksite, and
between client employer worksites (if any), during the workweek, shall be
calculated as a percentage of the total number of hours worked by the worker
for the labor contractor during that workweek. The resulting percentage for
each client employer shall be its share of liability as applied to the full
amount of all wages, damages, and penalties owed by the labor contractor for
that workweek.
(2) Hours Worked Per
Workday by the Worker for Each Client Employer. The amount of time that the
worker spent performing labor, work, or services at the worksite or premises of
each client employer, including compensable travel time to and from the first
and last worksite, and between client employer worksites (if any), during the
workday, shall be calculated as a percentage of the total number of hours
worked by the worker for the labor contractor during that workday. The
resulting percentage for each client employer shall be its share of liability
as applied to the full amount of all wages, damages, and penalties owed by the
labor contractor for that workday.
(3) Worker Testimony to Determine Allocation
in the Absence of Accurate Records. If any necessary records required in
section 13831 are not produced, incomplete,
inaccurate, or insufficient, the Labor Commissioner or a court may rely on any
other available evidence, including reliable evidence from client employers.
Just and reasonable inferences about the allocation may be made based on worker
testimony, including any estimates, as to travel time and time spent performing
labor, work, or services at the worksite or premises of each client
employer.
(4) Equal Apportionment
Where Evidence is Insufficient. If records described in section
13831, any other available
evidence, and worker testimony are deemed insufficient to determine allocation
of liability based on subdivision (1) or (2), the full amount of liability for
wages, damages and penalties will be apportioned equally amongst all known
client employers.
1. New
section filed 4-16-2020; operative 7-1-2020 (Register 2020, No.
16).
Note: Authority cited: Section 2810.3, Labor Code.
Reference: Section 2810.3, Labor
Code.
