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(a) Employers shall retain all records and documents related to an Applicant's Employment, transfer, or promotion applications and the written assessment and reassessment performed pursuant to this article for one (1) year following the receipt of an Applicant's Employment application.
(b) Notwithstanding any law, Employers shall, upon request, provide or provide access to the records and documents to OLSE in any administrative enforcement proceeding under this article or to the Applicant.
(Added by Ord. No. 10914 (N.S.), effective 10-10-24)
OLSE shall issue rules and regulations, in conformity with the provisions of this chapter, regarding when an Employer action constitutes a violation for purposes of imposing civil penalties set forth in this chapter.
(Added by Ord. No. 10914 (N.S.), effective 10-10-24)
Violations of this chapter may be reported to OLSE.
(a) OLSE is authorized to take appropriate steps to enforce this chapter, including conducting investigations of possible violations of this chapter by an Employer.
(b) Complaint. An Applicant or Employee alleging that an Employer has violated any of the provisions of this chapter may, within one (1) year of the alleged violation, file a complaint with OLSE of the alleged violation, and OLSE shall investigate the complaint. The complaint should state sufficient facts supporting the alleged violation, including, but not limited to, a description of events, relevant dates, locations or addresses, and identification of involved persons or entities. OLSE shall provide the Employer notice of the alleged violation and the opportunity to respond to the notice.
(c) Investigation and Access to Records. Upon receipt of a complaint under section 21.2703 or if OLSE has reason to believe that an Employer may be in violation of any provision of this chapter, OLSE will conduct an investigation into the alleged violation. OLSE shall have access to all workplaces subject to this chapter during business hours to inspect books and records, to interview persons, including employees, and to investigate such matters necessary or appropriate to determine whether an Employer has violated any provisions of section 21.2703.
(d) Subpoenas. The Director of OLSE shall have the authority to issue subpoenas for documents and to conduct examinations of persons as witnesses under Government Code section 53060.4 for the purpose of enforcing this chapter. Each subpoena shall be prepared in consultation with County Counsel and the County Administrative Office.
(e) Notices to Correct. If, during the course of an investigation, OLSE has determined a violation of this Chapter likely has occurred, OLSE may issue and serve a correction order on the Employer immediately. The correction order shall identify the violation to be corrected and a reasonable amount of time to correct the violation.
(f) Findings and Determination. Upon completion of an investigation, if OLSE determines a violation of section 21.2703 has occurred, OLSE shall issue a written notice to the Employee and Employer of the violation and, if appropriate, require the Employer to immediately cure the violation, and impose an administrative penalty as set forth in this section and/or order any appropriate relief.
(g) Penalties and Other Relief for Violation of this chapter. If OLSE determines that a violation of section 21.2703 has occurred, it, within its discretion, may issue a determination and order any appropriate relief.
(1) Beginning on July 1, 2025, OLSE may issue administrative penalties for violation of this chapter, with no less than half of the penalties collected by OLSE awarded to the aggrieved Applicant or Employee, as follows: For a first violation, a penalty of up to five thousand dollars ($5,000) for each aggrieved Applicant or Employee; for a second violation, a penalty of up to ten thousand ($10,000) for each aggrieved Applicant or Employee, and a penalty of up to twenty thousand ($20,000) for the third and subsequent violations for each aggrieved Applicant or Employee.
(A) For purposes of determining the penalty or administrative fine to be imposed under this Ordinance, if multiple Applicants or Employees are impacted by the same violation at the same time, the violation shall be treated as one violation for each impacted Employee or Applicant; and
(B) OLSE shall assess the amount of civil penalties issued against an Employer based on the following factors: the severity of the violation; the existence of prior or contemporaneous violations of section 21.2703; the Employer's size, including both the total number of Employees and business revenue; and whether or not the Employer knew or should have known about this chapter.
(2) County Licenses. OLSE may recommend any license issued by the County or any departments thereof, or the application for, or renewal or transfer of, a license of an Employer determined to be in violation of section 21.2703 be suspended, revoked, or denied. In evaluating whether a license should be recommended for suspension, revocation, or denial, OLSE may take into consideration appropriate factors including, but not limited to, the seriousness of the violation, whether the Employer has timely cured the violation upon appropriate notice, whether the Employer has engaged in prior or contemporary violations of the Ordinance or similar statutes, and/or whether any amounts due to Applicants or Employees or the County as a result of the violation were timely paid. The decision to suspend, revoke, or deny a license based on a recommendation from OLSE shall be made by the department issuing the license and done in accordance with applicable law.
(3) Collections of Amounts Due. The failure of any Employer to pay amounts owed to the County under section 21.2703 when due shall constitute a debt to the County. The County may file a civil action or, to the extent permissible under state law, create and impose a lien against any property owned or operated by an Employer for violation of this chapter, or pursue any other legal remedy to collect amounts owed to the County.
(4) Successor Liability. If any Employer ceases its business operations, sells out, exchanges, or otherwise disposes of the Employer's business or stock of goods, then any person who becomes a successor to the business shall become liable for the unpaid amounts owed to the County for violation of section 21.2703 if, at the time of the conveyance of the business, the successor has actual knowledge or should have known of the fact and amounts owed to the County for violation of section 21.2703.
(5) Interest. In any administrative action brought for the amounts owed under this section, OLSE or the court shall award interest on all due and unpaid wages, backpay and penalties at the rate of interest specified in subdivision (b) of Section 3289 of the California Civil Code, which shall accrue from the date the amounts were due and payable.
(h) County Contractors and Subcontractors. Compliance with this Ordinance shall be required in all contracts where services will be provided to County. Each contract shall include a term stating that a violation of this Ordinance shall constitute a material breach.
(1) In addition to the administrative procedures and enforcement measures provided in this section, if appropriate, OLSE may notify the awarding authority.
(i) Settlement Authority. OLSE is authorized to negotiate and approve settlements with Employers where OLSE determines settlement is in the best interest of the County and affected Applicants and Employees.
(1) Settlement agreements must be in writing and signed by the Director of OLSE or an authorized designee and the Employer. Settlements authorized under this subsection may provide Employers with a repayment plan to be paid overtime. As part of the settlement, OLSE may waive any penalties or fines owed to the County imposed under this section, in whole or in part, if the violation was not willful or OLSE determines that enforcement of the additional fines would not further the purposes of this Chapter.
(j) Appeals and Effect of Non-appeal of OLSE decision.
(1) OLSE shall provide both the Employer and the Applicant or Employee the opportunity to appeal its determination to a hearing officer. The hearing officer's decision shall constitute the County's final decision, and any review of that decision shall be made by the filing of: 1) an appeal regarding the imposition of any penalties under this Chapter pursuant to section 53069.4 of the Government Code; and/or 2) a petition for writ of mandate under section 1094.5 of the Code of Civil Procedure, in the Superior Court of the County of San Diego.
(2) The failure to appeal OLSE's determination of a violation shall serve as a complete defense for failure to exhaust administrative remedies with regard to any petition, action or claim brought by the Employer against the County regarding the OLSE's determination of a violation.
(k) Confidentiality. OLSE shall encourage reporting and cooperation with investigations by keeping confidential, to the maximum extent permitted by applicable laws, the name, address, and other identifying information of each Applicant or Employee, person reporting a violation, or person aiding an investigation by providing information to OLSE investigators. Provided, however, with the authorization of such person, OLSE may disclose their name and identifying information as necessary to enforce section 21.2703 or for other appropriate purposes. OLSE shall also protect proprietary business information to the greatest extent allowed by law.
(l) Other Remedies Not Affected. The remedies, fines, penalties, and procedures provided under this section are cumulative and are not intended to be exclusive of any other available remedies, fines, penalties, and procedures. By filing a complaint with OLSE, an Applicant or Employee is not precluded from being able to recover remedies available to them under any other code, regulation, or law. The procedures established in this section shall be in addition to any other criminal, civil, or other remedy established by law which may be pursued to address violations of section 21.2703. An administrative citation issued pursuant to this section shall not prejudice or adversely affect any other action, civil or criminal, that may be brought to prosecute a violation or to seek compensation for damages suffered.
(Added by Ord. No. 10914 (N.S.), effective 10-10-24)
If any provision of Sections 21.2701 through 21.2708 or the application thereof is judged invalid, the invalidity shall not affect other provisions or applications of the sections that can be given effect without the invalid provision or application, and to this end any provision judged invalid is declared severable.
(Added by Ord. No. 10914 (N.S.), effective 10-10-24)