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(b) The Labor Commissioner may perform a payroll audit based on the relevant documentation and information received during the course of the investigation. If the Labor Commissioner decides to proceed against any wage guarantors, he or she shall issue findings and an assessment of the amount of wages due, which shall include a determination of each wage guarantor's proportionate share of liability. The Labor Commissioner shall schedule a meet-and-confer conference with the guarantors, contractors, and affected employees to attempt to resolve the matter, and shall provide written notice to each contractor, wage guarantor and affected employee, to the extent that the identities and whereabouts of such persons are known, of the assessment and the date, time, location and purpose of the meet-and-confer conference.
(c) During the meet-and-confer conference, the Labor Commissioner's investigator
shall present his or her findings and assessment of wages owed and each guarantor's
proportionate share, and shall make a demand for payment of the amount of the
assessment. In the event that the amounts found due are not paid within 10 days
of the conclusion of the meet-and-confer conference, the Labor Commissioner shall
set the matter for an investigative hearing. The contractor, wage guarantors and
affected employees, to the extent that the identities and whereabouts of such
persons are known, shall be provided with written notice of the date, time, location,
and purpose of the investigative hearing.
(d) The hearing conducted under this section shall be investigative in nature, and the purpose of the hearing is to assist the Labor Commissioner in deciding whether to initiate a civil action pursuant to Labor Code Section 2673.1(j). The provisions of Government Code Sections 11400, et seq. are not applicable to this hearing. The Labor Commissioner may subpoena the attendance of witnesses and the production of records to the hearing as provided by Labor Code Section 92. The hearing officer shall inquire fully into all matters at issue. The hearing may be electronically recorded, and testimony shall be given under oath or affirmation. In the hearing officer's discretion, the parties may be permitted to call, examine, and cross-examine witnesses, and to introduce documentary evidence. The hearing shall be informal, and shall not be conducted in accordance with technical and formal rules of evidence. Evidence shall be admitted if it is the sort of evidence upon which responsible persons are accustomed to rely upon in the conduct of serious affairs. The investigator's findings and assessment shall be admitted into evidence, provided the investigator is available to testify thereto. Within thirty days after the close of the hearing, the hearing officer shall issue a written recommended disposition of the case, stating the amounts, if any, that the hearing officer believes are owed by the contractor and wage guarantors. The hearing officer's recommended disposition shall have no res judicata or collateral estoppel effect, and shall be entitled to no weight in any subsequently filed civil action.
(e) If the matter is not resolved to the Labor Commissioner's satisfaction within 10 days of the issuance of the hearing officer's recommended disposition, the Labor Commissioner may thereupon file a civil action to enforce the wage guarantee, and for any other appropriate relief. Any guarantors whose identity or existence was unknown at the time of the investigative hearing may be sued in the civil action without the necessity of further administrative proceedings.
(f) The time limits set forth in Labor Code Section 2673.1(d) shall not apply to any proceedings under this section.
(g) All notices under this section may be served by regular first class mail to the last known address of the affected employees, and to the last address of record for the contractor and wage guarantors, as set forth on the most recent application for registration as required under this subchapter.
Authority cited: Sections 2672 and 2673.1(j), Labor Code. Reference: Sections 92, 98.3, 1193.6, 1194.5 and 2673.1, Labor Code.
1. New section filed 9-9-2002; operative 10-9-2002 (Register 2002, No. 37).
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